           Case: 11-14182    Date Filed: 11/16/2012        Page: 1 of 7


                                                               [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 11-14182
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 3:11-cr-00030-LC-1



UNITED STATES OF AMERICA,

                                llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,

                                    versus

THOMAS STACEY MCDONALD,

                             llllllllllllllllllllllllllllllllllllllllDefendant - Appellant.

                      ________________________

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

                            (November 16, 2012)

Before MARTIN, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
              Case: 11-14182     Date Filed: 11/16/2012   Page: 2 of 7

      Thomas Stacey McDonald pleaded guilty to theft of government property

valued at over $1,000, in violation of 18 U.S.C. § 641. McDonald’s Presentence

Investigation Report (PSR) recommended a sentence guideline range of 30 to 37

months, based on a criminal history category of VI, and a total offense level of 12,

including a two-level obstruction of justice enhancement under U.S.S.G. § 3C1.1.

Although McDonald pleaded guilty in a timely manner, the PSR did not

recommend a downward adjustment for acceptance of responsibility under

U.S.S.G. § 3E1.1 because McDonald had engaged in conduct constituting

obstruction of justice. Id., comment. (n.4). The district court adopted the findings

of fact contained in the PSR, and sentenced McDonald to 84 months imprisonment

based on the PSR’s finding that McDonald’s “criminal history category

substantially under-represent[ed] the seriousness of [McDonald’s] criminal

history.” See U.S.S.G. § 4A1.3(a)(1). This appeal followed.

      McDonald argues here that his sentence must be vacated because the district

court erred by applying the two-level obstruction of justice enhancement and by

denying the two-level reduction for acceptance of responsibility. McDonald did

not object to the PSR’s recommendation against an adjustment for acceptance of

responsibility at the time of his sentencing. Nor did he object to the obstruction of

justice enhancement. “We review sentencing arguments raised for the first time

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on appeal for plain error.” United States v. Bonilla, 579 F.3d 1233, 1238 (11th

Cir. 2009). “In order to find plain error, (1) there must be error; (2) the error must

be plain; and (3) the error must affect substantial rights.” Id. (quotation marks

omitted). Additionally, “the decision to correct the forfeited error is within the

sound discretion of the court of appeals, and we should only exercise that

discretion if the error seriously affects the fairness, integrity or public reputation of

judicial proceedings.” Id. at 1239 (quotation marks and alteration omitted).

      McDonald’s argument that the district court committed plain error in

applying the obstruction of justice enhancement is not persuasive. Under the

Guidelines, the court may assess a two-level enhancement if the defendant

“willfully obstructed or impeded, or attempted to obstruct or impede, the

administration of justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1. The

obstruction must relate to either the defendant’s offense of conviction and any

relevant conduct, or an otherwise closely related case, such as that of a co-

defendant. Id.; see also id., comment. (n.1). Obstructive conduct may include

“providing materially false information to a judge,” or making a “materially false

statement to a law enforcement officer that significantly obstructed or impeded the

official investigation or prosecution of the instant offense.” Id., comment. (n.4(F)-

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(G)).

        Here, immediately after pleading guilty, McDonald sent a signed, notarized

letter to the Assistant U.S. Attorney prosecuting his case in which he made

materially false statements regarding the culpability of his co-defendant and his

wife, Teresa McDonald (Teresa). In pertinent part, the letter requested that the

government drop “all charges” against Teresa because “[she] had no knowledge

that the bike that [McDonald] told her to pick up was not paid for.” The letter was

forwarded to the magistrate judge presiding over Teresa’s case. Teresa later

pleaded guilty to theft of government property. During her plea colloquy, Teresa

informed the court that the contents of the letter were untrue and asked that they

be disregarded. A defendant need not have been successful in his attempt to

obstruct or impede the administration of justice in order for the enhancement to

apply. See United States v. Taylor, 88 F.3d 938, 944 (11th Cir. 1996). Therefore,

the district court did not err in applying the obstruction of justice enhancement

here.

        Likewise, the district court did not err in refusing to grant McDonald a two-

level reduction for acceptance of responsibility. The Guidelines provide for a two-

level downward adjustment if the defendant “clearly demonstrates acceptance of

responsibility for his offense.” U.S.S.G. § 3E1.1(a). “Entry of a plea of guilty

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prior to the commencement of trial” is evidence of acceptance of responsibility,

but “[a] defendant who enters a guilty plea is not entitled to an adjustment . . . as a

matter of right.” Id., comment. (n.3). This is particularly true where, as here, “a

defendant [has] falsely denie[d], or frivolously contest[ed], relevant conduct that

the court determines to be true.” See id., comment. (n.1(A)). Moreover, unless it

is an “extraordinary” case, “[c]onduct resulting in an [obstruction of justice]

enhancement . . . ordinarily indicates that the defendant has not accepted

responsibility for his criminal conduct.” See id., comment. (n.4).

      “In light of our affirmance of the enhancement for obstruction of justice,

[McDonald] would be entitled to an acceptance of responsibility adjustment only

if this were an extraordinary case.” United States v. Amedeo, 370 F.3d 1305,

1321 (11th Cir. 2004). McDonald argues that extraordinary circumstances exist

here because he “admitted his guilt from day one to anyone who would listen and

explained the reasons for his illegal actions: his drug addiction.” We have,

however, consistently held that a district court does not err in refusing to grant an

acceptance of responsibility adjustment where the defendant admits his guilt, but

also provides materially false information to authorities. See, e.g., id. at 1320–21;

United States v. Arguedas, 86 F.3d 1054, 1060 (11th Cir. 1996).

      Even if we accept for the sake of argument McDonald’s claim that his case

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is extraordinary because “[h]e simply wrote the prosecutor in an attempt to protect

his wife,” McDonald still cannot satisfy the requirements of the plain error test.

Not only must there have been an “error” that is “plain,” but that error must have

affected McDonald’s “substantial rights.” Bonilla, 579 F.3d at 1238. In order for

an error to have affected a defendant’s substantial rights, the defendant “must

establish a reasonable probability of a different result but for the error.” United

States v. Rodriguez, 627 F.3d 1372, 1382 (11th Cir. 2010) (quotation marks

omitted). “That means that where the effect of an error on the result in the district

court is uncertain or indeterminate—where we would have to speculate—the

appellant has not met his burden of showing a reasonable probability of a different

result.” Id. (quotation marks omitted).

       Here, at sentencing, the district court imposed a sentence above

McDonald’s recommended guideline range based on a determination that his

“[c]riminal [h]istory [c]ategory substantially underrepresents the seriousness of

[his] criminal history and the likelihood that [he will] commit other crimes.” The

court also stated clearly that McDonald’s sentence would have been higher but for

the mitigating factors presented by McDonald’s attorney, which included

McDonald’s desire to shield his wife from criminal prosecution. Because the

district court varied above the Guidelines range, on this record it is not apparent

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that McDonald’s sentence would have been different even if the district court had

granted the acceptance of responsibility reduction.

      For these reasons, McDonald’s sentence is

      AFFIRMED.




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