United States v. Jimmy Garner ( 2021 )


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  •                  United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 20-3160
    ___________________________
    United States of America
    Plaintiff - Appellee
    v.
    Jimmy L. Garner
    Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the Western District of Missouri - Kansas City
    ____________
    Submitted: September 21, 2021
    Filed: December 7, 2021
    [Unpublished]
    ____________
    Before SHEPHERD, WOLLMAN, and KOBES, Circuit Judges.
    ____________
    PER CURIAM.
    Jimmy Garner was sentenced to 105 months in prison for being a felon in
    possession of a firearm. Garner appeals, arguing the district court1 should have
    given him an offense-level reduction for accepting responsibility. We affirm.
    1
    The Honorable Howard F. Sachs, United States District Judge for the
    Western District of Missouri.
    I.
    Garner fled after police tried to stop him for driving a stolen car. He
    committed several traffic violations during the pursuit, which ended when he ran a
    stop sign at 60 miles per hour and crashed into another car. The officers then saw
    Garner jump into the passenger seat, pull something from his waistband, and put it
    behind his back. After taking Garner into custody, officers searched the car and
    found a loaded gun on the passenger seat.
    Garner pleaded guilty to one count of possessing a firearm as a convicted
    felon. The PSR recommended a total offense level of 26, which included a four-
    point enhancement for possessing a gun in connection with a felony. The PSR
    assigned a criminal history score of 42, placing him in category VI. Before
    sentencing, Garner and another inmate attacked a third inmate, who required medical
    attention. Because of this, the PSR recommended he not receive a reduction for
    acceptance of responsibility under U.S.S.G. § 3E1.1. The PSR calculated a
    Guidelines range of 120 to 150 months, capped by the statutory maximum of 120
    months.
    The district court sustained Garner’s objection to the four-level “in connection
    with” enhancement but denied him credit for acceptance of responsibility. This
    resulted in a new Guidelines range of 84 to 105 months. The district court sentenced
    him to 105 months in prison.
    II.
    “We review the district court’s denial of an acceptance of responsibility
    reduction for clear error.” United States v. Smith, 
    665 F.3d 951
    , 957 (8th Cir. 2011).
    “A district court’s factual determination on whether a defendant has demonstrated
    acceptance of responsibility is entitled to great deference and should be reversed
    only if it is so clearly erroneous as to be without foundation.” United States v.
    Arellano, 
    291 F.3d 1032
    , 1034 (8th Cir. 2002).
    -2-
    “U.S.S.G. § 3E1.1(a) provides for a two-level reduction if the defendant
    ‘clearly demonstrates acceptance of responsibility for [his] offense.’” United States
    v. Davis, 
    875 F.3d 869
    , 875 (8th Cir. 2017) (quoting § 3E1.1(a)). The defendant
    bears the burden. Id. (citing U.S.S.G. § 3E1.1 cmt. 2). A defendant is not
    automatically entitled to the reduction simply for pleading guilty. See United States
    v. Cooper, 
    998 F.3d 806
    , 810 (8th Cir. 2021). Conduct that is inconsistent with
    acceptance of responsibility may outweigh a guilty plea. See 
    id. at 810
    –11 (citing
    U.S.S.G. § 3E1.1 cmt. 3). “This Court has consistently denied the acceptance-of-
    responsibility reduction to defendants whose conduct belies their claims of
    contrition.” United States v. Nguyen, 
    52 F.3d 192
    , 194 (8th Cir. 1995).
    Because Garner committed an assault between conviction and sentencing, the
    district court found that he hadn’t accepted responsibility for the offense. The
    commentary to § 3E1.1 includes a non-exhaustive list of factors to consider in
    deciding whether to grant the acceptance of responsibility reduction. See § 3E1.1
    cmt. 1. “One factor in determining whether a defendant has clearly demonstrated
    acceptance is whether he has withdrawn from ‘criminal conduct.’” Arellano, 
    291 F.3d at 1034
    –35 (quoting U.S.S.G. § 3E1.1 cmt. 1(b)). “Even unrelated criminal
    conduct,” such as conduct that occurs before trial, “may make an acceptance of
    responsibility reduction inappropriate.” Id. at 1035 (citation omitted). We have
    considered acts of violence and threats by a defendant while incarcerated to be
    sufficient grounds for a denial of the acceptance of responsibility reduction under
    § 3E1.1. See United States v. Sutton, 511 F. App’x 591, 592 (8th Cir. 2013).
    Even if the detention center attack alone didn’t outweigh Garner’s guilty plea,
    the district court’s decision to deny the reduction wasn’t solely based on the pre-
    sentence assault. It also highlighted his “continuous stream of law violations”2 and
    noted that, “taking the presentence report all in all, it’s pretty hard to find acceptance
    of responsibility.”
    2
    Garner’s violations include assaults, property crimes, drug offenses, driving
    offenses and fleeing from police.
    -3-
    Plus, any possible error was harmless. “An incorrect Guidelines calculation
    is harmless error where the district court specifies the resolution of a particular issue
    did not affect the ultimate determination of a sentence, such as when the district
    court indicates it would have alternatively imposed the same sentence even if a lower
    guideline range applied.” United States v. Dace, 
    842 F.3d 1067
    , 1069 (8th Cir. 2016)
    (per curiam) (citation omitted), overruled on other grounds by United States v.
    Swopes, 
    866 F.3d 668
    , 671 (8th Cir. 2018). Here, the district court ultimately
    sentenced Garner to 105 months, on “the high end of the Guidelines,” and specified
    that it would have imposed the same sentence “regardless of rulings . . . made
    regarding the guidelines.” Because Garner would have received the same 105-
    month sentence even if the district court applied the acceptance of responsibility
    reduction, any error was harmless.
    III.
    We affirm Garner’s sentence.
    ______________________________
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