           Case: 12-15549   Date Filed: 03/12/2014   Page: 1 of 18


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-15549
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 1:11-cr-00361-DHB-WLB-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

MARION STURGIS DONALDSON,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                      ________________________

                             (March 12, 2014)

Before TJOFLAT, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
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      At the conclusion of a bench trial, Marion Sturgis Donaldson was convicted

on two counts of a multi-count indictment 1: Count One, conspiracy to distribute 5

kilograms or more of cocaine hydrochloride, 28 grams or more of cocaine base,

and an amount of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846; and

Count Six, using a communication facility to facilitate the commission of a crime,

in violation of 21 U.S.C. § 843(b). The District Court sentenced Donaldson to

concurrent prison terms of 169 months on Count One and 48 months on Count Six.

Donaldson now appeals his convictions and sentences. He argues that his

convictions should be set aside and a new trial granted on the ground that the

District Court erred in denying his motion to suppress evidence—drugs and drug

paraphernalia—seized by the police in a search of his residence. He argues that his

sentences should be vacated on the ground that the court erred in failing to reduce

his total offense level for acceptance of responsibility under U.S.S.G. § 3E1.1. We

consider these arguments in order.

                                            I.




      1
        Donaldson and four others were charged in the Count One conspiracy: Dorsett
Mandrell Williams, Timothy Dwight Gracy, Nicholas Phillip Washington, and Henry Michael
Mims aka “Toast.”
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       We start with a chronology of the events—as found by the District Court—

that led to the search of Donaldson’s residence.2 We then address his motion to

suppress, the District Court’s adverse ruling, and his argument that the court erred.

                                              A.

          In March of 2011, officers with the Narcotics Division of the
       Richmond County [Georgia] Sheriff's Office, including Investigator
       Hester, commenced an investigation of Dorsett Mandrell Williams . . .
       based on their suspicion that he was involved in dealing narcotics.
       [A] confidential informant provided information that Williams was
       selling large amounts of cocaine; the informant also told the officers
       that Williams' cocaine operation involved the use of two houses
       located across the street from each other on Camille Street in Augusta,
       Georgia. Williams used one of the houses as a trap house, which
       Investigator Hester explained is a common slang term referring to a
       premises used to conduct narcotics transactions; the other house was
       used as a ‘stash house,’ which Investigator Hester explained is a
       similarly common term referring to a premises used to store money
       and narcotics. The officers conducted surveillance and determined
       that Williams did not live in either house; rather, the houses were used
       exclusively for their respective purposes in his drug dealing operation.
       The officers additionally arranged a number of controlled purchases
       of cocaine, the majority of which were carried out at the Camille
       Street houses. Based on the information obtained during the initial
       portion of their investigation, the investigating officers with the
       Richmond County Sheriff’s Office, including Investigator Hester,
       requested and obtained authorization from a Richmond County
       Superior Court judge to intercept calls on several telephones
       belonging to Williams; the first such authorization was obtained on
       May 24, 2011.
          The officers intercepted a number of calls between Williams and an
       individual later identified as Donaldson. During these calls, Williams

