     Case: 16-10419      Document: 00513809668         Page: 1    Date Filed: 12/22/2016




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

                                    No. 16-10419                                FILED
                                  Summary Calendar                      December 22, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

WESSON BERNARD OSBORNE,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 1:14-CR-64-1


Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
       Wesson Bernard Osborne was convicted of possession of a firearm and
ammunition by a convicted felon and aiding and abetting. He was sentenced
to 78 months of imprisonment and a three-year term of supervised release.
The sole issue he raises on appeal is whether the district court erred by denying
him an offense level reduction for acceptance of responsibility because he 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-10419     Document: 00513809668        Page: 2   Date Filed: 12/22/2016


                                     No. 16-10419

incompetent and suffering from hallucinations and seizures when he violated
the terms of his pretrial release.
      We will affirm the district court’s decision to deny a reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1 “unless it is without
foundation, a standard of review more deferential than the clearly erroneous
standard.” United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008)
(internal quotation marks and citation omitted). We have consistently upheld
a sentencing court’s refusal to credit a defendant with an acceptance of
responsibility reduction based on a positive test for drug use. See United States
v. Flucas, 99 F.3d 177, 180 (5th Cir. 1996); United States v. Rickett, 89 F.3d
224, 227 (5th Cir. 1996).
      Osborne has not shown that the district court’s decision was without
foundation. He first admitted to using marijuana on the day he was placed on
pretrial release, several weeks before he was deemed competent to plead guilty.
Osborne was subsequently arrested for assault, tested positive for both
methamphetamine and marijuana, and admitted to using marijuana yet again.
These undisputed violations occurred before Osborne’s counsel first raised the
question of his competency. Osborne’s history of seizures began in 2011, well
before he violated the terms of his pretrial release, and medical records link
the seizures to his drug use.         Cf. Flucas, 99 F.3d at 180 (rejecting the
defendant’s argument that the district court erred by denying a reduction for
acceptance of responsibility because his use of drugs “did not show a lack of
contrition but, instead, was a result of his drug addiction”).
      Given the undisputed facts in the record and the deference afforded to
the district court’s determination, see Juarez-Duarte, 513 F.3d at 211, the
judgment of the district court is AFFIRMED.




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