United States v. Young

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
June 16, 2009
No. 08-10742
Conference Calendar Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

KIM RENEE YOUNG

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:08-CR-34-ALL

Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Kim Renee Young pleaded guilty to bank fraud in violation of 18 U.S.C.
§ 1344. She was sentenced to a 64-month term of imprisonment, a five-year
term of supervised release, $568,356.11 in restitution, and a $100 special
assessment. Young challenges the district court’s denial of a reduction in her
base offense level for acceptance of responsibility under U.S.S.G. § 3E1.1. She
contends that she (1) truthfully admitted the conduct comprising the offense;

*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
 No. 08-10742

(2) truthfully admitted or did not falsely deny any additional relevant conduct;
and (3) timely manifested acceptance of responsibility, entering her guilty plea
before trial. She argues that the court should not have withheld the two-level
adjustment for acceptance of responsibility merely because the court rejected her
mitigation argument that her former boss also was involved in the offense.
An appellate court’s review of a sentence must start with the issue
whether the district court committed any “significant procedural error, such as
failing to calculate (or improperly calculating) the Guidelines range.” Gall v.
United States, 128 S. Ct. 586, 597 (2007). We review the district court’s
interpretation and application of the Guidelines de novo and its factual findings
for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir.
2008). A finding that a defendant has not accepted responsibility is examined
“under a standard of review even more deferential than a pure clearly erroneous
standard.” United States v. Cano-Guel, 167 F.3d 900, 906 (5th Cir. 1999)
(internal quotation marks and citation omitted). We will affirm the denial of a
downward adjustment for acceptance of responsibility under § 3E1.1 unless the
denial is without foundation. United States v. Solis, 299 F.3d 420, 458 (5th Cir.
2002).
The testimony at the sentencing hearing and the facts set forth in the
presentence report support the finding that Young’s allegation that her former
boss was involved in the offense was false. A defendant’s attempt to minimize
conduct provides a sufficient foundation for the denial of a reduction for
acceptance of responsibility. United States v. Cabrera, 288 F.3d 163, 175-77 (5th
Cir. 2002). The district court’s denial of the downward adjustment for
acceptance of responsibility was not without foundation. See Solis, 299 F.3d at
458. Young has not shown that the district court clearly erred in denying a
reduction for acceptance of responsibility. See Cano-Guel, 167 F.3d at 906.
AFFIRMED.

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