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    United States v. Jeremy Atkins, 4th Cir. (2016)

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    The court affirmed Atkins' sentence but vacated and remanded Hillson's sentence. For Atkins, the court found no clear error in the drug quantity attributed to him at sentencing. For Hillson, the court found the district court properly denied an acceptance of responsibility reduction but erred in recalculating Hillson's guideline range without the reduction, which likely resulted in a higher sentence. The court remanded Hillson's case for resentencing.

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    United States v. Jeremy Atkins, 4th Cir. (2016)

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    42 views7 pages
    The court affirmed Atkins' sentence but vacated and remanded Hillson's sentence. For Atkins, the court found no clear error in the drug quantity attributed to him at sentencing. For Hillson, the court found the district court properly denied an acceptance of responsibility reduction but erred in recalculating Hillson's guideline range without the reduction, which likely resulted in a higher sentence. The court remanded Hillson's case for resentencing.

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    Filed: 2016-04-25 Precedential Status: Non-Precedential Docket: 15-4342

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    The court affirmed Atkins' sentence but vacated and remanded Hillson's sentence. For Atkins, the court found no clear error in the drug quantity attributed to him at sentencing. For Hillson, the court found the district court properly denied an acceptance of responsibility reduction but erred in recalculating Hillson's guideline range without the reduction, which likely resulted in a higher sentence. The court remanded Hillson's case for resentencing.

    Copyright:

    Public Domain
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    42 views7 pages

    United States v. Jeremy Atkins, 4th Cir. (2016)

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    Scribd Government Docs
    The court affirmed Atkins' sentence but vacated and remanded Hillson's sentence. For Atkins, the court found no clear error in the drug quantity attributed to him at sentencing. For Hillson, the court found the district court properly denied an acceptance of responsibility reduction but erred in recalculating Hillson's guideline range without the reduction, which likely resulted in a higher sentence. The court remanded Hillson's case for resentencing.

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    of 7

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 15-4342

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    JEREMY ANDREW ATKINS,
    Defendant - Appellant.

    No. 15-4343

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    JONATHAN DAVID HILLSON,
    Defendant - Appellant.

    Appeals from the United States District Court for the Middle
    District of North Carolina, at Greensboro.
    William L. Osteen,
    Jr., Chief District Judge. (1:14-cr-00377-WO-20; 1:14-cr-00377WO-19)

    Submitted:

    March 30, 2016

    Decided:

    Before WILKINSON, SHEDD, and FLOYD, Circuit Judges.

    April 25, 2016

    No. 15-4342, affirmed, and No. 15-4343, vacated and remanded by


    unpublished per curiam opinion.

    Stephen F. Wallace, WALLACE LAW FIRM, High Point, North


    Carolina; Renorda E. Pryor, HERRING LAW CENTER, PLLC, Raleigh,
    North Carolina, for Appellant.
    Ripley Rand, United States
    Attorney, Terry M. Meinecke, Assistant United States Attorney,
    Winston-Salem, North Carolina, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    In these consolidated appeals, Jeremy Atkins and Jonathan
    Hillson challenge their sentences.

    Atkins and Hillson each pled

    guilty to one count of conspiracy to possess pseudoephedrine


    with the intent to manufacture methamphetamine, a violation of
    21 U.S.C. 841(c)(2), 846 (2012).

    Atkins challenges the drug

    quantity attributed to him at sentencing.

    Hillson challenges

    the district courts refusal to award a three-level reduction


    for

    acceptance

    of

    responsibility

    Sentencing Guidelines calculation.


    sentence,

    we

    affirm.

    Because

    and

    the

    district

    courts

    Finding no error in Atkins

    the

    district

    court

    erred

    in

    recalculating Hillsons Guidelines range, we vacate his sentence


    and remand for further proceedings.
    We review the district courts calculation of the quantity
    of drugs attributable to a defendant for sentencing purposes for
    clear error.
    Cir.

    2011)

    United States v. Slade, 631 F.3d 185, 188 (4th

    (internal

    quotation

    marks

    omitted).

    Clear

    error

    occurs if we are left with the definite and firm conviction


    that a mistake has been committed.

    United States v. Jeffers,

    570

    (internal

    F.3d

    omitted).

    557,

    570

    (4th

    Cir.

    2009)

    quotation

    marks

    In calculating drug amounts, the district court may

    consider [any] relevant information . . . , provided that the


    information has sufficient indicia of reliability to support its
    probable accuracy.

    United States v. Crawford, 734 F.3d 339,


    3

    342 (4th Cir. 2013); see also U.S. Sentencing Guidelines Manual
    6A1.3(a), p.s. (2014).

    We will afford the district court

    broad discretion in determining what information to credit in


    making its calculations.

    United States v. Stewart, 256 F.3d

    231, 253 n.18 (4th Cir. 2001).


    Here,

    the

    district

    court

    heard

    testimony

    from

    two

    law

    enforcement officers to determine the appropriate drug amount to


    attribute

    to

    Atkins.

