### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 11165 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v.
FERNANDO PEREZ, also known as Fernando Perez

- Reynoso , Defendant

- Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:15

- CR

- 129

- 2

Before KING, DENNIS, and COSTA, Circuit Judges. PER CURIAM: *
Fernando Perez challenges his sentence to the statutory maximum of 240 months of imprisonment for conspiracy to possess with inten t to distribute methamphetamine . The presentence report (PSR) calculated a g uidelines range of 210 to 240 months , ba sed in pa rt on a two

- level enhancement , under U.S.S.G. § 2D1.1(b)(1), for possessing a firearm during his participation in the conspiracy and a three

- level reduction, under U.S.S.G. § 3E1.1, for acceptance

* 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 R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR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 Fifth Circuit 

### FILED September 21, 2016 Lyle W. Cayce Clerk Case: 15-11165 Document: 00513687426 Page: 1 Date Filed: 09/21/2016No. 15

- 11165

2 of responsibility. Before the district court, Perez object ed to the § 2D1.1 firearm enhancement . The court overruled the objection and found that Perez’s objection constitute d a false denial of relevant facts that supported the enhancement . T he dist rict court therefore declined to grant Perez a § 3E1.1 reductio n for acceptance of responsibility , leading to a g uidelines sentence of
240 months. On appeal, Perez argues: (1) the court denial of a § 3E1.1 reduction was without foundation; and (2) the district court violated 18 U.S.C. § 3553(a)(4) by failing to consider the g uidelines range that would have been applicable with the reduction . Because Perez did not object to his sentence below , we review the district cour t’s decision for plain error only. See Puckett v. United States , 556 U.S. 129, 135 (2009)

. As to the district court’s denial of the § 3E1.1 reduction, Perez contends that the court erred in construing his objection to the § 2D1.1(b)(1) enhancement as a false denial of additional relevant conduct for which he was accountable, s ee § 3E1.1, comm ent. (n. 1(A)), rather than as a permissible challenge to the legal significance of the admitted conduct, see United States v.
Patino

- Cardenas , 85 F.3d 1133, 1136 (5th Cir. 1996) ; United States v. Fells , 78 F.3d 168, 171

- 72 (5th Cir. 1996). We disagree . Although Perez argued that the facts did not support the legal conclusion that he had the required relationship to the relevant firearm , he also disputed some of the underlying facts that supported the enhancement . The district court’s finding that Per ez had failed to truthfully admit the full extent of his relevant conduct was therefore not without foundation. See United States v. Preciado

- Delacruz , 801 F.3d 508, 511 (5th Cir. 2015). Accordingly, the district court committed no reversible error in de nying the § 3E1.1 reduction. As to Perez’s argument that the district court failed to consider the guidelines range that would have applied had it granted the reduction, he cites Case: 15-11165 Document: 00513687426 Page: 2 Date Filed: 09/21/2016No. 15

- 11165

3 no authority for the proposition that a sentencing court must “ consider ” a
g uidelines range that i t determines is inapplicable. Section 3553(a)(4) only requires the court to consider “ the sentence range established . . . as set forth in the guidelines” (emphasis added), i.e., the applicable guidelines range. It is undisputed tha t the district court considered the applicable guidelines
sentence of 240 months before imposing that sentence upon Perez. Accordingly, the district court’s sentence is AFFIRMED. Case: 15-11165 Document: 00513687426 Page: 3 Date Filed: 09/21/2016