UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4342
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEREMY ANDREW ATKINS,
Defendant - Appellant.
No. 15-4343
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JONATHAN DAVID HILLSON,
Defendant - Appellant.
Appeals from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:14-cr-00377-WO-20; 1:14-cr-00377-
WO-19)
Submitted: March 30, 2016 Decided: April 25, 2016
Before WILKINSON, SHEDD, and FLOYD, Circuit Judges.
No. 15-4342, affirmed, and No. 15-4343, vacated and remanded by
unpublished per curiam opinion.
Stephen F. Wallace, WALLACE LAW FIRM, High Point, North
Carolina; Renorda E. Pryor, HERRING LAW CENTER, PLLC, Raleigh,
North Carolina, for Appellant. Ripley Rand, United States
Attorney, Terry M. Meinecke, Assistant United States Attorney,
Winston-Salem, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Jeremy Atkins and Jonathan
Hillson challenge their sentences. Atkins and Hillson each pled
guilty to one count of conspiracy to possess pseudoephedrine
with the intent to manufacture methamphetamine, a violation of
21 U.S.C. §§ 841(c)(2), 846 (2012). Atkins challenges the drug
quantity attributed to him at sentencing. Hillson challenges
the district court’s refusal to award a three-level reduction
for acceptance of responsibility and the district court’s
Sentencing Guidelines calculation. Finding no error in Atkins’
sentence, we affirm. Because the district court erred in
recalculating Hillson’s Guidelines range, we vacate his sentence
and remand for further proceedings.
“We review the district court’s calculation of the quantity
of drugs attributable to a defendant for sentencing purposes for
clear error.” United States v. Slade, 631 F.3d 185, 188 (4th
Cir. 2011) (internal quotation marks omitted). Clear error
occurs if we are “left with the definite and firm conviction
that a mistake has been committed.” United States v. Jeffers,
570 F.3d 557, 570 (4th Cir. 2009) (internal quotation marks
omitted). In calculating drug amounts, the district court may
“consider [any] relevant information . . . , provided that the
information has sufficient indicia of reliability to support its
probable accuracy.” United States v. Crawford, 734 F.3d 339,
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342 (4th Cir. 2013); see also U.S. Sentencing Guidelines Manual
§ 6A1.3(a), p.s. (2014). We will afford the district court
“broad discretion in determining what information to credit in
making its calculations.” United States v. Stewart, 256 F.3d
231, 253 n.18 (4th Cir. 2001).
Here, the district court heard testimony from two law
enforcement officers to determine the appropriate drug amount to
attribute to Atkins. Other codefendants’ statements to law
enforcement also informed the investigation. And, the district
court used the National Precursor Log Exchange records to
determine the amount of pseudoephedrine Hillson purchased. The
district court’s calculations are thus supported by reliable
evidence and are not clearly erroneous, and this claim entitles
Atkins to no relief.
Hillson challenges the district court’s decision to deny
him an acceptance of responsibility adjustment. This
determination is a factual one and thus reviewed for clear
error. United States v. Dugger, 485 F.3d 236, 239 (4th Cir.
2007). “[T]he sentencing judge is in a unique position to
evaluate a defendant’s acceptance of responsibility, and thus
. . . the determination of the sentencing judge is entitled to
great deference on review.” Elliott v. United States, 332 F.3d
753, 761 (4th Cir. 2003) (internal quotation marks omitted).
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Section 3E1.1 of the U.S. Sentencing Guidelines Manual
provides for a two-level reduction for a defendant who “‘clearly
demonstrates acceptance of responsibility for his offense.’”
United States v. Jeffery, 631 F.3d 669, 678 (4th Cir. 2011)
(quoting USSG § 3E1.1(a)). To merit this reduction and the
additional reduction outlined in USSG § 3E1.1(b), the defendant
must establish by a preponderance of the evidence “that he has
clearly recognized and affirmatively accepted personal
responsibility for his criminal conduct.” United States v.
Nale, 101 F.3d 1000, 1005 (4th Cir. 1996). “[A] denial of
relevant conduct is inconsistent with acceptance of
responsibility.” Elliott, 332 F.3d at 766 (internal quotation
marks omitted); see USSG § 3E1.1 cmt. n.1 (A).
We conclude that the district court did not clearly err
when it ruled that Hillson’s denial of offense conduct was
inconsistent with acceptance of responsibility. After
conducting a thorough examination, the district court continued
the sentencing hearing to provide Hillson an opportunity to
discuss his conduct with his attorney. At the reconvened
hearing, Hillson continued to maintain that he did not know the
pseudoephedrine would be used to make methamphetamine. This
denial of the offense conduct is inconsistent with the
acceptance of responsibility.
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Although the district court properly denied Hillson a
reduction for acceptance of responsibility, it erroneously
recalculated Hillson’s Guideline sentencing range after
eliminating the § 3E1.1 reduction. In assessing Guidelines
calculations, we review factual findings for clear error, legal
conclusions de novo, and unpreserved arguments for plain error.
United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012).
Because Hillson did not challenge the recalculation at
sentencing, our review is for plain error. To establish plain
error, Hillson must show “(1) that the district court erred, (2)
that the error is clear or obvious, and (3) that the error
affected his substantial rights, meaning that ‘it affected the
outcome of the district court proceedings.’” United States v.
Webb, 738 F.3d 638, 640-41 (4th Cir. 2013) (quoting United
States v. Olano, 507 U.S. 725, 732-34 (1993)). If this burden
is met, we exercise discretion to correct the error only if the
error “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” Id. at 641 (brackets and
internal quotation marks omitted).
Hillson’s properly calculated total offense level, without
the § 3E1.1 reduction, was 24, but the district court applied an
offense level of 26. Based on this error, Hillson likely
received a higher sentence than he would have if the had court
correctly calculated his base offense level. Consequently, the
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error affected Hillson’s substantial rights and affected the
outcome of the proceedings. We therefore exercise our
discretion to correct the error and vacate Hillson’s sentence.
Accordingly, we affirm Atkins’ sentence and we vacate and
remand Hillson’s sentence for further proceedings. 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.
No. 15-4342: AFFIRMED;
No. 15-4343: VACATED AND REMANDED
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