United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS May 6, 2004
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-41396
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES L. EWING,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(1:01-CR-226-1)
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
James L. Ewing appeals his sentence, following his guilty-plea
conviction of possession of marijuana by a federal inmate, a
violation of 18 U.S.C. § 1791(a)(2). Ewing contends the district
court clearly erred by denying a two-level reduction for acceptance
of responsibility under U.S.S.G. § 3E1.1.
Although Ewing timely pleaded guilty and admitted to the
Probation Office his role in the offense, the Probation Office
reported that Ewing subsequently was again involved in possessing
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
marijuana and other unauthorized items while he was an inmate. The
district court upheld the Probation Office’s withdrawal of an
earlier recommendation that Ewing be granted an acceptance-of-
responsibility reduction, because he had not “voluntarily
terminat[ed] or withdraw[n] from criminal conduct”. See U.S.S.G.
§ 3E1.1, comment (n.1(b)).
The district court’s finding that Ewing failed to show that he
had accepted responsibility was not “without foundation”,
see United States v. Brace, 145 F.3d 247, 264 (5th Cir.) (en banc),
cert. denied 525 U.S. 973 (1998), as it was supported by unrebutted
information in Ewing’s Presentence Investigation Report (“PSR”).
See United States v. Cothran, 302 F.3d 279, 286 (5th Cir. 2002)
(under U.S.S.G. § 6A1.3, p.s., PSR information bears “‘sufficient
indicia of reliability’” in making factual determinations under the
Sentencing Guidelines, “‘especially when there is no evidence in
rebuttal’” (citation omitted)).
AFFIRMED
2