UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4027

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RIGOBERTO OTAVO MORALES, a/k/a Gerardo Cantu,

a/k/a Victor,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Beckley. Thomas E. Johnston,

District Judge. (5:06-cr-00093-1)

Submitted: August 22, 2007 Decided: October 23, 2007

Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Timothy P. Lupardus, Pineville, West Virginia, for Appellant.

Charles T. Miller, United States Attorney, Miller A. Bushong, III,

Assistant United States Attorney, Beckley, West Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Rigoberto Otavo Morales pled guilty pursuant to a written

plea agreement to one count of aiding and abetting the possession

with intent to distribute cocaine, in violation of 18 U.S.C. § 2;

21 U.S.C. § 841(a)(1) (2000). Morales was sentenced by the

district court to sixty-three months’ imprisonment. Finding no

error, we affirm.

On appeal, Morales contends the district court erred in

denying him a two-level decrease under U.S. Sentencing Guidelines

Manual § 3E1.1 (2005). Morales asserts that he demonstrated his

acceptance of responsibility by admitting his guilt “at least four

times” and discussing relevant conduct beyond the charged offense.

He maintains that the only testimony supporting the district

court’s determination was that of the probation officer, and argues

that the “misunderstanding” in his presentence interview was “due

to a language barrier.”

When reviewing the district court’s application of the

Sentencing Guidelines, we review findings of fact for clear error

and questions of law de novo. United States v. Green, 436 F.3d

449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006). Section

3E1.1(a) of the Sentencing Guidelines provides for a two-level

decrease to the offense level if a defendant clearly demonstrates

acceptance of responsibility. “However, a defendant who falsely

denies, or frivolously contests, relevant conduct that the court
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determines to be true has acted in a manner inconsistent with

acceptance of responsibility.” USSG § 3E1.1, comment. (n.1(a)).

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

a defendant’s acceptance of responsibility,” his determinations are

“entitled to great deference on review.” Id. at comment. (n.5).

The probation officer testified that it is her practice

to ask open-ended questions when interviewing defendants.

Specifically, she asks defendants “to tell [her] in their own words

what occurred, what brought them to the place that they’re in, to

the indictment that they have in the current case.” Morales’s

responses to these open-ended questions were inconsistent with the

evidence proffered by the Government.

After hearing testimony from Morales, the probation

officer, and the interpreter who was present during the presentence

interview, the district court stated that it was “persuaded” by the

fact that the probation officer “ask[ed] very open-ended, nonleading questions as a part of her practice to give the defendant

an opportunity to make a statement with regard to his role in the

offense and acceptance of responsibility.” The court determined

that rather than truthfully discussing the offense, Morales

responded with false or incomplete information that was intended to

minimize his culpability. Though Morales attempts to explain his

inaccurate answers by referencing his limited ability to speak and

understand English, this explanation is belied by the fact that the
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questions were open-ended and thus did not require specific

answers. Moreover, the probation officer testified that the

interpreter’s services were used when Morales appeared confused.

Under these circumstances, we conclude the district

court’s findings of fact were not clearly erroneous. To the extent

Morales challenges the probation officer’s testimony, witness

credibility is solely within the province of the factfinder and

will not be reassessed on appeal. See United States v. Saunders,

886 F.2d 56, 60 (4th Cir. 1989). Thus, because the district court

properly calculated and considered the advisory guideline range and

weighed the relevant 18 U.S.C. § 3553(a) (2000) factors, we

conclude Morales’s sixty-three month sentence, which was below the

statutory maximum and no greater than the advisory guideline range,

is reasonable. See Green, 436 F.3d at 457; United States v.

Hughes, 401 F.3d 540, 546-47 (4th Cir. 2005); see also Rita v.

United States, 127 S. Ct. 2456, 2462-65 (2007).

Accordingly, we affirm the judgment of the district

court. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED