United States of America v. Booker, 543 U.S. 220 2005 . See United States v. Duncan, 400 F.3d 1297, 1304-05 11th…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4644
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANCISCO FROYLAN TELLO-NICIO,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:05-cr-00218-F)
Submitted: July 6, 2007 Decided: August 6, 2007
Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Deborrah L. Newton, Raleigh, North Carolina, for Appellant. George
E. B. Holding, United States Attorney, Anne M. Hayes, Christine
Witcover Dean, Assistant United States Attorneys, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Francisco Froylan Tello-Nicio appeals from his thirty-
seven month sentence entered following a jury verdict convicting
him of possession of a firearm by an illegal alien. Tello-Nicio
challenges the calculation of his advisory Guidelines range and
asserts that his sentence was unreasonable. We affirm.
Tello-Nicio first contends that the district court erred
by considering acquitted conduct in determining his offense level
under the Sentencing Guidelines. However, a district court is free
at sentencing to consider acquitted conduct proved by a
preponderance of the evidence, even after United States v. Booker,
543 U.S. 220 (2005). See United States v. Duncan, 400 F.3d 1297,
1304-05 (11th Cir.), cert. denied, 126 S. Ct. 432 (2005); United
States v. Williams, 399 F.3d 450, 453-54 (2d Cir. 2005). The
district court’s finding that Tello-Nicio was responsible for
certain marijuana shipments and that a firearm was possessed during
his relevant conduct is reviewed for clear error. See United
States v. Green, 436 F.3d 449, 456 (4th Cir.), cert. denied, 126 S.
Ct. 2309 (2006); see also United States v. McAllister, 272 F.3d
228, 233-34 (4th Cir. 2001) (holding that firearm enhancement
applies when a weapon was possessed in connection with drug
activity that was part of the relevant conduct). Based on the
undisputed trial testimony that Tello-Nicio signed for a marijuana
shipment and possessed a firearm that was found in his room near a

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plastic bag with marijuana residue and a fabric softener sheet, we
conclude that the district court did not clearly err in calculating
Tello-Nicio’s offense level.
Next, Tello-Nicio contends that the district court should
have granted him an acceptance of responsibility adjustment,
because at trial he admitted that he was an illegal alien in
possession of a firearm, the only count of which he was convicted.
We review the district court’s fact-based decision not to grant an
acceptance of responsibility reduction for clear error and give
great deference to the district court’s conclusions as “that court
is in a unique position to assess the defendant’s motives and
genuineness.” See United States v. Hicks, 368 F.3d 801, 808 (7th
Cir. 2004).
In deciding whether an acceptance of responsibility
adjustment is warranted, the sentencing court should consider
whether the defendant has truthfully admitted “the conduct
comprising the offense(s) of conviction, and truthfully admitt[ed]
or not falsely den[ied] any additional relevant conduct for which
the defendant is accountable under § 1B1.3 (Relevant Conduct).”
U.S. Sentencing Guidelines Manual § 3E1.1, cmt. n.1(a) (2005).
Application Note 1(a) also advises that a defendant need not
“volunteer, or affirmatively admit, relevant conduct beyond the
offense of conviction in order to obtain a reduction,” and “may
remain silent in respect to relevant conduct beyond the offense of

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conviction without affecting his ability to obtain a
reduction. . . .” Id. But “a defendant who falsely denies, or
frivolously contests, relevant conduct that the court determines to
be true has acted in a manner inconsistent with acceptance of
responsibility[.]” Id.
While in rare circumstances a defendant may exercise his
right to trial and still receive an adjustment for acceptance of
responsibility, see United States v. Harriott, 976 F.2d 198, 200-02
(4th Cir. 1992), this is not such a case. Here, Tello-Nicio denied
his involvement with drugs at trial and at sentencing. Given the
fact that he accepted delivery for over twenty kilograms of
marijuana, the district court’s conclusion that Tello-Nicio’s
testimony falsely denied his relevant conduct was not clear error.
Moreover, if Tello-Nicio wished to limit his appearance at trial to
certain counts, he was obligated to make that known ahead of time,
so that the Government would not waste resources. See Hicks, 368
F.3d at 809 (7th Cir. 2004). Accordingly, the district court
correctly determined that Tello-Nicio was not entitled to an
acceptance of responsibility adjustment.
Finally, Tello-Nicio argues that his sentence was
unreasonably harsh, given that the jury acquitted him of most of
the conduct for which he was held responsible at sentencing.
Tello-Nicio also contends that his was a unique case, because the

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Government’s own witness exonerated him of responsibility for some
of the charged crimes.
We review a post-Booker sentence “to determine whether
the sentence is within the statutorily prescribed range and is
reasonable.” United States v. Moreland, 437 F.3d 424, 433 (4th
Cir.), cert. denied, 126 S. Ct. 2054 (2006). “[A] sentence within
the proper advisory Guidelines range is presumptively reasonable.”
United States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006). “[A]
defendant can only rebut the presumption by demonstrating that the
sentence is unreasonable when measured against the [18 U.S.C.A.
§ 3553(a)] [(West 2000 & Supp. 2007)] factors.” United States v.
Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006), cert. denied, 127
S. Ct. 3044 (2007).
Tello-Nicio’s sentence, in the middle of his Guideline
range, was presumptively reasonable. In addition, the district
court stated that it considered the § 3553 factors. Moreover, the
acquitted conduct challenged by Tello-Nicio and considered by the
court was supported by substantial evidence. To ignore such
evidence would neither promote respect for the law nor provide just
punishment, as required by § 3553. Thus, we conclude that Tello-
Nicio has failed to rebut the presumption that his sentence was
reasonable.
Accordingly, we affirm Tello-Nicio’s sentence. We
dispense with oral argument, because the facts and legal

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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED

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