Case: 19-10142 Date Filed: 10/15/2019 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10142 Non-Argument Calendar ________________________
D.C. Docket No. 3:17-cr-00030-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRANDEN LAVON MILLENDER,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(October 15, 2019)
Before TJOFLAT, WILSON, and JORDAN, Circuit Judges.
PER CURIAM: Case: 19-10142 Date Filed: 10/15/2019 Page: 2 of 9
Branden Lavon Millender appeals his 84-month sentence for being
convicted as a felon in possession of a firearm in violation of 18 U.S.C. §§
922(g)(1), 924(a)(2). On appeal, he argues that the district court clearly erred in
applying a four-level enhancement under the Sentencing Guidelines, U.S.S.G.
§ 2K2.1(b)(4)(B), after finding that he possessed a firearm with an altered serial
number. He also argues that the district court clearly erred when it refused to
apply a three-level reduction under U.S.S.G. § 3E1.1 for acceptance of
responsibility. After careful review of the parties’ briefs and the record, we affirm.
I
In the Sentencing Guidelines context, we review issues of statutory
interpretation de novo, factual findings for clear error, and the “application of the
guidelines to the facts with due deference,” which is “tantamount to clear error
review.” United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010) (internal
quotation mark omitted). We “must be left with a definite and firm conviction that
a mistake has been committed” to find clear error. Id.
A defendant convicted of a firearm offense receives a four-level increase if
the firearm has “an altered or obliterated serial number.” U.S.S.G.
§ 2K2.1(b)(4)(B). The focus of the parties’ briefs is the proper interpretation of
“altered” within the meaning of § 2K2.1(b)(4)(B). Everyone agrees that the serial
number was severely scratched but legible; they disagree about whether a severely
2 Case: 19-10142 Date Filed: 10/15/2019 Page: 3 of 9
scratched but legible serial number is “altered” under the guideline. Millender
argues that “altered or obliterated” means “materially changed in a way that makes
accurate information less accessible,” and that “significant alteration” is necessary.
The government defends the district court’s interpretation of “altered”: “changed in
some way.” The Sentencing Commission has not defined “altered” (or
“obliterated”) for purposes of this enhancement. Therefore, we will consult the
traditional rules of statutory construction. United States v. Warren, 820 F.3d 406,
407 (11th Cir. 2016) (per curiam). The statute’s words generally take their
ordinary meaning from the time of enactment. New Prime Inc. v. Oliveira, 586
U.S. __, 139 S. Ct. 532, 539 (2019). Absent ambiguity, we can end our inquiry
there. Warren, 820 F.3d at 407.
The Sentencing Guidelines took effect on November 1, 1987. U.S.S.G.
Ch.1, Pt.A, Subpt.1, intro. comment. In 1986, “alter” meant “to cause to become
different in some particular characteristic (as measure, dimension, course,
arrangement, or inclination) without changing into something else;” “to become
different in some respect;” or to “undergo change usually without resulting
difference in essential nature.” Webster’s Third New International Dictionary,
Unabridged 63 (1986). 1 “Obliterate” meant “to remove from significance and
1 Other dictionaries defined “alter” as “to make different in some particular, as size, style, course, or the like;” to “modify;” or “to change [or] become different or modified,” The Random House Dictionary of the English Language 60 (2d ed. 1987), and “[t]o change or make different;” 3 Case: 19-10142 Date Filed: 10/15/2019 Page: 4 of 9
bring to nothingness[,] such as” (a) “to make undecipherable or imperceptible by
obscuring, covering, or wearing or chipping away;” (b) “to remove utterly from
recognition, cognizance, consideration, or memory;” or (c) “to remove from
existence[;] make nonexistent[; or] destroy utterly all traces, indications,
significance of.” Id. at 1557. These definitions have persisted over time. See
Webster’s Third New International Dictionary, Unabridged 63, 1557 (2002).
Here, the district court did not err in interpreting or applying the law. The
district court interpreted “altered” to mean “changed in some way,” which is
functionally indistinguishable from the ordinary meaning of “altered” as defined
above. The district court justifiably rejected Millender’s “significant alteration”
standard because the plain language says “altered,” not “significantly altered.”
