Case: 15-20542      Document: 00513690269         Page: 1    Date Filed: 09/23/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 15-20542                                FILED
                                  Summary Calendar                      September 23, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

AVERY LAMARR AYERS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CR-212-1


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Avery Lamarr Ayers appeals the 60-month sentence imposed in
connection with his guilty-plea conviction for conspiracy to commit wire fraud.
He contends that the district court erred by denying him a reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1. Ayers argues that he is
entitled to the reduction because he timely pleaded guilty and admitted all of
the essential elements of the conspiracy offense. He asserts that his opposition


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-20542     Document: 00513690269       Page: 2   Date Filed: 09/23/2016


                                    No. 15-20542

to the leadership role adjustment does not warrant the denial of a reduction
for acceptance of responsibility.
      A defendant may receive a reduction in offense level pursuant to § 3E1.1
if he “clearly demonstrates acceptance of responsibility for his offense.”
§ 3E1.1(a).   It is the defendant’s burden to show that the reduction is
warranted. United States v. Watson, 

, 551 (5th Cir. 1993). “While
the district court’s findings under the sentencing guidelines are generally
reviewed for clear error, a determination whether a defendant is entitled to an
adjustment for acceptance of responsibility is reviewed with even greater
deference.” United States v. Buchanan, 

, 287 (5th Cir. 2007). We
will affirm the district court’s decision not to grant a defendant a reduction for
acceptance of responsibility unless that decision is “without foundation.”
United States v. Juarez-Duarte, 

, 211 (5th Cir. 2008) (internal
quotation marks and citation omitted).
      Here the presentence report (PSR) provided credible evidence that Ayers
denied relevant conduct. The record supports that Ayers sought to minimize
his role and the duration of his involvement in the fraudulent scheme. See
United States v. Angeles-Mendoza, 

, 753 (5th Cir. 2005); United
States v. Cabrera, 

, 177 (5th Cir. 2002). Ayers’s assertions and
objections to the PSR were not competent rebuttal evidence. See United States
v. Rodriguez, 

, 363 (5th Cir. 2010). Accordingly, the district court
was entitled to rely upon the PSR and adopt its version of the facts rather than
Ayers’s contrary assertions. See United States v. Ruiz, 

, 396 (5th
Cir. 2010); United States v. Spires, 

, 467 (5th Cir. 1996). Ayers has
therefore not demonstrated that the district court’s decision not to grant him
acceptance of responsibility was “without foundation.” See 

. Accordingly, the judgment of the district court is AFFIRMED.



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