                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                  April 21, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 03-51049
                         Conference Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

FERMAN JOHNSON, III,
                                     Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. W-03-CR-108-2
                       --------------------

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

     Ferman Johnson, III, pleaded guilty to possession with

intent to distribute heroin and was sentenced to 78 months’

imprisonment and three years’ supervised release.   Johnson argues

that the district court erred in denying him the adjustment for

acceptance of responsibility.   He argues that he admitted that he

possessed the heroin and that the truthfulness of his statement

concerning the reason for his trip to Brieger’s house is

irrelevant.    He also argues that the evidence in the record was


     *
        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that this opinion should not be published and is not precedent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. 03-51049
                                -2-

insufficient to show that he possessed the heroin discovered in

the back seat of the patrol car.

     The record of Johnson’s interview with the probation officer

shows that Johnson, despite the fact that he pleaded guilty,

was attempting to distance himself from responsibility for his

conduct comprising the offense.    Johnson did not admit that he

went to Brieger’s house for the purpose of delivering heroin

in response to Brieger’s call.    Johnson did not admit that he

possessed the heroin; he stated that the truck was Brieger’s and

that he knew heroin was in the truck.     Johnson’s statements were

a sufficient foundation for the district court to conclude that

he had not truthfully admitted the conduct comprising the offense

of conviction and thus had not clearly demonstrated acceptance

of responsibility.   U.S.S.G. § 3E1.1(a) and comment. (n.1(a));

United States v. Vital, 68 F.3d 114, 121 (5th Cir. 1995).

     Johnson also argues that the district court’s reliance on

the fact that he received an upward adjustment for obstruction of

justice under U.S.S.G. § 3C1.2 for reckless endangerment during

flight was erroneous because the guidelines limit the denial of

acceptance of responsibility based solely on conduct arising

under U.S.S.G. § 3C1.1.   He argues that because U.S.S.G. § 3E1.1

specifically mentions U.S.S.G. § 3C1.1, it excludes U.S.S.G.

§ 3C1.2 by implication.

     Reckless endangerment during flight is included in the

general guidelines section on obstruction, and a district court
                          No. 03-51049
                               -3-

would be within its discretion to determine that a defendant

who engages in conduct warranting an upward adjustment for

reckless endangerment during flight has not clearly demonstrated

acceptance of responsibility, especially when he later denies

the conduct warranting the obstruction adjustment.

     AFFIRMED.
