United States v. Scott

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4324

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BRIAN JONIMICHAEL SCOTT,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:06-cr-00342-TLW)

Submitted: December 12, 2007 Decided: December 26, 2007

Before WILKINSON, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James T. McBratney, Jr., MCBRATNEY LAW FIRM, P.A., Florence, South
Carolina, for Appellant. Rose Mary Parham, Assistant United States
Attorney, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Pursuant to a written plea agreement, Brian Jonimichael

Scott pled guilty to being a felon in possession of firearms and

ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)

(2000). Scott was sentenced to 41 months’ imprisonment. Finding

no error, we affirm.

On appeal, counsel filed a brief in accordance with

Anders v. California, 386 U.S. 738 (1967), asserting there are no

meritorious issues for appeal, but contending (1) the district

court wrongly denied Scott an adjustment for acceptance of

responsibility and (2) the district court sentence was

unreasonable. Scott was advised of his right to file a pro se

supplemental brief, which he elected to do. In his pro se brief,

Scott questions whether his federal conviction wrongly violated the

Double Jeopardy Clause because he was convicted for the same

conduct in state court. In addition, Scott raises some of the same

concerns raised in counsel’s Anders brief. The Government elected

not to file a responsive brief.

Scott questions whether the district court wrongly denied

an adjustment for acceptance of responsibility. Our court reviews

a district court’s decision to grant or deny an adjustment for

acceptance of responsibility for clear error. United States v.

May, 359 F.3d 683, 688 (4th Cir. 2004); United States v. Pauley,

289 F.3d 254, 261 (4th Cir. 2002). The determination of the

- 2 -
district court is due great deference. United States v. Dugger,

485 F.3d 236, 239 (4th Cir. 2007) (citing USSG § 3E1.1, cmt. n.5

(2005)). The burden is on the defendant to establish by a

preponderance of the evidence that he is entitled to the

adjustment. United States v. Urrego-Linares, 879 F.2d 1234, 1238-

39 (4th Cir. 1989).

The record shows Scott engaged in further criminal

conduct after the indictment and that he was released from a drug

treatment program as a result. Among the factors for a district

court to consider in determining whether an adjustment is warranted

are “voluntary termination or withdrawal from criminal conduct or

associations” and “post-offense rehabilitative efforts.” USSG §

3E1.1, cmts. n.1(b) and (g). Scott’s continued drug use subsequent

to his conviction warranted denial of an adjustment for acceptance

of responsibility. See United States v. Kidd, 12 F.3d 30, 34 (4th

Cir. 1994); United States v. Underwood, 970 F.2d 1336, 1339 (4th

Cir. 1992). Accordingly, we find the district court’s decision to

deny Scott an adjustment for acceptance of responsibility was not

clearly erroneous.

Scott also questions whether his sentence is reasonable,

but he offers no basis for this contention. The record shows the

district court appropriately calculated the advisory guideline

range and considered it in conjunction with other relevant factors

under the guidelines and 18 U.S.C. § 3553(a) (2000). See United

- 3 -
States v. Moreland, 437 F.3d 424, 432-33 (4th Cir.), cert. denied,

126 S. Ct. 2054 (2006). Scott’s sentence, which is at the bottom

end of the applicable guidelines range and well within the

statutory maximum, is therefore reasonable. See United States v.

Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309

(2006); see also Rita v. United States, 127 S. Ct. 2456, 2462-65

(2007).

Lastly, Scott questions whether his federal and state

convictions for the same conduct violated the Double Jeopardy

Clause. A “central feature of double jeopardy’s definition of

offense is the ‘dual sovereignty doctrine.’ Applying this

doctrine, the Supreme Court has continually held that federal and

state crimes are not the same offense, no matter how identical the

conduct they proscribe.” United States v. Alvarado, 440 F.3d 191,

196 (4th Cir. 2006) (citations omitted). Accordingly, Scott’s

argument is without merit.

Pursuant to Anders, we have examined Scott’s entire

record and find no meritorious issues for appeal. We therefore

affirm the district court’s judgment. This court requires that

counsel inform his client, in writing, of his right to petition the

Supreme Court of the United States for further review. If Scott

requests that such a petition be filed, but counsel believes that

such a petition would be frivolous, then counsel may move in this

- 4 -
court for leave to withdraw from representation. Counsel’s motion

must state that a copy thereof was served on Scott.

We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

AFFIRMED

- 5 -