The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-12542 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 30, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 4:10-cr-00071-SPM-WCS-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
CALIXTE SIMEON,
a.k.a. Big C,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(March 30, 2012)
Before TJOFLAT, EDMONDSON and MARCUS, Circuit Judges.
PER CURIAM:
Calixte Simeon appeals his sentence of 41 months in prison, imposed below
the applicable guideline range, after pleading guilty to one count of credit card fraud,
in violation of 18 U.S.C. §§ 1029(a)(2) and (c), and 2. On appeal, Simeon argues that
the district court erred when it applied a two-level enhancement for obstruction of
justice under U.S.S.G. § 3C1.1 and denied a three-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1, based on its finding that he gave materially
false information to his probation officer in connection with the preparation of his
presentence investigation report (“PSI”). After thorough review, we affirm.
We review a district court’s factual findings supporting a sentencing
enhancement for obstruction of justice for clear error and its application of the
Sentencing Guidelines to those facts de novo. United States v. Tampas, 493 F.3d
1291, 1303 (11th Cir. 2007). Similarly, we review for clear error a district court’s
denial of a sentencing reduction for acceptance of responsibility, and “that finding is
entitled to great deference on review and should not be disturbed unless it is without
foundation.” United States v. Knight, 562 F.3d 1314, 1322 (11th Cir. 2009)
(quotation omitted). We will not set aside the district court’s determination unless
the facts in the record clearly establish that the defendant has accepted responsibility.
United States v. Moriarty, 429 F.3d 1012, 1022-23 (11th Cir. 2005). When the
district court bases its finding on a “decision to credit the testimony of one of two or
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more witnesses, each of whom has told a coherent and facially plausible story that is
not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can
virtually never be clear error.” Anderson v. City of Bessemer City, N.C., 470 U.S.
564, 575 (1985).
A defendant is subject to a two-level enhancement under § 3C1.1 if he
“willfully obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation, prosecution, or sentencing
of the instant offense of conviction . . . .” Among other examples of covered conduct,
“providing materially false information to a probation officer in respect to a
presentence or other investigation for the court” qualifies for an obstruction
adjustment. U.S.S.G. § 3C1.1 comment. (n.4(H)). However, “providing incomplete
or misleading information, not amounting to a material falsehood, in respect to a
presentence investigation,” would ordinarily not result in an enhancement under this
section. U.S.S.G. § 3C1.1 comment. (n.5(C)). “Material” is defined in this section
as any “evidence, fact, statement, or information that, if believed, would tend to
influence or affect the issue under determination.” Id. at (n.6).
A defendant may be entitled to a two-level reduction in his offense level if he
“clearly demonstrates acceptance of responsibility for his offense,” and a total
three-level reduction if other conditions apply and the government moves to further
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reduce the offense level. U.S.S.G. § 3E1.1(a) and (b). The commentary to this
section provides that a “defendant who enters a guilty plea is not entitled to an
adjustment under this section as a matter of right.” Id. at (n.3). In order to constitute
significant evidence of acceptance of responsibility, a defendant must not only plead
guilty, but also “truthfully admit[] the conduct comprising the offense of conviction.”
Id. The sentencing judge’s determination is entitled to “great deference on review.”
Id. at (n.5).
Here, the district court’s application of the obstruction enhancement and denial
of the acceptance-of-responsibility reduction were not erroneous. Although Simeon
timely pleaded guilty to the offense of conviction, the record supports that he
thereafter provided false information to the probation officer about his role in the
offense. Specifically, Simeon only claimed a minor role in the credit card scheme,
saying that he received the cards from one of the codefendants and did not know how
they were encoded with the fraudulent credit card information. However, testimony
from his codefendants, Sammy Lamy and Twon Howard, indicated that Simeon was
the one who coordinated the purchases of the credit card information, encoded the
cards, and sold the fraudulent cards to Lamy and Howard. Despite Simeon’s
assertions that this testimony was unreliable, his codefendants told a coherent and
facially plausible story which the district court found credible, and the district court’s
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findings based on the decision to credit such testimony “can virtually never be clear
error.” Anderson, 470 U.S. at 575.
Moreover, Simeon’s statements to the probation officer about his role in the
offense were material to the determination of his sentence, because if believed they
would change the calculation of his applicable sentencing guideline range and the
court’s consideration of an appropriate sentence. See U.S.S.G. § 3C1.1 comment.
(n.6). Therefore, the district court did not clearly err in finding that Simeon provided
materially false information to a probation officer during the preparation of the PSI,
and the court properly applied the obstruction enhancement. See id. at (n.4(H)). The
court also did not clearly err in denying the acceptance-of-responsibility reduction,
because Simeon’s statements to the probation officer, minimizing his role in the
offense, were inconsistent with a clear acceptance of responsibility. See Moriarty,
429 F.3d at 1022-23. Accordingly, we affirm.
AFFIRMED.
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