United States v. Vernon R. McCarty

52 F.3d 326, 1995 U.S. App. LEXIS 18062, 1995 WL 222201

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 13, 1995
• Docket: 94-1872
• Status: Published

Opinion

52 F.3d 326
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

UNITED STATES of America, Plaintiff-Appellee,
v.
Vernon R. McCARTY, Defendant-Appellant.

No. 94-1872.

United States Court of Appeals, Sixth Circuit.

April 13, 1995.

Before: NORRIS and SUHRHEINRICH, Circuit Judges; BERTELSMAN, Chief District Judge.*

MEMORANDUM OPINION

PER CURIAM.

Pursuant to his guilty plea, defendant, Vernon R. McCarty, was convicted on cocaine and marijuana trafficking charges. He appeals from the district court's refusal to grant him a reduction in his sentence for acceptance of responsibility.

During the time he was incarcerated awaiting trial, defendant negotiated with Glen Coppola for the delivery of 150 pounds of marijuana from Arizona to Michigan. He was assisted in this endeavor by his son and former wife. Although he acknowledges this conduct, he argues that he is nevertheless entitled to the reduction, since he "accepted responsibility for the charged crime even though he had engaged in other criminal conduct."

A defendant bears the burden of establishing that he is entitled to the acceptance of responsibility reduction. Whether a defendant actually has accepted responsibility for his criminal conduct is a question of fact for the sentencing judge, and the court's determination will not be disturbed on appeal unless it is clearly erroneous. United States v. Williams, 940 F.2d 176, 181 (6th Cir.), cert. denied, 502 U.S. 1016 (1991).

Our review of the record leads us to conclude that that the district judge did not err when he determined that defendant had not withdrawn voluntarily from criminal conduct, as contemplated by U.S.S.G. Sec. 3E1.1. Clearly, defendant continued to pursue criminal conduct of the same type as his underlying offenses. See United States v. Morrison, 983 F.2d 730, 733 (6th Cir.1993); United States v. Reed, 951 F.2d 97, 100 (6th Cir.1991), cert. denied, 112 S.Ct. 1700 (1992); United States v. Snyder, 913 F.2d 300, 305 (1990), cert. denied, 498 U.S. 1039 (1991).

Accordingly, defendant's sentence is affirmed.

* The Honorable William O. Bertelsman, United States Chief District Judge for the Eastern District of Kentucky, sitting by designation