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. 09-10211

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

CARLOS FABIAN LOPEZ,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:08-CR-125-3

Before GARZA, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Carlos Fabian Lopez appeals the sentence imposed following his guilty

plea conviction for possession with intent to distribute 50 grams or more of

methamphetamine. Lopez argues that the district court erred by refusing to

grant him a reduction for acceptance of responsibility. He maintains that the

information in the presentence report (PSR) concerning his interview with the

probation officer amounted only to a showing that he failed to admit relevant

conduct, and, therefore, was insufficient to show that he was not entitled to a

United States Court of Appeals

Fifth Circuit

F I L E D

March 19, 2010

Charles R. Fulbruge III

Clerk

Case: 09-10211 Document: 00511056967 Page: 1 Date Filed: 03/19/2010
No. 09-10211

2

reduction for acceptance of responsibility. He contends that the affidavit he filed

sufficiently cured any failure to accept responsibility during his interview with

the probation officer and that the district court erred by not allowing him to cure

his failure to accept responsibility in that manner. Lopez asserts that the

Government agreed that he was entitled to a reduction for acceptance of

responsibility. He argues that the hearsay evidence in the PSR was an

insufficient basis for the denial of a reduction for acceptance of responsibility.

While Lopez pleaded guilty and truthfully admitted his offense conduct in

his factual resume, Lopez denied that he knowingly committed the offense of

conviction and denied his offense conduct during his interview with the

probation officer. Although Lopez admitted in his affidavit that he helped his

co-defendants commit the offense and commented about trying to make easy

money, Lopez did not make any specific factual admissions regarding his offense

conduct. Given these facts, the burden placed on Lopez to demonstrate

acceptance of responsibility, and the great deference given to a district court’s

determination that a defendant has not accepted responsibility, the district

court’s ruling that Lopez had not accepted responsibility was not clearly

erroneous or without foundation. See United States v. Cabrera, 288 F.3d 163,

175-77 (5th Cir. 2002).

Lopez’s argument that his interview with the probation officer amounted

only to a failure to admit relevant conduct is incorrect; the PSR shows that

Lopez denied knowingly committing his offense conduct during the interview.

Lopez’s assertion that the Government supported his receiving a reduction for

acceptance of responsibility is refuted by the record. Lopez’s contention that the

district court improperly relied upon hearsay contained in the PSR regarding his

interview with the probation officer is also without merit. See Cabrera, 288 F.3d

at 173-74; United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995).

AFFIRMED.

Case: 09-10211 Document: 00511056967 Page: 2 Date Filed: 03/19/2010