1 United States Court of Appeals,

Fifth Circuit.

No. 95-40877

Summary Calendar.

UNITED STATES of America, Plaintiff-Appellee,

v.

Norris Claude RICKETT, Defendant-Appellant.

July 15, 1996.

Appeal from the United States District Court for the Eastern District of Texas.

Before GARWOOD, WIENER and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

FACTS AND PROCEEDINGS BELOW

On December 4, 1994, Texas Department of Public Saf et y o fficers stopped Norris Claude

Rickett ("Rickett") and his co-defendant, Rodney Terrell Elliott ("Elliott"), for changing lanes without

signaling. Rickett, the driver, gave the officers a Tennessee driver's license identifying himself as

Harold Dwayne Wiggins ("Wiggins"). Rickett appeared nervous as the officer was writing a warning

ticket. Elliott also appeared nervous while being questioned.

While questioning Elliott, the officer detected the odor of marijuana smoke coming from the

vehicle. Elliott produced the ashtray for the officer's inspect ion. The officer smelled the ashes

contained in the ashtray and detected what he believed to be the odor of marijuana. When Elliott and

Ricket t were questioned concerning where they had been and where they were going, they gave

conflicting statements.

As a result of

t he co nflicting stories provided to the officers, the officers requested the

assistance of a canine unit was requested to search the vehicle. Aft er the canine unit arrived, an

outside search of the vehicle was conducted. The dog showed interest at the passenger door of the

vehicle. Rickett then gave the o fficers permission to search the interior of the vehicle. While2

searching the interior of the vehicle the dog alerted on the driver's side rear quarter panel where the

seat belt comes from the floor next to the seat and quarter panel. After noticing that several screws

were missing from the panel, the officer removed it and observed a plastic bag wrapped in duct tape.

A n examination of the bag revealed that it contained a white powdery substance, w hich was later

determined to be cocaine. Two more packages were then removed from behind the panel, and both

of the individuals were placed under arrest and subsequently booked into the Panola County Jail on

charges of possession of cocaine and no state drug tax stamp.

On January 11, 1995, an indictment was filed charging "Harold Dwayne Wiggins" with

possession

o f cocaine (Count 1) and conspiracy to possess with the intent to distribute cocaine

(Count 3). On February 6, 1995, the real Wiggins was arrested at his place of employment by officers

of the Memphis Drug Enforcement Administration ("DEA") Task Force. Wiggins told the officers

he had never been to Texas and was at work on the date of the alleged offense. Wiggins explained

that he gave his social security card to Rickett, his cousin, so that Rickett could obtain a Tennessee

driver's license in Wiggins' name. Wiggins was released and a warrant was issued for Rickett's arrest.

Rickett surrendered himself to offi cers at t he Memphis DEA office on February 13, 1995.

A superseding indictment was filed on March 7, 1995, naming Rickett in Counts 1 and 3. On March

10, 1995, Rickett entered a plea of "not guilty" and was released on bond pending trial. agreement,

Rickett pleaded guilty to Count 3 of the superseding ind ict ment . On t hat same day , Rickett was

interviewed by a p ro bat ion officer and admitted that he had smoked marijuana on May 27, 1995.

Rickett's urine specimen tested positive for THC metabolite.

A presentence report ("PSR") was then prepar ed. The PSR recommended that Rickett

receive a two-level upward adjustment for obstruction of justice and that he receive no point s fo r

acceptance of responsibility. Rickett objected to these provisions of the PSR. Thereafter, on

September 29, 1995, the part ies were provided with an Addendum to the Presentence Report in

response to Rickett's objections.

Rickett appeared for sentencing on October 25, 1995. At sentencing, the district court stated3

that it had considered Rickett's objections to the PSR, but that it had decided to adopt the findings

of the PSR. Based on a total offense level of 30 and a Criminal History Category of I, the applicable

guideline range for imprisonment was 97 to 121 months. Rickett was then sentenced to 105 months

impris o nment, to be followed by a five-year term of supervised release. On October 27, 1995,

Rickett filed a notice of appeal.

DISCUSSION

On appeal, Rickett contends that the district court erred when it sentenced him. Specifically,

he argues that the district court erred when it ruled that Rickett receive a two-level upward

adjustment for obstruction of justice and that he receive no points for acceptance of responsibility.

We address both of these arguments below.

I. Obstruction of Justice

A district court's finding that a defendant has obstructed justice under U.S.S.G. § 3C1.1 is

reviewed for clear error. U nited States v. McDonald, 964 F.2d 390, 392 (5th Cir.1992). Section

3C1.1 provides for the enhancement o f a defendant's offense level "[i]f the defendant willfully

obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the

investigation, prosecution, or sentencing of the instant offense[.]" U.S.S.G. § 3C1.1. Providing a

false name or identification at arrest or making false statements, not under oath, to law enforcement

officers does not warrant the en hancement, unless the conduct actually resulted in a significant

hindrance to the investigation or prosecution of the instant offense. Id. comment. (n.4(a) and (b)).

Therefore, we must examin e t he district court's determination as to whether Rickett's actions

significantly hindered the investigation or prosecution.

At sentencing, Rule 32 requires the district court either to make findings on matters contained

in the PSR that are controverted by the defendant or t o make "a det ermination that no finding is

necessary because the controverted matter will not be ta ken int o account in, or will not affect,

sentencing." Fed.R.Crim.P. 32(c). In the instant case, Rickett objected to the PSR's recommendation

that he receive a two-level upward adjustment for obstruction of justice, thereby creating the need4

for a finding on this issue.

