US v. Jeremy Atkin

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cr-00377-WO-20. Copies to all parties and the district court. [999803048]. [15-4342, 15-4343]

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UNPUBLISHED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

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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unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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 court’s refusal to award a three-level reduction
for

acceptance

of

responsibility

Sentencing Guidelines calculation.
sentence,

we

affirm.

Because

and

the

district

court’s

Finding no error in Atkins’

the

district

court

erred

in

recalculating Hillson’s Guidelines range, we vacate his sentence
and remand for further proceedings.
“We review the district court’s 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,
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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

court’s

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 court’s decision to deny
him

an

acceptance

determination

is

a

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

a

unique

position

to

evaluate a defendant’s 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).

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Section

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3E1.1

of

the

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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

Hillson’s

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.

5

is

inconsistent

with

This
the

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Although
reduction

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the

for

recalculated
eliminating

district

acceptance
Hillson’s

the

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court
of

properly

responsibility,

Guideline

§ 3E1.1

denied
it

sentencing

reduction.

In

Hillson

a

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).
Hillson’s 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

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error

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affected

outcome

of

Hillson’s

the

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substantial

proceedings.

We

rights

and

therefore

affected
exercise

the
our

discretion to correct the error and vacate Hillson’s sentence.
Accordingly, we affirm Atkins’ sentence and we vacate and
remand Hillson’s 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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