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

                                                                 FILED
                                                                June 19, 2008
                                No. 07-50559
                             Conference Calendar            Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

KENNETH HERACLIO VASQUEZ, also known as Kenneth Heralio Vasquez

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                        USDC No. 3:06-CR-2308-ALL


Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
      Kenneth Heraclio Vasquez appeals his 30-month concurrent sentences
imposed following his guilty plea to possession of stolen goods from interstate
shipment, trafficking in unauthorized access devices, possession of unauthorized
access devices, unauthorized sale of access devices, and unauthorized offering
of access devices.
      Vasquez argues that the district court erred in not adjusting his offense
level downward for acceptance of responsibility. He argues that he pleaded

      *
      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should not be published and is not precedent except under the limited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. 07-50559

guilty prior to trial and that he did not deny any relevant conduct in which he
was involved.
      Entering a guilty plea prior to trial is a factor to be considered in
determining whether an adjustment for acceptance of responsibility should be
made. U.S.S.G. § 3E1.1, comment. (n.3). However, the entry of the plea does not
entitle a defendant to the adjustment as a matter of right. Id. Consideration
may also be given to whether the defendant truthfully admitted or falsely denied
any additional relevant conduct for which he was accountable.            § 3E1.1,
comment. (n.1(a)). A defendant may remain silent with respect to relevant
conduct without affecting his ability to obtain a reduction; “[h]owever, a
defendant who falsely denies, or frivolously contests, relevant conduct that the
court determines to be true has acted in a manner inconsistent with acceptance
of responsibility.” Id.
      Vasquez denied at the evidentiary hearing that he sold more than 70
smart cards.     The district court, which observed Vasquez’s demeanor,
determined that his testimony was not credible. Because Vasquez falsely denied
engaging in the relevant conduct, he acted in a manner inconsistent with
acceptance of responsibility. Id. Therefore, the district court’s ruling is not
without foundation. See United States v. Solis, 299 F.3d 420, 458 (5th Cir. 2002).
The district court did not err in refusing to make an adjustment under § 3E1.1.
The district court did not abuse its discretion in imposing the sentence and, thus,
the sentence is reasonable. See Gall v. United States, 128 S. Ct. 586, 597 (2007).
      AFFIRMED.




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