United States v. Slater

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 8 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 98-3032
v.
(D.C. No. 96-CR-40075-01-DES)
(D. Kan.)
ERNEST WADDELL SLATER, JR.,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BALDOCK, EBEL and MURPHY, Circuit Judges.
Ernest Waddell Slater, Jr. pleaded guilty to possession with intent to
distribute 8.62 grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), and
was sentenced to 92 months’ imprisonment. He appeals his sentence, contending
that the district court erroneously denied him a reduction in the base offense level
for acceptance of responsibility. See U.S.S.G. § 3E1.1. We exercise jurisdiction
over this appeal under 18 U.S.C. § 3742(a)(2), and affirm the sentence.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
We review the sentencing court’s "acceptance of responsibility"
determination as a question of fact under the clearly erroneous standard, United
States v. Mitchell, 113 F.3d 1528, 1533 (10th Cir. 1997), cert. denied, 118 S. Ct.
726 (1998); United States v. Amos, 984 F.2d 1067, 1071 (10th Cir. 1993), and
accord great deference to the sentencing court because of its unique position to
evaluate the defendant’s acceptance of responsibility. See U.S.S.G. § 3E1.1,
Application Note 5; United States v. Janusz, 135 F.3d 1319, 1325 (10th Cir.
1998); Amos, 984 F.2d at 1073 (“The sentencing court’s determination that a
defendant is not entitled to an adjustment for acceptance of responsibility is
entitled to great deference on review and should not be disturbed unless it is
without foundation.”).
Application Note 3 to U.S.S.G § 3E1.1 provides that entry of a guilty plea
prior to trial combined with truthful admission of the conduct comprising the
offense of conviction and of any other additional relevant conduct constitutes
significant evidence of acceptance of responsibility. The Note further provides,
however, that this evidence “may be outweighed by conduct of the defendant that
is inconsistent with such acceptance of responsibility.”
The district court in this case acknowledged that the government had
agreed to a three-level reduction for acceptance of responsibility, but held that
Mr. Slater was not entitled to such a reduction in light of findings by the
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magistrate judge that Mr. Slater had violated his bond conditions by possessing
firearms and ammunition and by being present during an undercover drug
transaction. (ROA Vol. III, at 7; Vol. II, at 48-49). Mr. Slater contests the
district court’s finding that the magistrate judge had ruled there was “probable
cause” to believe that Mr. Slater was present during the drug transaction. Even
assuming that the district court erroneously believed that the magistrate had made
an actual “probable cause” finding to believe that Slater was present, (ROA Vol.
III at 7), it is clear that the magistrate found that the evidence showed that Slater
“was present at the time of [the controlled] purchase.” (ROA Vol. II at 48-49.)
That the sentencing court slightly reworded this finding bears no consequence
under the circumstances. In any event, the magistrate judge’s findings with
respect to Mr. Slater’s possession of firearms and ammunition, (ROA Vol. II at
46), coupled with his explicit concern that the defendant had “not made any effort
to disassociate himself from the narcotics trafficking,” (ROA Vol. II at 49),
supply sufficient foundation for the sentencing court’s refusal of the three-level
reduction. See U.S.S.G. § 3E1.1, Application Note 1(b) (providing that, in
determining whether defendant qualifies for reduction for acceptance of
responsibility, sentencing court may consider whether there has been voluntary
termination or withdrawal from criminal conduct or associations).
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We give deference to the district court’s conclusion that the evidence of
Mr. Slater’s acceptance of responsibility was outweighed by conduct that was
inconsistent with acceptance of responsibility. Based on the record before us, we
believe the district court did not clearly err in determining that, due to his
continued criminal activity while on pre-trial release, the defendant was not
entitled to a reduction for acceptance of responsibility. We therefore AFFIRM
the sentence imposed by the district court.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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