United States v. Ayala, 47 F.3d 688 (5th Cir. 1995). · Go Syfert
United States v. Ayala, 47 F.3d 688 (5th Cir. 1995). Cases Citing This Book View Copy Cite
144 citation events (111 in the last 25 years) across 4 distinct courts.
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At page 690 Reliability of PSR and factual findings at sentencing88 citing cases“bear the burden of demonstrating the recognition and affirmative acceptance of personal responsibility.”5 citing courts quote it · 80 listed here
  • Dickerson v. United States, No. 4:23-cv-03784 (S.D. Tex. Apr. 23, 2024). 2 cites
    (A defendant’s role in the criminal activity for the purpose of applying guideline section 3B1.1 may be deduced inferentially from available facts.)
  • United States v. George Snelson, 687 F. App'x 422 (5th Cir. 2017).unpublished 2 cites
    ([I]n the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and adopt it.)
  • United States v. Garcia, No. 24-40658 (5th Cir. Jan. 8, 2026).unpublished
    A PSR generally “bears sufficient indicia of reliability to permit the sentencing court to rely on it,” and, because “[t]he defendant bears the burden of demonstrating that the PSR is inaccurate,” a district court may properly rely on and…
  • United States v. Brumfield, No. 24-30388 (5th Cir. June 3, 2025).unpublished
    Although a PSR typically bears “sufficient indicia of reliability” for the district court to rely on it at sentencing, United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009) (quoting United States v. Ayala, 47 F.3d 688, 690 (5th Cir.…
  • United States v. Ortega, No. 24-50215 (5th Cir. Feb. 4, 2025).unpublished
    The presentencing report (“PSR”) generally “bears sufficient indicia of reliability to permit the sentencing court to rely on it at sentencing.” United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995).
  • United States v. Cole, No. 24-40158 (5th Cir. Jan. 8, 2025).unpublished
    A PSR generally “bears sufficient indicia of reliability to permit the sentencing court to rely on it at sentencing.” United States v. Rudolph, 103 F.4th 356, 360 (5th Cir. 2024) (quoting United States v. Ayala, 47 F.3d 688, 690 (5th Cir.…
  • United States v. Hernandez, No. 24-50072 (5th Cir. Dec. 4, 2024).unpublished
    The defendant bears the burden of demonstrating that the PSR is inaccurate; in the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and adopt it.” United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995) (cit…
  • United States v. Rudolph, 103 F.4th 356 (5th Cir. 2024).published
    “Generally, a PSR bears sufficient indicia of reliability to permit the sentencing court to rely on it at sentencing.” United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995).
  • United States v. Martinez-Hernandez, No. 22-51092 (5th Cir. Sept. 13, 2023).unpublished
    United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995).
  • United States v. Tom Emasealu, No. 17-20387 (5th Cir. Oct. 11, 2019).unpublished
    The defendant bears the burden of demonstrating that the PSR is inaccurate; in the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and adopt it.” United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995) (int…
Show 70 more citing cases
  • United States v. Isaac Ramos, No. 18-50159 (5th Cir. May 15, 2019).unpublished
    “The district court’s ‘interpretation or application of the Sentencing Guidelines’ is reviewed de novo, while its factual findings are reviewed for clear error.” 9 “Whether a defendant exercised an aggravating role as an organizer, leader,…
  • United States v. Timothy Nimerfroh, No. 16-11545 (5th Cir. Jan. 8, 2018).unpublished
    “A defendant’s role in the criminal activity for the purpose of applying [§] 3B1.1 may be deduced inferentially from available facts.” Id. (quoting United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995)).
