United States v. Scott

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4324
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BRIAN JONIMICHAEL SCOTT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:06-cr-00342-TLW)
Submitted: December 12, 2007 Decided: December 26, 2007
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James T. McBratney, Jr., MCBRATNEY LAW FIRM, P.A., Florence, South
Carolina, for Appellant. Rose Mary Parham, Assistant United States
Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a written plea agreement, Brian Jonimichael
Scott pled guilty to being a felon in possession of firearms and
ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2)
(2000). Scott was sentenced to 41 months’ imprisonment. Finding
no error, we affirm.
On appeal, counsel filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), asserting there are no
meritorious issues for appeal, but contending (1) the district
court wrongly denied Scott an adjustment for acceptance of
responsibility and (2) the district court sentence was
unreasonable. Scott was advised of his right to file a pro se
supplemental brief, which he elected to do. In his pro se brief,
Scott questions whether his federal conviction wrongly violated the
Double Jeopardy Clause because he was convicted for the same
conduct in state court. In addition, Scott raises some of the same
concerns raised in counsel’s Anders brief. The Government elected
not to file a responsive brief.
Scott questions whether the district court wrongly denied
an adjustment for acceptance of responsibility. Our court reviews
a district court’s decision to grant or deny an adjustment for
acceptance of responsibility for clear error. United States v.
May, 359 F.3d 683, 688 (4th Cir. 2004); United States v. Pauley,
289 F.3d 254, 261 (4th Cir. 2002). The determination of the
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district court is due great deference. United States v. Dugger,
485 F.3d 236, 239 (4th Cir. 2007) (citing USSG § 3E1.1, cmt. n.5
(2005)). The burden is on the defendant to establish by a
preponderance of the evidence that he is entitled to the
adjustment. United States v. Urrego-Linares, 879 F.2d 1234, 1238-
39 (4th Cir. 1989).
The record shows Scott engaged in further criminal
conduct after the indictment and that he was released from a drug
treatment program as a result. Among the factors for a district
court to consider in determining whether an adjustment is warranted
are “voluntary termination or withdrawal from criminal conduct or
associations” and “post-offense rehabilitative efforts.” USSG §
3E1.1, cmts. n.1(b) and (g). Scott’s continued drug use subsequent
to his conviction warranted denial of an adjustment for acceptance
of responsibility. See United States v. Kidd, 12 F.3d 30, 34 (4th
Cir. 1994); United States v. Underwood, 970 F.2d 1336, 1339 (4th
Cir. 1992). Accordingly, we find the district court’s decision to
deny Scott an adjustment for acceptance of responsibility was not
clearly erroneous.
Scott also questions whether his sentence is reasonable,
but he offers no basis for this contention. The record shows the
district court appropriately calculated the advisory guideline
range and considered it in conjunction with other relevant factors
under the guidelines and 18 U.S.C. § 3553(a) (2000). See United
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States v. Moreland, 437 F.3d 424, 432-33 (4th Cir.), cert. denied,
126 S. Ct. 2054 (2006). Scott’s sentence, which is at the bottom
end of the applicable guidelines range and well within the
statutory maximum, is therefore reasonable. See United States v.
Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309(2006); see also Rita v. United States, 127 S. Ct. 2456, 2462-65
(2007).
Lastly, Scott questions whether his federal and state
convictions for the same conduct violated the Double Jeopardy
Clause. A “central feature of double jeopardy’s definition of
offense is the ‘dual sovereignty doctrine.’ Applying this
doctrine, the Supreme Court has continually held that federal and
state crimes are not the same offense, no matter how identical the
conduct they proscribe.” United States v. Alvarado, 440 F.3d 191,
196 (4th Cir. 2006) (citations omitted). Accordingly, Scott’s
argument is without merit.
Pursuant to Anders, we have examined Scott’s entire
record and find no meritorious issues for appeal. We therefore
affirm the district court’s judgment. This court requires that
counsel inform his client, in writing, of his right to petition the
Supreme Court of the United States for further review. If Scott
requests that such a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in this
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court for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof was served on Scott.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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