United States v. Brittany Denise Mackey

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10433 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 9, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 3:09-cr-00004-DHB-WLB-7
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
BRITTANY DENISE MACKEY,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
________________________
(September 9, 2010)
Before BARKETT, HULL and FAY, Circuit Judges.
PER CURIAM:
Brittany Denise Mackey appeals her 51-month sentence for conspiracy to
possess with intent to distribute, and to distribute, cocaine, in violation of 21
U.S.C. § 846. She argues that the district court clearly erred in denying an offense
level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(a),
based on her use of marijuana while on pretrial release. For the reasons set forth
below, we affirm.
I.
On July 9, 2009, Mackey pled not guilty to two drug charges and was
released on bond. As a condition of her release, Mackey was required to refrain
from using narcotics or other controlled substances. On August 13, 2009,
Mackey’s probation officer petitioned the court to revoke Mackey’s bond, because
she had tested positive for marijuana on July 15, 2009, July 28, 2009, and August
10, 2009. The revocation petition noted that, although Mackey claimed that her
July 15, 2009 positive test resulted from pre-bond marijuana use, subsequent
testing showed that Mackey’s THCA1 level for the July 15, 2009, test was 57
nannograms, while her THCA level for the July 28, 2009, test was 78 nannograms.
According to the probation officer, this clearly showed that Mackey had re-used
marijuana while released on bond. At the bond revocation hearing, Mackey did
not challenge the results of the drug tests, and the court revoked Mackey’s bond.
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THCA, or 11-nor-9-carboxy-delta-9-tetrahydrocannabinol, is the primary metabolite that
results from marijuana use.
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Mackey subsequently pled guilty to conspiracy to possess with intent to distribute,
and to distribute, cocaine.
According to the presentence investigation report (“PSI”), Mackey had
rented a house in Brunswick, Georgia, for George Paris Clark, IV. Mackey was
aware that Clark used the house to store narcotics and to conduct his drug
distribution business. She also admitted to being present at the house during a
specific drug delivery. Agents searched the house while Clark and Mackey were
inside and recovered 2.193 kilograms of cocaine and 3.7 grams of cocaine base.
The PSI set Mackey’s total adjusted offense level at 24, which combined
with her criminal history score of I to yield a guideline imprisonment range of 51
to 63 months. The PSI noted that Mackey was not eligible for a U.S.S.G.
§ 3E1.1(a) reduction for acceptance of responsibility, because she had failed to
abstain from illicit drug use while on pretrial release. Mackey objected to the
PSI’s failure to recommend a § 3E1.1(a) reduction for acceptance of
responsibility, arguing that the marijuana use was unrelated to her offense
conduct, and that she admitted her pretrial drug use at her detention hearing. She
also noted that she openly and fully accepted responsibility for her role in the
offense.
At sentencing, the court noted that it had received a letter from Mackey
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stating that she had not done anything wrong, and that she had pled guilty “[d]ue
to certain circumstances.” Mackey stated that the letter was written on her behalf
by her sister, and that she had not read the letter before it was mailed to the court.
Mackey argued that she should have received an acceptance of responsibility
reduction, because she had not lied or concealed information. She noted that she
had admitted to using marijuana while on pretrial release and had informed her
probation officer that she had a problem with marijuana use. Mackey herself
addressed the court, apologized for her actions, and stated that she accepted full
responsibility for her part in the offense. She also apologized for using marijuana
while on pretrial release.
The district court determined that it could not grant Mackey an acceptance
of responsibility reduction because of the “[m]arijuana usage and all of these
supplications, which are, in effect, a denial of guilt, fluttering around in this case,
even if they are not attributable to her.” It noted that Mackey’s marijuana use
while on pretrial release was so concerning because of her continuing “association
with the crowd that sells it.” The court found that Mackey’s actions reflected “a
less-than-meaningful level of contrition and remorse,” because she “was simply
continuing her conduct as before.” The court sentenced Mackey to 51 months’
imprisonment, to be followed by 5 years of supervised release.
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II.
“We review the district court’s determination of acceptance of responsibility
only for clear error.” United States v. Amedeo, 370 F.3d 1305, 1320 (11th Cir.
2004). The sentencing judge’s determination regarding a defendant’s acceptance
of responsibility “is entitled to great deference on appeal.” United States v.
Kendrick, 22 F.3d 1066, 1068 (11th Cir. 1994); see U.S.S.G. § 3E1.1, comment.
(n.5) (providing that “great deference” is warranted, because the sentencing judge
“is in a unique position to evaluate a defendant’s acceptance of responsibility”).
Section 3E1.1 of the Sentencing Guidelines permits a district court to
reduce a defendant’s offense level if “the defendant clearly demonstrates
acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). “A defendant
who enters a guilty plea is not entitled to an adjustment . . . as a matter of right,” as
conduct inconsistent with acceptance of responsibility may outweigh the
defendant’s guilty plea and truthful admission of relevant conduct. U.S.S.G.
§ 3E1.1, comment. (n.3). “[A] district court is authorized to consider subsequent
criminal conduct, even if it is unrelated to the offense of conviction, in
determining whether a decrease for acceptance of responsibility is appropriate.”
United States v. Pace, 17 F.3d 341, 343 (11th Cir. 1994), (holding that the district
court did not clearly err in denying the § 3E1.1(a) reduction where the defendant
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tested positive for marijuana on the day that he entered his guilty plea); see United
States v. Scroggins, 880 F.2d 1204, 1216 (11th Cir. 1989) (holding that a
defendant’s continued drug use “is one indicia that the sentencing judge may
consider in assessing whether the [§ 3E1.1(a)] adjustment is appropriate”); United
States v. Hromada, 49 F.3d 685, 691 (11th Cir. 1995) (holding that the district
court did not clearly err in denying the defendant a § 3E1.1 reduction based on his
continued use of drugs while on pretrial release).
III.
Applying the deference to which the district court is entitled, the court did
not clearly err in denying Mackey a § 3E1.1 reduction based on her use of
marijuana while on pretrial release. First, precedent forecloses Mackey’s
argument that the district court could not consider her marijuana use because it
was unrelated to her offense of conviction. See Pace, 17 F.3d at 343. Second,
even though Mackey pled guilty and provided authorities with all the information
she had, the district court was permitted to find that this conduct was outweighed
by her use of narcotics while on pretrial release, which is inconsistent with an
acceptance of responsibility. See U.S.S.G. § 3E1.1(a), comment. (n.3); Pace, 17
F.3d at 343; Scroggins, 880 F.2d at 1216 (continued drug use is one indicia that
court may consider in determining whether defendant accepted responsibility).
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Mackey attempts to distinguish her case from Pace by arguing that Pace tested
positive for narcotics on the day that he entered his plea, while her use of
marijuana occurred soon after she was release on bond. This argument ignores the
fact that Mackey tested positive for narcotics at least three times, after which she
was incarcerated, thereby precluding further drug use. Mackey also initially
denied using marijuana after her initial appearance, although subsequent testing
proved that this was not true. Furthermore, binding precedent establishes that any
drug use while on pretrial release is sufficient grounds for the denial of a
§ 3E1.1(a) reduction. Pace, 17 F.3d at 343; Hromada, 49 F.3d 691. Accordingly,
because the district court did not clearly err in denying Mackey a § 3E1.1
reduction for acceptance of responsibility based on her drug use while on pretrial
release, we affirm her 51-month sentence.
AFFIRMED.
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