* 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that this opinion should not be published and is not precedent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

July 11, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-10068

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STEVEN FLORES,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:02-CR-114-7-A

--------------------

Before JOLLY, WIENER and CLEMENT, Circuit Judges.

PER CURIAM:*

Steven Flores appeals his guilty-plea conviction for

transporting illegal aliens in violation of 8 U.S.C.

§ 1324(a)(1)(A)(ii) and (v)(II). He argues that the district

court erred in refusing to adjust his offense level downward by

two levels for acceptance of responsibility because he refused to

submit to a presentence interview by a probation officer. 
No. 03-10068

-2-

If a defendant “clearly demonstrates acceptance of

responsibility for his offense,” the sentencing guidelines

instruct the district court to decrease the defendant’s offense

level by two points. U.S.S.G. §3E1.1(a). Whether a defendant

has sufficiently demonstrated acceptance of responsibility is a

factual question, and the standard of review is even more

deferential than “clear error.” United States v. Spires, 79 F.3d

464, 467 (5th Cir. 1996). This court will affirm a sentencing

court’s decision not to award a reduction under U.S.S.G. § 3E1.1

unless it is “without foundation.” United States v. Hooten, 933

F.2d 293, 297-98 (5th Cir. 1991).

We have recognized the refusal to debrief a probation

officer as a factor in deciding whether to apply the adjustment

for acceptance of responsibility, and, most recently, we have

stated that a defendant’s refusal to make a statement of

acceptance of responsibility to a probation officer called his

sincerity into question. See United States v. Solis, 299 F.3d

420, 458 (5th Cir. 2002); United States v. Chapa-Garza, 62 F.3d

118, 123 (5th Cir. 1995); United States v. Medina-Anicacio, 325

F.3d 638, 648 (5th Cir. 2003). Having reviewed the record in

this case, we hold that the district court’s refusal to grant the

adjustment was not without any foundation. See U.S.S.G. § 3E1.1,

comment (n.3); Hooten, 933 F.2d at 297-98. Flores also has not

shown reversible error by arguing that he exercised his right to

remain silent with the probation officer because mistakes or
No. 03-10068

-3-

inadvertent omissions during a presentence interview can lead to

additional jail time. See United States v. Kleinebreil, 966 F.2d

945, 953 (5th Cir. 1992). 

We note that the district court’s refusal to apply the

adjustment is also supported by the lack of timeliness in Flores

manifesting his acceptance of responsibility. See U.S.S.G.

§ 3E1.1, comment (n.1(h)); United States v. Diaz, 39 F.3d 568,

572 (5th Cir. 1994); see also Bickford v. Int’l Speedway Corp.,

654 F.2d 1028, 1031 (5th Cir. 1981)(reversal is inappropriate if

ruling of the district court can be affirmed on any grounds,

regardless whether those grounds were used by the district

court). Flores’ sentence is AFFIRMED.