       2
         The District Court’s findings of fact are contained in the Report and Recommendation
(“R & R”) of the Magistrate Judge. The R & R recommended that Donaldson’s motion be
denied. The court adopted the R & R’s findings of fact and its reasons for denying the motion to
suppress.
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and Donaldson engaged in discussions that the officers determined to
be related to drug transactions. For example, in one call, Williams told
Donaldson that he had ‘29 cent’ for him. Investigator Hester testified
that, based on his experience as a narcotics officer, he understood this
to mean that Williams had $29,000.00 with which to purchase drugs.
During the same call, Williams told Donaldson that he would be ‘up
top’ and that the ‘29 cent’ would be in the trunk of the Monte Carlo.
Based on their observations of Williams' drug operation, the officers
ascertained that this terminology referred to an arrangement for
Donaldson to go to one of Williams' houses that be referred to as ‘up
top,’ to pick up $29,000.00 from the trunk of Williams' automobile - a
Chevrolet Monte Carlo - and to leave cocaine in its place. Following
the call, officers verified that the Monte Carlo was parked in the
location indicated. In another call intercepted on June 10, 2011,
Williams asked Donaldson if he was still ‘holding up,’ to which
Donaldson replied that he was; Williams then again said that he would
be ‘up top,’ and he told Donaldson that he wanted ‘the half.’
Investigator Hester decoded this conversation, explaining that
Williams asked Donaldson if he had any cocaine, Donaldson said he
did, and Williams indicated for Donaldson to deliver half a kilogram
of cocaine. The officers then observed an individual in a vehicle
registered to Donaldson arrive at Williams' house referred to as up
top’ and leave after a few minutes.
   On June 16, 2011, officers intercepted another call, in which
Williams and Donaldson discussed the June 8, 2011 drug-related
arrest of Timothy Gracy . . . as well as the fact that their cocaine
business had been slow of late. By this point, Investigator Hester and
the other investigating officers had determined that Donaldson was
Williams' drug supplier, and on June 26, 2011, they obtained
authorization from a Richmond County Superior Court judge to
intercept calls on Donaldson's cellular telephone, as well as authority
to ‘ping’ the phone to determine its location. Investigator Hester and
another officer also observed a transaction between Donaldson and
Williams on June 26th. Specifically, they observed Donaldson pull up
near Williams' houses on Camille Street; Williams entered the "stash
house" and came out carrying a white bag, which he handed to
Donaldson. The transaction lasted only a few minutes, and Donaldson
drove away without ever exiting his car. Following the meeting, the
officers ‘pinged’ Donaldson's phone and determined its location to be
180 Oakland Drive, North Augusta, South Carolina. Officers
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confirmed that this was Donaldson's residence by observing him there
and by verifying that a vehicle at the house was registered to
Donaldson; in addition, officers were again able to locate Donaldson's
cell phone at the residence via ‘ping’ tracking on June 27 and 28,
2011.
   On June 27, 2011, officers intercepted a call on Donaldson's phone
in which he talked with an individual identified only as ‘Big.’
Donaldson and Big discussed an upcoming drug transaction, and
Donaldson said at one point that he ‘might be alright’ until the
weekend, meaning that he had enough cocaine for the time being; they
also referred to ‘counts’ during the call, and Big asked Donaldson
‘what he wanted,’ to which Donaldson responded ‘a set of tires.’
Based on his training, experience, and knowledge of the investigation,
Investigator Hester stated that he knew that ‘counts’ referred to money
and ‘tires’ referred to kilograms of cocaine, with a ‘set’ representing
four kilograms. Officers intercepted additional calls and surveilled
Donaldson during the next two days; one call made reference to a
‘nine ounce deal,’ and he engaged in two brief transactions that
Investigator Hester characterized as indicative of drug-related activity.
    On June 28, 2011, one of the Richmond County officers involved
in the investigation contacted Detective Philip Turner of the North
Augusta Department of Public Safety for assistance in obtaining a
warrant to search Donaldson's residence at 180 Oakland Drive.
Detective Turner was provided with a written summary of the findings
of the investigation, which he went over with the Richmond County
officer [Investigator P.J. Hamrick] who provided it to him. The
written summary of the investigation discusses the previously
mentioned intercepted calls and surveillance; it specifically refers to
the June 27th phone call, as well as Williams' ‘trap house’ on Camille
Street and the June 26th exchange between Williams and Donaldson
at the Camille Street location. The summary also discusses the
officers' information that Donaldson resided at 180 Oakland Drive in
North Augusta, including their tracking of his cell phone, observation
of him at the residence, and verification that a vehicle at the residence
was registered in his name. Based on this information, Detective
Turner drafted a search warrant and accompanying affidavit. The
affidavit states, in pertinent part:

      I, Phillip M. Turner, being duly sworn, depose and say: I
      am a police officer, certified in South Carolina. The
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      North Augusta Department of Public Safety has
      employed me for over 9 years, the last 5 years as a
      Narcotics Detective. I have investigated hundreds of
      cases involving controlled substances. I have attended
      over one hundred hours of specialized training in the
      field of Narcotics detection, identification, concealment,
      searches, seizures, and undercover operations. I have
      been certified as an expert in the field of Narcotics
      Investigation in the second judicial circuit of South
      Carolina. . . . Through the use of multiple investigative
      means and techniques it has been established that within
      the past seventy-two hours, Donaldson was in possession
      of a quantity of Cocaine and was in the process of
      acquiring more Cocaine. Through further investigative
      techniques it has been discovered that Donaldson is
      living at 180 Oakland Drive, North Augusta, South
      Carolina. Reviewing the City of North Augusta Water
      files it has been discovered that the account is in
      Donaldson's name. Upon conducting physical
      surveillance at the residence, a [vehicle] is parked at the
      residence and does come back [as registered] to
      Donaldson. Through using proven investigative tools
      and measures, it has been established that Donaldson has
      been present for extended periods of time at the residence
      in question. Upon my training and experience, I believe
      that probable cause exists that Cocaine and items
      associated with the distribution or ingestion of Cocaine
      are present on the property of 180 Oakland Drive, North
      Augusta, South Carolina.

