United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 25, 2006
Charles R. Fulbruge III
Clerk
No. 05-40018
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERIC LEE STETZEL,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:02-CR-71-1
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Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Eric Lee Stetzel appeals from his guilty-plea conviction and
sentence for money laundering and wire fraud. Stetzel argues that
(1) the Government breached the plea agreement; (2) the district
court clearly erred in denying his request for an acceptance-of-
responsibility reduction; (3) the district court clearly erred in
increasing his offense level by two levels under U.S.S.G. §
2D1.1(b)(1); and (4) he should be resentenced in light of United
States v. Booker, 543 U.S. 220 (2005).
*
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this opinion should not be published and is not precedent except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.
No. 05-40018
-2-
Stetzel argues that the Government breached the plea agreement
by advocating against a reduction for acceptance of responsibility.
Because Stetzel failed to object to the Government’s conduct below
and makes his breach-of-plea-agreement claim for the first time on
appeal, this court’s review is for plain error review. United
States v. Cerverizzo, 74 F.3d 629, 631 (5th Cir. 1996).
In determining whether the terms of the plea bargain have been
violated, this court must determine whether the Government’s
conduct is consistent with the parties’ reasonable understanding of
the agreement. United States v. Gonzalez, 309 F.3d 882, 886 (5th
Cir. 2002)(citation omitted). Here, the plea agreement required
that the Government make a recommendation in favor of a one-level
reduction for acceptance of responsibility under § 3E1.1(b) and
only if Stetzel qualified for the reduction.
The offense level is reduced by two levels “[i]f the defendant
clearly demonstrates acceptance of responsibility for his offense.”
§ 3E1.1(a). A defendant may be eligible for an additional
reduction of one level, but such consideration requires the
defendant’s qualification for the initial two-level reduction. §
3E1.1(b).
Because the district court declined to award Stetzel the
initial two-level reduction under § 3E1.1(a), finding that
Stetzel’s obstructive behavior mitigated against granting the
reduction, the Government was under no obligation to recommend the
additional one-level reduction. Thus, there was no breach.
No. 05-40018
-3-
We also reject Stetzel’s claim that the district court clearly
erred in denying his request for an acceptance-of-responsibility
reduction. The district court’s determination that a defendant is
not entitled to an adjustment for acceptance of responsibility is
entitled to great deference and should not be disturbed unless it
is “without foundation.” United States v. Washington, 340 F.3d
222, 227 (5th Cir. 2003). As found by the district court, Stetzel
failed to demonstrate extraordinary circumstances warranting credit
for acceptance of responsibility in light of his admitted
obstructive behavior, to wit: failing to appear at a rearraignment
hearing. See United States v. Lujan-Sauceda, 187 F.3d 451, 451-52
(5th Cir. 1999); § 3E1.1, comment.(n.4).
Stetzel’s assertion that the district court clearly erred in
increasing his offense level by two levels under § 2D1.1(b)(1) is
similarly without merit. The adjustment under § 2D1.1(b)(1) should
be applied if the weapon was present unless it is clearly
improbable that the weapon was connected with the offense.
§ 2D1.1(b)(1), comment. (n.3); United States v. Mitchell, 31 F.3d
271, 277 (5th Cir. 1994)
The record reflected that numerous firearms were present at
Stetzel’s residence, along with large volumes of packaged and
unpackaged steroids. Also present were packaging material and
computers. Given the proximity of the firearms to the drug
paraphernalia in the house, it was not clearly improbable that the
weapons were connected with the offense. Id.
No. 05-40018
-4-
Stetzel contends that he is entitled to resentencing under
Booker. He maintains that the district court improperly increased
his base offense level pursuant to § 2D1.1(b)(1) and erred in
sentencing him under the mandatory guideline scheme that was
declared unconstitutional in Booker. The district court erred in
enhancing Stetzel’s sentence based on its determination that he
possessed a firearm and by sentencing Stetzel pursuant to mandatory
Sentencing Guidelines. See Booker, 543 U.S. at 233-34, 266-67.
As the Government points out, however, the district court
stated that it would impose the same sentence if the Sentencing
Guidelines were held unconstitutional. The Government has carried
its burden of establishing that the sentencing errors suffered by
Stetzel were harmless beyond a reasonable doubt. See United States
v. Pineiro, 410 F.3d 282, 285 (5th Cir. 2005). The judgment of the
district court is affirmed.
AFFIRMED.