                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            SEPT 08, 2006
                             No. 05-16808                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                   D. C. Docket No. 05-60076-CR-WJZ

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

JASON MICHAEL CALNAN,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                           (September 8, 2006)

Before BLACK, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:
      Jason Michael Calnan appeals his sentence for conspiracy to possess with

intent to distribute oxycodone, 21 U.S.C. § 846, and attempt to possess with intent

to distribute oxycodone, id. § 841(a)(1). Calnan argues that the district court

clearly erred when it denied him a downward departure for acceptance of

responsibility. See U.S.S.G. § 3E1.1. Calnan also argues that the district court

plainly erred when it ordered Calnan to participate in drug treatment but delegated

to the Probation Office whether the treatment would be inpatient or outpatient. We

affirm.

                                I. BACKGROUND

      On March 24, 2005, Calnan and Cheryl Colarusso traveled from Boston,

Massachusetts, to Fort Lauderdale, Florida, with approximately $40,000 in cash to

purchase 1580 milligrams of oxycodone from a confidential informant who

worked with the U.S. Drug Enforcement Administration. DEA agents arrested

Calnan after the attempted purchase, and Calnan directed them to the hotel room

where Colarusso was waiting. The agents arrested Colarusso, and she confessed to

transporting some of the money from Boston and agreeing to transport some of the

drugs on their return. When the agents left Calnan and Colarusso alone in a police

car that was equipped with a listening device, Calnan asked Colarusso what she

had told the agents and instructed her to “stick with” her story.



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      Calnan and Colarusso were indicted for conspiracy and attempt to purchase

with intent to distribute oxycodone, see 21 U.S.C. §§ 841, 846, and they pleaded

guilty without a plea agreement. The Presentence Investigation Report

recommended that Calnan receive a downward departure for acceptance of

responsibility and calculated an offense level of 28 and a guidelines range of 78 to

97 months of imprisonment. The only objections relevant to this appeal were made

by the government, which opposed the departure for acceptance of responsibility

and advocated a two-level increase for obstruction of justice, see U.S.S.G. § 3C1.1,

based on Calnan’s statements to Colarusso in the police car following their arrest.

      On October 11, 2005, during his sentencing hearing, Calnan testified that he

confessed immediately after he was apprehended by the agents. Calnan stated that

he led the police to Colarusso and his statements to her in the police car were

merely an effort to calm her down. On cross-examination, Calnan testified that he

did not know who provided him with the approximately $40,000 to purchase the

drugs. The district court continued the sentencing hearing to review the testimony

of Calnan.

      On November 30, 2005, the district court resumed Calnan’s sentencing

hearing. The district court found that Calnan’s testimony at the October 11, 2005,

sentencing hearing contained several “inconsistencies.” The district court found



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that Calnan “was not candid and forthright in responding to questions” and instead

was “evasive and disingenuous regarding the relevant conduct and events

surrounding his crimes.” Based on these findings, the district court ruled that

Calnan was not entitled to the downward departure for acceptance of

responsibility, but denied the motion of the government for an increase for

obstruction of justice. After these rulings, Calnan had an offense level of 30 and

an advisory sentencing range of 97 to 121 months of imprisonment.

      After considering the appropriate sentencing factors, see 18 U.S.C. §

3553(a), the district court imposed a sentence of 114 months of imprisonment on

each count to run concurrently. The district court also ordered a three-year term of

supervised release and imposed the following special condition:

            Mr. Calnan shall participate in an approved treatment program
      for drug and/or alcohol abuse as directed by the United States
      Probation Officer, and abide by all supplemental conditions of
      treatment.
            Participation may include inpatient or outpatient treatment if
      deemed necessary. . . .

Calnan did not object to this special condition.

                           II. STANDARD OF REVIEW

      “The district court’s determination of whether a defendant is entitled to a

reduction for acceptance of responsibility is a finding of fact that is entitled to great

deference on appeal and will not be disturbed unless clearly erroneous.” United

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States v. Kendrick, 22 F.3d 1066, 1068 (11th Cir. 1994). “We review the terms of

a supervised release for abuse of discretion, but where the defendant fails to object

at the district court, we reverse only for plain error.” United States v. Nash, 438

F.3d 1302, 1304 (11th Cir. 2006).

                                 III. DISCUSSION

        Calnan raises two arguments on appeal. First, Calnan argues that the district

court clearly erred when it denied him a reduction for acceptance of responsibility.

Second, Calnan contends that the district court plainly erred when it delegated to

the Probation Office whether Calnan will undergo inpatient or outpatient drug

treatment as a condition to his supervised release. We address each argument in

turn.

                  A. The District Court Did Not Clearly Err When It
                    Denied Calnan a Reduction for Acceptance of
                                   Responsibility.

        Section 3E1.1 provides, “If the defendant clearly demonstrates acceptance of

responsibility for his offense, decrease the offense level by 2 levels.” U.S.S.G. §

3E1.1(a). The application notes to section 3E1.1 list several “appropriate

considerations” in determining whether the defendant qualifies for the departure.

Id. § 3E1.1 cmt. n.1. The first consideration is “truthfully admitting the conduct

comprising the offense(s) of conviction, and truthfully admitting or not falsely



                                           5
denying any additional relevant conduct for which the defendant is accountable

under § 1B1.3 (Relevant Conduct).” Id. § 3E1.1 cmt. n.1(a). “However, a

defendant who falsely denies, or frivolously contests, relevant conduct that the

court determines to be true has acted in a manner inconsistent with acceptance of

responsibility.” Id.

      Calnan’s evasive and inconsistent testimony is sufficient to justify the

decision of the district court to deny Calnan a reduction for acceptance of

responsibility. Relevant conduct for a conspiracy includes “all reasonably

foreseeable acts and omissions of others in furtherance of the jointly undertaken

criminal activity, that occurred during the commission of the offense of conviction,

in preparation for that offense, or in the course of attempting to avoid detection or

responsibility for that offense.” Id. § 1B1.3(a)(1)(B). The origin of the money

used to finance the drug purchase is conduct relevant to Calnan’s conspiracy

charge, see id., and Calnan repeatedly stated that he did not know where he

obtained the approximately $40,000 found at the time he was arrested. The district

court did not clearly err when it denied Calnan a reduction for acceptance of

responsibility.




                                           6
                B. The District Court Did Not Plainly Err When It
              Imposed the Condition on Calnan’s Supervised Release.

      Although “Article III courts may not delegate the ‘ultimate responsibility’ of

judicial functions to probation officers,” Nash, 438 F.3d at 1305, a district court

may delegate to the Probation Office the “‘ministerial function’ of how, when, and

where the defendant must” comply with a condition. Id. at 1306. The district court

stated that Calnan “shall participate in an approved treatment program for drug

and/or alcohol abuse as directed by the United States Probation Officer” (emphasis

added). This directive does not leave to the discretion of the Probation Office

whether Calnan will be required to undergo drug treatment. The direction of the

district court that “[p]articipation may include inpatient or outpatient treatment if

deemed necessary” merely delegates to the Probation Office “how, when, and

where” the drug treatment will take place. Id. The district court did not plainly err

when it imposed this condition on Calnan’s supervised release.

                                IV. CONCLUSION

      Calnan’s sentence is

      AFFIRMED.




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