United States v. Dugger ( 2007 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 06-4552
MAURICE DUGGER,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert C. Chambers, District Judge.
(3:05-cr-00197)
Argued: February 2, 2007
Decided: May 9, 2007
Before NIEMEYER, WILLIAMS, and GREGORY, Circuit Judges.
Vacated and remanded by published opinion. Judge Gregory wrote
the opinion, in which Judge Niemeyer and Judge Williams joined.
COUNSEL
ARGUED: Troy Nino Giatras, Charleston, West Virginia, for Appel-
lant. Stephanie Lou Haines, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Huntington,
West Virginia, for Appellee. ON BRIEF: Charles T. Miller, United
States Attorney, Charleston, West Virginia, for Appellee.
2 UNITED STATES v. DUGGER
OPINION
GREGORY, Circuit Judge:
Maurice Dugger appeals his 121-month sentence for distribution of
cocaine base in violation of 21 U.S.C. § 841(a)(1). Dugger argues that
the sentencing court erred by refusing to allow an acceptance-of-
responsibility reduction under U.S. Sentencing Guidelines Manual
§ 3E1.1 and by increasing his offense level by two levels under
U.S.S.G. § 2D1.1(b)(3). As we have recently stated, "[a]lthough the
guidelines are no longer mandatory, courts must still calculate the
correct guidelines range in order to fashion a reasonable sentence."
United States v. Hargrove, 478 F.3d 195, 197 (4th Cir. 2007) (cita-
tions omitted). Because the district court misapplied § 2D1.1(b)(3),
we vacate Dugger’s sentence and remand for resentencing.
I.
On September 5, 2004, police officers in Huntington, West Vir-
ginia, observed Maurice Dugger sitting in a parked car. Aware that
Dugger had an outstanding warrant for his arrest, the officers
approached the car. Dugger drove away, and the police followed. Put-
ting an end to the car chase, Dugger leapt from his moving vehicle
and ran, but officers apprehended him. The officers found a bag con-
taining 4.4 grams of crack cocaine ("crack") on the route along which
Dugger had fled. Officers then arranged on September 21, 2004, for
a confidential informant to purchase crack from Dugger. When the
informant went to Dugger’s house, Dugger sold him 1.44 grams of
crack.
A grand jury returned a one-count indictment against Dugger on
September 20, 2005. The indictment charged Dugger with distribution
of cocaine base, in violation of 21 U.S.C. § 841(a)(1). Officers
arrested Dugger on September 28, 2005. Dugger spent the next few
months awaiting trial in the Carter County Detention Center in Gray-
son, Kentucky.
While incarcerated, Dugger became involved in a scheme among
several inmates and guards at the detention center to deal marijuana
UNITED STATES v. DUGGER 3
and Xanax pills. Prison officials intercepted packages of illegal drugs
on December 5, 2005, and January 28, 2006. Dugger admitted to FBI
investigators on February 3, 2006, that he had been dealing drugs in
the prison since at least mid-November 2005.
On February 13, 2006, Dugger pleaded guilty to the charge of dis-
tributing cocaine base in Huntington, West Virginia. At his sentenc-
ing hearing on May 15, 2006, the district court denied Dugger’s
request for a two-level downward adjustment for acceptance of
responsibility under U.S.S.G. § 3E1.1 (2005). The court found that
Dugger’s drug dealing while in prison eviscerated his claim that he
had accepted responsibility for the drug-dealing crime to which he
had pled guilty. The district court then applied a two-level enhance-
ment pursuant to U.S.S.G. § 2D1.1(b)(3) for the specific offense char-
acteristic that "the object of the offense was the distribution of a
controlled substance in a prison, correctional facility, or detention
facility."
Calculating Dugger’s total offense level to be 30 and criminal his-
tory category to be III, the court sentenced Dugger to the lower end
of the 121- to 151-month range recommended by the sentencing
guidelines. Dugger objects to his sentence. He claims that the district
court erred by denying the acceptance-of-responsibility reduction and
by applying the special enhancement.
II.