The district court made no specific finding concerning the significance of the hindrance

caused by Rickett's use of the "Wiggins" driver's license. However, in complying with Rule 32, the

district court may accept the facts set forth in the PSR even when those facts are disputed. United

States v. Mora, 994 F.2d 1129, 1141 (5th Cir.), cert. denied,

--- U.S.

----, 114 S.Ct. 417, 126

L.Ed.2d 363 (1993). Although the district court made no finding regarding whether Rickett's action

significant ly hindered his investigation or prosecution, it did adopt the findings contained in the PSR

in their entirety. Therefore, we review the findings contained in the PSR as if they had been made

by the court.

The PSR found that Rickett's decision to provide a false identification document at the time

of his arrest caused t he arrest o f an innocent individual and required the Government to file a

superseding indictment in order to correct the original indictment which listed the defendant under

an alias. However, there was no finding as to whet her t hese t hings significantly hindered the

investigation or prosecution of Rickett. Despite the absence of such a determination, it is clear that

Rickett's actions significant ly hindered the investigation. Consequently, the district court's failure to

make this specific findi ng was harmless error, because under the facts of this case the sentence

enhancement was clearly justified.

II. Acceptance of Responsibility

Rickett argues that the district court erred by failing to adjust his offense level downward for

acceptance of responsibility under § 3E1.1. The district court adopted the PSR's recommendation

that Rickett be denied a downwar d adjust ment for acceptance of responsibility because Rickett

admitted to smoking marijuana while he was released on bond pending trial and because of Rickett's

obstruction of justice.

A defendant is entitled to a 2-level reduction in his offense level if he "clearly demonstrates

acceptance of responsibility for his offense[.]" U.S.S.G. § 3E1.1(a). The defendant bears the burden

of proving that he is entitled to the downward adjustment. United States v. Kinder, 946 F.2d 362,5

367 (5th Cir.1991), cert. denied, 503 U.S. 987, 112 S.Ct. 1677, 118 L.Ed.2d 394 and 504 U.S. 946,

112 S.Ct. 2290, 119 L.Ed.2d 214 (1992). The entry of a guilty plea prior to the commencement of

trial is significant evidenc e o f acceptance of responsibility but does not entitle the defendant to a

reduction as a matter of right. U.S.S.G. § 3E1.1 comment. (n.3); s ee United States v. Shipley, 963

F.2d 56, 58 (5th Cir.), cert. denied, 506 U.S. 925, 113 S.Ct. 348, 121 L.Ed. 2d 263 (1992). Thi s

court applies a very deferential standard of review to a district court's refusal to credit a defendant's

acceptance of responsibility. U nited States v. Bermea, 30 F.3d 1539, 1577 (5th Cir. 1994), c ert.

denied

, --- U.S.

---- - ----, 115 S.Ct. 1113, 1825, 130 L.Ed.2d 1077 (1995); U.S.S.G. § 3E1.1,

comment. (n.5) (the determination of the sentencing judge is entitled to great deference); s ee United

States v. Thomas, 12 F.3d 1350, 1372 & n. 39 (5th Cir.) (applying "clearly erroneous" standard and

noting, that there "appear[ed] to be no practical difference" between that standard and the "without

foundation" or "great deference" standards used in other cases) (inter nal quot ations and citations

omitted), cert. denied, --- U.S. ----, ----, 114 S.Ct. 1861, 2119, 128 L.Ed.2d 483 (1994).

Rickett argues that he admitted his wrongdoing, fully accepted responsibility for his actions,

and expressed true remorse for his crime. He argues that he tested positive for marijuana only once

while on pretrial release but complied with all other conditions of his pretrial release. He argues that

his "expression of contrition and his behavior after his g uilt y plea indicated that he accepted his

personal responsibility."

The district court may properly deny a reduction for acceptance of responsibility for failure

to refrain from criminal conduct while on pretrial release. U nited States v. Hooten, 942 F.2d 878,

883 (5th Cir.1991); U

nited States v. Watkins, 911 F.2d 983, 985 (5th Cir.1990). This court has also

held that it was not improper for a district court to consider a defendant's failure to comply with the

conditions of his bond in determining whether to grant a reduction for acceptance of responsibility.

Hooten, 942 F.2d at 882-83.

Rickett admitted that he used marijuana, and he tested positive for drugs while on pretrial

release. The district court properly relied on this information to deny him a three-level reduction for6

acceptance of responsibility. Watkins, 911 F.2d at 985.

Ricket t also argues that the district court's denial of a reduction was not justified by the

obstruction-of-justice enhancement because he did not obstruct justice and, alternatively, that his use

of a false identification at the time of his arrest was not inconsistent with his subsequent acceptance

of responsibilit y. He argues that under the district court's ruling, "[n]othing he did, or could have

done, would have resulted in receiving points for acceptance of responsibility."

A defendant's conduct which results in an offe n se-level enhancement under § 3C1.1 for

obstruction of justice "ordinarily indicates that the defendant has not accepted responsibility for his

criminal conduct" except in "extraordinar y cases in which adjustments under both §§ 3C1.1 and

3E1.1 may apply." U.S.S.G. § 3E1.1, comment. (n.4). Rickett's arguments are unpersuasive. We

have found that the evidence clearly supports the district court's f i nding that Rickett obstructed

justice. Additionally, as discussed above, the district court could properly deny a reduction based on

Rickett's pretrial

drug use. Therefore, the district court did not err when it denied a reduction of

Rickett's sentence for acceptance of responsibility.

CONCLUSION

For the foregoing reasons, Rickett's sentence is AFFIRMED.