     Case: 11-10394       Document: 00512187378         Page: 1     Date Filed: 03/26/2013




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

                                                                            FILED
                                                                          March 26, 2013
                                     No. 11-10394
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,

v.

JORGE LUIS RASCON,

                                                  Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:10-CR-175-1


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Jorge Luis Rascon pleaded guilty to conspiracy to distribute a controlled
substance in violation of 21 U.S.C. §§ 846 and 841(a)(1) and was sentenced to 78
months of imprisonment and three years of supervised release. Rascon argues
that the district court erred in denying the reduction for acceptance of
responsibility pursuant to section 3E1.1(a) of the U.S. Sentencing Guidelines.
He argues that the responses to the presentence report (PSR) were couched in
terms of counsel’s belief and that no factual or legal arguments against the drug

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10394     Document: 00512187378      Page: 2    Date Filed: 03/26/2013

                                  No. 11-10394

quantity were included. He notes that when it became clear that the district
court took these responses as objections, defense counsel withdrew the objections
and explained that Rascon admitted all relevant conduct.
      In his response to the PSR, Rascon objected to the use of his relevant
conduct relating to his trafficking of two kilograms of cocaine on eight occasions,
recalling only three occasions.     The district court concluded that he had
frivolously contested his relevant conduct, which section 3E1.1 explicitly cites as
a basis for denial of the reduction for acceptance of responsibility.          U.S.
Sentencing Guidelines Manual § 3E1.1 cmt. n.1(A) (2010). Rascon seeks to
characterize his objections as arguments in favor of a downward variance, but
the district court’s decision to treat his PSR responses as an objection frivolously
contesting the probation officer’s drug-quantity determination is not without
foundation. See United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir.
2008) (per curiam).
      Rascon further argues that the denial of the acceptance of responsibility
reduction resulted from ineffective assistance of counsel. We decline to address
this claim of ineffective assistance on direct appeal without prejudice to Rascon’s
right to bring it in a 28 U.S.C. § 2255 proceeding. See United States v. Cantwell,
470 F.3d 1087, 1091 (5th Cir. 2006).
      AFFIRMED.




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