     Case: 13-10058      Document: 00512518133         Page: 1    Date Filed: 01/31/2014




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

                                                                                 FILED
                                    No. 13-10058                          January 31, 2014
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

WILLIAM ALLEN MCCUIN, also known as William McCuin,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:12-CR-153-1


Before DAVIS, SOUTHWICK and HIGGINSON, Circuit Judges.
PER CURIAM: *
       William Allen McCuin pleaded guilty to possessing a firearm as a felon.
The district court held a lengthy sentencing hearing involving the testimony of
several witnesses regarding allegations that McCuin employed a 16-year-old
girl as a prostitute and, while on pretrial release, approached the girl and took
her to another city.        The district court denied McCuin an offense-level
reduction for acceptance of responsibility, finding that he had violated a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10058      Document: 00512518133    Page: 2   Date Filed: 01/31/2014


                                  No. 13-10058

condition of his pretrial release that he not contact any victim or witness in the
investigation or prosecution. It imposed a 92-month prison sentence, which
was twice the high end of the advisory guidelines range.            McCuin now
challenges that sentence.
      According to McCuin, the district court improperly denied him a
reduction in his offense level for acceptance of responsibility. He contends that
the only evidence that he violated the terms of his pretrial release was the
report of the 16-year-old girl, who, he asserts, was unreliable. As evidence of
her unreliability, McCuin points to several discrepancies in the girl’s account
of her relationship with him.
      Although a defendant who pleads guilty prior to trial and truthfully
admits relevant conduct may qualify for an offense-level reduction for
acceptance of responsibility, “this evidence may be outweighed by conduct of
the defendant that is inconsistent with acceptance of responsibility.” U.S.S.G.
§ 3E1.1, comment. (n.3).        We have upheld the denial of reductions for
acceptance of responsibility where defendants have violated the conditions of
their pretrial release. See, e.g., United States v. Hooten, 942 F.2d 878, 882-83
(5th Cir. 1991).     Because the sentencing court is in a unique position to
evaluate a defendant’s acceptance of responsibility, we will affirm the denial of
this offense-level reduction unless it is “without foundation.” United States v.
Rudzavice, 586 F.3d 310, 315 (5th Cir. 2009).
      The district court heard extensive testimony about the girl’s allegations,
which were also described in the presentence report (PSR) and the addendums.
The court made detailed credibility findings, determining, for instance, that
the girl was generally credible and that McCuin was not. The court considered,
but was not swayed by, the minor inconsistencies in the girl’s account,
determining that none called into question the veracity of the core of her



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                                 No. 13-10058

testimony. McCuin has not shown that the PSR’s findings lacked sufficient
indicia of reliability especially given that they were based on statements of a
witness the court found credible. See United States v. Zuniga, 720 F.3d 587,
591 (5th Cir. 2013). Moreover, the handful of minor inconsistencies in the girl’s
story do not establish that the PSR’s findings or any of the evidence that the
court relied on was materially untrue, inaccurate, or unreliable such that the
court’s decision to deny the adjustment for acceptance of responsibility was
without foundation. See id.; Rudzavice, 586 F.3d at 315.
      Finally, McCuin challenges the above-guidelines sentence on the
grounds that it was based on facts not found by a jury and thus violates the
Sixth Amendment.      As he acknowledges, however, we have rejected this
argument, and he raises it only to preserve it for future review. See United
States v. Hernandez, 633 F.3d 370, 374 & n.7 (5th Cir. 2011) (holding that a
sentence within the statutory maximum that is based upon judge-found facts
does not violate the Sixth Amendment).
      The district court’s judgment is AFFIRMED.




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