     Case: 10-10435 Document: 00511383845 Page: 1 Date Filed: 02/16/2011




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

                                                 FILED
                                                                          February 16, 2011
                                     No. 10-10435
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JUAN GLORIA CRUZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:09-CR-115-7


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Juan Gloria Cruz pleaded guilty without the benefit of a plea agreement
to one count of conspiring to distribute and possess with intent to distribute
more than 500 grams of methamphetamine and received a sentence of 235
months in prison, at the bottom of the guidelines range found applicable by the
district court. On appeal, Cruz contends that the district court erred in the
guidelines calculations. He asserts that the district court erred in imposing a
two-level enhancement under U.S.S.G. § 2D1.1(b)(1) based on two firearms that

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10435 Document: 00511383845 Page: 2 Date Filed: 02/16/2011

                                  No. 10-10435

were found in the vehicle at the time of Cruz’s arrest. Cruz maintains that he
should not be held responsible because he had no knowledge that the weapons
were present. The district court discredited the testimony presented by Cruz’s
supporting witness and concluded that Cruz either knew or should have known
that the firearms were present in a vehicle used for a drug transaction.
Contrary to Cruz’s assertions, the presentence report included evidence showing
that it was not “clearly improbable” that the weapon was connected with the
drug offense. § 2D1.1, comment. (n.3); United States v. Mitchell, 31 F.3d 271,
277 (5th Cir. 1994). The district court did not clearly err in imposing the
firearms enhancement. See United States v. Zapata-Lara, 615 F.3d 388, 390
(5th Cir. 2010).
      The district court also denied Cruz a three-level reduction for acceptance
of responsibility under U.S.S.G. § 3E1.1, after determining that Cruz had
frivolously denied his involvement with the firearms enhancement.           Cruz
challenges this determination, asserting that he did not deny or minimize his
involvement in the underlying offense and that the court should not penalize
him for filing objections or for unspecified and unknown factors. The district
court was entitled to consider the credibility of Cruz’s witness and to reject his
testimony about Cruz’s knowledge of the firearm. See United States v. Sotelo,
97 F.3d 782, 799 (5th Cir. 1996). In light of the court’s determination that Cruz
had falsely denied relevant conduct, the denial of the reduction was not without
foundation. § 3E1.1, comment. (n.1(A)); United States v. Juarez-Duarte, 513 f.3d
204, 211 (5th Cir. 2008). Consequently, the judgment of the district court is
AFFIRMED.




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