    Other

    codefendants

    enforcement also informed the investigation.


    court

    used

    the

    National

    Precursor

    Log

    statements

    to

    law

    And, the district

    Exchange

    records

    to

    determine the amount of pseudoephedrine Hillson purchased.


    district

    courts

    calculations

    are

    thus

    supported

    by

    The

    reliable

    evidence and are not clearly erroneous, and this claim entitles
    Atkins to no relief.
    Hillson challenges the district courts decision to deny
    him

    an

    acceptance

    determination

    is

    of

    responsibility

    factual

    one

    and

    adjustment.

    thus

    reviewed

    for

    This
    clear

    error.

    United States v. Dugger, 485 F.3d 236, 239 (4th Cir.

    2007).

    [T]he

    sentencing

    judge

    is

    in

    unique

    position

    to

    evaluate a defendants acceptance of responsibility, and thus


    . . . the determination of the sentencing judge is entitled to
    great deference on review.

    Elliott v. United States, 332 F.3d

    753, 761 (4th Cir. 2003) (internal quotation marks omitted).

    Section

    3E1.1

    of

    the

    U.S.

    Sentencing

    Guidelines

    Manual

    provides for a two-level reduction for a defendant who clearly


    demonstrates

    acceptance

    of

    responsibility

    for

    his

    offense.

    United States v. Jeffery, 631 F.3d 669, 678 (4th Cir. 2011)
    (quoting USSG 3E1.1(a)).

    To merit this reduction and the

    additional reduction outlined in USSG 3E1.1(b), the defendant


    must establish by a preponderance of the evidence that he has
    clearly

    recognized

    responsibility

    for

    and
    his

    affirmatively

    criminal

    accepted

    conduct.

    United

    personal
    States

    v.

    Nale, 101 F.3d 1000, 1005 (4th Cir. 1996).

    [A] denial of

    relevant

    acceptance

    conduct

    responsibility.

    is

    inconsistent

    with

    of

    Elliott, 332 F.3d at 766 (internal quotation

    marks omitted); see USSG 3E1.1 cmt. n.1 (A).


    We conclude that the district court did not clearly err
    when

    it

    ruled

    inconsistent

    that
    with

    Hillsons

    denial

    acceptance

    of

    of

    offense

    conduct

    responsibility.

    was

    After

    conducting a thorough examination, the district court continued


    the

    sentencing

    discuss

    his

    hearing

    conduct

    to

    with

    provide
    his

    Hillson

    attorney.

    an

    opportunity

    At

    the

    to

    reconvened

    hearing, Hillson continued to maintain that he did not know the


    pseudoephedrine would be used to make methamphetamine.
    denial

    of

    the

    offense

    conduct

    acceptance of responsibility.

    is

    inconsistent

    with

    This
    the

    Although
    reduction

    the

    for

    recalculated
    eliminating

    district

    acceptance
    Hillsons

    the

    court
    of

    properly

    responsibility,

    Guideline

    3E1.1

    denied
    it

    sentencing

    reduction.

    In

    Hillson

    erroneously
    range

    assessing

    after

    Guidelines

    calculations, we review factual findings for clear error, legal


    conclusions de novo, and unpreserved arguments for plain error.
    United States v. Strieper, 666 F.3d 288, 292 (4th Cir. 2012).
    Because

    Hillson

    did

    not

    challenge

    the

    sentencing, our review is for plain error.

    recalculation

    at

    To establish plain

    error, Hillson must show (1) that the district court erred, (2)
    that the error is clear or obvious, and (3) that the error
    affected his substantial rights, meaning that it affected the
    outcome of the district court proceedings.
    Webb,

    738

    F.3d

    638,

    640-41

    (4th

    Cir.

    United States v.

    2013)

    (quoting

    States v. Olano, 507 U.S. 725, 732-34 (1993)).

    United

    If this burden

    is met, we exercise discretion to correct the error only if the


    error

    seriously

    affects

    the

    fairness,

    reputation of judicial proceedings.

    integrity

    or

    public

    Id. at 641 (brackets and

    internal quotation marks omitted).


    Hillsons properly calculated total offense level, without
    the 3E1.1 reduction, was 24, but the district court applied an
    offense

    level

    of

    26.

    Based

    on

    this

    error,

    Hillson

    likely

    received a higher sentence than he would have if the had court


    correctly calculated his base offense level.
    6

    Consequently, the

    error

    affected

    outcome

    of

    Hillsons

    the

    substantial

    proceedings.

    We

    rights

    and

    therefore

    affected
    exercise

    the
    our

    discretion to correct the error and vacate Hillsons sentence.


    Accordingly, we affirm Atkins sentence and we vacate and
    remand Hillsons sentence for further proceedings.

    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.


    No. 15-4342: AFFIRMED;
    No. 15-4343: VACATED AND REMANDED

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