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United States v. Allen , 286 F. App'x 808 ( 2008 )


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  •                              UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5110
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC LOUIE ALLEN, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:07-cr-00034-NCT-2)
Submitted:   July 22, 2008                 Decided:   August 11, 2008
Before WILKINSON and TRAXLER, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, William C. Ingram, First
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Anna Mills Wagoner, United States Attorney, Sandra J.
Hairston, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric Louie Allen, Jr., pled guilty to conspiracy to
distribute 500 grams or more of cocaine hydrochloride (Count 1) and
was sentenced to eighty-five months of imprisonment, below his
advisory Sentencing Guidelines range of 97-121 months.            On appeal,
Allen argues that the district court erred by denying him a
reduction for acceptance of responsibility, under U.S. Sentencing
Guidelines Manual (“USSG”) § 3E1.1 (2006), because he twice tested
positive for marijuana use while on release--once prior to his
guilty plea and once prior to sentencing.           For the reasons that
follow, we affirm.
We review the district court’s determination that Allen
failed to accept responsibility for clear error.             United States
v. Kise,
    369 F.3d 766
    , 771 (4th Cir. 2004).         One of the factors the
court   may    consider   is   whether   the   defendant   has   voluntarily
terminated or withdrawn from criminal conduct. USSG § 3E1.1,
comment. (n.1(b)). Allen disputes the district court’s decision to
deny him the adjustment because of what he argues is unrelated
criminal conduct. He asks this court to follow the Sixth Circuit’s
reasoning in United States v. Morrison,
    983 F.2d 730
    , 733-35 (6th
Cir. 1993) (holding that new unrelated criminal conduct should not
be considered).     Most appellate courts to consider this argument,
however, have held that a sentencing court does not clearly err if
it chooses to deny an adjustment for acceptance of responsibility
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based on commission of criminal conduct that is different from the
crime to which the defendant pled guilty.               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).           In light of these
authorities, we are persuaded that the district court did not
clearly err in determining that Allen was not entitled to a
reduction for acceptance of responsibility.
Accordingly, we affirm.      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
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