And the district court properly declined to adopt an interpretation of “altered” that
would require illegibility because that interpretation would render “obliterated”
superfluous. See Corley v. United States, 556 U.S. 303, 314 (2009) (recalling a
basic interpretive canon that we construe statutes to avoid rendering any part
superfluous). Satisfied with the district court’s take on the law, we now turn to its
application.
“modify;” or “to change or become different,” The American Heritage Dictionary of the English Language 99 (2d ed. 1982). 4 Case: 19-10142 Date Filed: 10/15/2019 Page: 5 of 9
We see no clear error because the district court’s application dovetailed with
its interpretation. Considering that “altered” means “changed in some way,” and
following its personal examination of the firearm, the district court concluded that
“the serial number . . . has certainly been changed in some way.” The district court
described the scratches on the serial number as “far more than a casual scratch
mark.” “[T]here’s no doubt in my mind,” the district court said, “that someone at
some point in that firearm’s history took a knife or something sharp to that metal
and scratched it in an effort to remove the serial number or to affect it in a way that
it would not be legible.” In no way are we left with a definite and firm conviction
that the district court committed a mistake in applying § 2K2.1(b)(4)(B). See
Rothenberg, 610 F.3d at 624.
II
We review for clear error the district court’s decision regarding a reduction
for acceptance of responsibility under § 3E1.1, affording “great deference” to its
decision. United States v. Moriarty, 429 F.3d 1012, 1022 (11th Cir. 2005) (per
curiam); § 3E1.1, comment. (n.5). So “we will not set aside a district court’s
determination that a defendant is not entitled to a § 3E1.1 adjustment unless the
facts in the record clearly establish that the defendant has accepted responsibility.”
Moriarty, 429 F.3d at 1022–23. “The defendant bears the burden of clearly
5 Case: 19-10142 Date Filed: 10/15/2019 Page: 6 of 9
demonstrating acceptance of responsibility and must present more than just a guilty
plea.” Id. at 1023.
A defendant is entitled to a two-level reduction in his offense level if he
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Case: 19-10142 Date Filed: 10/15/2019 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10142 Non-Argument Calendar ________________________
D.C. Docket No. 3:17-cr-00030-MCR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRANDEN LAVON MILLENDER,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(October 15, 2019)
Before TJOFLAT, WILSON, and JORDAN, Circuit Judges.
PER CURIAM: Case: 19-10142 Date Filed: 10/15/2019 Page: 2 of 9
Branden Lavon Millender appeals his 84-month sentence for being
convicted as a felon in possession of a firearm in violation of 18 U.S.C. §§
922(g)(1), 924(a)(2). On appeal, he argues that the district court clearly erred in
applying a four-level enhancement under the Sentencing Guidelines, U.S.S.G.
§ 2K2.1(b)(4)(B), after finding that he possessed a firearm with an altered serial
number. He also argues that the district court clearly erred when it refused to
apply a three-level reduction under U.S.S.G. § 3E1.1 for acceptance of
responsibility. After careful review of the parties’ briefs and the record, we affirm.
I
In the Sentencing Guidelines context, we review issues of statutory
interpretation de novo, factual findings for clear error, and the “application of the
guidelines to the facts with due deference,” which is “tantamount to clear error
review.” United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010) (internal
quotation mark omitted). We “must be left with a definite and firm conviction that
a mistake has been committed” to find clear error. Id.
A defendant convicted of a firearm offense receives a four-level increase if
the firearm has “an altered or obliterated serial number.” U.S.S.G.
§ 2K2.1(b)(4)(B). The focus of the parties’ briefs is the proper interpretation of
“altered” within the meaning of § 2K2.1(b)(4)(B). Everyone agrees that the serial
number was severely scratched but legible; they disagree about whether a severely
2 Case: 19-10142 Date Filed: 10/15/2019 Page: 3 of 9
scratched but legible serial number is “altered” under the guideline. Millender
argues that “altered or obliterated” means “materially changed in a way that makes
accurate information less accessible,” and that “significant alteration” is necessary.
