[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 11, 2007
No. 07-10939 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00445-CR-2-IPJ-TMP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERRICK DEJUAN HALL,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(July 11, 2007)
Before BIRCH, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Derrick Dajuan Hall appeals his 30-month sentence, imposed for unlawful
possession of an unregistered short-barreled firearm, alleging that the district court
erred in denying him a downward adjustment to his base offense level for
acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1, based solely upon his
testing positive for marijuana use. Because Hall’s positive test for marijuana use is
a factor that the district court correctly considered in denying Hall the reduction,
the court did not clearly err in denying Hall an acceptance-of-responsibility
reduction under § 3E1.1. For the reasons that follow, we AFFIRM.
I. BACKGROUND
Derrick Dajuan Hall was indicted for unlawful possession of an unregistered
short-barreled firearm, in violation of 26 U.S.C. § 5861(d). He subsequently
pleaded guilty to the charge.
According to the undisputed facts in the Presentence Investigation Report
(“PSI”), Hall was involved in an argument with another individual inside the Blues
Palace Club in Birmingham, Alabama. An off-duty police officer working at the
club broke up the argument and ejected Hall from the club. However, Hall did not
leave the premises; rather he walked around the parking lot and then returned to the
club. The off-duty officer observed Hall walking in a manner that indicated there
may be something concealed in his pant leg and, based upon this observation, one
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of the police officers at the club frisked Hall. During this pat down, the officer felt
a hard object on Hall’s right hip. Officers escorted Hall outside the club, where
they lifted his shirt and saw part of a shotgun protruding from Hall’s pants. The
gun was an Iver Johnson single-barrel, 12 gauge shotgun with a crudely cut off
barrel 13 7/8 inches in length and one loaded round of ammunition. The gun was
not registered in the National Firearms Registration and Transfer Record.
The probation officer found that Hall had a total adjusted base offense level
of 18 and a criminal history category of II, which produced a sentencing range of
30 to 37 months. In calculating the total adjusted base offense level, the officer
did not recommend an adjustment for acceptance of responsibility, pursuant to
U.S.S.G. § 3E1.1, based upon Hall’s “positive drug screen results for marijuana
and his failure to comply with drug court conditions.” Hall objected to the PSI not
including a downward adjustment for acceptance of responsibility.
At his sentencing hearing, Hall renewed his objection to the PSI, although he
admitted that he failed three drug tests. The district court overruled the objection,
stating: “It does not show acceptance of responsibility if you keep violating the
law, and positive drug screenings for illegal drugs is a violation of the law. It’s not
just one time. It’s three times.” R4 at 4. The district court accepted the PSI’s
recommended guideline calculations and, noting that the guideline sentencing
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range was advisory, sentenced Hall to 30 months’ incarceration and 3 years’
supervised release. Id. at 4-7.
II. DISCUSSION
Hall argues on appeal that the district court erred in denying him a
downward adjustment for acceptance of responsibility. Admitting that he tested
positive for marijuana during two drug screenings between his indictment and his
sentencing hearing, Hall contends, inter alia, that the positive drug tests are
insufficient to deny him an adjustment for acceptance of responsibility. In support,
he notes that “he admitted his guilt timely, entered a plea early in the case and did
not commit any further crimes after his plea.” Appellant’s Br. at 10. He also
relies upon dicta in the Second Circuit’s decision in United States v. Woods, 927
F.2d 735, 736 (2d Cir. 1991), in which that circuit expressed doubt whether the
defendant’s failure of three drug tests after pleading guilty “would, standing alone,
provide an adequate ground for denying Woods a sentence reduction.” Id. at 736.
We review a district court’s factual findings concerning a reduction for acceptance
of responsibility for clear error. United States v. Williams, 408 F.3d 745, 756
(11th Cir. 2005). The defendant bears the burden of showing entitlement to the
reduction, and, under the clear error standard, the sentencing judge is entitled to
great deference on review. Id. at 756-57.
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The Guidelines provide for a two-level decrease in a defendant’s base
offense level if “the defendant clearly demonstrates acceptance of responsibility for
his offense.” U.S.S.G. § 3E1.1(a). An additional one-level reduction is permitted
for acceptance of responsibility “[i]f the defendant qualifies for a reduction under §
3E1.1(a), the offense level determined prior to the application of the two-level
decrease is level 16 or greater,” and the government submits a motion “stating that
the defendant assisted authorities in the investigation or prosecution of his own
misconduct by timely notifying authorities of his intention to enter a plea of
guilty.” U.S.S.G. § 3E1.1(b).
“A defendant who enters a guilty plea is not entitled to an adjustment under
this section as a matter of right.” U.S.S.G. § 3E1.1 cmt. n.3; see also Williams,
408 F.3d at 756-57 (holding that the district court did not clearly err when it
denied defendant an acceptance-of-responsibility reduction because defendant’s
guilty plea was not sufficient to show his acceptance of responsibility where he had
testified falsely at plea proceeding and sentencing). Although a guilty plea “will
constitute significant evidence of acceptance of responsibility[,] . . . this evidence
may be outweighed by conduct of the defendant that is inconsistent with such
acceptance of responsibility.” U.S.S.G. § 3E1.1 cmt. n.3. An appropriate
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consideration is whether the defendant truthfully admits conduct comprising the
offense conduct and any additional relevant conduct. Id. cmt. n.1(a).
Moreover, we held in United States v. Pace, 17 F.3d 341, 344 (11th Cir.
1994), that the district court did not err in declining to grant an adjustment for
acceptance of responsibility based upon the defendant’s drug use alone. See Pace,
17 F.3d at 344. In Pace, the defendant tested positive for marijuana on the day of
his guilty plea and admitted that he had used marijuana a few days earlier. Id. at
342. His marijuana use constituted a violation of a condition of his release on bail.
Id. The probation officer declined to recommend a downward adjustment for
acceptance of responsibility. Id. Over Pace’s objection, the district court denied
the adjustment, and we affirmed. We reasoned that a “district court is authorized
to consider [a defendant’s] subsequent criminal conduct, even if it is unrelated to
the offense of conviction, in determining whether a decrease for acceptance of
responsibility is appropriate.” Id. at 343.
The district court did not clearly err in denying Hall an
acceptance-of-responsibility reduction under § 3E1.1. Although Hall pleaded
guilty, that fact alone did not automatically entitle him to the reduction. See
Williams, 408 F.3d at 756-57. During his release pending sentencing, Hall tested
positive for marijuana use, which is a factor the court correctly considered in
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denying Hall the reduction. See Pace, 17 F.3d at 344. We accord great deference
to a district court’s decision to deny a sentence reduction, and, based on the record
here, we cannot find that the district court’s decision to deny a reduction
constituted “clear error.” See Williams, 408 F.3d at 756-57. The Second Circuit’s
decision in Woods does not change this result.
III. CONCLUSION
The district court did not err in considering Hall’s admitted drug use during
his probation in the time period prior to the offense of conviction and in denying
Hall’s request for a sentence reduction for acceptance of responsibility.
Accordingly, we AFFIRM.
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