United States v. Cedrick Atkinson

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 30, 2020
• Docket: 19-4499
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4499

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CEDRICK R. ATKINSON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Louise W. Flanagan, District Judge. (5:18-cr-00409-FL-1)

Submitted: March 20, 2020 Decided: March 30, 2020

Before THACKER and RICHARDSON, Circuit Judges, and TRAXLER, Senior Judge.

Affirmed by unpublished per curiam opinion.

G. Alan DuBois, Federal Public Defender, Eric Joseph Brignac, Chief Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Cedrick R. Atkinson appeals his 33-month prison sentence after pleading guilty to

possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (2018),

and driving under the influence in violation of 18 U.S.C. § 13 (2018). On appeal, he

contends that the district court clearly erred in denying him a reduction for acceptance of

responsibility under U.S. Sentencing Guidelines Manual § 3E1.1(a) (2018). We affirm.

“As a general matter, in reviewing any sentence whether inside, just outside, or

significantly outside the Guidelines range, we review for an abuse of discretion.” United

States v. Bolton, 858 F.3d 905, 911 (4th Cir. 2017) (internal quotation marks and citations

omitted). “Pursuant to this standard, we review the district court's legal conclusions de

novo and factual findings for clear error.” Id. (citation omitted). In our review, we examine

the sentence for procedural errors, “such as failing to calculate (or improperly calculating)

the Guidelines range . . . .” Gall v. United States, 552 U.S. 38, 51 (2007).

We review the district court’s denial of an acceptance of responsibility reduction

“only for clear error.” United States v. Carver, 916 F.3d 398, 404 (4th Cir. 2019) (citation

omitted). “We will not reverse a lower court’s findings of fact simply because we would

have decided the case differently.” United States v. Slager, 912 F.3d 224, 233 (4th Cir.)

(internal quotation marks and citations omitted), cert. denied, 139 S. Ct. 2679 (2019).

“Instead, clear error exists only when the reviewing court on the entire evidence is left with

the definite and firm conviction that a mistake has been committed.’” Id. (internal

quotation marks and citations omitted).

2 “The defendant bears the burden of showing he has clearly recognized and

affirmatively accepted personal responsibility for his criminal conduct, and this does not

flow automatically from a guilty plea.” Carver, 916 F.3d at 404 (internal quotation marks

omitted). “In determining whether a defendant has satisfied this standard, a sentencing

court may consider, in relevant part, (a) truthful admissions to the underlying offenses or

related conduct; (b) voluntary withdrawal from crime; (c) voluntary and prompt surrender

to authorities; and (d) the timeliness of the defendant’s apparent acceptance of

responsibility.” Bolton, 858 F.3d at 915 (citing U.S.S.G. § 3E1.1 cmt. n.1). The sentencing

court may also consider “post-offense rehabilitative efforts (e.g., counseling or drug

treatment).” § 3E1.1 cmt. n.1.

While pleading guilty and truthfully admitting the underlying offenses or relevant

conduct constitutes “significant evidence of acceptance of responsibility,” “this evidence

may be outweighed by conduct of the defendant that is inconsistent with such acceptance

of responsibility.” § 3E1.1 cmt. n.3. “The sentencing judge is in a unique position to

evaluate a defendant’s acceptance of responsibility”; and the sentencing judge’s

determination “is entitled to great deference on review.” Id. at § 3E1.1 cmt. n.5; Bolton,

858 F.3d at 915. Thus, “[w]e have upheld denials of reductions for acceptance of

responsibility where, as here, the defendant continues criminal activity after apprehension,

indictment, or guilty plea.” Bolton, 858 F.3d at 915 (citing United States v. Dugger, 485

F.3d 236, 240 (4th Cir. 2007) (affirming denial of reduction where defendant admitted

dealing drugs before and after incarceration); United States v. Kidd, 12 F.3d 30, 34 (4th

Cir. 1993) (upholding denial of reduction where defendant continued cocaine use and

3 distribution after indictment and plea agreement)); see also United States v. Underwood,

970 F.2d 1336, 1338–39 (4th Cir. 1992) (upholding denial where defendant continued to

use illegal drugs, which he argued was due to his psychological disorder).

We have reviewed the record and conclude that, under the facts and circumstances

of this case, the district court did not clearly err in finding Atkinson did not clearly

recognize and affirmatively accept responsibility for his criminal conduct. Despite

receiving counseling and being continued on pretrial release, he continued to use illegal

drugs after pleading guilty to possession of a firearm by a felon and driving under the

influence.

Accordingly, we affirm the district court’s judgment. 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