                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT         FILED
                          ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                November 9, 2005
                                 No. 05-10598
                                                               THOMAS K. KAHN
                             Non-Argument Calendar                  CLERK
                           ________________________

                    D.C. Docket No. 04-00100-CR-T-30-MSS

UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

      versus

KEVIN D. COBBS,

                                                           Defendant-Appellant.

                          __________________________

               Appeal from the United States District Court for the
                           Middle District of Florida
                         _________________________

                                (November 9, 2005)

Before BIRCH, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

      Kevin D. Cobbs appeals his sentence to 70 months of imprisonment, which

resulted from a guilty plea for wire fraud, credit card fraud, and fraud in
connection with identification documents and information, in violation of 18

U.S.C. §§ 1343, 1029(a)(2), and 1028(a)(7). On appeal, Cobbs argues that the

district court committed clear error in denying him a 2-level reduction for

acceptance of responsibility under U.S.S.G. § 3E1.1(a). We AFFIRM.



                                I. BACKGROUND

      In January 2005, Cobbs pled guilty to stealing $60,000 in violation of

federal law. Following Cobbs’s guilty plea, the probation officer properly

calculated the offense level and recommended a 3-level reduction for acceptance

of responsibility. A 1-level reduction for prompt pleading is not at issue in this

appeal. Regarding the other 2 levels, the court, at the sentencing hearing, asked

the government whether it had found and recovered the money based on

information provided by Cobbs. After the government reported its unsuccessful

attempts, the court said,

         So far not one person that you’ve named has corroborated what
         you’ve said that you gave them. . . . Mr. Cobbs, I just don’t believe
         it, and I don’t think you’ve cooperated with the government in
         revealing what happened to the fruits of this crime, and I’m not
         going to grant acceptance of responsibility.


R6 at 14.



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      Cobbs enumerates three points of error. First, Cobbs argues that the district

court misinterpreted U.S.S.G. § 3E1.1(a), Application Note 1(e), to require that

fruits of the offense be recovered to receive a reduction for acceptance of

responsibility. Second, Cobbs argues that he was entitled to a reduction for

acceptance of responsibility because he pled guilty, cooperated with law

enforcement officials in the search for the fruits of the crime, and apologized to

the court. Finally, Cobbs argues that he was entitled to an adjustment because the

probation officer so recommended and the government did not appear to object.



                                 II. DISCUSSION

      We review a district court’s factual findings concerning a reduction for

acceptance of responsibility for clear error. United States v. Williams, 408 F.3d

745, 756 (11th Cir. 2005) (per curiam). Under clear error review, the defendant

bears the burden of showing entitlement to a reduction and the sentencing court is

entitled to great deference. Id. “Because demonstration of whether or not the

defendant has personally accepted responsibility for his criminal conduct requires

a consideration of both objective factors and subjective considerations of the

defendant’s demeanor and sincerity, the district court’s determination will not be




                                          3
overturned unless it is without foundation.” United States v. Castillo-Valencia,

917 F.2d 494, 500 (11th Cir. 1990).

      Under U.S.S.G. § 3E1.1(a), if a defendant clearly demonstrates acceptance

of responsibility for his offense, a district court should decrease his offense level

by 2 levels. One factor a court may consider in determining whether the defendant

has accepted responsibility is the defendant’s decision to voluntarily assist

authorities in recovering the fruits and instrumentalities of the offense. See

U.S.S.G. § 3E1.1, Application Note 1(e); see also United States v. Bennett, 928

F.2d 1548, 1557 (11th Cir. 1991). However, mere cooperation is not enough.

United States v. Cruz, 946 F.2d 122, 126 (11th Cir. 1991). The inquiry into

accepting responsibility is about the defendant’s demeanor and sincerity regarding

his wrongful actions. Id.

      On the other hand, we have overturned the denial of a reduction for

acceptance of responsibility where following arrest, the defendant pled guilty and

provided law enforcement with information that successfully lead to the fruits and

instrumentalities of the crime. See United States v. Howard, 923 F.2d 1500, 1505

(11th Cir. 1991). We said that these facts represented “a classic example of the

kind of conduct the sentencing court should credit as indicative of an acceptance

of responsibility.” Id.

                                           4
      Turning to Cobbs’s three enumerations of error, we discern no error by the

district court. First, Cobbs contends that the court required successful return of

the money in order to obtain the reduction. This contention is plainly refuted by

the record, which shows that the court did not believe Cobbs’s statements

regarding the location of the money. Thus, the court was not concerned that the

money was not actually recovered but rather with Cobbs’s demeanor and sincerity.

Because there is no evidence that Cobbs was truthful and because demeanor and

sincerity are factual findings best made by the sentencing court, its ruling was not

clearly erroneous.

      Second, Cobbs claims that he is entitled to the reduction as a matter of law.

Section 3E1.1, Application Note 3, provides that:

      Entry of a plea of guilty prior to the commencement of trial combined
      with truthfully admitting the conduct comprising the offense of
      conviction, and truthfully admitting or not falsely denying any
      additional relevant conduct for which he is accountable . . . will
      constitute significant evidence of acceptance of responsibility for the
      purposes of subsection (a). However, this evidence may be outweighed
      by conduct of the defendant that is inconsistent with such acceptance of
      responsibility. A defendant who enters a guilty plea is not entitled to an
      adjustment under this section as a matter or right.


In Williams, we affirmed that a defendant who enters a guilty plea is not entitled

to a reduction for acceptance of responsibility as a matter of right. 408 F.3d at



                                          5
756. In that case, the sentencing court denied the reduction on grounds that the

defendant testified falsely. Id. at 757.

         In this case, after hearing testimony from the inspector that all attempts to

confirm leads as to the whereabouts of the stolen money had failed, the sentencing

court remarked, “Mr. Cobbs is not being truthful and has not accepted

responsibility.” R6 at 13. The district court was within its discretion to deny the

reduction after finding Cobbs testified falsely. See Williams, 408 F.3d at 757.

         Further, Cobbs has failed to meet the standard we set in Howard for

overturning a court’s denial of a reduction for acceptance of responsibility. Unlike

the facts of this case, the fruits of the crime were recovered. See Howard, 923

F.2d at 1505. This does not mean that the fruits must be recovered to award the

reduction, but it does mean that we will not disturb the district court’s objective

and subjective findings that resulted in the a denial of the reduction when the

factors that led to reversal in Howard are not present. As previously discussed,

Cobbs has failed to prove facts that show the district court’s decision to be clear

error.

         Cobbs’s final assertion of clear error is that he should have been granted the

reduction because the probation officer recommended the reduction and the

government did not appear to object. In United States v. Sawyer, we refused to

                                             6
reverse a district court in similar circumstances. 180 F.3d 1319, 1323 (11th Cir.

1999). The report made by the probation officer is only a sentencing

recommendation. Id. The burden to receive a reduction for acceptance of

responsibility lies with the defendant. Williams, 408 F.3d at 756. In this case, the

district court was within its discretion to disregard the probation officer’s report.

Thus, Cobbs’s argument, that he is entitled to a reduction simply because the

probation officer recommended one, fails.



                                III. CONCLUSION

      Sentencing courts are entitled to great deference, and the findings relevant

to granting a reduction for acceptance of responsibility will not be overturned

unless they are without foundation. We conclude that Cobbs failed to meet his

burden of showing entitlement to a reduction and that the decision to deny Cobbs

a reduction for acceptance of responsibility was not clearly erroneous.

Consequently, we AFFIRM.




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