United States v. Smith

* 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that this opinion should not be published and is not precedent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. 01-51052
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAFREDRICK DONTAI SMITH, also known as
LaFredrick Donta Smith,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. W-01-CR-38-ALL
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June 18, 2002
Before HIGGINBOTHAM, DAVIS and, EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
LaFredrick Smith appeals his sentence following his guilty
plea to possession with the intent to distribute crack cocaine.
He argues that the district court erred in denying him credit for
acceptance of responsibility pursuant to U.S.S.G. § 3E1.1.
Challenges to the denial of a U.S.S.G. § 3E1.1 reduction are
reviewed even more deferentially than a pure “clearly erroneous”
standard, United States v. Gonzales, 19 F.3d 982, 983 (5th Cir.

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No. 01-51052
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1994), and the defendant has the burden of proof, United States
v. Tremelling, 43 F.3d 148, 152 (5th Cir. 1995). We find that
the district court was aware that it had the discretion to award
Smith credit for acceptance of responsibility despite enhancing
his sentence pursuant to U.S.S.G. § 3C1.1 for obstructing
justice. We further hold that the district court did not err in
refusing to award Smith a U.S.S.G. § 3E1.1 credit, because his
case was not an “extraordinary” one under which adjustments
pursuant to U.S.S.G. §§ 3C1.1 and 3E1.1 might apply. See
U.S.S.G. § 3E1.1, comment. (n. 4).
AFFIRMED.

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