  Later the same day, Detective Turner met with the Honorable Roger
Edmonds, then-Chief Magistrate Judge of Aiken County, South
Carolina, to apply for a search warrant. Detective Turner testified that
he went over the warrant and accompanying affidavit with Judge
Edmonds. Detective Turner further testified that he provided sworn,
oral testimony to Judge Edmonds in which he explained the entire
content of the written summary that he had been provided by the
Richmond County officers. Detective Turner stated that his oral
testimony was not recorded, which is not unusual in the South


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Carolina warrant application process. Judge Edmonds signed the
search warrant on the same date it was presented - June 28, 2011.
   On June 29 and 30, 2011, officers intercepted additional calls
between Donaldson and Big in which they continued to discuss an
upcoming drug deal; eventually, Donaldson told Big that he would
meet him the morning of July 1, 2011. Big called Donaldson again
around 9:14 a.m. on July 1st. During that call, they confirmed that
they were going ahead with the deal, and Big asked if they were still
on the same ‘channel,’ to which Donaldson responded that he
needed to go ‘down one channel.’ Investigator Hester interpreted
this to mean that instead of buying four kilograms of cocaine, as
initially planned, he would instead purchase three kilograms. In
another call later that morning, Big said he would be at the
‘warehouse,’ and Donaldson said that he was on the way.
   Investigator Hester and other officers followed Donaldson, as they
did not know the location of the warehouse. After pursuing
Donaldson westbound on Interstate 20 for a significant distance,
they determined that he was likely headed into Atlanta.
Because they did not want to risk losing track of Donaldson's
vehicle in heavy traffic, the officers decided to stop Donaldson
before he reached Atlanta. As the Richmond County officers were
in civilian clothing and unmarked vehicles, they contacted officers
with the Georgia State Patrol and requested assistance in making
the stop. . . .
   Trooper Johnson, along with another uniformed officer from the
Georgia State Patrol, stopped Donaldson's vehicle on Interstate 20
before it reached Atlanta. Investigator Hester and the other
Richmond County officers . . . arrived almost immediately at the
scene of the stop. Trooper Johnson approached the vehicle, asked
Donaldson for his license and proof of insurance, and directed him
to exit the vehicle. After Donaldson stepped out of his vehicle,
Investigator Hester asked Deputy Reynolds [who had appeared with
a K-9 dog] to have her canine perform an open air "sniff' around the
vehicle. Deputy Reynolds walked her canine around the outside of
the vehicle, and the canine signaled that she detected the odor of
narcotics coming from the vehicle. Deputy Reynolds informed the
Richmond County officers of the positive alert for an odor of
narcotics. At that point, Investigator Hester and another Richmond
County officer searched Donaldson's vehicle. Within a matter
seconds, they found a bag containing $82,025.00 in cash under the
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      back seat of the vehicle. After finding the money, Donaldson was
      taken to a nearby rest stop, where he was interviewed by agents with
      the Richmond County District Attorney Task Force. During that
      interview, Donaldson stated that had been traveling to Atlanta to
      purchase three kilograms of cocaine with the money found in his
      vehicle.
         Around the same time as the traffic stop, officers in North Augusta
      executed the search warrant on Donaldson's residence at 180 Oakland
      Drive. The search of Donaldson's residence uncovered 736.5 grains
      of cocaine, 124.9 grams of crack, 221.9 grains of marijuana, over
      $57,000.00 in cash, a .40 caliber handgun, and a Rolex watch.

                                         B.

      In his pretrial motion to suppress the evidence found in his residence,

Donaldson argued that the search warrant for his home was not supported by

probable cause. The District Court concluded that Detective Turner’s affidavit

established probable cause that drugs would be found in Donaldson’s residence

and therefore denied his motion. At trial, Donaldson renewed his motion to

suppress. The District Court denied it and found him guilty on Counts One and

Six of the indictment. On appeal, Donaldson argues that the court erred in denying

his motion because Turner’s affidavit and oral testimony before Judge Edmond did

not establish probable cause that drugs would be found in his residence.