  • United States v. Jesus Guzman-Reyes, 853 F.3d 260 (5th Cir. 2017).published
    “A defendant’s role in the criminal activity for the purpose of applying [§ ] 3B1.1 may be deduced inferentially from available facts.” United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995).
  • United States v. Sherry Walter, 683 F. App'x 323 (5th Cir. 2017).unpublished
    See United States v. Haines, 803 F.3d 713, 745 (5th Cir. 2015); United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995); see also § 2D1.1(b)(12).
  • United States v. Lucas Carbajal-Gonzalez, 661 F. App'x 825 (5th Cir. 2016).unpublished
    See § 3Bl.l(c) & cmt. n.2; United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995).
  • United States v. Donald Cox, Jr., 653 F. App'x 817 (5th Cir. 2016).unpublished
    “Factual findings ’.are not clearly erroneous if they are plausible in light of the record read as a whole.” United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995).
  • United States v. George Hilliard, 578 F. App'x 439 (5th Cir. 2014).unpublished
    (The defendant bears the burden of demonstrating that the PSR is inaccurate; in the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and adopt it.)
  • United States v. Wayne Handy, 555 F. App'x 440 (5th Cir. 2014).unpublished
    The defendant bears the burden of demonstrating that the PSR is inaccurate; in the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and adopt it.” United States v. Ollison, 555 F.3d 152, 164 (5th Cir.2009) (i…
  • United States v. San Juana Lopez, 531 F. App'x 528 (5th Cir. 2013).unpublished
    “Factual findings are not clearly erroneous if they are plausible in light of the record read as a whole.” United States v. Ayala, 47 F.3d 688, 690 (5th Cir.1995).
  • United States v. Wayne Stoker, 706 F.3d 643 (5th Cir. 2013).published 2 cites
    United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995).
  • United States v. Vidal Wilson, 491 F. App'x 501 (5th Cir. 2012).unpublished
    United States v. Ayala, 47 F.3d 688, 690 (5th Cir.1995). “[A] presentencing report generally bears sufficient indicia of reliability____” Trujillo, 502 F.3d at 357 .
  • United States v. Humberto Sandoval-Chavez, 477 F. App'x 154 (5th Cir. 2012).unpublished 2 cites
    The defendant bears the burden of demonstrating that the PSR is inaccurate; in the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and adopt it.” United States v. Ayala, 47 F.3d 688, 690 (5th Cir.1995) (inte…
  • United States v. Martinez-Corrales, 467 F. App'x 278 (5th Cir. 2012).unpublished 2 cites
    United States v. Ayala, 47 F.3d 688, 690 (5th Cir.1995).
  • United States v. Irineo De La Garza, 462 F. App'x 469 (5th Cir. 2012).unpublished 2 cites
    “A defendant’s role in the criminal activity for the purpose of applying guideline section 3B1.1 may be deduced inferentially from available facts.” United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995).
  • United States v. Rolando Vazquez, 460 F. App'x 442 (5th Cir. 2012).unpublished
    The party that seeks to adjust the sentence “has the burden of proving the facts to support the adjustment.” United States v. Flanagan, 80 F.3d 143, 146 (5th Cir.1996) (citing United States v. Ayala, 47 F.3d 688, 690 (5th Cir.1995)).
  • United States v. Sharay Johnson, No. 10-30911 (5th Cir. Nov. 4, 2011).unpublished
    “Generally, a PSR bears sufficient indicia of reliability to permit the sentencing court to rely on it at sentencing.” United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995) (internal citations omitted).
  • United States v. Adrian Jiminez-Garcia, 445 F. App'x 792 (5th Cir. 2011).unpublished
