United States Court of Appeals

for the Fifth Circuit

No. 19-50942

United States of America, 

Plaintiff—Appellee,

versus

Luis Eduardo Hinojosa-Almance, 

Defendant—Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 4:19-CR-258-1

Before Higginbotham, Jones, and Higginson, Circuit Judges.

Patrick E. Higginbotham, Circuit Judge:

Appellant Luis Eduardo Hinojosa-Almance (“Hinojosa”) pleaded 

guilty to marijuana-trafficking offenses and received two concurrent, withinGuidelines sentences of 27 months. On appeal, Hinojosa challenges the 

district court’s denial of a sentencing adjustment for acceptance of 

responsibility, as well as the substantive reasonableness of his sentence. 

Finding no error, we affirm. 

United States Court of Appeals

Fifth Circuit

FILED

October 7, 2020

Lyle W. Cayce

Clerk

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I.

Border Patrol agents arrested Hinojosa on March 17, 2019, after 

finding two bundles of marijuana in an auxiliary fuel tank attached to his 

truck. Within a few days, Hinojosa was released from custody on a $40,000 

appearance bond. Among other conditions of his pretrial release, he was 

ordered not to drink alcohol excessively and to report any contact with law 

enforcement to the Pretrial Services Office within 24 hours. The following 

month, a grand jury returned a two-count indictment charging Hinojosa with 

importing and possessing marijuana with intent to distribute.

1 He pleaded 

guilty in June without a plea agreement, and his sentencing hearing was set 

for September.

Hinojosa maintained employment as a welder and supported his wife 

and two children while awaiting sentencing. However, he reported to Pretrial 

Services that on the night of August 3, 2019, he violated the excessivedrinking condition of his bond. He had caught a ride home with a friend after 

drinking twelve beers at a bar, then, once home, begun arguing with his wife. 

As the argument escalated, Hinojosa decided to leave the home. He drove 

away in his truck, still inebriated, but then recognized he was unfit to drive 

and pulled over, leaving his truck “at an unknown location.” He walked back 

toward his house, where his sister had become so concerned about his driving 

under the influence that she called the police. By the time officers arrived, 

Hinojosa was at home and asleep.

In addition to this episode, Pretrial Services learned that Hinojosa had 

failed to timely report contact with law enforcement despite having received 

three traffic citations on July 6, 2019. As a result of these infractions, 

Hinojosa’s pretrial release conditions were modified to prohibit alcohol use 

1 See 21 U.S.C. §§ 952, 960, 841(a)(1).

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entirely, and Hinojosa was ordered to receive substance abuse counseling. He 

complied with the new conditions up until his sentencing hearing, attending 

AA meetings twice a week and abstaining from alcohol.

At sentencing, the district court denied Hinojosa’s request for a 

downward adjustment for acceptance of responsibility, reasoning “that a 

defendant’s failure to comply with conditions of a bond is highly relevant to 

assessing the sincerity of [his] contrition.” Moreover, the drunk-driving 

incident was a sign that Hinojosa had not fully “withdrawn from criminal 

conduct.” The district court also denied Hinojosa’s motion for a downward 

variance and imposed two concurrent sentences of 27 months, at the bottom 

of Hinojosa’s Guidelines range. On appeal, Hinojosa challenges the district 

court’s denial of an acceptance-of-responsibility adjustment. He also 

contends that his 27-month sentence is substantively unreasonable.

II.

A.

Section 3E1.1(a) of the Sentencing Guidelines provides for a twooffense-level downward adjustment “[i]f the defendant clearly demonstrates 

acceptance of responsibility for his offense.” The Guidelines furnish a 

nonexclusive list of factors for the district court to consider in determining 

whether a defendant qualifies for this adjustment, including “voluntary 

termination or withdrawal from criminal conduct or associations.”2

Although a defendant’s “[e]ntry of a plea of guilty prior to the 

commencement of trial combined with truthfully admitting the conduct 

comprising the offense of conviction . . . will constitute significant evidence 

2 U.S.S.G. § 3E1.1 cmt. n.1(B).

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of acceptance of responsibility,”3 he “is not entitled to this adjustment 

simply by virtue of pleading guilty.”4 A guilty plea “may be outweighed by 

conduct . . . that is inconsistent with such acceptance of responsibility.”5

“[W]e review the district court’s interpretation and application of the 

sentencing guidelines de novo and its findings of fact for clear error.”6

However, because the district court “is in a unique position to evaluate a 

defendant’s acceptance of responsibility,”7 its denial of a § 3E1.1 adjustment 

is “reviewed with particular deference.”8 Such a “ruling should not be 

disturbed unless it is without foundation.”9

B.

It is undisputed that Hinojosa violated his pretrial release conditions 

by failing to report police contact and drinking excessively. He also engaged 

in criminal conduct by driving under the influence of alcohol. Hinojosa 

argues that he was nevertheless entitled to a § 3E1.1(a) adjustment because 

his pretrial release violations were unrelated to his marijuana offenses, for 

which he “had sincerely and contritely accepted responsibility.” 

