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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10640

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JACK ARVIL TAYLOR, JR.,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:08-CR-186-1

Before JOLLY, BARKSDALE, and CLEMENT, Circuit Judges.

PER CURIAM:*

Jack Arvil Taylor, Jr., possessed several bombs containing shrapnel-type

materials, including nails and metal balls. He pled guilty to possession of an

unregistered firearm, in violation of 26 U.S.C. § 5861(d). Taylor challenges his

sentence imposed following his plea, contending the district court erred by

denying an acceptance-of-responsibility reduction under Sentencing Guideline

§ 3E1.1. This denial was based primarily on the inconsistency between Taylor’s

claimed intention to explode the devices like firecrackers and the presentence

United States Court of Appeals

Fifth Circuit

F I L E D

April 28, 2010

Lyle W. Cayce

Clerk

Case: 09-10640 Document: 00511094379 Page: 1 Date Filed: 04/28/2010
No. 09-10640

2

investigation report’s (PSR) stating the devices were “intended to hurt, maim,

and kill”. (Because this provided a sufficient basis upon which to deny the

reduction, we do not address whether Taylor’s statements regarding a related

counterfeiting offense also would support such denial.)

A defendant may receive such an offense-level reduction if he “clearly

demonstrates acceptance of responsibility for his offense”. U.S.S.G. § 3E1.1(a).

In other words, the defendant bears the burden of demonstrating the reduction

is warranted. United States v. Flucas, 99 F.3d 177, 180 (5th Cir. 1996) (per

curiam). The district court’s decision not to award a reduction will be affirmed

“unless it is without foundation, a standard of review more deferential than the

clearly erroneous standard”. United States v. Juarez-Duarte, 513 F.3d 204, 211

(5th Cir.) (per curiam) (internal quotation marks and citation omitted), cert.

denied, 128 S. Ct. 2452 (2008). 

Taylor first contends the district court erred by finding he made false

statements about his intended use for the explosive devices. “As a general rule,

information in the [PSR] is presumed reliable and may be adopted by the district

court without further inquiry if the defendant fails to demonstrate by competent

rebuttal evidence that the information is materially untrue, inaccurate or

unreliable.” United States v. Carbajal, 290 F.3d 277, 287 (5th Cir. 2002)

(internal quotation marks and citation omitted). Taylor presented no evidence

to rebut the PSR’s finding that these devices were intended “to hurt, maim, and

kill”. Therefore, a foundation existed for the district court’s finding Taylor’s

statement inconsistent and false.

Taylor also contends any inconsistency is not a basis for denying the

acceptance-of-responsibility reduction because his intended use for the devices

was not relevant to the statute of conviction or the guidelines calculations. An

acceptance-of-responsibility reduction requires, inter alia, “a showing of sincere

contrition on the defendant’s behalf”. United States v. Medina-Anicacio, 325

F.3d 638, 648 (5th Cir. 2003) (quoting United States v. Nguyen, 190 F.3d 656,

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No. 09-10640

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658 (5th Cir. 1999)). In evaluating a defendant’s sincerity, a sentencing court

“may consider a defendant’s refusal to elaborate on the circumstances

surrounding his offense to the probation officer”. Id. (citing United States v.

Nevarez-Arreola, 885 F.2d 243, 244, 246 (5th Cir. 1989)). There is evidence

Taylor falsely described his intended use of the devices, which was part of the

“circumstances surrounding his offense”.

In sum, Taylor has not shown the denial of the reduction for acceptance

of responsibility was without foundation. See Juarez-Duarte, 513 F.3d at 211.

AFFIRMED.

Case: 09-10640 Document: 00511094379 Page: 3 Date Filed: 04/28/2010