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

                                                                            FILED
                                                                         January 27, 2009
                                     No. 08-40363
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

NOE SALINAS

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 2:07-CR-357-ALL


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Following a jury trial, Noe Salinas was convicted of possessing with intent
to distribute more than 100 kilograms of marijuana. Salinas’s sole argument
here is that the district court erred in denying him a reduction for acceptance of
responsibility. We AFFIRM.
       Salinas’s conviction was under 21 U.S.C. § 841. The sentencing issue
concerns his eligibility for the adjustment under the Guidelines for acceptance
of responsibility. See U.S.S.G. § 3E1.1(a). The issue is somewhat unusual 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 08-40363

that he argues his cooperation with authorities was hindered by his attorney’s
conflict of interest. Specifically, Salinas says he was not allowed to plead guilty
and cooperate fully due to his trial attorney’s friendship with two men, referred
to in the record as the Lopez brothers. The attorney previously had represented
at least one of the Lopez brothers. The conflict of interest allegedly arose
because Salinas says it was the Lopez brothers who hired him to be a drug
courier. Salinas argues that his trial counsel did not want Salinas to plead
guilty and give the police information regarding either Lopez.
      By the time of the sentencing hearing, the issue of a conflict of interest had
arisen. Salinas’s trial counsel withdrew. The district judge heard testimony on
whether a possible conflict impacted any adjustment in Salinas’s sentence for
acceptance of responsibility. There was testimony from an agent of the Drug
Enforcement Administration that he met with Salinas two weeks after the
conviction, at a time when the attorney was no longer representing the
defendant. The meeting was requested by Salinas, who said he wanted to
cooperate in order to get a sentence reduction. The agent testified that he did
not find Salinas to be fully truthful, and that the interview with him was
“frustrating.” Based on disputed evidence, the court found that Salinas had been
less than fully cooperative and did not deserve the adjustment.
      We review these facts against the requirements of the Sentencing
Guidelines. A sentencing court may decrease a defendant’s offense level when
“the defendant clearly demonstrates acceptance of responsibility for his offense.”
U.S.S.G. § 3E1.1(a). “This adjustment is not intended to apply to a defendant
who puts the Government to its burden of proof at trial by denying the essential
factual elements of guilt, is convicted, and only then admits guilt and expresses
remorse.” Id. § 3E1.1, cmt n.2. The defendant has the burden of demonstrating
that he is entitled to a reduction under Section 3E1.1. United States v. Perez,
915 F.2d 947, 950 (5th Cir. 1990).



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      The district court’s interpretation and application of the Guidelines are
reviewed de novo, and its factual findings are reviewed for clear error. United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). A factual finding
is not clearly erroneous unless it is implausible when the record is considered as
a whole. Id. A district court’s finding that a defendant has not accepted
responsibility is examined “under a standard of review even more deferential
than a pure clearly erroneous standard.” United States v. Cano-Guel, 167 F.3d
900, 906 (5th Cir. 1999) (internal quotation marks and citation omitted). A
decision not to award a downward adjustment under Section 3E1.1 will be
affirmed unless it is without foundation. United States v. Solis, 299 F.3d 420,
458 (5th Cir. 2002).
      Salinas did not admit his guilt and inform the government of participation
by other individuals until after he put the government to its burden of proof at
trial. The argument that his attorney’s conflict of interest kept him from
cooperating in this way before trial would not explain why he still was not
cooperative after trial, by which time his counsel had withdrawn due to
questions about the possible conflict. The record supports the district court’s
finding that Salinas did not provide entirely truthful information to the
government even after his conviction. The court was aware of the claims of a
conflict of interest and found Salinas’s cooperation to be insufficient.
      The district court’s decision to deny Salinas an adjustment under
Section 3E1.1 is plausible in light of the record as a whole and is not without
foundation. See Cisneros-Gutierrez, 517 F.3d at 764; Solis, 299 F.3d at 458.
      The judgment of the district court is AFFIRMED.




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