UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4143
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PAUL ALLEN HILL,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (2:06-cr-00078)
Submitted: October 31, 2007 Decided: November 16, 2007
Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Krysia Carmel Nelson, NELSON & TUCKER, PLC, Charlottesville,
Virginia, for Appellant. Monica Kaminski Schwartz, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Paul Allen Hill appeals the seventy-month sentence
imposed following his guilty plea to one count of knowingly
maintaining a residence for the purpose of distributing cocaine, in
violation of 21 U.S.C. § 856(a)(1) (2000). Hill’s attorney filed
a brief in accordance with Anders v. California, 386 U.S. 738
(1967), certifying there are no meritorious grounds for appeal, but
questioning two issues relevant to the district court’s calculation
of Hill’s sentence under the advisory Sentencing Guidelines. The
Government did not file a brief, and although advised of his right
to do so, Hill did not file a pro se supplemental brief. Finding
no reversible error, we affirm.
Hill was arrested following an investigation by officers
with the Charleston, West Virginia, Police Department into the
suspected narcotics trafficking of Jesse Smith. Hill provided
Smith a key to his apartment in December 2005, and the police
believed Smith was storing drugs there. Although Hill knew Smith
was using his apartment to sell drugs, he did not prohibit Smith
from continuing to so use it. In exchange, Smith provided Hill
cocaine.
Upon executing a search warrant for the apartment, the
police discovered cocaine and tools of narcotics packaging and
distribution. Hill, who was in the apartment when the warrant was
- 2 -
executed, was arrested, handcuffed, and read his Miranda1 rights.
Hill gave a statement to Detective Tim Palmer in which Hill
reported that Smith brought between five and six ounces of cocaine
to the apartment two or three times per month. Thus, even using
the most conservative figures, Hill estimated Smith brought
approximately fifty ounces of cocaine into the apartment during the
five months he used it. Hill also admitted that, on two separate
occasions, he assisted in packaging approximately one ounce of
cocaine for resale.
Although Hill initially pled not guilty, he later entered
into a written plea agreement with the Government. The district
court conducted a thorough plea colloquy that fully comported with
Fed. R. Crim. P. 11. Finding there was a sufficient factual basis
to support the guilty plea and that Hill had entered the plea
knowingly and voluntarily, the district court accepted the plea.
In the presentence report (“PSR”), the probation officer
relied upon Hill’s statement to Palmer regarding the estimated
quantity of cocaine Smith brought through the apartment to support
the recommendation that fifty ounces of cocaine be attributed to
Hill. Using this quantity — which converts to 1.42 kilograms of
cocaine — Hill’s base offense level was twenty-six. U.S.
Sentencing Guidelines Manual §§ 2D1.1(c)(7), 2D1.1 cmt. n.10,
2D1.8(a)(1) (2005) (“USSG”). However, during the course of his
1
Miranda v. Arizona, 384 U.S. 436 (1966).
- 3 -
presentence interview, Hill retreated from his earlier statement
regarding drug quantity; in light of this retraction, the probation
officer did not recommend an adjustment for acceptance of
responsibility. Coupling Hill’s total adjusted offense level of
twenty-six with a criminal history category II yielded an advisory
Guidelines range of seventy to eighty-seven months’ imprisonment.
USSG ch. 5, pt. A, sentencing table (2005).
The district court rejected all three of Hill’s
objections to the PSR and sentenced Hill to seventy-months’
imprisonment. This appeal followed.
In her Anders brief, counsel presents two issues for
consideration: (1) the propriety of the use of Hill’s statement to
Palmer in determining the drug quantity attributable to Hill; and
(2) the district court’s denial of an adjustment for acceptance of
responsibility. We have reviewed the record and found no
reversible error. Thus, for the reasons outlined below, we affirm.
I. Reasonableness of Hill’s Sentence
In reviewing a post-Booker sentence for reasonableness, this
court considers whether the district court adhered to the
multi-step process set forth in this court’s post-Booker decisions.
First, the district court must properly calculate the defendant’s
advisory Guidelines range. United States v. Moreland, 437 F.3d
424, 432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). The
- 4 -
court must then “determine whether a sentence within that
range . . . serves the factors set forth in § 3553(a) and, if not,
select a sentence [within statutory limits] that does serve those
factors.” United States v. Green, 436 F.3d 449, 455 (4th Cir.),
cert. denied, 126 S. Ct. 2309 (2006). The court should first
consider whether a traditional Guidelines departure is appropriate.