The government defends the district court’s interpretation of “altered”: “changed in
some way.” The Sentencing Commission has not defined “altered” (or
“obliterated”) for purposes of this enhancement. Therefore, we will consult the
traditional rules of statutory construction. United States v. Warren, 820 F.3d 406,
407 (11th Cir. 2016) (per curiam). The statute’s words generally take their
ordinary meaning from the time of enactment. New Prime Inc. v. Oliveira, 586
U.S. __, 139 S. Ct. 532, 539 (2019). Absent ambiguity, we can end our inquiry
there. Warren, 820 F.3d at 407.
The Sentencing Guidelines took effect on November 1, 1987. U.S.S.G.
Ch.1, Pt.A, Subpt.1, intro. comment. In 1986, “alter” meant “to cause to become
different in some particular characteristic (as measure, dimension, course,
arrangement, or inclination) without changing into something else;” “to become
different in some respect;” or to “undergo change usually without resulting
difference in essential nature.” Webster’s Third New International Dictionary,
Unabridged 63 (1986). 1 “Obliterate” meant “to remove from significance and
1 Other dictionaries defined “alter” as “to make different in some particular, as size, style, course, or the like;” to “modify;” or “to change [or] become different or modified,” The Random House Dictionary of the English Language 60 (2d ed. 1987), and “[t]o change or make different;” 3 Case: 19-10142 Date Filed: 10/15/2019 Page: 4 of 9
bring to nothingness[,] such as” (a) “to make undecipherable or imperceptible by
obscuring, covering, or wearing or chipping away;” (b) “to remove utterly from
recognition, cognizance, consideration, or memory;” or (c) “to remove from
existence[;] make nonexistent[; or] destroy utterly all traces, indications,
significance of.” Id. at 1557. These definitions have persisted over time. See
Webster’s Third New International Dictionary, Unabridged 63, 1557 (2002).
Here, the district court did not err in interpreting or applying the law. The
district court interpreted “altered” to mean “changed in some way,” which is
functionally indistinguishable from the ordinary meaning of “altered” as defined
above. The district court justifiably rejected Millender’s “significant alteration”
standard because the plain language says “altered,” not “significantly altered.”
And the district court properly declined to adopt an interpretation of “altered” that
would require illegibility because that interpretation would render “obliterated”
superfluous. See Corley v. United States, 556 U.S. 303, 314 (2009) (recalling a
basic interpretive canon that we construe statutes to avoid rendering any part
superfluous). Satisfied with the district court’s take on the law, we now turn to its
application.
“modify;” or “to change or become different,” The American Heritage Dictionary of the English Language 99 (2d ed. 1982). 4 Case: 19-10142 Date Filed: 10/15/2019 Page: 5 of 9
We see no clear error because the district court’s application dovetailed with
its interpretation. Considering that “altered” means “changed in some way,” and
following its personal examination of the firearm, the district court concluded that
“the serial number . . . has certainly been changed in some way.” The district court
described the scratches on the serial number as “far more than a casual scratch
mark.” “[T]here’s no doubt in my mind,” the district court said, “that someone at
some point in that firearm’s history took a knife or something sharp to that metal
and scratched it in an effort to remove the serial number or to affect it in a way that
it would not be legible.” In no way are we left with a definite and firm conviction
that the district court committed a mistake in applying § 2K2.1(b)(4)(B). See
Rothenberg, 610 F.3d at 624.
II
We review for clear error the district court’s decision regarding a reduction
for acceptance of responsibility under § 3E1.1, affording “great deference” to its
decision. United States v. Moriarty, 429 F.3d 1012, 1022 (11th Cir. 2005) (per
curiam); § 3E1.1, comment. (n.5). So “we will not set aside a district court’s
determination that a defendant is not entitled to a § 3E1.1 adjustment unless the
facts in the record clearly establish that the defendant has accepted responsibility.”
Moriarty, 429 F.3d at 1022–23. “The defendant bears the burden of clearly
5 Case: 19-10142 Date Filed: 10/15/2019 Page: 6 of 9
demonstrating acceptance of responsibility and must present more than just a guilty
plea.” Id. at 1023.
