United States v. Ora M. Cogburn , 29 F. App'x 410 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-3075
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
Ora M. Cogburn, * [UNPUBLISHED]
*
Appellant. *
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Submitted: January 15, 2002
Filed: January 24, 2002
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Before BOWMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
On February 1, 2001, Ora M. Cogburn entered into an oral plea agreement and
pleaded guilty to unlawfully transporting a stolen car in interstate commerce in
violation of 18 U.S.C. § 2312. Eight days later, Cogburn was convicted on an
unrelated charge of petty theft arising out of a December 2000 shoplifting incident.
Five months later, pretrial services reported that a June 2001 urine sample provided
by Cogburn had tested positive for amphetamine, methamphetamine, marijuana, and
cocaine. At Cogburn’s August 2001 sentencing hearing on the charge of transporting
a stolen car in interstate commerce, she claimed a two-point sentencing level
reduction for acceptance of responsibility. The district court* denied this request,
adopting the presentence report recommendation that Cogburn not receive a reduction
because of her post-plea agreement petty theft conviction and illegal drug use.
Cogburn was sentenced to eight months in prison. Cogburn appeals the denial of a
reduction in her sentencing level.
We review the district court’s denial of a sentencing level reduction for clear
error. See United States v. Byrd, 76 F.3d 194, 195 (8th Cir. 1996). Defendants often
request an adjustment for acceptance of responsibility after pleading guilty, but a
guilty plea does not automatically entitle a defendant to a downward adjustment.
U.S.S.G. § 3E1.1 Application Note 3 (2001). The court may consider many factors
when deciding whether to grant this adjustment, including whether a defendant has
voluntarily withdrawn from criminal conduct. Id. at Application Note 1(b). When
evaluating Cogburn’s request for an acceptance of responsibility reduction, the
district court was acting within its discretion when it considered Cogburn’s post-plea
agreement petty theft conviction and illegal drug use, even though both incidents of
criminal conduct were unrelated to the offense for which Cogburn was being
sentenced. See Byrd, 76 F.3d at 197. Because the district court did not commit clear
error when it denied Cogburn an acceptance of responsibility sentencing reduction,
we affirm. See 8th Cir. R. 47B.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
*
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
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