* 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should not be published and is not precedent except under the limited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. 07-40714

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ERICK VIRGILIO VICENTE-VASQUEZ

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:07-CR-180-1

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges. 

PER CURIAM:*

Erick Virgilio Vicente-Vasquez appeals the 37-month concurrent sentences

imposed following his guilty plea to two counts oftransporting an unlawful alien

within the United States by means of a motor vehicle. Vicente-Vasquez argues

that the district court failed to comply with FED. R. CRIM. P. 32(i)(3)(B) because

the court did not resolve the factual dispute concerning whether he was entitled

to a downward adjustmentfor acceptance of responsibility. Vicente-Vasquez did

not object at sentencing regarding the district court’s compliance with Rule 32.

United States Court of Appeals

Fifth Circuit

F I L E D

July 25, 2008

Charles R. Fulbruge III

Clerk
No. 07-40714

2

Accordingly, we will apply plain error review. See United States v. Reyna, 358

F.3d 344, 349-50 (5th Cir. 2004) (en banc). 

When a portion of the PSR is disputed or there is any other controverted

matter, Rule 32(i)(3)(B) requires a district court to“rule on the dispute or

determine that a ruling is unnecessary either because the matter will not affect

sentencing, or because the court will not consider the matter in sentencing.”

FED. R. CRIM. P. 32(i)(3)(B). The district court’s adoption of the PSR will satisfy

Rule 32 “when the findings in the PSR are so clear that the reviewing court is

not left to second-guess the basis for the sentencing decision.” United States v.

Carreon, 11 F.3d 1225, 1231 (5th Cir. 1994). In the instant case, the record

shows that the district court’s statements at the sentencing hearing indicated

that the court was overruling Vicente-Vasquez’s objections and accepting the

PSR’s sentencing recommendation. Furthermore, the district court specifically

adopted the PSR’s factual findings and guideline application. Accordingly, the

district court satisfied the requirements of Rule 32. Id.

Vicente-Vasquez also argues that the district court erred in not adjusting

his offense level downward for acceptance of responsibility. He asserts that he

truthfully admitted all conduct concerning the offense of conviction and did not

falsely or frivolously deny any relevant conduct in which he was involved. The

defendant bears the burden of demonstrating that he is entitled to a reduction

under U.S.S.G. § 3E1.1. United States v. Perez, 915 F.2d 947, 950 (5th Cir.

1990). Consideration may be given to whether the defendant truthfully

admitted or falsely denied any additional relevant conduct for which he was

accountable. § 3E1.1, comment. (n.1(a)). We examine the denial of a reduction

for acceptance of responsibility under a standard of review even more deferential

than a pure clearly erroneous standard. United States v. Outlaw, 319 F.3d 701,

705 (5th Cir. 2003). We will affirm a sentencing court’s decision not to award a

reduction under § 3E1.1 unless it is without foundation. United States v. Solis,

299 F.3d 420, 458 (5th Cir. 2002).
No. 07-40714

3

Vicente-Vasquez repeatedly disputed that he was involved in two prior

instances of transporting illegal aliens. The district court determined that

Vicente-Vasquez’s disavowal was not credible. Because Vicente-Vasquez falsely

denied engaging in the relevant conduct, he acted in a manner inconsistent with

acceptance of responsibility. § 3E1.1, comment. (n.1). Furthermore, the record

contained evidence upon which the district court could base its finding that

Vicente-Vasquez falsely denied his involvement in the relevant conduct.

Therefore, the district court’s ruling is not without foundation. See Solis, 299

F.3d at 458. The district court did not err in refusing to make an adjustment

under § 3E1.1. 

AFFIRMED.