United States v. Raymond Cutts, IV

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 29, 2008
No. 08-11017 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 07-00199-CR-ORL-28-KRS
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
versus
RAYMOND CUTTS, IV,
Defendant – Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 29, 2008)
Before BIRCH, DUBINA and BARKETT, Circuit Judges.
PER CURIAM:
Raymond Cutts, IV, appeals his sentence of twelve months and one day.
Cutts was convicted, upon his guilty pleas, for filing a fraudulent Hurricane
Katrina claim with the Federal Emergency Management Agency (“FEMA”) in
violation of 18 U.S.C. § 371 (conspiracy to defraud the United States), 18 U.S.C. §
287 (submitting a false claim against the United States), and 18 U.S.C. § 641 (theft
of government funds).
On appeal, Cutts argues the district court’s reliance on his drug use during
his pretrial release to deny his request for an acceptance of responsibility reduction
was inappropriate as his drug use was unrelated to the offenses of his convictions.
Cutts also contends that the district court abused its discretion in denying his
request for a downward variance so that his sentence would match the lower
sentence received by his father for similar conduct.
I.
The denial of a reduction for acceptance of responsibility is reviewed for
clear error. United States v. Williams, 408 F.3d 745, 756 (11th Cir. 2005). “The
sentencing judge is in a unique position to evaluate a defendant’s acceptance of
responsibility” and is therefore “entitled to great deference on review.” Id.
Section 3E1.1 of the Sentencing Guidelines permits a district court to give a
defendant a sentence reduction “provided that the defendant ‘clearly demonstrates
acceptance of responsibility for his offense, and he has assisted authorities in the
investigation or prosecution of his own misconduct by taking one or more of the
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following steps: (1) timely providing complete information to the government
concerning his own involvement in the offense; or [2] timely notifying authorities
of his intention to enter a plea of guilty.’” United States v. Gonsalves, 121 F.3d
1416, 1420 (11th Cir. 1997) (quoting U.S.S.G. § 3E1.1). However, continued
criminal activity, such as drug use, during the pretrial period can result in a denial
of this reduction. Gonsalves, 121 F.3d at 1420-21.
Here, Cutts’s drug use during his pretrial release was unrelated to the
underlying offenses for which he pled guilty. However, in United States v. Pace,
17 F.3d 341, 343 (11th Cir. 1994) we rejected the same argument that Cutts
advances here, namely that because he accepted full responsibility for the non-drug
related offenses with which he was charged, he should not be denied an acceptance
of responsibility reduction for his drug addiction. In Pace, a defendant who pled
guilty to making false statements by filing false tax returns was denied an
acceptance of responsibility reduction due to his marijuana use while out on bond.
17 F.3d at 342. In reviewing the district court’s decision in Pace, we held that “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.” Id. at 343. Thus, in accordance with
our precedent, we find that the district court did not clearly err in denying Cutts an
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acceptance of responsibility reduction.
II.
Next, Cutts argues that he is entitled to a downward variance of his sentence,
pursuant to 18 U.S.C. § 3553(a)(6) in order to avoid a disparity in sentencing
between his sentence of twelve months and one day and his father’s sentence of
five months for similar conduct. Section 3553(a)(6) requires the district court to
consider “the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct.” We review
the reasonableness of a sentence under a deferential abuse of discretion standard.
Gall v. United States, 552 U.S. ___, 128 S. Ct. 586, 591 (2007).
Upon review of the record and the parties’ briefs, we conclude that the
district court did not abuse its discretion in denying Cutts’s request for a downward
departure. Cutts was not similarly situated to his father in that Cutts had a criminal
history category of VI while his father had a criminal history of IV. Thus, the
resulting difference in their sentences did not create an unwarranted sentencing
disparity. Furthermore, the district court imposed a sentence that was within the
guidelines range and expressly examined that sentence in light of the § 3553(a)
factors.
AFFIRMED.
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