United States v. Jarrell ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4133
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JONATHAN JAMES JARRELL,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:07-cr-00123-2)
Submitted: October 14, 2008 Decided: October 16, 2008
Before KING, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Christian M. Capece, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, John L. File, Assistant United
States Attorney, Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jonathan James Jarrell pled guilty to aiding and
abetting the distribution of cocaine, 21 U.S.C. § 841(a)(1)
(2000), and was sentenced to a term of twenty-one months
imprisonment. Jarrell appeals his sentence, arguing that the
district court clearly erred in denying him an adjustment for
acceptance of responsibility, U.S. Sentencing Guidelines Manual
§ 3E1.1 (2007), based on two positive drug tests while he was
free on bond pending his sentencing. We affirm.
Jarrell entered his guilty plea in September 2007 and
was permitted to remain free on bond. In October 2007, he tested
positive for cocaine use. He also tested positive for cocaine
use and use of an opiate, Lortab, several days after the first
positive test, in November 2007. He subsequently admitted
violating the conditions of his release, including a third
incident of drug use; his release was revoked; and he was
detained. At the sentencing hearing in January 2008, the
district court determined that Jarrell’s conduct was
inconsistent with acceptance of responsibility and denied the
adjustment. Jarrell argues on appeal that the admitted drug use
is an insufficient reason to deny him the adjustment,
particularly in light of his admission of the offense conduct,
guilty plea, and cooperation with investigators.
2
Following United States v. Booker, 543 U.S. 220(2005), a district court must engage in a multi-step process at
sentencing. First, it must calculate the appropriate advisory
Guidelines range. It must then consider the resulting range in
conjunction with the factors set forth in 18 U.S.C.A. § 3553(a)
(West 2000 & Supp. 2008) and determine an appropriate sentence.
United States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006).
The guideline commentary on which the court relied in denying
Jarrell the adjustment states that the court may consider
whether the defendant has voluntarily withdrawn “from criminal
conduct or associations.” USSG § 3E1.1 comment. (n.1(b)). 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). These decisions do not require multiple instances of
drug use to warrant denial of the adjustment, only some
continued use of drugs after a guilty plea or conviction.
Therefore, the district court did not clearly err when it held
that Jarrell's continued involvement with drugs did not reflect
acceptance of responsibility.
3
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
4