IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-40383
Conference Calendar
__________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO HERMAN,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-94-CR-218-1
- - - - - - - - - -
(October 19, 1995)
Before POLITZ, Chief Judge, and REAVLEY and SMITH, Circuit Judges.
PER CURIAM:*
Francisco Herman challenges the district court's finding
that he obstructed justice and its refusal to grant a downward
adjustment for acceptance of responsibility.
The adjustment for obstruction of justice may be appropriate
if the defendant threatens, intimidates, or otherwise unlawfully
influences a co-defendant, witness, or juror, directly or
indirectly, or attempts to do so. U.S.S.G. § 3C1.1, comment.
(n.3(a)); see United States v. Graves, 5 F.3d 1546, 1555 (5th
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-40383
-2-
Cir. 1993), cert. denied, 114 S. Ct. 1829 (1994). The evidence
submitted at sentencing amply demonstrated that Herman schemed to
discredit the testimony of his codefendant, Miguel Angel Adame,
in an attempt to exonerate Herman's girlfriend, Kimberly Miles.
Accordingly, the district court did not err in finding that
Herman attempted to obstruct justice. Graves, 5 F.3d at 1555
(district court's finding that a defendant has obstructed justice
under § 3C1.1 is a factual finding reviewed for clear error).
"Conduct resulting in an enhancement under § 3C1.1 . . .
ordinarily indicates that the defendant has not accepted
responsibility for his criminal conduct." U.S.S.G. § 3E1.1 n.4.
This court applies a very deferential standard of review to a
district court's refusal to credit a defendant's acceptance of
responsibility. See United States v. Thomas, 12 F.3d 1350, 1372
& n.39 (5th Cir.) (applying "clearly erroneous" standard and
noting, that there "appear[ed] to be no practical difference"
between that standard and the "without foundation" or "great
deference" standards used in other cases) (internal quotations
and citations omitted), cert. denied, 114 S. Ct. 1861, 2119
(1994).
The evidence demonstrated that Herman not only obstructed
justice by attempting to influence the testimony of others, but
that he also lied about this scheme at sentencing. Accordingly,
the district court did not err in determining that Herman was not
entitled to a reduction for acceptance of responsibility.
The judgment of the district court is AFFIRMED.