     Case: 16-10073      Document: 00514169093         Page: 1    Date Filed: 09/25/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 16-10073                                   FILED
                                  Summary Calendar                         September 25, 2017
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

PHILLIP SCHENCK,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-152-7


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Phillip Schenck appeals the 480-month within-guidelines sentence and
four-year term of supervised release he received following his guilty plea to
conspiracy to possess with intent to distribute a controlled substance. Schenck
argues that (1) the district court erred in denying a three-level reduction for
acceptance of responsibility, (2) the district court erred in assessing a two-level
enhancement for maintaining a drug premises, pursuant to U.S.S.G.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 16-10073

§ 2D.1.(b)(12), and (3) his sentence is greater than necessary to meet the
sentencing goals of 18 U.S.C. § 3553(a) because the district court did not
consider his mitigation arguments. Schenck has also filed a pro se motion for
the appointment of substitute appellate counsel.
      A defendant may receive a two-level reduction pursuant to U.S.S.G.
§ 3E1.1(a) if he “clearly demonstrates acceptance of responsibility for his
offense.” We “will affirm a sentencing court’s decision not to award a reduction
. . . 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). The record
reveals that despite pleading guilty and truthfully admitting to some relevant
conduct, Schenck acted in a manner not consistent with acceptance of
responsibility by attempting to falsely deny material relevant conduct—such
as by refuting claims that he conducted business with certain coconspirators
and other sources of his drug supply, objecting to being held accountable for
two firearms, and objecting to the drug quantity attributable to him–without
providing any evidentiary support. See U.S.S.G. § 3E1.1, comment. (n.1(A)).
Accordingly, Schenck is unable to demonstrate that the district court’s denial
of acceptance of responsibility was “without foundation.” Juarez-Duarte, 513
F.3d at 211; see also United States v. Medina-Anicacio, 325 F.3d 638, 648 (5th
Cir. 2003) (affirming denial of acceptance of responsibility reduction when
Medina’s statements did not evince sincere remorse but attempted to mitigate
his conduct).
      Nor does Schenck show that the district court used the threat of denying
acceptance of responsibility to coerce him into withdrawing his objections. At
no time did the district court tell Schenck that he must withdraw his objections
in order to receive a reduction for accepting responsibility. In addition to



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                                 No. 16-10073

warning Schenck about the penalties for false testimony when he was thinking
about testifying, the district court also expressed concern that Schenck was
frivolously denying relevant conduct and explained this could be a “reason” to
deny an acceptance reduction.      But it did not ask him to withdraw the
objections. Instead, the court continued listening to the objections and noted
it would “see” whether the denials affected the reduction. Even after it later
indicated it had likely decided not to grant acceptance, the district court
continued to consider the remaining objections without attempting to get
Schenck to withdraw them. We have rejected a coercion argument in similar
circumstances. See United States v. Medina, 432 F. App’x 349, 352 (5th Cir.
2011).
      The district court’s “application of § 2D1.1(b)(12) is a factual finding
reviewed for clear error,” United States v. Haines, 803 F.3d 713, 744 (5th Cir.
2015), cert. denied, 137 S. Ct. 2107 (2017). Section 2D1.1(b)(12) authorizes a
two-level enhancement if the defendant “maintained a premises for the
purpose of manufacturing or distributing a controlled substance.” For the
§ 2D1.1(b)(12) enhancement to apply, the drug-related activity “need not be the
sole purpose for which the premises was maintained.” Haines, 803 F.3d at 744
(quoting § 2D1.1(b)(12), comment. (n.17)). Schenck presented no evidence to
rebut the assertions in the adopted presentence report (PSR) that a principal
purpose of the premises was drug distribution. The PSR reached that
conclusion based on the presence of meth in Schenck’s residence when he was
arrested which corroborated other evidence showing that Schenck obtained
four ounces of meth on a weekly basis and stored it at his home before selling
it. In light of the unrebutted PSR, see United States v. Alaniz, 726 F.3d 586,
619 (5th Cir. 2013), the district court’s application of the enhancement was not
clearly erroneous. See Haines, 803 F.3d at 744.



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      Because Schenck did not challenge the substantive reasonableness of his
sentence in the district court, we review for plain error only. See United States
v. Peltier, 505 F.3d 389, 392 (5th Cir. 2007). The record reflects that the district
court expressly considered the relevant § 3553(a) factors as well as Schenck’s
arguments for mitigating his sentence but implicitly overruled those
arguments and concluded that a within-guidelines sentence was appropriate.
See United States v. Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008). Accordingly,
we decline Schenck’s invitation to reweigh the § 3553(a) factors because “the
sentencing judge is in a superior position to find facts and judge their import
under § 3553(a) with respect to a particular defendant.” United States v.
Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008). Schenck’s general
disagreement with the propriety of his sentence and the district court’s
weighing of the § 3553(a) factors is insufficient to rebut the presumption of
reasonableness that attaches to his within-guidelines sentence. See United
States v. Ruiz, 621 F.3d 390, 398 (5th Cir. 2010); United States v. Cooks, 589
F.3d 173, 186 (5th Cir. 2009); United States v. Cisneros-Gutierrez, 517 F.3d
751, 766 (5th Cir. 2008).      Schenck has not demonstrated error, plain or
otherwise, in the imposition of his within-guidelines prison term. See Gall v.
United States, 552 U.S. 38, 51 (2007); Peltier, 505 F.3d at 392.
      Accordingly, the judgment of the district court is AFFIRMED. Schenck’s
motion to dismiss his current appellate counsel and appoint substitute counsel
should be DENIED as untimely. Cf. United States v. Wagner, 158 F.3d 901,
902-03 (5th Cir. 1998); United States v. Rincon-Rincon, 668 F. App’x 606, 607
(5th Cir. 2016), cert. denied, 137 S. Ct. 822 (2017).




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