A defendant is entitled to a two-level reduction in his offense level if he
“clearly demonstrates acceptance of responsibility.” § 3E1.1(a). An additional
one-level reduction is available upon motion by the government. § 3E1.1(b). A
sentencing court may consider whether the defendant has voluntarily terminated or
withdrawn from criminal conduct. § 3E1.1, comment. (n.1(B)). Entering a guilty
plea before trial, plus “truthfully admitting the conduct comprising the offense of
conviction, and truthfully admitting or not falsely denying any additional relevant
conduct . . . , will constitute significant evidence of acceptance of responsibility.”
Id., comment. (n.3). But conduct “inconsistent with such acceptance of
responsibility” may outweigh the other evidence. Id. Further, “[a] defendant who
enters a guilty plea is not entitled to an adjustment under this section as a matter of
right.” Id.
Millender argues that the district court clearly erred when it denied him
reductions under both § 3E1.1(a) and (b) for acceptance of responsibility. Starting
with the two-level § 3E1.1(a) reduction, the district court concluded that
Millender’s positive drug tests and his abscondence from supervision constituted
conduct “inconsistent with acceptance of responsibility.” Thus, it denied him the
reduction despite other conduct that indicated acceptance of responsibility.
6 Case: 19-10142 Date Filed: 10/15/2019 Page: 7 of 9
Millender argues first that the district court clearly erred by considering his drug
use and abscondence because they were “not relevant” to the criminal conduct
underlying his conviction for being a felon in possession of a firearm. Second, he
argues that the district court improperly considered that same conduct because his
drug addiction made his conduct “involuntary.” Neither of these arguments
persuade us that the district court erred.
Contrary to Millender’s first argument, a district court may properly
consider evidence of a defendant’s pretrial-release conduct, even if unrelated to his
conviction, when analyzing a § 3E1.1(a) reduction. United States v. Wright, 862
F.3d 1265, 1279 (11th Cir. 2017); United States v. Pace, 17 F.3d 341, 343–44
(11th Cir. 1994). In Pace, after the defendant pled guilty to conspiracy to make
false claims against the United States arising from a tax fraud scheme, the district
court considered evidence of the defendant’s unrelated pretrial conduct—a positive
test result for marijuana and his admission to pretrial use—when it declined to
reduce his sentence under § 3E1.1(a). Id. at 342. Like Millender does here, the
defendant argued that the district court erred by relying on this conduct to deny the
reduction “because his marijuana use was unrelated to his offense of conviction.”
Id. at 343. 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. As a
7 Case: 19-10142 Date Filed: 10/15/2019 Page: 8 of 9
result, we affirmed the district court’s denial of a § 3E1.1(a) reduction. Id. at 344;
see also Wright, 862 F.3d at 1279 (affirming district court’s denial of the reduction
based on a pretrial conviction for possession of marijuana when the sentence
related to a conviction for tax-fraud conspiracy). Therefore, the district court did
not err here either when it considered Millender’s pretrial conduct that was
unrelated to the conduct underlying his conviction to deny the requested § 3E1.1(a)
reduction.
Next, Millender cites § 3E1.1, comment. (n.1(A) and (B)), for the
proposition that a district court abuses its discretion—and increases punishment
contrary to the guideline’s intent—when it relies on involuntary conduct (such as
conduct driven by drug addiction) to deny a § 3E1.1(a) reduction. But the
commentary does not support his argument. The commentary lists “voluntary
termination or withdrawal from criminal conduct or associations” as an appropriate
consideration for granting a reduction. § 3E1.1, comment. (n.1(B)) (emphasis
added). It does not list allegedly involuntary continuation of criminal conduct as
an inappropriate consideration. Millender provides no support for his apparent
contention that the guideline precludes the district court’s consideration of his
pretrial drug use and abscondence. And we do not independently see error in the
district court’s consideration of this conduct. Finally, we note that the district court
did not increase Millender’s punishment; it declined to reduce his offense level.
8 Case: 19-10142 Date Filed: 10/15/2019 Page: 9 of 9
As for the § 3E1.1(b) one-level reduction, Millender ignores the necessity of
a government motion, which he lacked, to qualify for the reduction. And the
district court correctly noted the government’s role in that reduction’s availability.
In conclusion, we see no error, much less one so clear that it defeats the
great deference we afford the district court’s decision in this context. See § 3E1.1,
comment. (n.5). Accordingly, we affirm the sentence.
AFFIRMED.