United States v. Bobby R. Pruett

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 11, 2008
No. 08-10516 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 07-00108-CR-3-MCR

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BOBBY R. PRUETT,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Florida
_________________________

(September 11, 2008)

Before CARNES, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

Bobby Pruett appeals his sentence of imprisonment for seven months
following his plea of guilt to theft of mail by a postal employee, 18 U.S.C. § 1709,

and illegally opening and destroying of mail by a postal employee, id. § 1703(a).

Pruett argues that the district court erred by denying him as untimely a two-level

adjustment for acceptance of responsibility because he entered his plea a few hours

before trial. United States Sentencing Guidelines § 3E1.1(a) (Nov. 1992). We

affirm.

We review 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 establishing entitlement to the

reduction, and the sentencing judge is entitled to great deference on review. Id. at

756–57. An error in sentencing may be harmless if the district court would have

entered the same sentence without the error. United States v. Scott, 441 F.3d 1322,

1329 (11th Cir. 2006).

Under section 3E1.1(a), a defendant who proves acceptance of responsibility

is entitled to a two-level decrease in his offense level. In determining whether the

defendant has accepted responsibility, the commentary states that the court should

consider eight factors, including “the timeliness of the defendant’s conduct in

manifesting the acceptance of responsibility.” U.S.S.G. § 3E1.1, cmt. n.1(h).

Subsection (b) provides for a further one-level decrease if (1) the defendant

2
qualifies under subsection (a); (2) the defendant’s offense level is at level 16 or

greater; and (3) the government files a “motion . . . stating that the defendant [had

timely notified] authorities of his intention to enter a plea of guilty thereby

permitting the government to avoid preparing for trial and permitting the

government and the court to allocate their resources efficiently . . .” Id. § 3E1.1(b).

The commentary to section 3E1.1 explains, “Because the Government is in the best

position to determine whether the defendant has assisted authorities in a manner

that avoids preparing for trial, an adjustment under subsection (b) may only be

granted upon a formal motion by the Government at the time of sentencing.” Id. §

3E1.1 cmt. n.6. In addition, “timeliness of [a] defendant’s acceptance of

responsibility is a consideration under” both subsections (a) and (b), and it is

“context specific.” Id. We treat the commentary in the Sentencing Guidelines

Manual as authoritative. United States v. Searcy, 418 F.3d 1193, 1195 n.3 (11th

Cir. 2005).

The district court did not clearly err in finding that Pruett’s plea was not

timely. Pruett entered his plea of guilt only a few hours before trial. Alternatively,

Pruett concedes, in his reply brief, that the district court would have entered the

same sentence, absent any miscalculation, so any error was harmless. We affirm

Pruett’s sentence.

AFFIRMED.