                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0187n.06

                                           No. 09-2637                                  FILED
                                                                                    Mar 28, 2011
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

       Plaintiff-Appellee,                                 ON APPEAL FROM THE
                                                           UNITED STATES DISTRICT
v.                                                         COURT FOR THE WESTERN
                                                           DISTRICT OF MICHIGAN
JESUS ROBERTO BALBOA-GALLARDO,

       Defendant-Appellant.




       Before: McKEAGUE and STRANCH, Circuit Judges, and MAYS, District Judge.*

       PER CURIAM. Defendant Jesus Balboa-Gallardo (“Gallardo”) appeals the district court’s

denial of a two-point sentence adjustment for acceptance of responsibility pursuant to U.S.

Sentencing Guideline (U.S.S.G.) § 3E1.1(a). After Gallardo refused to speak with the probation

officer who was preparing his presentence report, the court found his simple guilty plea insufficient

for the offense level reduction. Because compelling evidence supported the district judge’s finding

that Gallardo did not accept responsibility for the crime he committed, we conclude this finding was

not clearly erroneous. Therefore, we AFFIRM the district judge’s denial of a sentence adjustment

for acceptance of responsibility.




       *
       The Honorable Samuel H. Mays, Jr., United States District Judge for the Western District
of Tennessee, sitting by designation.
No. 09-2637                    United States v. Balboa-Gallardo                               Page 2


                                         BACKGROUND

       On September 14, 2009, Gallardo pleaded guilty to illegal reentry of the United States after

his deportation subsequent to an aggravated felony offense1 in violation of 8 U.S.C. § 1326(a) and

(b)(2). He did so without a plea agreement. On September 30, the district judge adopted a

magistrate judge’s Report and Recommendation to adjudicate Gallardo guilty. The court ordered

a presentence report (“PSR”) prepared. On September 22, probation officer Mosley traveled to

Montcalm County Jail to conduct a presentence interview. However, after speaking with his client,

Gallardo’s attorney told the officer that his client did not wish to speak with her. On November 2,

Gallardo faxed a statement to the U.S. Probation Office apologizing for entering the country illegally

and stating his intention to live and work in Mexico.

       The PSR recommended denying Gallardo an offense level reduction under U.S.S.G. §

3E1.1(a) for acceptance of responsibility. Gallardo’s only objection to the PSR regarded the

recommendation as to acceptance of responsibility. At argument, the district judge asked why

Gallardo refused to speak with Officer Mosley. His attorney responded, “there isn’t any legal reason;

that he felt he sufficiently discussed his offense and past offenses with the court, and then with the

state probation officer just in the spring when his state presentence report was completed.” DE 36,

Sentencing Transcript (“S. Tr.”) at 5.

       In overruling the objection, the district judge reasoned, “it seems to me most probable that

[the letter] was written as a way to perhaps backfill [Gallardo’s] refusal to talk with Ms. Mosley to

try to put himself in a better light after he had already made what I think was a pretty clear error.”


       1
         Gallardo had a long criminal history dating back to age 18 (including violence, drug use and
sales, alcohol abuse, and an instance of criminal sexual conduct).
No. 09-2637                     United States v. Balboa-Gallardo                                Page 3


S. Tr. at 9. The judge also mentioned the trouble that Ms. Mosley faced in traveling to the jail, and

in finding other sources to gather the information for the PSR. Without the adjusted points for

acceptance of responsibility, Gallardo was sentenced to 120 months’ incarceration, three years of

supervised release, and a $100 special assessment.

                                            DISCUSSION

        In reviewing a district court's application of the Sentencing Guidelines, we give great

deference; we accept the district court’s findings of fact unless they are clearly erroneous. United

States v. Webb, 335 F.3d 534, 536-37 (6th Cir. 2003).

        Section 3E1.1(a) of the U.S.S.G. provides that “[i]f the defendant clearly demonstrates

acceptance of responsibility for his offense, [the court should] decrease the offense level by 2 levels.”

The defendant bears the burden of showing by a preponderance of the evidence that he accepted

responsibility for the crime he committed. United States v. Roberts, 243 F.3d 235, 241 (6th Cir.

2001). Determination of whether a defendant has accepted responsibility will not be overturned

unless it is without foundation. United States v. Turner, 324 F.3d 456, 462 (6th Cir. 2003).

        Application note to § 3E1.1 explains that though a plea of guilty “will constitute significant

evidence of acceptance of responsibility[,]” a defendant who pleads guilty is not entitled to a

reduction as a matter of right. U.S.S.G. § 3E1.1, cmt. n. 3; see also Webb, 335 F.3d at 538 (“As §

3E1.1 of the Sentencing Guidelines provides, the district court is to make an

acceptance-of-responsibility determination based upon the facts presented. The entry of a guilty plea

does not obligate the court to find that a reduction is appropriate.”). The acceptance of responsibility
No. 09-2637                    United States v. Balboa-Gallardo                                Page 4


indicated by a guilty plea “may be outweighed by conduct of the defendant that is inconsistent with

such acceptance of responsibility.” U.S.S.G. § 3E1.1, cmt. n. 3.

       In determining whether Gallardo accepted responsibility for his crimes, the court found that

Gallardo’s guilty plea without a plea agreement, his explanation of guilt at the plea hearing, his

signing of a release form and belated letter were not sufficient to overcome his refusal to meet with

the probation officer and assist with his PSR.

       Defendants can decide whether or not to speak with probation officers, but their choice to

exercise their right not to talk constitutes conduct which the district court is entitled to conclude is

inconsistent with acceptance of responsibility. See United States v. Meacham, 27 F.3d 214, 217 (6th

Cir. 1994) (“While the Sentencing Guidelines provide that a defendant may remain silent in respect

to relevant conduct beyond the offense of conviction without affecting his ability to obtain a

reduction . . . a defendant may not refuse to provide any information regarding the charge to which

he pled guilty.”) (internal quotations and emphasis omitted).          This Court has considered a

defendant’s choice not to speak with the probation officer creating the PSR as a factor weighing

against a finding of acceptance of responsibility. See, e.g., United States v. Brown, 47 F. App’x 305,

310 (6th Cir. 2002) (concluding the district court’s decision not to grant reduction for acceptance of

responsibility was not without foundation when defendant refused to speak with the probation officer

who prepared the PSR and defendant tried to extort money from a co-defendant) (unpublished

decision).
No. 09-2637                  United States v. Balboa-Gallardo                             Page 5


       Given the compelling evidence supporting the district court’s finding that Gallardo had not

accepted responsibility, we cannot say it was clearly erroneous. The sentence is, therefore,

AFFIRMED.
