United States v. Batten , 112 F. App'x 345 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 21, 2004
Charles R. Fulbruge III
Clerk
No. 04-40286
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NICKIE ANGELO BATTEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:03-CR-134-ALL
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Nickie Angelo Batten appeals the sentence imposed following
his guilty-plea conviction for being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g). Specifically, he
challenges the district court’s denial of a three-point reduction
for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1.
Batten argues that he pleaded guilty in a timely manner,
truthfully admitted all offense conduct and relevant conduct, and
has shown remorse for his conduct. He urges that denial of the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-40286
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acceptance-of-responsibility reduction should not have been based
upon his alleged marijuana possession since that conduct predated
his plea and has not resulted in any additional criminal charges.
The district court did not err in denying acceptance of
responsibility based on Batten’s pre-plea conduct indicating
continuing criminal behavior, specifically, his possession of
marijuana pending trial. See United States v. Flucas, 99 F.3d
177, 180 (5th Cir. 1996); United States v. Rickett, 89 F.3d 224,
227 (5th Cir. 1996); see also United States v. Watkins, 911 F.2d
983, 984-85 (5th Cir. 1990). Batten acknowledges these cases but
urges the court to revisit them, citing cases from the Ninth
Circuit, which he contends show that the denial of acceptance of
responsibility is more appropriate when the defendant engages in
criminal conduct after pleading guilty. However, no panel of
this court may overrule the decision of a prior panel in the
absence of en banc reconsideration or a superseding Supreme Court
decision. United States v. Lipscomb, 299 F.3d 303, 313 n.34 (5th
Cir. 2002).
The facts contained in the presentence report and adduced at
sentencing establish that Batten possessed marijuana in his jail
cell while he awaited trial. There is no evidence to support
Batten’s contention that the marijuana was not his. The district
court’s denial of acceptance of responsibility was not error.
See United States v. Chapa-Garza, 62 F.3d 118, 122 (5th Cir.
No. 04-40286
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1995); see also Flucas, 99 F.3d at 180; Rickett, 89 F.3d at 227;
Watkins, 911 F.2d at 984.
In a letter filed pursuant to FED. R. APP. P. 28(j), Batten
argues that the district court’s imposition of sentencing
enhancements under § 2K2.1(b)(1)(A) and (b)(4) violated Blakely
v. Washington, 124 S. Ct. 2531 (2004). This issue is foreclosed
by United States v. Pineiro, 377 F.3d 464, 466 (5th Cir. 2004),
petition for cert. filed (U.S. July 14, 2004) (No. 04-5263).
The district court’s judgment is AFFIRMED.