IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 24, 2007
No. 06-11374
Conference Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CLINTON WADE DUNSON
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:06-CR-97-ALL
Before JOLLY, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Clinton Wade Dunson appeals his conditional guilty-plea conviction for
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), and his
resulting 120-month sentence. He argues that the search of his vehicle incident
to his arrest was unjustified because officers did not reasonably believe that
evidence relevant to the crime of arrest would be discovered inside. However,
as Dunson concedes, the argument is foreclosed by New York v. Belton,
*
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should not be published and is not precedent except under the limited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. 06-11374
453 U.S. 454, 460 (1981). He raises the issue to preserve it for possible Supreme
Court review.
Dunson next argues that the district court erred in denying him credit for
acceptance of responsibility under U.S.S.G. § 3E1.1. Whether a defendant has
sufficiently demonstrated acceptance of responsibility is a factual question, and
the standard of review is even more deferential than clear error. United States
v. Spires, 79 F.3d 464, 467 (5th Cir. 1996). This court will affirm a sentencing
court’s decision not to award a reduction under § 3E1.1 unless it is “without
foundation.” United States v. Hooten, 933 F.2d 293, 297-98 (5th Cir. 1991)
(internal quotation marks omitted).
The district court did not err in denying credit for acceptance of
responsibility based on Dunson’s failure to provide truthful answers about how
he acquired the gun when confronted with evidence that the gun was stolen. See
§ 3E1.1, comment. (n.1(a)); Hooten, 933 F.2d at 297-98. Dunson’s argument that
he is being punished for exercising his Fifth Amendment right to silence is
unavailing. See United States v. Kleinebreil, 966 F.2d 945, 953 (5th Cir. 1992).
Dunson additionally argues that his sentence is unreasonable as a matter
of law because this court’s use of a presumption of reasonableness for sentences
imposed within the properly calculated guidelines range effectively reinstates
the mandatory guidelines regime struck down in United States v. Booker,
543 U.S. 220 (2005). This court’s rebuttable presumption does not run afoul of
Booker. See Rita v. United States, 127 S. Ct. 2456, 2462 (2007).
AFFIRMED.
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