    United States v. Ayala, 47 F.3d 688, 690 (5th Cir.1995).
  • United States v. John Jordan, 389 F. App'x 366 (5th Cir. 2010).unpublished
    United States v. Ollison, 555 F.3d 152, 164 (5th Cir.2009) (quoting United States v. Ayala, 47 F.3d 688, 690 (5th Cir.1995)).
  • United States v. Arthur Basaldua, 378 F. App'x 415 (5th Cir. 2010).unpublished
    United States v. Ayala, 47 F.3d 688, 690 (5th Cir.1995).
  • United States v. Scher, 601 F.3d 408 (5th Cir. 2010).published
    “Factual findings are not clearly erroneous if they are plausible in light of the record read as a whole.” United States v. Ayala, 47 F.3d 688, 690 (5th Cir.1995).
  • United States v. Adams, No. 08-10053 (5th Cir. Feb. 4, 2009).unpublished 2 cites
    It also appears that defense counsel never received such data. 2 United States v. Cisneros-Guiterrez, 517 F.3d 751, 764 (5th Cir. 2008). 3 Id. (internal quotation marks and citation omitted). 4 United States v. Ayala, 47 F.3d 688, 690 (5th…
  • United States v. Ollison, 555 F.3d 152 (5th Cir. 2009).published 2 cites
    The defendant bears the burden of demonstrating that the PSR is inaccurate; in the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and adopt it.” United States v. Ayala, 47 F.3d 688, 690 (5th Cir.1995) (inte…
  • United States v. Silva-Diaz, 269 F. App'x 361 (5th Cir. 2008).unpublished
    United States v. Ayala, 47 F.3d 688, 690 (5th Cir.1995).
  • United States v. Perez, 264 F. App'x 445 (5th Cir. 2008).unpublished
    United States v. Ayala, 47 F.3d 688, 690 (5th Cir.1995).
  • United States v. Holt, 248 F. App'x 613 (5th Cir. 2007).unpublished
    United States v. Ayala, 47 F.3d 688, 690 (5th Cir.1995).
  • United States v. de la Hoz, 204 F. App'x 429 (5th Cir. 2006).unpublished
    On the other hand, the Government had the burden of proving by a preponderance of the evidence the facts necessary to support the two level adjustment in Castaneda’s offense level, and “there must be an acceptable evidentiary basis for the…
  • United States v. Caldwell, 448 F.3d 287 (5th Cir. 2006).published
    United States v. Ayala, 47 F.3d 688, 690 (5th Cir.1995).
  • United States v. Guzman-Salinas, 155 F. App'x 809 (5th Cir. 2005).unpublished
    (a PSR generally bears sufficient indica of reliability to support a district court’s factual findings)
  • United States v. Barnes, 138 F. App'x 655 (5th Cir. 2005).unpublished
    United States v. Ayala, 47 F.3d 688, 690 (5th Cir.1995).
  • United States v. Thompson, 115 F. App'x 303 (5th Cir. 2004).unpublished
    Further, the PSR contained sufficient indicia of reliability to establish drug possession, and Thompson offered nothing to show that the PSR was “materially untrue, inaccurate or unreliable.” See United States v. Ayala, 47 F.3d 688, 690 (5…
  • United States v. Reyes-Anchondo, No. 02-50898 (5th Cir. Apr. 29, 2003).unpublished
    See id.; United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995); United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995).
  • United States v. Owen, No. 02-10245 (5th Cir. Mar. 7, 2003).unpublished
    United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995) (citing United States v. Gracia, 983 F.2d 625, 630 (5th Cir. 1993).
  • United States v. Sanders, No. 02-10826 (5th Cir. Jan. 20, 2003).unpublished
    United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995).
  • United States v. Castillo, No. 02-20227 (5th Cir. Nov. 4, 2002).unpublished
    See United States v. Cabrera, 288 F.3d 163 , 175 n.13 (5th Cir. 2002); United States v. Ayala, 47 F.3d 688, 690 (5th Cir. 1995).
  • United States v. Cabrera, No. 01-20497 (5th Cir. June 7, 2002).published 2 cites
    United States v. Ayala, 47 F.3d 688, 689-90 (5th Cir. 1995).
  • United States v. Cabrera, No. 01-20501 (5th Cir. June 7, 2002).published 2 cites