We review a district court’s decision concerning an acceptance-of-
responsibility adjustment for clear error. United States v. May, 359
F.3d 683, 688 (4th Cir. 2004). "A finding is ‘clearly erroneous’ when
although there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction that a mis-
take has been committed." United States v. U.S. Gypsum Co., 333
U.S. 364, 395 (1948). We must give "great deference" to the district
court’s decision because "[t]he sentencing judge is in a unique posi-
tion to evaluate a defendant’s acceptance of responsibility." U.S.S.G.
§ 3E1.1 cmt. n.5. The sentencing judge is in the best position "to eval-
uate the defendant’s acts and statements to determine whether the
defendant has accepted responsibility for his or her criminal conduct."
United States v. Kise, 369 F.3d 766, 771 (4th Cir. 2004). Without any
4 UNITED STATES v. DUGGER
evidence compelling us to conclude that the district court has commit-
ted clear error in its evaluation of the defendant, we will uphold its
decision on the § 3E1.1 reduction.
The sentencing guidelines allow a district court to reduce the
defendant’s offense level by two if "the defendant clearly demon-
strates acceptance of responsibility for his offense." U.S.S.G.
§ 3E1.1(a). The commentary to the guidelines provides district courts
with several factors to consider when evaluating whether a defendant
has clearly demonstrated acceptance of responsibility. The factors rel-
evant to the consideration of Dugger’s claim are:
(a) truthfully admitting the conduct comprising the offen-
se(s) of conviction, and truthfully admitting or not falsely
denying any additional relevant conduct for which the
defendant is accountable under § 1B1.3 (Relevant Conduct);
(b) voluntary termination or withdrawal from criminal
conduct or associations; . . .
(d) voluntary surrender to authorities promptly after the
commission of the offense; . . .
(g) post-offense rehabilitative efforts;
(h) timeliness of the defendant’s conduct in manifesting
the acceptance of responsibility.
U.S.S.G. § 3E1.1 cmt. n.1. To earn the reduction, a defendant must
prove to the court 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 guilty plea may be evidence of acceptance, but "it
does not, standing alone, entitle a defendant to a reduction as a matter
of right." United States v. Harris, 882 F.2d 902, 905 (4th Cir. 1989).
We recognize that a "district court is not obligated to grant an unre-
pentant criminal a two-step reduction in return for grudgingly cooper-
UNITED STATES v. DUGGER 5
ating with authorities or merely going through the motions of
contrition." Id. at 905-06.*
The decision to grant an acceptance-of-responsibility reduction
often depends on the actions of the defendant following his or her
arrest or plea. Considering the activities in which Dugger engaged
while he was in the detention center awaiting trial, we cannot find that
the district court clearly erred by determining that Dugger did not
truly accept responsibility for his offense and by denying the two-
level reduction. Although Dugger admitted his drug dealing both in
Huntington and inside the detention center, the fact that he chose to
deal drugs while incarcerated undermines his claim that he sincerely
regretted and accepted responsibility for the illegal actions that caused
his incarceration.
This Court has upheld a denial of the reduction where the defen-
dant continued to use and distribute cocaine after he was indicted and
after he entered into a plea agreement with the government. United
States v. Kidd, 12 F.3d 30, 34 (4th Cir. 1993). We have also upheld
a district court’s denial of the reduction where a defendant guilty of
mail fraud and money laundering accumulated $48,000 in credit card
debt between his guilty plea and his sentencing. United States v.
Walker, 112 F.3d 163, 165 (4th Cir. 1997). The defendant had prom-
ised in his plea agreement to provide restitution to the victims of his
offenses. The district court concluded that his post-plea actions
proved that he was not truly remorseful and did not accept his respon-
sibility to provide restitution. Id.
*The guidelines also advise that a guilty plea is evidence of, but not
dispositive proof that, a defendant has accepted responsibility for his or
her offense:
Entry of a plea of guilty prior to the commencement of trial com-
bined with truthfully admitting the conduct comprising the
offense of conviction and . . . any additional relevant conduct . . .
will constitute significant evidence of acceptance of responsibil-
ity. . . . However, 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.
