         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                  Fifth Circuit

                                               FILED
                                                                         November 4, 2009

                                       No. 07-11295                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee
v.

FERNANDO V. TRUJILLO,

                                                  Defendant–Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                           USDC No. 4:07-CR-071-A (3)


Before BARKSDALE, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Fernando Trujillo pled guilty to conspiracy to possess with the intent to
distribute more than 100 kilograms of marijuana. He received a ninety-month
prison sentence. Trujillo claims the district court erred by denying him an
acceptance of responsibility reduction and by upwardly departing on his
sentence. We find no error and AFFIRM.




*
       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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 07-11295

A.    Denial of Acceptance of Responsibility Reduction
      The district court’s interpretation and application of the Sentencing
Guidelines are reviewed de novo; factual findings are reviewed for clear error.
United States v. Klein, 543 F.3d 206, 213 (5th Cir. 2008).           Because the
sentencing judge is in a unique position to assess acceptance of responsibility
and remorse, a factual finding on those issues is reviewed under a standard even
more deferential than a clearly erroneous one.          United States v. Angeles-
Mendoza, 407 F.3d 742, 753 (5th Cir. 2005). Such a finding should not be
disturbed unless it is “without foundation.” United States v. Sanchez-Ruedas,
452 F.3d 409, 414 (5th Cir. 2006) (citation omitted).
      There was no error in denying Trujillo the acceptance of responsibilty
reduction.   See U.S.S.G. § 3E1.1.    The district court expressly adopted the
probation officer’s findings that Trujillo attempted to minimize his role in the
offense by claiming that he was merely doing a favor for a friend without the
expectation of payment. Failure to admit the extent of one’s role is a basis to
deny the reduction. Angeles-Mendoza, 407 F.3d at 753. There was evidence that
Trujillo was present during the drug delivery, that he knew where the drugs
were located, and that he knew the future destination of the remainder of the
marijuana in the delivery truck. It was not clearly erroneous for the district
court to use this evidence to infer that Trujillo was more involved in the
conspiracy than he admitted.       Therefore, the denial of the acceptance of
responsibilty reduction was not “without foundation” and will not be disturbed.
Sanchez-Ruedas, 452 F.3d at 414.
      Because there was a sufficient basis for denial, we do not analyze Trujillo’s
separate claim that the district court erred by denying the reduction based on
failing to discuss prior arrests with the probation officer.


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      In addition, we hold that it was not inconsistent for the district court to
grant Trujillo the safety valve reduction but not grant him the acceptance of
responsibility reduction. While both provisions have truth-telling requirements,
there is no inconsistency because the truth-telling under each provision concerns
different matters. Truth, contrition, and acceptance of guilt of the crime of
conviction would have made Trujillo eligible for an acceptance of responsibilty
reduction. United States v. Outlaw, 319 F.3d 701, 706 (5th Cir. 2003). The
safety valve provision is not primarily concerned with the crime of conviction,
nor is contrition relevant. See U.S.S.G. § 5C1.2(a). Telling all about the larger
drug conspiracy with which he was not charged did not require Trujillo to
explain his precise level of involvement in the charged offense. Therefore, there
was no inconsistency in the district court’s rulings.
B.    Upward Departure
      We review a district court’s decision to make an upward departure and its
extent for abuse of discretion. United States v. Rajwani, 476 F.3d 243, 249 (5th
Cir. 2007), modified on other grounds, 479 F.3d 904 (5th Cir. 2007).
      “A district court does not abuse its discretion in upwardly departing if its
reasons (1) advance the objectives set forth in 18 U.S.C. § 3553(a)(2); (2) are
authorized by 18 U.S.C. § 3553(b); and (3) are justified by the facts of the case.”
Rajwani, 476 F.3d at 249-50 (citation and internal quotations omitted).
However, an upward departure constitutes an abuse of discretion if “the degree
of the departure or the sentence as a whole is unreasonable.” Id. at 250.
      Here, the district court adopted the probation officer’s recommendation to
make an upward departure based on the finding that the calculated criminal
history category substantially under-represented the seriousness of Trujillo’s
criminal history and his likelihood of recidivism. This recommendation was

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supported by detailed accounts of two instances in which Trujillo was indicted
but not convicted for drug trafficking offenses. This is an acceptable reason for
an upward departure. U.S.S.G. § 4A1.3(a)(1); see also United States v. Jones,
444 F.3d 430, 434 (5th Cir. 2006).
      Based on these factual findings, the district court determined that a higher
criminal history category more accurately reflected Trujillo’s criminal history.
See U.S.S.G. § 4A1.3(a)(4)(A). Therefore, the district court upwardly departed
from the guideline range of fifty-one to sixty-three months and imposed a ninety-
month sentence.
      There also is no merit to Trujillo’s claim that the extent of the upward
departure was unreasonable because the district court did not give reasons why
a lesser criminal history category would have been inadequate. A district court
needs to explain the reasons for adopting a particular criminal history category,
but it is not required to detail the reasons for rejecting others. United States v.
Zuniga-Peralta, 442 F.3d 345, 348 n.2 (5th Cir. 2006).
      The district court did not abuse its discretion by upwardly departing in
this case. AFFIRMED.




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