United States v. David Searer, Jr. , 636 F. App'x 258 ( 2016 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 16a0027n.06
Case No. 15-1422
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jan 14, 2016
UNITED STATES OF AMERICA, )
DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE WESTERN DISTRICT OF
DAVID SEARER, JR., ) MICHIGAN
)
Defendant-Appellant. )
)
)
BEFORE: SILER, CLAY, and KETHLEDGE, Circuit Judges.
SILER, Circuit Judge. Pursuant to a plea agreement, David Searer, Jr., pleaded guilty to
conspiracy to manufacture and distribute marijuana. At sentencing, the district court denied
Searer’s acceptance-of-responsibility reduction based on his use of opiates and amphetamines
while on bond. Searer appeals that determination. For the following reasons, we AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
Searer was indicted for his involvement in a conspiracy to manufacture and distribute
marijuana. Soon after his initial appearance, Searer violated the conditions of his bond by testing
positive for opiates and amphetamines. However, he was permitted to remain on bond in order
to receive substance abuse treatment. Nevertheless, he continued to use controlled substances
numerous times before his bond was eventually revoked.
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United States v. Searer
When the probation officer recommended that Searer be denied the acceptance-of-
responsibility reduction, Searer objected, arguing the existence of mitigating circumstances.
Specifically, he noted that he attempted to enter inpatient treatment but could not find a program
that would accept him since he did not have insurance. The district court denied him an
acceptance-of-responsibility reduction, providing the following explanation:
I’m not suggesting that Mr. Searer is willful and wanting to rub the law’s face into
the ground by continuing to use. He may well have, certainly seems to have,
serious problems with addiction, and that needs to be addressed. But in terms of
the guideline issue, it seems to me regardless of substance abuse problems,
particularly after Pretrial worked with him and got him into KPEP initially, where
the behavior continues unabated, . . . acceptance-of-responsibility credit is not
appropriate.
Although Searer’s Guidelines range was twenty-seven to thirty-three months, the district court
imposed a below-Guidelines sentence of twenty-four months.
ANALYSIS
Searer contends the district court erred in denying his acceptance-of-responsibility
reduction. “We review a sentence imposed by the district court for reasonableness.” United
States v. Webb, 616 F.3d 605, 608-09 (6th Cir. 2010) (citing United States v. Richardson,
437 F.3d 550, 553 (6th Cir. 2006)). Generally, the reasonableness of a sentence is reviewed
under the abuse-of-discretion standard. Id. at 609. But where the challenge to the sentence
involves the denial of credit for acceptance of responsibility, we review for clear error.1 United
States v. Surratt, 87 F.3d 814, 821 (6th Cir. 1996).
1
Searer claims that because no facts are in dispute, this court should review the denial of his acceptance-of-
responsibility credit de novo. However, following the Supreme Court’s decision in Buford v. United States,
532 U.S. 59 (2001), even if the facts are not in dispute, “this court has held that our standard of review of a district
court’s application of provisions of the Sentencing Guidelines to the facts should be treated deferentially and should
not be disturbed unless clearly erroneous.” United States v. Webb, 335 F.3d 534, 537 (6th Cir. 2003) (citing United
States v. Jackson-Randolph, 282 F.3d 369, 389-90 (6th Cir. 2002)).
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The Sentencing Guidelines entitle a defendant who “clearly demonstrates acceptance of
responsibility for his offense” to receive a two-level reduction in his sentence. USSG § 3E1.1(a).
While a defendant’s truthful admission to wrongdoing “will constitute significant evidence of
acceptance of responsibility for the purposes of [USSG § 3E1.1](a). . . . this evidence may be
outweighed by conduct of the defendant that is inconsistent with such acceptance of
responsibility.” USSG § 3E1.1 cmt. n.3. One factor that may weigh against a defendant’s
admission of guilt is whether he “voluntar[ily] terminat[ed] or withdr[ew] from criminal conduct
or associations.” Id. cmt. n.1(B). “[T]he phrase ‘voluntary termination or withdrawal from
criminal conduct’ refers to conduct which is of the same type or that is related to the underlying
offense, and not illegal conduct generally.” United States v. Redmond, 475 F. App’x 603, 612
(6th Cir. 2012) (emphasis added) (quoting USSG § 3E1.1 cmt. n.1(B)).
