      Case: 19-40682          Document: 00515416737              Page: 1      Date Filed: 05/14/2020




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

                                                                                              FILED
                                          No. 19-40682                                     May 14, 2020
                                        Summary Calendar
                                                                                           Lyle W. Cayce
                                                                                                Clerk
UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee

v.

KENDRICK WAYNE THOMPSON,

                                                          Defendant-Appellant

----------------------------------------------------------------------------------------
Consolidated with No.19-40684

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee

v.

KENDRICK WAYNE THOMPSON, also known as Ken Ken,

                                                          Defendant-Appellant


                      Appeals from the United States District Court
                            for the Eastern District of Texas
                                USDC No. 4:17-CR-165-1
                                 USDC No. 4:18-CR-93-2
     Case: 19-40682      Document: 00515416737         Page: 2    Date Filed: 05/14/2020


                                     No. 19-40682
                                   c/w No. 19-40684

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Kendrick Wayne Thompson appeals the sentence imposed following his
guilty-plea convictions for conspiracy to possess with intent to distribute more
than one kilogram of heroin and conspiracy to possess with intent to distribute
more than 400 grams of heroin. He argues that the district court erred in
denying him credit for acceptance of responsibility. We affirm.
       Section 3E1.1 of the United States Sentencing Guidelines provides for
either a two or three-level adjustment in a defendant’s offense level where he
has “clearly demonstrat[ed]” acceptance of responsibility for the offense.
United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008). We will
affirm a district court’s refusal to award credit under § 3E1.1 unless the court’s
decision is “without foundation,” which is a standard of review more deferential
than the clear error standard. Id. (internal quotation marks and citation
omitted).
       The record reveals that while in federal custody pursuant to the
indictment charging him with conspiracy to possess with intent to distribute
more than one kilogram of heroin, Thompson became involved in the drug-
trafficking activities that formed the basis of the second indictment charging
him with conspiracy to possess with intent to distribute more than 400 grams
of heroin. Thompson’s sole contention on appeal is that, despite continuing the
same pattern of illicit activity while in custody, he is entitled to credit for
acceptance of responsibility because he did not deny any facts or put the
Government to its burden of proof and six weeks after his arraignment in the


       * 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.



                                             2
       Case: 19-40682   Document: 00515416737     Page: 3   Date Filed: 05/14/2020


                                   No. 19-40682
                                 c/w No. 19-40684

second case, he pleaded guilty in open court with a written factual basis for the
plea.
        His guilty plea, however, does not entitle him to credit for acceptance of
responsibility “as a matter of right.” See U.S.S.G. § 3E1.1, comment. (n.3);
United States v. Patino-Cardenas, 85 F .3d 1133, 1135 (5th Cir. 1996). While
a defendant’s entry of a guilty plea prior to trial in conjunction with the
truthful admission of any relevant conduct constitutes “significant evidence of
acceptance of responsibility,” such evidence may be outweighed by conduct that
is inconsistent with acceptance. § 3E1.1, comment. (n.3). The district court
found that Thompson’s guilty plea to the second-charged offense and his
admission to the elements thereof was overshadowed by his engaging in a
second, near-identical drug trafficking offense while in custody for the first.
Because Thompson engaged in conduct inconsistent with acceptance of
responsibility, the district court’s refusal to award him any credit was not
without foundation. See § 3E1.1, comment. (n.3); Juarez-Duarte, 513 F.3d at
211.
        AFFIRMED.




                                         3