3 Id. § 3E1.1 cmt. n.3.

4 United States v. Pierce, 237 F.3d 693, 694 (5th Cir. 2001). 

5 U.S.S.G. § 3E1.1 cmt. n.3.

6 United States v. Lord, 915 F.3d 1009, 1017 (5th Cir. 2019).

7 United States v. Cabrera, 288 F.3d 163, 175 (5th Cir. 2002) (per curiam) (quoting 

U.S.S.G. § 3E1.1 cmt. n.5).

8 Lord, 915 F.3d at 1017; see United States v. Najera, 915 F.3d 997, 1002 (5th Cir. 

2019) (quoting United States v. Maldonado, 42 F.3d 906, 913 (5th Cir. 1995)) (“A district 

court’s refusal to reduce a sentence for acceptance of responsibility is reviewed under a 

standard ‘even more deferential than a pure clearly erroneous standard.’”).

9 Maldonado, 42 F.3d at 913 (internal quotation marks omitted) (quoting United 

States v. Roberson, 872 F.2d 597, 610 (5th Cir. 1989)). 

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It is not reversible error for the district court to deny a § 3E1.1(a) 

reduction where the defendant broke the law while on bond, even where 

those violations were not directly related to the underlying criminal conduct 

with which he was charged.

10 A district court may also consider any violation 

of the defendant’s pretrial release conditions.11 Even without considering 

Hinojosa’s pretrial release violations, his driving while intoxicated supports 

the district court’s decision, which is therefore not without foundation.

III.

A. 

Hinojosa next contends that his 27-month sentence is substantively 

unreasonable. 18 U.S.C. § 3553(a) requires the district court to “impose a 

sentence sufficient, but not greater than necessary, to comply with the 

purposes” enumerated by the statute, which include deterrence, public 

safety, and respect for the law.12 Because Hinojosa properly preserved his 

objection, we review the reasonableness of his sentence for abuse of 

discretion.13

10 United States v. Rickett, 89 F.3d 224, 225 (5th Cir. 1996)(“The district court may 

properly deny a reduction for acceptance of responsibility for failure to refrain from 

criminal conduct while on pretrial release.”); United States v. Watkins, 911 F.2d 983, 985 

(5th Cir. 1990) (“[T]he district court’s interpretation that acceptance of responsibility 

includes refraining from any violations of the law is not without foundation.”).

11 See Rickett, 89 F.3d at 227 (“This court has also held that it was not improper for 

a district court to consider a defendant’s failure to comply with the conditions of his bond 

in determining whether to grant a reduction for acceptance of responsibility.” (citing 

United States v. Hooten, 942 F.2d 878, 882-83 (5th Cir. 1991)). 

12 18 U.S.C. § 3553(a); see id. § 3553(a)(2)(A)–(D).

13 At sentencing, Hinojosa’s counsel argued that his 27-to-33-month Guidelines 

range was excessive and requested a sentence of 12 months and a day. However, counsel 

did not object to Hinojosa’s sentence after it was pronounced. At the time of the parties’ 

briefing in this case, it was unclear whether a post-pronouncement objection was necessary 

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Our review “is highly deferential, because the sentencing court is in a 

better position to find facts and judge their import under the § 3553(a) factors 

with respect to a particular defendant.”14 Moreover, we apply a presumption 

of reasonableness to within-Guidelines sentences like Hinojosa’s.15 That

presumption is rebutted only upon a showing “that the district court did not 

consider a sentencing factor that should have received significant weight, 

gave significant weight to a factor it should have discounted, or made a clear 

error of judgment when it balanced the relevant factors.”16

B.

Hinojosa contends that his 27-month sentence is “unnecessary” and 

“fails to account for [his] history and circumstances.” He points out that he 

had a clean record prior to this offense, cooperated with authorities following 

his arrest, and maintained employment while addressing his alcoholism 

through AA. The record shows that the district court considered all these 

factors, which were ably presented by counsel at a lengthy hearing, before 

determining that a Guidelines sentence was appropriate. Hinojosa does not 

engage with the presumption of reasonableness that attends his sentence. 

Rather, his “claim amounts to a request that we reweigh the sentencing 

to preserve a substantive-reasonableness challenge. However, the Supreme Court has since 

held that “advocating for a particular sentence” before the district court, as counsel did 

here, is sufficient to “inform[] the court of the legal error at issue” and preserve the 

defendant’s “challenge to the substantive reasonableness of the sentence.” HolguinHernandez v. United States, 140 S. Ct. 762, 766–67 (2020).

14 United States v. Hernandez, 633 F.3d 370, 375 (5th Cir. 2011) (internal quotation 

marks omitted) (quoting United States v. Key, 599 F.3d 469, 473 (5th Cir. 2010)). 

15 See United States v. Simpson, 796 F.3d 548, 557 (5th Cir. 2015).

16 United States v. Rodriguez-De la Fuente, 842 F.3d 371, 375 (5th Cir. 2016); see 

United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). 

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factors and substitute our judgment for that of the district court, which we 

will not do.”17

IV.

For the foregoing reasons, the judgment of the district court is 

affirmed. 

17 United States v. Hernandez, 876 F.3d 161, 167 (5th Cir. 2017) (per curiam). 

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