                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
                  UNITED STATES COURT OF APPEALS
                           FIFTH CIRCUIT                       July 18, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             04-20096
                         Summary Calendar


                    UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee,

                              versus

                      DAVID JOSE HERNANDEZ,

                                                Defendant-Appellant.


          Appeal from the United States District Court
               for the Southern District of Texas
                         (4:02-CR-342-1)


Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

     David Jose Hernandez appeals his sentence, following his jury-

trial conviction, for importation of heroin into the United States.

See 21 U.S.C. §§ 952(a), 960(a), 960(b)(3).        The sentence was

imposed prior to United States v. Booker, 125 S. Ct. 738 (2005)

(finding sentencing guidelines only advisory).

     He contends first that the district court erred in denying him

a two-level reduction in his offense level for acceptance of

responsibility.   See U.S.S.G. § 3E1.1.       There is no merit in


     *
       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this opinion should not be published and is not precedent except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.
Hernandez’s contention that the pre-Booker denial of the reduction

penalized    him    for   exercising        his   right    to     refrain    from

incriminating himself on a conspiracy charge pending against him in

New York.    Section 3E1.1 provides a method to grant leniency to

contrite defendants; denial of that leniency is not a penalty for

a defendant who has not accepted responsibility for his crime.

Hernandez did not accept responsibility for his crime prior to

trial.    The denial of the reduction was not error.                   See United

States v. Angeles-Mendoza, 407 F.3d 742, 752-53 (5th Cir. 2005)

(district court’s determination under § 3E1.1 is reviewed with even

more deference than is due under clearly erroneous standard).

     For the first time on appeal, Hernandez contends the district

court erred in imposing a sentence under a mandatory guideline

scheme, in violation of Booker, 125 S. Ct. at 756-57.                  Because he

did not raise this issue in district court, this claim is reviewed

only for plain error. See United States v. Valenzuela-Quevedo, 407

F.3d 728, 733-34 (5th Cir. 2005).           Hernandez makes no showing, as

required by Valenzuela-Quevedo, that the district court would

likely have sentenced him differently under an advisory sentencing

scheme.     Similarly, there is no indication from the district

court’s   remarks   at    sentencing       that   it   would    have   reached   a

different conclusion.      Thus, Hernandez has not met his burden of

persuasion to show that the district court’s imposition of a

sentence under a mandatory guideline scheme was reversible plain


                                       2
error.   See id.; see also United States v. Olano, 507 U.S. 725,

732-35 (1993).

                                                     AFFIRMED




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