United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT July 18, 2005
Charles R. Fulbruge III
Clerk
04-20096
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID JOSE HERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(4:02-CR-342-1)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
David Jose Hernandez appeals his sentence, following his jury-
trial conviction, for importation of heroin into the United States.
See 21 U.S.C. §§ 952(a), 960(a), 960(b)(3). The sentence was
imposed prior to United States v. Booker, 125 S. Ct. 738 (2005)
(finding sentencing guidelines only advisory).
He contends first that the district court erred in denying him
a two-level reduction in his offense level for acceptance of
responsibility. See U.S.S.G. § 3E1.1. There is no merit in
*
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this opinion should not be published and is not precedent except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.
Hernandez’s contention that the pre-Booker denial of the reduction
penalized him for exercising his right to refrain from
incriminating himself on a conspiracy charge pending against him in
New York. Section 3E1.1 provides a method to grant leniency to
contrite defendants; denial of that leniency is not a penalty for
a defendant who has not accepted responsibility for his crime.
Hernandez did not accept responsibility for his crime prior to
trial. The denial of the reduction was not error. See United
States v. Angeles-Mendoza, 407 F.3d 742, 752-53 (5th Cir. 2005)
(district court’s determination under § 3E1.1 is reviewed with even
more deference than is due under clearly erroneous standard).
For the first time on appeal, Hernandez contends the district
court erred in imposing a sentence under a mandatory guideline
scheme, in violation of Booker, 125 S. Ct. at 756-57. Because he
did not raise this issue in district court, this claim is reviewed
only for plain error. See United States v. Valenzuela-Quevedo, 407
F.3d 728, 733-34 (5th Cir. 2005). Hernandez makes no showing, as
required by Valenzuela-Quevedo, that the district court would
likely have sentenced him differently under an advisory sentencing
scheme. Similarly, there is no indication from the district
court’s remarks at sentencing that it would have reached a
different conclusion. Thus, Hernandez has not met his burden of
persuasion to show that the district court’s imposition of a
sentence under a mandatory guideline scheme was reversible plain
2
error. See id.; see also United States v. Olano, 507 U.S. 725,
732-35 (1993).
AFFIRMED
3