US v. Jonathan Jarrell

Filing 920081016

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4133

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JONATHAN JAMES JARRELL, Defendant Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Beckley. Thomas E. Johnston, District Judge. (5:07-cr-00123-2)

Submitted:

October 14, 2008

Decided:

October 16, 2008

Before KING, GREGORY, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne, Appellate Counsel, Christian M. Capece, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. Charles T. Miller, United States Attorney, John L. File, Assistant United States Attorney, Beckley, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Jonathan abetting (2000), the and James Jarrell of to pled guilty 21 of to aiding and

distribution was sentenced

cocaine, a term

U.S.C.

§ 841(a)(1) months

twenty-one

imprisonment.

Jarrell appeals his sentence, arguing that the

district court clearly erred in denying him an adjustment for acceptance of responsibility, U.S. Sentencing Guidelines Manual § 3E1.1 (2007), based on two positive drug tests while he was free on bond pending his sentencing. We affirm.

Jarrell entered his guilty plea in September 2007 and was permitted to remain free on bond. In October 2007, he tested positive for cocaine use. He also tested positive for cocaine

use and use of an opiate, Lortab, several days after the first positive violating incident detained. district test, the of At in November of 2007. his He subsequently including and admitted a third he was the was

conditions use;

release, was

drug the

his

release

revoked; January

sentencing determined

hearing that

in

2008,

court

Jarrell's

conduct

inconsistent with acceptance of responsibility and denied the adjustment. is an Jarrell argues on appeal that the admitted drug use reason to deny him the adjustment,

insufficient

particularly in light of his admission of the offense conduct, guilty plea, and cooperation with investigators.

2

Following

United

States

v.

Booker,

543

U.S.

220

(2005), a district court must engage in a multi-step process at sentencing. First, it must calculate the appropriate advisory It must then consider the resulting range in

Guidelines range.

conjunction with the factors set forth in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008) and determine an appropriate sentence. United States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006). The guideline commentary on which the court relied in denying Jarrell the adjustment states that the court may consider

whether the defendant has voluntarily withdrawn "from criminal conduct or associations." USSG § 3E1.1 comment. (n.1(b)). This court has held that a defendant's continued use or sale of drugs after conviction may be a basis for denial of acceptance of responsibility. United States v. Kidd, 12 F.3d 30, 34 (4th Cir.

1993); United States v. Underwood, 970 F.2d 1336, 1339 (4th Cir. 1992). drug use These decisions do not require multiple instances of to use warrant of denial after of a the adjustment, plea or only some

continued

drugs

guilty

conviction.

Therefore, the district court did not clearly err when it held that Jarrell's continued involvement with drugs did not reflect acceptance of responsibility.

3

We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

4