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United States v. Defina, 97-10630 (1997)

Court: Court of Appeals for the Fifth Circuit Number: 97-10630 Visitors: 20
Filed: Dec. 24, 1997
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 97-10630 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DAVID DEFINA, also known as Syde Patrick Defina, Defendant-Appellant. - - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 2:96-CR-49-1 - - - - - - - - - - December 17, 1997 Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges. PER CURIAM:* David Defina appeals from his sentence for possession with intent
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                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                              No. 97-10630
                            Summary Calendar



UNITED STATES OF AMERICA,

                                             Plaintiff-Appellee,

versus

DAVID DEFINA,
also known as Syde Patrick Defina,

                                             Defendant-Appellant.

                        - - - - - - - - - -
           Appeal from the United States District Court
                for the Northern District of Texas
                       USDC No. 2:96-CR-49-1
                        - - - - - - - - - -
                         December 17, 1997
Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

     David Defina appeals from his sentence for possession with

intent   to   distribute   approximately   two   kilograms   of   cocaine.

Defina pleaded guilty under his brother’s name in order to conceal

the fact that Defina was on probation at the time of his offense.

Defina’s true name was discovered prior to sentencing and he was

given a sentence enhancement for obstruction of justice.

     Defina argues that the district court erred in failing to

reduce his offense level for acceptance of responsibility pursuant

     *
      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this opinion should not be published and is not precedent except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.
                                         No. 97-10630
                                              -2-

to United States Sentencing Guidelines Manual § 3E1.1.                            We review

the district court’s finding of acceptance of responsibility under

a    standard       even    more       deferential     than    the    clearly-erroneous

standard.      United States v. Ainsworth, 
932 F.2d 358
, 362 (5th Cir.

1991); U.S. Sentencing Guidelines Manual [hereinafter U.S.S.G.] §

3E1.1 comment. (n.5).

       Defina bore the burden of “demonstrating the recognition and

affirmative acceptance of personal responsibility.”                         United States

v.    Ayala,    
47 F.3d 688
,       690   (5th    Cir.    1995);      see    U.S.S.G.

§ 3E1.1(a).         Defina’s burden was much higher because a defendant

who has received a sentence enhancement for obstruction of justice

will   not     be    granted       a    sentence     reduction       for   acceptance   of

responsibility,            except       under    “extraordinary”           circumstances.

U.S.S.G. § 3E1.1(a) comment. (n.4). Defina’s attempts to meet this

burden were clearly insufficient.

       As Defina did not meet his burden of proof, it was proper for

the district court to summarily deny him the sentence reduction for

acceptance of responsibility.

       AFFIRMED.

Source:  CourtListener

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