United States Court of Appeals

for the Fifth Circuit

No. 20-40350

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

David Arzon, 

Defendant—Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:11-CR-43-2

Before Haynes, Willett, and Ho, Circuit Judges.

Per Curiam:*

David Arzon pleaded guilty to conspiracy to possess with intent to 

distribute five kilograms or more of cocaine hydrochloride, in violation of 21 

U.S.C. § 846, 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 2. The district court 

sentenced him to 135 months’ imprisonment and five years’ supervised 

* Pursuant to 5th Circuit 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opinion should not be published and is not precedent except under the limited 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 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 9, 2021

Lyle W. Cayce

Clerk

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2

release. On appeal, Arzon raises three challenges to the district court’s 

calculation of the Sentencing Guidelines range.

We review the district court’s legal interpretation of the Guidelines 

de novo and its factual findings for clear error. United States v. Castillo, 779 

F.3d 318, 321 (5th Cir. 2015). A factual finding is clearly erroneous only if, 

based on the entirety of the evidence, we are “left with the definite and firm 

conviction that a mistake has been made.” Id.

First, Arzon argues that the district court erred in permitting the 

Government to withhold a motion for an additional, one-point reduction for 

acceptance of responsibility under U.S.S.G. § 3E1.1(b). We review the 

Government’s reasons for withholding the motion “only to determin[e] 

whether the [G]overnment considered an interest within § 3E1.1.” United 

States v. Halverson, 897 F.3d 645, 656 (5th Cir. 2018). At sentencing, the 

Government declined to move for the one-pointreduction because Arzon did 

not truthfully admit his criminal conduct. And Arzon was a fugitive for eight 

years. Both reasons are relevant considerations under § 3E1.1. See U.S.S.G. 

§ 3E1.1, cmt. 1(A) & (D); see also, e.g., United States v. Chapa-Garza, 62 F.3d 

118, 123 (5th Cir. 1995) (holding that a defendant had not clearly 

demonstrated acceptance of responsibility where he was a fugitive for four 

and a half years). Thus, the district court did not clearly err in permitting

the Government to withhold a motion for the additional, one-point 

reduction. 

Next, Arzon claims the district court erred in overruling his objection 

to the PSR’s inclusion of a 2008 New York State DWI conviction. Arzon 

bears the burden of showing that the information in the PSR about this DWI 

conviction was “materially untrue, inaccurate or unreliable.” United States 

v. Parker, 133 F.3d 322, 329 (5th Cir. 1998). Although the record of Arzon’s 

DWI conviction was lost in a fire, the probation officer verified the DWI

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conviction by procuring a Certificate of Disposition and National Crime 

Information Center record detailing the offense; both documents bore 

sufficient indicia of reliability. See U.S.S.G. § 6A1.3(a) (allowing a district 

court to consider at sentencing any information that has sufficient indicia of 

reliability to support its probable accuracy); see also N.Y. Crim. Proc. 

Law § 60.60(1) (“A certificate issued by a criminal court, or the clerk 

thereof, certifying that a judgment of conviction against a designated 

defendant has been entered in such court, constitutes presumptive evidence 

of the facts stated in such certificate.”). Moreover, Arzon failed to meet his 

burden because he presented no competent rebuttal evidence at sentencing. 

Accordingly, the district court did not clearly err in considering Arzon’s 

DWI conviction when calculating his criminal history. 

Finally, Arzon argues that the district court erred by not reducing his 

offense level based on his role in the offense. Specifically, Arzon claims that 

he was entitled to a mitigating role reduction under U.S.S.G. § 3B1.2. 

Because Arzon seeks an adjustment to the base level of the conspiracy offense

with which he was charged, he “bears the burden of proving by a 

preponderance of the evidence that the adjustment is warranted.” United 

States v. Torres-Hernandez, 843 F.3d 203, 207 (5th Cir. 2016). Arzon has

failed to make that showing: He did not show the level of culpability of the 

average participant in the conspiracy, and he did not show that he was 

substantially less culpable than that participant. See United States v. Castro, 

843 F.3d 608, 613 (5th Cir. 2016); U.S.S.G. § 3B1.2 cmt. 3(A). Thus, the 

district court did not clearly err in refusing to grant the § 3B1.2 reduction.

We AFFIRM.

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