    United States v. Ayala, 47 F.3d 688, 689-90 (5th Cir. 1995).
  • United States v. Nobelda Cabrera, United States of Am. v. Leda Cabrera, 288 F.3d 163 (5th Cir. 2002).published
  • United States v. DeLeon, No. 95-11073 (5th Cir. July 9, 1996).unpublished
  • United States v. Shannon Knox David Brace, 112 F.3d 802 (5th Cir. 1997).published
  • Medicare & Medicaid Guide P 45,901 United States v. Samarjeet S. Sidhu Loren Arden Gifford, 130 F.3d 644 (5th Cir. 1997).published
  • United States v. Defina, No. 97-10630 (5th Cir. Dec. 24, 1997).unpublished
  • United States v. Perez-Ocanas, No. 97-41144 (5th Cir. Feb. 1, 1999).unpublished
  • United States v. Huerta, 182 F.3d 361 (5th Cir. 1999).published
  • United States v. Alexis a Lage Jose a Luzardo Alberto Diaz, 183 F.3d 374 (5th Cir. 1999).published
  • United States v. Davila, No. 99-20271 (5th Cir. Nov. 17, 1999).unpublished
  • United States v. Martin, No. 00-40428 (5th Cir. Jan. 24, 2001).unpublished
  • United States v. Guzman, No. 00-40251 (5th Cir. Feb. 14, 2001).unpublished
  • United States v. Cruz, No. 00-50490 (5th Cir. Apr. 30, 2001).unpublished
  • United States v. Cruz, No. 00-50492 (5th Cir. Apr. 30, 2001).unpublished
  • United States v. Cruz, No. 00-50493 (5th Cir. Apr. 30, 2001).unpublished
  • United States v. Lopez-Lopez, No. 00-50565 (5th Cir. June 13, 2001).unpublished
  • United States v. Balbuena, No. 99-51101 (5th Cir. Aug. 8, 2001).unpublished
  • United States v. Campbell, No. 01-30313 (5th Cir. Oct. 24, 2001).unpublished
  • United States v. Moore, No. 00-40602 (5th Cir. Nov. 30, 2001).unpublished
  • United States v. Shannon Taylor, 277 F.3d 721 (5th Cir. 2001).published
  • United States v. Garcia-Delgado, No. 01-11533 (5th Cir. June 18, 2002).unpublished
  • United States v. Ambo, No. 01-60712 (5th Cir. Mar. 11, 2003).unpublished
  • United States v. Longoria-Contreras, 87 F. App'x 367 (5th Cir. 2004).unpublished
  • United States v. Garcia, 104 F. App'x 396 (5th Cir. 2004).unpublished
  • United States v. Sejuelas, 113 F. App'x 595 (5th Cir. 2004).unpublished
  • United States v. Bishop, 115 F. App'x 217 (5th Cir. 2004).unpublished
  • United States v. Little, 182 F. App'x 308 (5th Cir. 2006).unpublished
  • United States v. Kenny, 304 F. App'x 307 (5th Cir. 2008).unpublished
  • United States v. George Woodrow Flanagan, 80 F.3d 143 (5th Cir. 1996).published
  • United States v. Dustin Lee Honken, 184 F.3d 961 (8th Cir. 1999).published
  • United States v. Kenric Rodney, 532 F. App'x 465 (5th Cir. 2013).unpublished
  • United States v. Edmundo Zuniga, 720 F.3d 587 (5th Cir. 2013).published
  • United States v. Fernando Vasquez-Desiga, 576 F. App'x 308 (5th Cir. 2014).unpublished
  • United States v. Dustin Lee Honken, No. 98-1833 (8th Cir. July 9, 1999).published
  • United States v. Sergio Juarez-Ortiz, No. 18-40064 (5th Cir. Jan. 9, 2019).unpublished
At page 689 Determining organizer or leader status in criminal offenses12 citing cases
Show 2 more citing cases
At page 691 Determining acceptance of responsibility after flight and obstruction11 citing casesholding defendant’s subsequent cooperation and entry of guilty plea after flight from custody, constituting obstruction of justice, did not present an extraordinary case1 citing court put it this way
Show 1 more citing case
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Gilbert AYALA, Defendant-Appellant
94-40731.
Court of Appeals for the Fifth Circuit.
Feb 27, 1995.
Published opinion
47 F.3d 688
1995 WL 82049
T.J. Baynham, Jr. (Court-appointed), Tyler, TX, for appellant., Wes Rivers, Asst. U.S. Atty., Mike Bradford, U.S. Atty., Tyler, TX, for appellee.
King, Garwood, Benavides.
Cited by 109 opinions  |  Published
BENAVIDES, Circuit Judge:

At the sentencing hearing, Appellant Gilbert Ayala did not specifically challenge any fact within his presentence investigation report (PSR) or offer any evidence. Ayala merely argued that there was no factual support for a four-level adjustment in his offense level for being a leader or organizer, and that he should receive a reduction for acceptance of responsibility. Finding some support in the PSR (which had been adopted by the sentencing court) for the leadership adjustment, and concluding that Ayala has not shown that this is an “extraordinary case” where adjustments for both obstruction of justice and acceptance of responsibility should coexist, we affirm.

I. FACTS AND PROCEDURAL HISTORY

In 1992, Ayala was indicted with four code-fendants and charged with conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, and the substantive offense of possession with intent to distribute the marijuana. Ayala failed to appear for a pretrial hearing in Texas, and he remained a fugitive until his arrest in 1993 in Memphis, Tennessee, for a state charge of possession of marijuana. After he was returned to Texas, Ayala pleaded guilty to the 1992 federal marijuana charge.

The PSR recommended a two-level increase for obstruction of justice due to Ayala’s abseondence from pretrial supervision. The PSR also recommended a four-level increase pursuant to U.S.S.G. § 3Bl.l(a) because Ayala was an organizer/leader of criminal activity involving five or more participants. Additionally, the PSR concluded that because of his abseondence, Ayala had not demonstrated acceptance of responsibility.

In his written objections to the PSR, Ayala had challenged the denial of a reduction for acceptance of responsibility. In the context of arguing that he was entitled to a three-level reduction for acceptance of responsibility, Ayala contended that “[i]f [he] had not truthfully revealed to the government his involvément in this case, the government would not have been able to assess him the points for his leadership role.” At the sentencing hearing, however, Ayala also challenged his four-level increase for being a leader or organizer, asserting that there was no evidence to support such a finding. Ayala did not specifically challenge any factual statement in the PSR. Ayala failed to produce any testimony or other evidence in support of his objections except the written plea agreement.

The government, having been first made aware of the leadership objection at the sentencing hearing, also failed to produce any evidence. The government asserted that ample testimony from eodefendant Galindo at another trial, as well as the various reports submitted to the probation office, supported the PSR’s conclusion regarding leadership/organizer increase. The sentencing court overruled Ayala’s objections and adopted the PSR.

II. ORGANIZER/LEADER INCREASE

Ayala contends that the district court erred in enhancing his base offense level by four levels for being a leader/organizer. He asserts that there was insufficient evidence to support such a finding. He does not contest that five or more participants were involved in the instant crime. Further, he offers no evidence in support of his position save for naked assertions that he was not an organizer or leader, asserting that “at best, [ ] the government has shown that he was a manager or supervisor” only.

This Court will disturb a district court’s factual finding that a defendant was a[*690] leader/organizer pursuant to § 3B1.1 only if it is clearly erroneous. United States v. Barreto, 871 F.2d 511, 512 (5th Cir.1989). Factual findings are not clearly erroneous if they are plausible in light of the record read as a whole. United States v. Whitlow, 979 F.2d 1008, 1011 (5th Cir.1992). However, there must be an acceptable evidentiary basis for the court’s factfindings at the sentencing hearing. United States v. Rodriguez, 897 F.2d 1324, 1327-28 (5th Cir.), cert. denied, 498 U.S. 857, 111 S.Ct. 158, 112 L.Ed.2d 124 (1990). As the party seeking an adjustment in the sentence level, the government had the burden of proving by a preponderance of the evidence the facts necessary to support the adjustment. See United States v. Elwood, 999 F.2d 814, 817 (5th Cir.1993); United States v. Patterson, 962 F.2d 409, 415 (5th Cir.1992).