Moreland, 437 F.3d at 432. If the § 3553(a) factors are not
satisfied by the departure sentence, the sentencing court may then
consider whether to impose a variance sentence. Id. This court
affords sentences that fall within the properly calculated
Guidelines range a presumption of reasonableness, a presumption
permitted by the Supreme Court. Rita v. United States, __ U.S. __,
127 S. Ct. 2456, 2459, 2462 (2007); Green, 436 F.3d at 457
(internal quotation marks and citation omitted).
As the first step in reviewing a post-Booker sentence is
to assess whether the district court properly calculated the
defendant’s advisory Guidelines range, Moreland, 437 F.3d at 432,
we first address the two issues raised by counsel as they are both
relevant to this assessment.
A. Relevant Conduct Determination
Hill first questions whether the Government satisfied its
burden of proof regarding the drug quantity found attributable to
Hill. The district court properly relied upon Hill’s statement to
- 5 -
Palmer to determine this issue, and no further proof was required.
In addition to the statement being constitutionally sound,2 the
statement was also admissible under the Federal Rules of Evidence.
“[T]here is no bar to the use of hearsay in sentencing,” United
States v. Love, 134 F.3d 595, 607 (4th Cir. 1998), and this type of
statement against interest of the uttering party-opponent is
considered non-hearsay under Fed. R. Evid. 801(d)(2)(A). Hill’s
statement regarding quantity, as testified to by Palmer, was more
than sufficient to satisfy the Government’s burden.
B. Denial of Acceptance of Responsibility Adjustment
Hill next questions whether the district court properly
denied him an adjustment for acceptance of responsibility. We
agree with counsel that this claim is “without merit.”
Under USSG § 3E1.1 (2005), a defendant may receive a two
or three-level reduction in his offense level if he clearly
demonstrates he has accepted responsibility for his offense. In
order to receive such a reduction, “the defendant must prove by a
preponderance of the evidence that he has clearly recognized and
affirmatively accepted personal responsibility for his criminal
conduct.” United States v. May, 359 F.3d 683, 693 (4th Cir. 2004)
(internal quotation marks and citation omitted). “[A]n adjustment
2
Hill gave his statement to Palmer after being read his
Miranda rights and there is nothing in the record to indicate any
deficiency therein.
- 6 -
for acceptance of responsibility does not flow automatically from
a guilty plea.” Id.
In deciding whether an acceptance of responsibility
adjustment is warranted, the sentencing court should consider
whether the defendant has “truthfully admitt[ed] the conduct
comprising the offense(s) of conviction, and truthfully admitt[ed]
or not falsely den[ied] any additional relevant conduct for which
the defendant is accountable under § 1B1.3 (Relevant Conduct).”
USSG § 3E1.1 cmt. n.1(a) (2005). The false denial of relevant
conduct justifies a denial of acceptance of responsibility. United
States v. Falesbork, 5 F.3d 715, 721-22 (4th Cir. 1993). This
court reviews a district court’s decision to grant or deny an
adjustment for acceptance of responsibility for clear error. May,
359 F.3d at 688.
The district court properly concluded Hill was not
entitled to an reduction in his base offense level for acceptance
of responsibility. Although it appears Hill was initially honest
in his statement to Palmer, his later attempts to downplay the
extent of Smith’s drug trafficking reflect a frivolous and
unfounded denial of relevant conduct which supports the denial of
the acceptance of responsibility reduction.3 USSG § 3E1.1 cmt.
3
It is beyond dispute that Smith’s drug trafficking was
properly considered relevant conduct germane to Hill’s sentencing.
See USSG § 1B1.3(a)(1) (2005).
- 7 -
n.1(a). There was no error, let alone clear error, in the district
court’s adjudication of this issue.
In accordance with Anders, we have reviewed the entirety
of the record and found no meritorious issues. Accordingly, we
affirm the district court’s judgment. In addition to denying
counsel’s motion to withdraw from representation, we require that
counsel inform Hill, in writing, of the right to petition the
Supreme Court of the United States for further review. If Hill
requests that a petition be filed, but counsel believes that such
a petition would be frivolous, then counsel may move in this court
for leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Hill. We dispense with
oral argument because the facts and legal contentions are
adequately set forth in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
- 8 -