Searer argues that his continued use of controlled substances while on bond was
unrelated to his offense of conviction. To further his position, Searer cites to multiple cases in
which this court found the defendant’s post-plea conduct unrelated to the offense of conviction
and thus not a permissible basis to deny the acceptance-of-responsibility credit. But those cases
involve instances in which the offense of conviction was significantly different from the post-
plea conduct. See United States v. Hughes, 420 F. App’x 533, 537 (6th Cir. 2011)
(“[Defendant’s] post-plea conduct of drug dealing is ‘wholly distinct’ from his illegal possession
of a firearm.”); United States v. Ackerman, 246 F. App’x 996, 999 (6th Cir. 2007) (finding a
firearm conviction unrelated to defendant’s use of marijuana while on bond); United States v.
Banks, 252 F.3d 801, 807 (6th Cir. 2001) (“[Defendant’s] post-plea assault and destruction of
property charges were plainly unrelated to the offenses for which he was being sentenced (drug
trafficking and firearm possession).”). Rather, where a defendant is convicted of a crime
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involving drugs, such as conspiracy to distribute, and later tests positive for use of that drug
while on bond, we have found the offense of conviction and post-plea conduct sufficiently
related to deny the acceptance-of-responsibility reduction. See United States v. Walker, 182 F.3d
485, 489-90 (6th Cir. 1999) (holding a defendant’s conviction for conspiracy to distribute
cocaine and use of cocaine while on bond related); United States v. Zimmer, 14 F.3d 286, 289
(6th Cir. 1994) (concluding a defendant’s conviction for manufacturing marijuana and use of
marijuana while on bond related).
Searer argues that unlike other cases finding relatedness in drug cases, his offense of
conviction involved a different drug than the ones that resulted in his bond revocation. True
enough, but we have affirmed the denial of a defendant’s acceptance-of-responsibility credit
even when the drug involved in the offense of conviction is different from the drug used while
on bond. See United States v. Humphreys, 108 F. App’x 329, 329-30 (6th Cir. 2004).
In Humphreys, the defendant, convicted of conspiracy to manufacture methamphetamine, was
denied the acceptance-of-responsibility reduction for violating the terms of her bond by testing
positive for marijuana use. Id. at 330. Searer asserts that Humphreys is distinguishable from his
case because of “the sheer number and variety of [Humphreys’s] bond violations were viewed as
adequate grounds for denying acceptance.” This is only partially true; before even addressing
Humphrey’s multiple violations, we noted that “Humphreys tested positive for illegal drug use
while she was on bond, which constitutes continued criminal conduct.” Id. at 330 (emphasis
added). Moreover, not only did Searer test positive for use of controlled substances, but he also
failed to attend substance abuse treatment and diluted his urine samples.
In another analogous case, a defendant pleaded guilty to manufacturing
methamphetamine and possessing chemicals used in the manufacture of methamphetamine.
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United States v. Redmond, 475 F. App’x 603, 604 (6th Cir. 2012). While awaiting sentencing,
the defendant tried to convince a co-defendant to help him smuggle drugs into the prison. Id. at
607. Like Searer, the defendant contended his post-plea conduct only evidenced “his drug
problem and d[id] not indicate less remorse for his involvement in drug-trafficking offenses.” Id.
at 613. We disagreed, explaining “both the [defendant’s] underlying offense and the subsequent
conduct were drug-related.” Id. The same is true here. Searer’s continued use of controlled
substances while awaiting sentencing demonstrated that “he has not turned away from the
lifestyle that led to his original drug offense.” Id. Therefore, the district court did not clearly err
in denying Searer’s acceptance-of-responsibility reduction.
AFFIRMED.
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