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 intent to distribute 

methamphetamine. The presentence report (PSR) calculated a guidelines 

range of 210 to 240 months, based in part 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 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.

United States Court of Appeals

Fifth Circuit

FILED

September 21, 2016

Lyle W. Cayce

Clerk

 Case: 15-11165 Document: 00513687426 Page: 1 Date Filed: 09/21/2016
No. 15-11165

2

of responsibility. Before the district court, Perez objected to the § 2D1.1

firearm enhancement. The court overruled the objection and found that 

Perez’s objection constituted a false denial of relevant facts that supported the 

enhancement. The district court therefore declined to grant Perez a § 3E1.1 

reduction for acceptance of responsibility, leading to a guidelines 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 guidelines range that would have been 

applicable with the reduction. Because Perez did not object to his sentence

below, we review the district court’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, see § 3E1.1, comment. (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 Perez 

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 denying 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: 09/21/2016
No. 15-11165

3

no authority for the proposition that a sentencing court must “consider” a 

guidelines range that it 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 that 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