* Pursuant to 5 TH C IR

. 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that this opinion should not be published and is not precedent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 5 TH C IR

. R.

47.5.4. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 01-11017

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LARRY WAYNE ELLIS,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

(3:01-CR-20-1-X)

_________________________________________________________________

July 11, 2002

Before HIGGINBOTHAM, JONES, and BARKSDALE, Circuit Judges.

PER CURIAM: *

Pursuant to a written agreement, Larry Wayne Ellis pled

guilty to o ne count of securities fraud. In this appeal, Ellis

raises two objections to the district judge’s application of the2

fede ral sentencing guidelines in determining his sentence. We

reject both objections and AFFIRM Ellis’s sentence.

Ellis solici ted persons to invest money in investment

contracts and promissory notes with his companies. He represented

to these investors that their money wo uld be used to buy and

operate automatic teller machines (ATMs) from which they would get

the profit s and that this ATM investment program had already

successfully generated significant returns. After obtaining

investor funds on the basis of these and other representations,

Ellis diverted a substantial amount of investor funds to his own

use. To disguise the diversions, he sent statements to some

investors that falsely represented the condition of their

investments and used the funds of new victims to pay “profits” to

earlier investors. The fraudulent scheme involved no fewer than 57

investors who sustained combined losses of over $700,000 on an

aggregate investment of about $1.12 million.

Pursuant to Ellis’s guilty plea, Ellis and the Government

agreed to a stipulation recommending that the court not impose the

sentencing enhancements that Ellis attacks in this appeal. Ellis’s

p resentence report made the same recommendations. The district

court rejected these recommendations. On appeal, Ellis argues that

the district court was wrong to do so. For the reasons stated3

below, we are not persuaded that the district court committed

reversible error with respect to these matters.

First, Ellis objects to the district court’s decision to

rejec t the stipulation’s recommendation that the court grant a

decrease in Ellis’s guidelines score pursuant to U.S.S.G. § 3E1.1,

which provides for such a decrease “[i]f the defendant clearly

demonstrates acceptance of responsibility for his offense.”

Because “[t]he sentencing judge is in a unique position to evaluate

the defendant’s acceptance of responsibility,” we review the

district court’s decision on this issue with “great defer ence.”

U.S.S.G. § 3E1.1 cmt. n.5. T his standard of review is even more

deferential than the “clear error” standard; we affirm unless the

decision was “without foundat ion.” U nited States v. Brenes

, 250

F.3d 29 0, 292 (5 t h Cir. 2001); United States v. Pierce

, 237 F.3d

693, 694-95 (5 th Cir. 2001).

One of the factors that the district court may consider

i n determining whether to grant a reduction for acceptance of

responsibility is whether the defendant “truthfully admitt[ed] the

conduct c omprising the offense of conviction, and truthfully

admitt[ed] or [did] not fal sely deny[] any additional relevant

conduct for which the defendant is accoun table under § 1B1.3

(Relevant Conduct).” U.S.S.G. § 3E1.1 cmt. n.1(a). “[A] defendant

who falsely denies

. . . relevant conduct that the court determines

to be true has acted in a manner inconsiste nt with acceptance of1 Former U.S.S.G. § 2F1.1(b)(3) has since been repealed and

replaced by current U.S.S.G. § 2B1.1(b)(2)(A)(ii). See U.S.S.G.,

supplement to app. C (Nov. 2001), amendment 617.

4 responsibility.” I d. S ee United States v. Pati no-Cardenas , 85

F.3d 1133, 1135 (5 th Cir. 1996). There was evidence from which the

district court could have concluded that Ellis had no t truly

accep ted responsibility for his conduct because he had falsely

denied that his ATM “business” was a fraudulent scheme from the

beginning. Because the district court’s decision was not without

foundation, w e affirm it. S ee Pierce

, 237 F.3d at 695; United

States v. Galan

, 82 F.3d 639, 640 (5 th Cir. 1996); United States v.

Vital , 68 F.3d 114, 120-21 (5 th Cir. 1995).

Second, Ellis objects to the district court’s decision to

disregard another recommendation contained in the stipulation and

to impose a two-level enhancement under former U.S.S.G. §

2F1.1(b)(3) for using “mass-marketing” in the commission of his

offense. 1 “Mass-marketing,” as used in the guidelines provision,

“means a plan, program, promotion, or campaign th at is conducted

through solicitation by telephone, mail, the Internet, or other

means to induce a large number of persons to (A) purchase goods or

services;

. . . or (C) invest for financial pro fit.” U.S.S.G. §

2F1.1 cmt. n.3. Ellis used brochures and other printed materials,

an Internet World Wide Web site, a newspaper a dvertisement, and

five contract salespersons to attract investors. Ellis argues that5

these sol i citation methods did not amount to “mass-marketing”

because they did not actually induce large numbers of persons to

invest in his fraudulent scheme. We disagree. The application

note does not define mass-marketing as “a plan, program, promotion

or campaign that is conducted through solicitation

. . . and

induces a large number of persons” to purchase, invest, or the

like. M ass-marketing efforts can be mass-marketing efforts even if

they are ineffectual. S ee generally United States v. Pirello

, 255

F.3d 728, 732 (9 th Cir. 2001), cert. denied

, 122 S.Ct. 577 (2001).

Judgment AFFIRMED

.