United States v. Adkins , 92 F. App'x 43 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4642
PAUL EUGENE ADKINS,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, District Judge.
(CR-02-253)
Submitted: February 27, 2004
Decided: March 29, 2004
Before MICHAEL, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mary Lou Newberger, Federal Public Defender, George H. Lancaster,
Jr., Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Kasey K. Warner, United States Attorney, Joshua C.
Hanks, Assistant United States Attorney, Charleston, West Virginia,
for Appellee.
2 UNITED STATES v. ADKINS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Paul Eugene Adkins pled guilty to possession of a firearm by a
convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was sentenced to
a term of thirty-seven months imprisonment. He appeals his sentence,
asserting that the district court clearly erred in finding that he pos-
sessed the firearm in connection with the felony offense of obstruc-
tion of justice, U.S. Sentencing Guidelines Manual § 2K2.1(b)(5)
(2002), and in denying him an adjustment for acceptance of responsi-
bility based on his drug use while on pre-trial release, USSG § 3E1.1.
We affirm.
In June 2002, Adkins’ wife, Barbara, reported to the local police
that Adkins was using drugs and selling drugs from their home. She
said that, during an argument the day before, he refused her request
that he go into drug treatment and told her that "he had always sold
drugs, he was good at it, and he was going to continue doing it." Bar-
bara Adkins said she then told Adkins he would have to leave the
house. Adkins refused to leave and began taking his guns and shells
from the gun cabinet. His wife asked for fifteen minutes to collect her
belongings, to which Adkins agreed. As she packed, he told her that
some people would kill her in return for a little crack, suggested that
she should blow her own head off, and then said, "[O]n second
thought, I’ll just blow your head off." Adkins threw his wife’s cellular
phone at her before she left. Barbara Adkins also told investigators
that Adkins had threatened to kill her and her mother if she went to
the police, and said he would shoot the police if they came to the
house. Adkins cooperated with the officers who went to his house and
handed over to them 4.5 grams of marijuana and two firearms. Inves-
tigators later learned that Adkins had purchased two additional fire-
arms and pawned them. While on pre-trial release before his guilty
plea, Adkins tested positive for use of cocaine, marijuana, and
methamphetamine. His bond was revoked.
UNITED STATES v. ADKINS 3
In sentencing Adkins, the district court added a four-level enhance-
ment for possession of a firearm in connection with another felony
offense pursuant to USSG § 2K2.1(b)(5), having concluded that
Adkins’ threat to shoot his wife and her mother if she brought the
police to the house to stop his drug activity amounted to obstruction
of justice.* The defendant need not have been charged with or con-
victed of the other offense for the enhancement to apply. USSG
§ 2K1.2, comment. (n.7). At the sentencing hearing, Adkins’ wife tes-
tified on his behalf that he had threatened to shoot her and the police
simply because he did not want to leave his house or be forced out
of it and that his threats were not connected to her conversation with
him about his drug activity. However, the court found that her state-
ments to the police immediately following the incident were more
reliable than her testimony.
Adkins argues that his threats were not intended to prevent his wife
from reporting his illegal activity and thus did not constitute obstruc-
tion of justice. The district court found that Adkins’ threats were
intended to forestall her from obtaining the assistance of the police to
put an end to his drug sales at their house. We review the court’s fac-
tual finding for clear error. United States v. Daughtrey, 874 F.2d 213,
217 (4th Cir. 1989). Although Adkins’ wife did not warn him that she
would disclose his drug dealing to the police if he continued with it,
his involvement with drugs was the cause of their argument. It was
a reasonable inference on the part of the court that Adkins intended
to intimidate his wife and, thereby, to ensure that she would not go
to the police for fear of the consequences. Therefore, we conclude
that the district court did not clearly err in finding that Adkins’ threats
to his wife related to his drug dealing and constituted obstruction of
justice, and that he thus possessed a firearm in connection with
another felony offense.
*Title 18 U.S.C.A. § 1512(a)(2)(C), (b)(3) (West Supp. 2003), makes
it a felony to use physical force or the threat of physical force with intent
to "hinder, delay, or prevent the communication to a law enforcement
officer . . . of information relating to the commission . . . of a Federal
offense . . . ." and similarly penalizes the knowing use of intimidation or
threats to hinder, delay or prevent the communication of information
about a federal offense.
4 UNITED STATES v. ADKINS
Adkins next contends that the district court erred in denying him
an adjustment for acceptance of responsibility based on his drug use
while on pre-trial release because his conduct did not relate to the
offense of conviction. The defendant has the burden of proof with
respect to acceptance of responsibility, United States v. Harris, 882
F.2d 902, 907 (4th Cir. 1989), and the district court’s determination
is reviewed for clear error. United States v. Ruhe, 191 F.3d 376, 388
(4th Cir. 1999). Application Note 1(b) to § 3E1.1 states that the court
may consider whether the defendant has voluntarily withdrawn "from
criminal conduct or associations" without making an exception for
criminal conduct that is different from the offense of conviction. This
court has held that a defendant’s continued use or sale of drugs after
conviction may be a basis for denial of acceptance of responsibility.
United States v. Kidd, 12 F.3d 30, 34 (4th Cir. 1993); United States
v. Underwood, 970 F.2d 1336, 1339 (4th Cir. 1992).
Adkins relies on United States v. Morrison, 983 F.2d 730, 733-35
(6th Cir. 1993) (holding that adjustment may be denied based on
criminal conduct committed after indictment but before sentencing
only if the conduct is related or similar to the offense of conviction).
However, other circuits have held that the adjustment may be denied
based on criminal conduct unrelated to the offense of conviction. See
United States v. Prince, 204 F.3d 1021, 1023-24 (10th Cir. 2000);
United States v. Ceccarani, 98 F.3d 126, 130-31 (3d Cir. 1996);
United States v. Byrd, 76 F.3d 194, 197 (8th Cir. 1996); United States
v. McDonald, 22 F.3d 139, 144 (7th Cir. 1994); United States v. Pace,
17 F.3d 341, 343 (11th Cir. 1994); United States v. O’Neil, 936 F.2d
599, 600-01 (1st Cir. 1991); United States v. Watkins, 911 F.2d 983,
984 (5th Cir. 1990). The weight of authority indicates that the district
court did not clearly err in basing its decision on criminal conduct that
was different from Adkins’ offense of conviction.
Adkins also contends that a single failed drug test is insufficient
reason to deny him the adjustment. Without endorsing this view, we
note that Adkins used multiple drugs while on release. Moreover, the
district court observed that Adkins had defended his use of drugs to
his wife and concluded that Adkins’ continued use of drugs in viola-
tion of the conditions of release showed that his attitude had not
changed following his arrest. We cannot say that the district court
clearly erred in denying Adkins the adjustment.
UNITED STATES v. ADKINS 5
We therefore affirm the sentence imposed by the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED