[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 1, 2008
No. 07-14642 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00042-CR-WDO-5
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARC ANTHONY ADAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(May 1, 2008)
Before BLACK, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Marc Adams appeals his 41-month sentence for conspiracy to possess with
intent to distribute marijuana, in violation of 21 U.S.C. § 846. Initially, the
government argues that Adams knowingly and voluntarily waived his right to
appeal his sentence and is therefore precluded from raising sentencing issues. We
find the waiver invalid and address the two issues raised in Adams’s appeal. First,
Adams argues that the district court unreasonably denied the government’s motion,
pursuant to U.S.S.G. § 3E1.1(b), to allow him a three-level decrease for acceptance
of responsibility. Specifically, he argues that the district court improperly
considered his criminal history in denying the motion. Second, Adams argues that
the district court’s denial of the government’s motion for a downward departure
under U.S.S.G. § 5K1.1 for substantial assistance was “inherently unreasonable”
because the district court provided no explanation for its decision.
I.
We review the validity of a sentence appeal waiver de novo. United States v.
Weaver, 275 F.3d 1320, 1333 n.21 (11th Cir. 2001). A sentence appeal waiver will
only be enforced if the waiver was knowing and voluntary. United States v.
Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993). For a sentence appeal waiver to
be knowing and voluntary, the government must show that: (1) the district court
specifically questioned the defendant about the waiver during the plea colloquy, or
(2) the record is “manifestly clear” that the defendant otherwise understood the
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significance of the appeal waiver. Weaver, 275 F.3d at 1333; Bushert, 997 F.2d at
1351. The waiver will be unenforceable where the district court’s questions are
confusing. Bushert, 997 F.2d at 1352-53. For example, in Bushert, we stated that
a sentence appeal waiver was unenforceable when the district court informed the
defendant generally that he could appeal his sentence under “some circumstances,”
but “did not clearly convey . . . that he was giving up his right to appeal under most
circumstances.” Id. (emphasis in original). The appropriate remedy in a situation
where the record shows that a defendant did not knowingly and voluntarily waive
his right to appeal his sentence is to sever the waiver from the remainder of the
agreement and to consider on appeal the sentencing issues raised by the defendant
that would have been barred by the waiver. See id. at 1353-54.
Because the district court did not adequately question Adams regarding the
appeal waiver, he did not knowingly and voluntarily waive his appeal rights. See
id. at 1352-53. Therefore, we will consider those sentencing issues that Adams
raises on appeal.
II.
Because of its proximity to the defendant, a district court’s assessment of a
defendant’s acceptance of responsibility under § 3E1.1 is entitled to great
deference. United States v. Moriarty, 429 F.3d 1012, 1022 (11th Cir. 2005) (per
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curiam). “Whether a defendant is entitled to a sentencing reduction for acceptance
of responsibility is a factual determination that must be affirmed on appeal unless
clearly erroneous.” United States v. Hromada, 49 F.3d 685, 688-89 (11th Cir.
1995).
Under § 3E1.1, a two-level decrease is warranted if the defendant “clearly
demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). If
this is found, the offense level may be decreased by one additional level, “upon
motion of the government stating that the defendant has 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). According to the
commentary for § 3E1.1, one of the factors that a district judge should consider
when deciding whether a defendant has accepted responsibility is the “voluntary
termination or withdrawal from criminal conduct or associations.” U.S.S.G. §
3E1.1 cmt. n.1.
If a defendant tests positive for drug use during pretrial release and
associates with drug users, the district court may deny the adjustment for
acceptance of responsibility. See United States v. Gonsalves, 121 F.3d 1416, 1420
(11th Cir. 1997). Because a defendant’s continued use of illegal drugs constitutes
a continuation of the drug offense for which he was convicted, a district court’s
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denial of an adjustment for acceptance of responsibility on this ground is not
clearly erroneous. United States v. Matthews, 168 F.3d 1234, 1250 (11th Cir.
1999). When a district court erroneously considers past criminal history in
denying a motion for an acceptance of responsibility reduction, we will not disturb
its decision if it also considered other legitimate and sufficient factors and the issue
was not presented to the district court. Gonsalves, 121 F.3d at 1420-21.
Accordingly, because Adams’s continued drug use was sufficient grounds to
deny the acceptance of responsibility reduction, and he did not object to the
additional consideration of his criminal history at sentencing, we affirm the district
court’s denial of the reduction. See id.
III.
Generally, we lack jurisdiction to review a district court’s refusal to grant the
government’s § 5K1.1 motion, unless the district court erroneously believed that it
lacked the authority to apply a downward departure. United States v. Harness, 180
F.3d 1232, 1237 (11th Cir. 1999). We have explained that, “when nothing in the
record indicates otherwise, we assume the sentencing court understood it had
authority to depart downward.” United States v. Chase, 174 F.3d 1193, 1195 (11th
Cir. 1999).
Because the record does not indicate that the district court erroneously
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believed that it was without the authority to grant a reduction under § 5K1.1, we
lack jurisdiction to review the district court’s denial of a downward departure in
Adams’s sentence. Accordingly, Adams’s sentence is AFFIRMED.
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