                 Case: 19-12601    Date Filed: 08/05/2020   Page: 1 of 7



                                                             [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                   No. 19-12601
                               Non-Argument Calendar
                             ________________________

                     D.C. Docket No. 8:18-cr-00400-VMC-SPF-1


UNITED STATES OF AMERICA,

                                                    Plaintiff - Appellee,

versus

TERRESE COLSTON,

                                                    Defendant - Appellant.

                             ________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                           ________________________

                                   (August 5, 2020)

Before GRANT, LUCK and DUBINA, Circuit Judges.

PER CURIAM:

         Appellant Terrese Colston (“Colston”) appeals the district court’s imposition

of a 360-month sentence for carjacking, brandishing a firearm during a carjacking,
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and being a felon in possession of a firearm and ammunition. He argues that the

district court erred when it concluded that he was a career offender because, he

contends, his prior Florida controlled substance convictions should not count as

predicate offenses and that the district court erred when it did not award him a two-

level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. He also

challenges the substantive reasonableness of his sentence.

                                           I.

      We review de novo the district court’s interpretation of the guidelines and its

application of the guidelines to the facts. United States v. Cingari, 952 F.3d 1301,

1305 (11th Cir. 2020). We review de novo the district court’s decision to classify a

defendant as a career offender under U.S.S.G. § 4B1.1. United States v. Gibson,

434 F.3d 1234, 1243 (11th Cir. 2006). We review a district court’s determination

of whether to apply a reduction for acceptance of responsibility for clear error.

United States v. Moriarty, 429 F.3d 1012, 1022 (11th Cir. 2005) (per curiam).

“The district court is in a unique position to evaluate whether a defendant has

accepted responsibility for his acts, and this determination is entitled to great

deference on review.” United States v. Tejas, 868 F.3d 1242, 1247 (11th Cir.

2017) (per curiam). We review the substantive reasonableness of a sentence under




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an abuse of discretion standard. United States v. Gomez, 955 F.3d 1250, 1255

(11th Cir. 2020) (per curiam).

                                          II.

      Colston contends that the district court should not have sentenced him as a

career offender. He argues that his convictions for violations of Florida Statute §

893.13 are too broad to qualify as predicate offenses for a career offender

enhancement because the statute does not have a mens rea requirement. Colston

acknowledges that this court’s precedent forecloses this argument.

      A defendant is a career offender if, among other things, he has at least two

prior felony convictions for a controlled substance offense. U.S.S.G. § 4B1.1(a).

We have held that a prior conviction under Fla. Stat. § 893.13(1) is a “controlled

substance offense” under U.S.S.G. § 4B1.2(b). See United States v. Pridgeon, 853

F.3d 1192, 1200 (11th Cir. 2017); United States v. Smith, 775 F.3d 1262, 1267-68

(11th Cir. 2014). In Smith, we rejected the argument that a predicate offense, as

defined under § 4B1.2(b), requires a mens rea, noting that neither Congress nor the

Sentencing Commission had called for a mens rea requirement in the prior

offenses. Id. at 1267. Thus, under our binding precedent, we conclude that the

district court did not err in designating Colston as a career offender.




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                                         III.

      Colston argues that the district court erred when it did not grant him a two-

level adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. To

receive a two-level reduction under § 3E1.1(a), the defendant must “clearly

demonstrate[] acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a).

“The determination of whether a defendant has adequately manifested acceptance

of responsibility is a flexible, fact sensitive inquiry. The defendant bears the

burden of clearly demonstrating acceptance of responsibility and must present

more than just a guilty plea.” United States v. Wright, 862 F.3d 1265, 1279 (11th

Cir. 2017) (internal quotations and citations omitted). In determining whether the

defendant is entitled to this adjustment, the district court may consider, among

other relevant factors, whether the defendant truthfully admitted his relevant

conduct. U.S.S.G. § 3E1.1, comment. (n.1(A)). “A defendant who falsely denies .

. . relevant conduct that the court determines to be true has acted in a manner

inconsistent with acceptance of responsibility.” Id.

      The record indicates that Colston did not clearly demonstrate acceptance of

responsibility. He attempted to withdraw his plea not because it was involuntary,

coerced, or done without the assistance of counsel, but rather, because he was

displeased with the guideline calculation. He particularly objected to the


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description of his relevant conduct because it recited the fact that he shot a police

officer and fled from law enforcement after the carjacking incident. The district

court’s denial of an acceptance of responsibility adjustment on this basis was not

erroneous. Cf. Tejas, 868 F.3d at 1248 (holding that district court did not clearly

err in denying an adjustment for acceptance of responsibility where the defendant

had affirmatively denied relevant conduct that the district court found was

established by a preponderance of the evidence). Furthermore, Colston opposed

his restitution assessment for the carjacking victim, which is contrary to a clear

acceptance of responsibility. Cf. U.S.S.G. §3E1.1, comment. (n.1(C)) (voluntary

payment of restitution prior to adjudication of guilt indicates acceptance of

responsibility). Accordingly, we conclude that, based on the record, the district

court did not err in denying Colston an acceptance of responsibility reduction.

                                          IV.

      Colston challenges his 30-year sentence as substantively unreasonable. He

contends that the district court abused its discretion because it failed to consider

relevant mitigating factors, such as his difficult childhood and psychological

issues. He also asserts that the district court improperly gave undue weight to its

own biases regarding violence. We conclude from the record that the district court




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carefully considered all the proper factors, and Colston cannot meet his burden of

proving that his sentence is substantively unreasonable.

      On substantive reasonableness review, we will only vacate the sentence if

we “are left with the definite and firm conviction that the district court committed a

clear error of judgment in weighing the 18 U.S.C. § 3553(a) factors by arriving at a

sentence that lies outside the range of reasonable sentences dictated by the facts of

the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc)

(quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)). When

weighing the § 3553(a) factors, the district court enjoys great discretion. United

States v. Goldman, 953 F.3d 1213, 1222 (11th Cir. 2020). That discretion is

abused if “it (1) fails to consider relevant factors that were due significant weight,

(2) gives an improper or irrelevant factor significant weight, or (3) commits a clear

error of judgment by unreasonably balancing the proper factors.” Id. The burden

is on the defendant to prove that the sentence is substantively unreasonable. Id.

Additionally, a sentence less than “the statutory maximum penalty is an indicator

of [its] reasonableness.” Id.

      The district court stated that it considered all the 18 U.S.C. § 3553(a) factors,

and it specifically discussed Colston’s personal history and characteristics. The

district court rejected the government’s request for a 35-year sentence based on the


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challenges Colston encountered during his childhood and his current mental health

challenges. The district court acknowledged that it considered a downward

variance but ultimately decided not to grant one because of the violent nature of

Colston’s offense. Moreover, the district court did not impose a sentence outside

the range of reasonable sentences, but rather, sentenced Colston to the bottom of

the applicable guideline range of 360-months.

      Accordingly, for the aforementioned reasons, we conclude that the district

court was correct that the Florida controlled substance convictions qualified as

predicate offenses, did not clearly err when it declined to apply a reduction for

acceptance of responsibility, and did not abuse its discretion in sentencing Colston

to a total of 360-months. Thus, we affirm Colston’s sentence.

      AFFIRMED.




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