* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

May 25, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-40018

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERIC LEE STETZEL,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:02-CR-71-1

--------------------

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-ofresponsibility 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). 
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.