6 UNITED STATES v. DUGGER
Dugger argues that his guilty plea and his cooperation with authori-
ties should be enough to earn him the two-level acceptance of respon-
sibility reduction. He points to the fact that he admitted not only the
facts of the charged offense but also his criminal conduct in the deten-
tion center. He cites the sentencing guidelines commentary that
allows a defendant to receive a reduction even if he or she has not
been forthcoming about relevant conduct as evidence that he has
earned his reduction by admitting his drug activity while in jail await-
ing trial. Dugger also attempts to distinguish Kidd by arguing that
Kidd continued selling the same types of drugs in the same manner
as his indictment charged, whereas Dugger’s subsequent criminal
conduct was independent of his charged offense and did not affect his
accepting responsibility for that charge.
We find Dugger’s arguments unpersuasive. Although he is correct
that he admitted the conduct of his offense and his subsequent crimi-
nal conduct, his overly literal interpretation of the guidelines misses
the meaning of the law. A court can look for a clear demonstration
of acceptance of responsibility in truthful admissions, guilty pleas,
voluntary termination of or withdrawal from criminal conduct,
prompt surrender to the authorities, attempts at rehabilitation, and the
timeliness of the acceptance of responsibility. Although Dugger truth-
fully admitted his conduct and pleaded guilty, the other factors sug-
gested by the guidelines commentary do not weigh in his favor.
Dugger was first identified as a crack dealer in Huntington, West Vir-
ginia, on September 5, 2004, when he dropped some crack as he fled
from police. Sixteen days later, he sold crack to a confidential infor-
mant. That sale was the basis for the indictment handed down a year
later. Dugger has presented no evidence that he ceased his crack sales
until he was arrested under the indictment, despite his having been
apprehended previously.
Dugger’s actions in the Carter County Detention Center also under-
mine his argument that he has withdrawn from criminal conduct or
has attempted rehabilitation. His attempt to distinguish Kidd therefore
fails. Dugger correctly points out that while the indictment charged
him with selling crack in Huntington, he did not sell crack while
incarcerated. His assertion that his sale of marijuana and Xanax while
incarcerated does not betray his acceptance of responsibility for the
crack sales, however, cannot withstand scrutiny. It appears that Dug-
UNITED STATES v. DUGGER 7
ger had no problem continuing his career as a drug dealer while he
was incarcerated; he simply altered his offerings to meet the drugs he
had available to him. Because Dugger’s actions showed that he did
not truly accept responsibility for his offense and was "merely going
through the motions of contrition," the district court did not clearly err
by denying Dugger the reduction. Harris, 882 F.2d at 906.
III.
Dugger next claims that the district court erred by applying a two-
level enhancement to his base offense level for the specific offense
characteristic that punishes an offender if the object of his or her
offense was to distribute drugs in a prison. He argues that the
enhancement was not appropriate because the object of his offense
was to sell drugs in Huntington, West Virginia, not in the detention
center in Kentucky. He asserts that his sale of drugs while in the
detention center constituted a separate offense and should not be the
basis for the enhancement under § 2D1.1(b)(3).
A sentencing court’s application of a specific offense characteristic
is a mixed question of law and fact that we review de novo. United
States v. Moreland, 437 F.3d 424, 433 (4th Cir. 2006); United States
v. Daughtrey, 874 F.2d 213, 217-18 (4th Cir. 1989). The specific
offense characteristic sections of the sentencing guidelines allow a
district court to increase the base level of an offense carried out in a
certain way, with certain goals, or by a certain person. The character-
istic at issue in this case is the distribution of illegal drugs in a correc-
tional facility, which provides for a two-level increase "[i]f the object
of the offense was the distribution of a controlled substance in a
prison, correctional facility, or detention facility." U.S.S.G.
§ 2D1.1(b)(3). The sentencing guidelines define an offense as "the
offense of conviction and all relevant conduct under § 1B1.3."
