     Case: 13-60875       Document: 00512778668         Page: 1     Date Filed: 09/23/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 13-60875
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                         September 23, 2014
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

CHRISTOPHER THOMPSON, JR.,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 4:12-CR-14-1


Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
       Christopher Thompson, Jr., challenges his conviction for involuntary
manslaughter, under 18 U.S.C. §§ 1112 and 1153, and his sentence, inter alia,
of 45 months’ imprisonment. He contends: the evidence was insufficient to
sustain his conviction; the district court erred in admitting certain evidence;
and the court erred in refusing to award him an offense-level reduction for
acceptance of responsibility, under Sentencing Guideline § 3E1.1(a).


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 13-60875

      Thompson properly preserved his sufficiency of the evidence challenge
“by moving for a judgment of acquittal at the close of the Government’s case
and at the close of all evidence”. United States v. Shum, 496 F.3d 390, 391 (5th
Cir. 2007). Accordingly, the sufficiency of the evidence is reviewed de novo. Id.
Therefore, the record is reviewed “to determine whether, considering the
evidence and all reasonable inferences in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt”. United States v. Vargas-Ocampo, 747
F.3d 299, 303 (5th Cir. 2014) (citing Jackson v. Virgina, 443 U.S. 307, 319
(1979)).
      An essential element of the offense is whether Thompson was driving the
vehicle that struck and killed a minor.      Considering the evidence in the
requisite light most favorable to the Government, a rational trier of fact could
have found beyond a reasonable doubt that Thompson was driving the vehicle.
E.g., id.
      Thompson admittedly drove the vehicle and was seen in the driver’s seat
shortly before the accident. And, he and one other person were found in the
vehicle after the accident. In Thompson’s presence, that person identified
Thompson as the driver; Thompson did not dispute that statement. Moreover,
he variously admitted he could have been the driver and was the driver.
Thompson’s and the other person’s ability to remember what happened was an
issue for the jury to resolve, and it was not irrational for it to credit the
accounts of the statements that Thompson was the driver. United States v.
Simpson, 741 F.3d 539, 550 (5th Cir.), cert. denied, 134 S. Ct. 2320 (2014).
      The Government’s expert concluded it was possible for Thompson to have
been projected from the driver’s seat into the backseat; the defense expert
reached a contrary conclusion. These conflicting expert opinions were for the



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                                  No. 13-60875

jury to resolve, and it was not irrational for it to credit the Government’s
expert’s opinion. United States v. Dominguez, 615 F.2d 1093, 1097 n.6 (5th
Cir. 1980).
      Evidentiary rulings are reviewed for abuse of discretion, subject to the
harmless-error standard. United States v. El-Mezain, 664 F.3d 467, 494, 525–
26 (5th Cir. 2011); see Fed. R. Evid. 103(a). Thompson claims inadmissibility
on three bases: relevance, prejudice, and hearsay. Each claim fails.
      The testimony and report by a responding paramedic, regarding whether
Thompson was the driver of the vehicle, were relevant to the main issue at
trial. Fed. R. Evid. 401 (“Evidence is relevant if: it has any tendency to make
a fact more or less probable than it would be without the evidence; and the fact
is of consequence in determining the action.”). Thompson’s reliance on Federal
Rule of Evidence 104(b), which pertains to conditional relevance, is misplaced;
his and the passenger’s memories of the accident go to the weight of their
statements, not their admissibility. See Simpson, 741 F.3d at 550 (holding an
“inability to remember the exact date and details of the meeting” is an issue of
credibility for the jury to decide); see also Rhoads v. Miller, 352 F. App’x 289,
291 (10th Cir. 2009) (citing Santos v. Gates, 287 F.3d 846, 851 (9th Cir. 2002))
(“[A]lcoholism and memory problems go to the weight of . . . testimony, not its
admissibility”.); United States v. Haili, 443 F.2d 1295, 1299 (9th Cir. 1971)
(holding a claim regarding defective memory resulting from drug use “is not
one of admissibility but rather one of credibility”).
      Thompson makes only a conclusory assertion under Federal Rule of
Evidence 403 (“The court may exclude relevant evidence if its probative value
is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.”); therefore, any error



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                                   No. 13-60875

under that Rule does not merit reversal. E.g., United States v. Hitt, 473 F.3d
146, 159 n.12 (5th Cir. 2006) (citing United States v. Parziale, 947 F.2d 123,
129 (5th Cir. 1991)). Any error under Federal Rule of Evidence 804(b)(3) in
admitting Thompson’s statement against interest was harmless in the light of
other evidence that Thompson was driving the vehicle. El-Mezain, 664 F.3d at
526. The same conclusion applies to any error in admitting Detective Clay’s
testimony.
      Regarding Thompson’s challenge to his sentence, Guideline § 3E1.1(a)
instructs a court to decrease a defendant’s offense level by two levels “[i]f the
defendant clearly demonstrates acceptance of responsibility for his offense”. A
district court’s refusal to grant an acceptance of responsibility reduction is
reviewed with more deference than under the clearly-erroneous standard.
United States v. Solis, 299 F.3d 420, 458 (5th Cir. 2002) (citing United States
v. Brenes, 250 F.3d 290, 292 (5th Cir. 2001)). This case falls squarely within
the advisory prohibition on awarding acceptance of responsibility because
Thompson “put[] the government to its burden of proof at trial by denying the
essential factual elements of guilt . . . ”. U.S.S.G. § 3E1.1, cmt. 2 (“In rare
situations a defendant may clearly demonstrate an acceptance of responsibility
for his criminal conduct even though he exercises his constitutional right to a
trial. This may occur, for example, where a defendant goes to trial to assert
and preserve issues that do not relate to factual guilt . . . ”.).
      United States v. Kathman, 490 F.3d 520 (6th Cir. 2007), on which
Thompson relies, is non-precedential and distinguishable. Even if Thompson’s
decision to go to trial constitutes the “rare situation” in which a reduction for
acceptance of responsibility would be appropriate, the district court’s
conclusion that his pretrial conduct did not evince an intent to accept
responsibility for his actions was not clearly erroneous.



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      Finally, Thompson’s sufficiency-of-the-evidence claim “undermines his
claimed acceptance of responsibility”. E.g., United States v. Sam, 467 F.3d 857,
863 (5th Cir. 2006).    Accordingly, the district court’s refusal to grant the
offense-level reduction was not “without foundation”. Solis, 299 F.3d at 458
(citation and internal quotation marks omitted).
      AFFIRMED.




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