     Case: 12-40776       Document: 00512244119         Page: 1     Date Filed: 05/16/2013




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

                                                                            FILED
                                                                           May 16, 2013
                                     No. 12-40776
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

BALDOMERO VEGA, also known as El Viejo,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 7:11-CR-1667-15


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Baldomero Vega pled guilty of conspiracy to possess with intent to
distribute more than 50 kilograms of marijuana, and he was sentenced at the
bottom of the Guidelines range to a 135-month term of imprisonment and to a
6-year period of supervised release. In this appeal, Vega contends the district
court erred in failing to reduce his offense level by two levels for acceptance of
responsibility.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40776     Document: 00512244119      Page: 2   Date Filed: 05/16/2013

                                  No. 12-40776

      Because error was not adequately preserved, our review is for plain error.
See United States v. Claiborne, 676 F.3d 434, 438 (5th Cir. 2012). “Whether a
defendant has sufficiently demonstrated an acceptance of responsibility is a
question of fact.” United States v. Medina-Anicacio, 325 F.3d 638, 647 (5th Cir.
2003). “[Q]uestions of fact capable of resolution by the district court upon proper
objection at sentencing can never constitute plain error.” Claiborne, 676 F.3d at
438. Even if the argument is not reviewed for plain error, Vega cannot show
that the district court’s refusal to award the adjustment was without foundation
because Vega contested the drug quantity attributable to him as relevant
conduct. See U.S.S.G. § 3E1.1 cmt. n.1(A); United States v. Juarez-Duarte, 513
F.3d 204, 211 (5th Cir. 2008); see also United States v. Betancourt, 422 F.3d 240,
246-47 (5th Cir. 2005); United States v. Carreon, 11 F.3d 1225, 1230 (5th Cir.
1994). The judgment is AFFIRMED.




                                        2
