United States v. McKenzie ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10349
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN LA-DON MCKENZIE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:00-CR-98-ALL
--------------------
February 20, 2002
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Kevin La-Don McKenzie appeals the sentence imposed following
his guilty-plea conviction for possession of cocaine with intent
to manufacture cocaine base. McKenzie argues that the district
court erred by denying him a three-level downward adjustment in
his offense level for acceptance of responsibility. See U.S.S.G.
§ 3E1.1.
The defendant bears the burden of demonstrating that he is
entitled to the offense level reduction. See United States v.
Flucas, 99 F.3d 177, 180 (5th Cir. 1996). “The entry of a guilty
*
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that this opinion should not be published and is not precedent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. 01-10349
-2-
plea prior to the commencement of trial is significant evidence
of acceptance of responsibility but does not entitle the
defendant to a reduction as a matter of right.” United States v.
Rickett, 89 F.3d 224, 227 (5th Cir. 1996); U.S.S.G. § 3E1.1,
comment. (n.3). In determining whether a defendant has accepted
responsibility for his crime, the district court should consider
whether the defendant has voluntarily terminated or withdrawn
from criminal conduct or associations. See Flucas, 99 F.3d at
180; U.S.S.G. § 3E1.1, comment. (n.1(b)).
A very deferential standard of review is applied to a
district court's refusal to credit a defendant's acceptance of
responsibility. See Rickett, 89 F.3d at 227. Although McKenzie
timely admitted his guilt, the district court did not err in
determining that McKenzie was not entitled to the downward
adjustment because McKenzie failed to withdraw from criminal
conduct while he was being detained pending sentencing.
McKenzie’s pre-sentence report revealed that during a shakedown
of McKenzie’s cell, marijuana was found concealed in a hair care
container filled with lotion. In view of the evidence adduced at
the sentencing hearing, the district court’s determination that
McKenzie was in possession of the marijuana was not erroneous.
The judgment of the district court is AFFIRMED.