U.S.S.G. § 1B1.1 Cmt. n.1(G). In light of the guidelines definition of
offense, our analysis is two-fold. First, we must ask whether the object
of Dugger’s charged offense was to sell drugs in prison. Second, we
must ask whether Dugger’s sales of drugs while incarcerated qualify
as relevant conduct to be included with his offense for purposes of
sentencing.
Dugger was charged with selling crack in Huntington, West Vir-
ginia. It is clear that the object of that offense was not to distribute
8 UNITED STATES v. DUGGER
controlled substances in a correctional facility. The enhancement,
therefore, is not appropriate based upon Dugger’s charged offense
alone. Dugger’s distribution of marijuana and Xanax in the Carter
County Detention Center will support the application of the enhance-
ment only if it qualifies as "relevant conduct" under § 1B1.3.
We understand relevant conduct for the purposes of this appeal as
"all acts and omissions committed . . . by the defendant . . . that
occurred during the commission of the offense, in preparation for that
offense, or in the course of attempting to avoid detection or responsi-
bility for that offense," and "all acts and omissions [by the defendant]
. . . that were part of the same course of conduct or common scheme
or plan as the offense of conviction," U.S.S.G. § 1B1.3(a), "if the
offense behavior is ongoing or continuous in nature and the offense
guideline is written to cover such behavior" U.S.S.G. § 3D1.2(d).
Conduct or offenses in a "common scheme or plan . . . must be sub-
stantially connected to each other by at least one common factor, such
as common victims, common accomplices, common purpose, or simi-
lar modus operandi." U.S.S.G. § 1B1.3 Cmt. n.9(A). Conduct may
also be considered "relevant conduct" if the offenses "are sufficiently
connected or related to each other as to warrant the conclusion that
they are part of a single episode, spree, or ongoing series of offenses."
Id. n.9(B). We can consider "the degree of similarity of the offenses,
the regularity (repetitions) of the offenses, and the time interval
between the offenses." Id. The guidelines commentary warns that
"[w]hen one of the above factors is absent, a stronger presence of at
least one of the factors is required." Id.
We find that Dugger’s sale of drugs while in the detention center
does not meet the requirements to be considered "relevant conduct"
despite the government’s argument to the contrary. Dugger’s activi-
ties in the detention center cannot qualify as acts that occurred during,
in preparation for, or in the course of attempting to avoid detection
or responsibility for his charged offense of selling crack in Hunting-
ton. To determine whether those activities constituted part of a com-
mon scheme or plan that would qualify them as relevant conduct, we
must consider the factors outlined in the guidelines commentary.
Although Dugger’s offenses in Huntington and in the detention
center were similar in that they both involved the sales of drugs, none
UNITED STATES v. DUGGER 9
of the other factors can support a finding that the offenses were part
of a common scheme or plan or were ongoing or continuous in nature.
The sales had different customers, different accomplices, different
methods, and different purposes. More than a year elapsed between
Dugger’s sale of crack in Huntington and his sale of marijuana and
Xanax in the detention center. We find no similarities sufficient to
warrant our concluding that they constituted "a single episode, spree,
or ongoing series of offenses." We therefore conclude that Dugger’s
sale of drugs while incarcerated in Carter County Detention Center
does not qualify as "relevant conduct" under § 1B1.3.
Because Dugger’s sales of drugs inside the detention center do not
qualify as "relevant conduct" to be included with the charged offense
under U.S.S.G. § 1B1.3, and because the object of Dugger’s charged
offense was to sell crack in Huntington, not in prison, we hold that
the district court misapplied § 2D1.1(b)(3). Dugger should not have
received the two-level enhancement.
IV.
In light of the fact that Dugger continued to sell drugs while await-
ing trial in the Carter County Detention Center, we uphold the district
court’s denial of an acceptance of responsibility reduction under
§ 2E1.1(a) of the guidelines. Because the district court misinterpreted
§ 1B1.3 and misapplied the specific offense characteristic
§ 2D1.1(b)(3), however, we vacate Dugger’s sentence and remand for
resentencing consistent with this opinion.
VACATED AND REMANDED