Generally, a PSR bears sufficient indicia of reliability to permit the sentencing court to rely on it at sentencing. See United States v. Gracia, 983 F.2d 625, 629 (5th Cir.1993). The defendant bears the burden of demonstrating that the PSR is inaccurate; in the absence of rebuttal evidence, the sentencing court may properly rely on the PSR and adopt it. Id. at 630. The court is free to disregard a defendant’s unsworn assertions that the PSR is unreliable. Id. at 630 & nn. 21, 22; United States v. Lghodaro, 967 F.2d 1028, 1030 (5th Cir.1992) (objections in the form of unsworn assertions do not bear sufficient indicia of reliability to be considered).

A close examination of Ayala’s PSR shows that there were sufficient factual findings to support the leadership adjustment. The PSR provided that a confidential informant had advised the Federal Bureau of Investigation that a large marijuana shipment would be sent from the BrownsvilleHarlingen area of Texas to an area in north Texas within a hidden compartment in a dark gray Peterbilt tractor-trailer with “AC Trucking” on both doors. On June 5, 1992, law-enforcement officers followed the above-described tractor-trailer to “Ayala’s property” near Canton, Texas. There, future codefendants Richard Gonzalez, Robert Gonzalez and Victor Garza, both of whom the PSR states were working “for Ayala,” unloaded the marijuana from the tractor-trailer into a mobile home. Ayala and Jose Galindo then left in the tractor-trailer and were apprehended. At the same time, officers detained Richard Gonzalez, Robert Gonzalez, and Victor Garza at the mobile home. Officers recovered 32 bundles on Ayala’s property containing 643 pounds (291 kilograms) of marijuana.

A defendant’s role in the criminal activity for the purpose of applying guideline section 3B1.1 may be deduced inferentially from available facts. See e.g. United States v. Manthei, 913 F.2d 1130, 1135 (5th Cir.1990). Factors to consider include the exercise of decision making authority, the nature of participation in the commission of the offense, and the degree of control and authority exercised over others. U.S.S.G. § 3B1.1 comment, (n. 4). Here, the facts in the PSR providing that a substantial quantity of marijuana was transported to and stored upon Ayala’s property, with Ayala present, and that the three unloaders, Richard Gonzalez, Robert Gonzalez, and Victor Garza, were working “for Ayala,” supported the reasonable inference that Ayala was the leader and the resulting leadership increase. Accordingly, the district court did not clearly err in assessing the four-level increase in Ayala’s offense level for his leadership role.

III. ACCEPTANCE OF RESPONSIBILITY

Ayala next contends that he should have received a three-level reduction to his base offense level for acceptance of responsibility. Ayala bears the burden of demonstrating the recognition and affirmative acceptance of personal responsibility. United States v. Mourning, 914 F.2d 699, 705-06 (5th Cir.1990); § 3El.l(a). The crux of his argument is that he pleaded guilty promptly after being arrested on a fugitive warrant and that his plea agreement contained a recommendation for an aeeeptanceof-responsibility reduction by the government. He does not object to the two-level increase for obstruction of justice due to his abscondence, but asserts that activity does[*691] not preclude a finding of acceptance of responsibility. His argument is unavailing.

We have opined that subsequent cooperation with law enforcement officers after flight from custody (constituting obstruction of justice) did not warrant a finding of acceptance of responsibility. United States v. Ainsworth, 932 F.2d 358, 363 n. 3 (5th Cir.), cert. denied, 502 U.S. 918, 112 S.Ct. 327, 116 L.Ed.2d 267 (1991).

Ayala admits that, while on pretrial supervision, he absconded, was a fugitive for approximately 15 months, and (while a fugitive) was arrested on a state charge for possession with intent to distribute marijuana, the same charge he was convicted of in the instant matter. Ayala has not shown that this is one of those “extraordinary eases” in which adjustments for both obstructions of justice under U.S.S.G. § 3C1.1 and acceptance of responsibility under U.S.S.G. § 3E1.1 would be appropriate. See United States v. Rodriguez, 942 F.2d 899, 903 (5th Cir.1991), cert. denied, 502 U.S. 1080, 112 S.Ct. 990, 117 L.Ed.2d 151 (1992); Ainsworth, 932 F.2d at 363 n. 3.

CONCLUSION

For the above stated reasons, Ayala’s sentence is AFFIRMED.