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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
______________________________
No. 99-41463
______________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FRANK PIERCE
Defendant-Appellant.
________________________________________________
Appeal for the United States District Court
for the Eastern District of Texas
________________________________________________
January 4, 2001
Before HIGGINBOTHAM and DeMOSS, Circuit Judges, and KENT*, District
Judge.
SAMUEL B. KENT, District Judge:
Defendant Frank Pierce appeals his sentence of twelve months

imprisonment. He argues that the District Judge erred in refusing
to grant him a two-level reduction for acceptance of
* District Judge of the Southern District of Texas, sitting
by designation.

responsibility. For the reasons stated below, we affirm
Defendant's sentence.
I. BACKGROUND
Defendant Frank Pierce was charged with a five count
indictment. Count One charged Defendant with possession of three
or more photographs containing visual depictions of minors engaged
in sexually explicit conduct, in violation of 18 U.S.C. §
2252(a)(4). Counts Two through Five charged Defendant with failing
to create and maintain records pertaining to each of the four
individuals who were the objects of sexually explicit photographs,
in violation of 18 U.S.C. § 2257(f)(1). Pursuant to a written plea
agreement, Defendant pleaded guilty to Count Two in exchange for
the dismissal of Counts One, Three, Four, and Five. On December
14, 1999, the District Judge sentenced Defendant to twelve months
imprisonment and a one-year term of supervised release. In
addition, the Court imposed a $100 special assessment.
II. ANALYSIS
The sole issue on appeal is whether the District Court erred
in refusing to grant Defendant a two-level downward adjustment for
acceptance of responsibility under U.S.S.G. § 3E1.1. To qualify
for this downward adjustment, Defendant must "clearly demonstrate[]
acceptance of responsibility for his offense." U.S.S.G. § 3E1.1.
Defendant is not entitled to this adjustment simply by virtue of
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pleading guilty. See U.S.S.G. § 3E1.1, cmt. n.3; United States v.
Patino-Cardenas, 85 F.3d 1133, 1134 (5th Cir. 1996). Additional
considerations include "truthfully admitting or not falsely denying
any additional relevant conduct for which the defendant is
accountable under §1B1.3(Relevant Conduct)." U.S.S.G. § 3E1.1, cmt.
n.3. In reviewing a sentencing court's determination of acceptance
of responsibility, we give more deference to the finding than would
be given under a clearly erroneous standard. See U.S.S.G. § 3E1.1,
cmt. n.5 (noting that the determination of the sentencing judge is
entitled to "great deference"); United States v. Nguyen, 190 F.3d
656, 659 (5th Cir. 1999); United States v. Bermea, 30 F.3d 1539,
1577 (5th Cir. 1994). Nonetheless, failure to grant a downward
adjustment for acceptance of responsibility constitutes reversible
error when that decision is made without any foundation. See
Patino-Cardenas, 85 F.3d at 1136; United States v. Calverley, 11
F.3d 505, 514 (5th Cir. 1993), aff'd on reh'g, 37 F.3d 160 (5th Cir.
1994).
In this case, the presentence report (PSR) recommended against
the acceptance of responsibility adjustment because Defendant
denied that the individual depicted in the photograph in Count Two
was a minor. The PSR reports that during the presentence interview,
Defendant "claimed he pled guilty to the instant offense simply to
get a reduced sentence, not because he did anything wrong."
Defendant denies making this statement. In addition, the PSR
states that Defendant "denied that he permitted minors to engage in
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sexually explicit conduct (i.e., posing for sexually explicit
photographs)." At the sentencing, the District Court denied
Defendant's objections to the PSR and after hearing statements by
both Defendant and his counsel, refused to grant Defendant an
adjustment based on acceptance of responsibility.
Defendant argues that because the offense to which he pleaded
guilty, failure to maintain records, applies to all sexually
explicit photographs, regardless of the age of the subject, his
denial that the individual depicted was a minor is irrelevant to
his acceptance of responsibility. See 18 U.S.C. § 2257(a),(f).
In determining acceptance of responsibility, however, the
sentencing judge is not limited to the narrowest set of facts
constituting the offense, but may consider Defendant's statements
regarding "relevant conduct" as well. See U.S.S.G. § 3E1.1, cmt.
n.3. The Guidelines include as "relevant conduct":
all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the
defendant . . . that occurred during the commission of the
offense of conviction, in preparation for that offense, or in
the course of attempting to avoid detection or responsibility
for that offense.
U.S.S.G. § 1B1.3(a)(1)(A). Production of child pornography, though
not an element of the offense of conviction, allegedly occurred
during the commission of the offense in this case. It is thus
relevant conduct under the Guidelines. Defendant did not have to
affirmatively admit that the subject was a minor, but he was under
an obligation not to falsely deny such, on pain of losing any
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leniency based on acceptance of responsibility. See U.S.S.G §
3E1.1, cmt. n.1. The Government presented evidence that the person
depicted was a minor, contradicting Defendant's denial. Defendant
did not present evidence to the contrary and does not argue on
appeal that the evidence was insufficient.
Because the District Court had a basis for concluding that
Defendant falsely denied relevant conduct, its refusal to grant the
downward adjustment had foundation. Accordingly, the sentence is
AFFIRMED.
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