IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40826
(Summary Calendar)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD LARAY FAGAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
(5-95-CR-8-1)
July 18, 1996
Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Donald Laray Fagan entered a plea of
guilty to carjacking, aiding and abetting, and use of or carrying
a firearm during a crime of violence, in violation of 18 U.S.C.
§§ 2, 924(c)(1), and 2119, for which he was sentenced to 420 months
of imprisonment. On appeal, Fagan complains of purported
sentencing errors regarding (1) a six-level upward adjustment to
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
his offense level based on permanent or life-threatening injury,
pursuant to U.S.S.G. § 2B3.1(b)(3)(C); (2) a four-level upward
adjustment for abduction, pursuant to U.S.S.G. § 2B3.1(b)(4)(A);
(3) an upward departure from the guidelines range based on
(a) extreme conduct, pursuant to § 5K2.8, (b) multiple firearms
pursuant to § 5K2.0, and (c) inadequacy of criminal history
category pursuant to § 4A1.3; and (4) a denial of reduction in
offense level for acceptance of responsibility. For the reasons
set forth in United States v. Hawkins, No. 95-40828, 1996 WL 361330
(5th Cir. Jun. 28, 1996), and for the additional reasons, peculiar
to Fagan, set forth below, we affirm his sentence.
Our opinion in Hawkins presents the details of the criminal
conduct of a group of co-defendants of which Fagan was a member,
and sets forth our reasoning for affirming the same kinds of
adjustments in offense level and the same kind of upward departure
of which Fagan here complains. We incorporate by reference that
reasoning, and affirm those aspects of Fagan’s sentencing that are
essentially indistinguishable from those we affirmed in Hawkins.
Specifically, for the reasons set forth in Hawkins, we affirm the
six-level upward adjustment based on permanent or life-threatening
injury, the four-level upward adjustment based on abduction, and
the upward departure from the guidelines’ range based on extreme
conduct, multiple firearms, and inadequacy of criminal history
category for Fagan. That leaves only Fagan’s complaint regarding
acceptance of responsibility to be considered here.
Fagan argues that, in denying the decrease in offense level
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for acceptance of responsibility, the district court erred in
considering Fagan’s jail escape pending sentencing. He insists
that his plea of guilty conserved judicial resources and saved the
government the time and expense of going to trial, thereby
entitling him to reduction for acceptance of responsibility. Not
surprisingly, Fagan does not address the consumption of judicial
and governmental time and resources resulting from his escape.
In reviewing the sentencing court’s acceptance of
responsibility determination for clear error, United States v.
Watkins, 911 F.2d 983, 984 (5th Cir. 1990), we afford that court
great deference. Section 3E1.1; see Watkins, 911 F.2d at 985. A
guilty plea does not, in and of itself, warrant a reduction for
acceptance of responsibility. United States v. Paden, 980 F.2d
1229, 1237 (5th Cir. 1990), cert. denied, 498 U.S. 1039 (1991).
The defendant bears the burden of proving entitlement to the
downward adjustment for acceptance. United States v. Kinder, 946
F.2d 362, 367 (5th Cir. 1991), cert. denied, 503 U.S. 987 and 504
U.S. 946 (1992).
Fagan’s escape from custody before sentencing made him
eligible for an imposition of a two-point upward adjustment for
obstruction of justice under § 3C1.1; he did not, however, receive
such an adjustment. The guideline applicable to acceptance of
responsibility states that “[c]onduct resulting in an enhancement
under § 3C1.1 . . . ordinarily indicates that the defendant has not
accepted responsibility for his criminal conduct.” § 3E1.1
comment.(n.4). The guidelines clearly contemplate such an
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interaction of these two provisions.
In an almost identical case, which involved a defendant who
had attempted to escape from jail while awaiting sentencing on a
federal firearms charge, the Tenth Circuit held that the escape
attempt justified the district court’s denial of a reduction for
acceptance of responsibility. United States v. Amos, 984 F.2d
1067, 1973 (10th Cir. 1993). The Amos court stated that
because the obstruction enhancement and acceptance of
responsibility reduction are intertwined, recognition of
the obstruction enhancement does provide grounds for the
denial of Defendant’s acceptance of responsibility
reduction.
Id. at 1073. Given the district court’s finding that Fagan had
escaped and the deferential standard of review applied to findings
regarding acceptance of responsibility, we conclude that the
district court did not commit reversible error in determining that
Fagan was not entitled to such a reduction.
For the foregoing reasons, and for the reasons set forth in
our opinion in Hawkins, the sentence imposed on Fagan by the
district court is, in all respects,
AFFIRMED.
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