United States v. Scott , 302 F. App'x 185 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4627
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NATHAN E. SCOTT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:07-cr-01225-DCN-1)
Submitted: November 17, 2008 Decided: December 5, 2008
Before TRAXLER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Michael Rhett DeHart, Assistant
United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nathan E. Scott appeals the twenty-seven month
sentence the district court imposed after he pled guilty to
failing to register as a sex offender, in violation of 18 U.S.C.
§ 2250(a) (2006). Counsel submitted a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), averring there are no
meritorious issues for appeal, but suggesting this court should
consider whether: (1) the district court erred in denying Scott
a downward adjustment to his sentence based upon his acceptance
of responsibility and (2) whether the sentence is reasonable.
Scott was informed of his right to file a pro se supplemental
brief but has not filed a brief. We have carefully reviewed the
record in this case and conclude there is no reversible error.
Accordingly, for the reasons set forth below, we affirm the
district court’s judgment.
After he pled guilty, Scott violated the conditions of
his pretrial release by: (1) testing positive for the use of
cocaine on two occasions; (2) failing to report for required
drug testing on two occasions; and (3) failing to abide by the
requirements of electronic monitoring and home detention on
several occasions. Accordingly, Scott’s bond was revoked prior
to sentencing. At the sentencing hearing, counsel objected to
the lack of a downward adjustment for acceptance of
responsibility, pursuant to U.S. Sentencing Guidelines Manual
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(“USSG”) § 3E1.1, while acknowledging that “the revocation of
[Scott’s] bond allows [the court] to take away [the adjustment
for] acceptance of responsibility.” Counsel argued that Scott
was, nevertheless, entitled to the adjustment because his
violations of pretrial release conditions were the result of his
addiction to cocaine and his residence in a remote rural area
without access to reliable transportation. The district court
overruled Scott’s objection, finding that Scott’s failures to
report for drug testing and violations of electronic monitoring
did not result from his addiction.
Under USSG § 3E1.1, a defendant may receive a
reduction in offense level by clearly demonstrating acceptance
of responsibility for the offense. We review for abuse of
discretion a district court’s denial of an adjustment based upon
acceptance of responsibility, and have held that a court may
deny the adjustment due to criminal conduct while on pretrial
release. See United States v. Kidd, 12 F.3d 30, 34 (4th Cir.
1993). Accordingly, the district court did not abuse its
discretion in denying Scott’s objection due to his violations of
the conditions of pretrial release.
We will affirm a sentence imposed by the district
court if it is within the statutorily prescribed range and
reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir.
2005). We review Scott’s sentence under a deferential abuse of
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discretion standard. See Gall v. United States, 128 S. Ct. 586,
590 (2007). The first step in this review requires us to ensure
that the district court committed no significant procedural
error, such as improperly calculating the guidelines range.
United States v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert.
denied, 128 S. Ct. 2525 (2008). In assessing a sentencing
court’s application of the guidelines, we review the court’s
legal conclusions de novo and its factual findings for clear
error. United States v. Allen, 446 F.3d 522, 527 (4th Cir.
2006). The court then considers the substantive reasonableness
of the sentence imposed, taking into account the totality of the
circumstances. Gall, 128 S. Ct. at 597. We presume that a
sentence within a properly calculated guidelines range is
reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007).
The district court properly calculated the advisory
guidelines range of imprisonment, permitted counsel and Scott to
speak, and gave reasons for overruling Scott’s objection that he
was entitled to a downward adjustment. The sentence was within
the guidelines range of imprisonment and is presumptively
reasonable.
Because there was no error in the application of the
Sentencing Guidelines and the district court stated that it
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considered the 18 U.S.C. § 3553(a) (2006) factors, the sentence
is reasonable.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Scott, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Scott requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Scott.
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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