                                        C.

      The District Court’s denial of the motion to suppress presents a mixed

question of law and fact. We review the findings of fact underpinning the ruling




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for clear error and the court’s application of law to those facts de novo. United

States v. Bautista-Silva, 567 F.3d 1266, 1271 (11th Cir. 2009).

       The Fourth Amendment establishes the right to be free from unreasonable

searches and seizures, and mandates that “no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation.” U.S. Const. amend. IV. The

task of the judge issuing a warrant is “simply to make a practical, common-sense

decision whether, given all the circumstances set forth in the affidavit before him,

including the veracity and basis of knowledge of the persons supplying hearsay

information, there is a fair probability that contraband or evidence of a crime will

be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct.

2317, 2332, 76 L.Ed.2d 527 (1983) (quotation omitted). In South Carolina, oral

testimony may also be used to supplement a search warrant affidavit which is

facially insufficient to establish probable cause. See State v. Weston, 329 S.C. 287,

494 S.E.2d 801 (1997). 3


       3
          "The Fourth Amendment does not require that the basis for probable cause be
established in a written affidavit; it merely requires that the information provided the issuing
magistrate be supported by 'Oath or affirmation."' United States v. Clyburn, 24 F.3d 613, 617
(4th Cir. 1994) (quoting U.S. Const. amend. IV). The Fourth Amendment likewise does not
require "that statements made under oath in support of probable cause be tape-recorded or
otherwise placed on the record or made part of the affidavit." Id. (quoting United States v.
Shields, 978 F.2d 943,946(6th Cir. 1992)). Therefore, "a federal court... may consider an affiant's
oral testimony, extrinsic to the written affidavit, which is sworn before the issuing magistrate, in
determining whether the warrant was founded on probable cause." United States v. Hill, 500
F.2d 315, 320 (5th Cir. 1974)12; accord Clyburn, 24 F.3d at 617 ("[M]agistrates may consider
sworn, unrecorded oral testimony in making probable cause determinations during warrant
proceedings."); Frazier v. Roberts, 441 F.2d 1224,1226 (8th Cir. 1971) ("It is clear that the
Fourth Amendment permits the warrant-issuing magistrate to consider sworn oral testimony
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       The affidavit, and in this case the affidavit augmented by Detective Turner’s

sworn testimony, should connect the place to be searched with the defendant and

the criminal activity. United States v. Martin, 297 F.3d 1308, 1314 (11th Cir.

2002).

       The justification for allowing a search of a person’s residence when
       that person is suspected of criminal activity is the common-sense
       realization that one tends to conceal fruits and instrumentalities of a
       crime in a place to which easy access may be had and in which
       privacy is nevertheless maintained. In normal situations, few places
       are more convenient than one’s residence for use in planning criminal
       activities and hiding fruits of a crime.

United States v. Kapordelis, 569 F.3d 1291, 1310 (11th Cir. 2009). Moreover, an

allegation that illegal activity occurred at the place to be searched, such as the

home, is not necessary, but the affidavit (coupled with the sworn testimony in this

case) should link the defendant to the home and connect the home to any criminal

activity. Id. In establishing the link to criminal activity, it is not necessary that the

home be the “locus” of criminal activity. United States v. Bradley, 644 F.3d 1213,

1264 (11th Cir. 2011). “Evidence that the defendant is in possession of contraband

that is of the type that would normally expect to be hidden at [his] residence will

support a search.” United States v. Anton, 546 F.3d 1355, 1358 (11th Cir. 2008);

see also United States v. Jenkins, 901 F.2d 1075, 1080-81 (11th Cir. 1990)


supplementing a duly executed affidavit to determine whether there is probable cause upon
which to issue a search warrant.")


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(holding that the affidavit was supported by probable cause because of the

combination of the defendant’s theft, the fact that the contraband was capable of

being hidden in the home, and the statement of an experienced FBI agent that

individuals who steal money often hide it in their homes).

      In United States v. Lockett, we held that a search warrant affidavit for

dynamite that was believed to be improperly stored at the defendant’s residence

was not supported by probable cause, where the affidavit lacked any facts or

circumstances that would lead to a reasonable belief that dynamite was stored

inside the residence. 674 F.2d 843, 845-47 (11th Cir. 1982). The affidavit

provided to the magistrate stated that: (1) the defendant had bought a case of

dynamite; (2) two weeks later, a bomb made from the same type of dynamite was

found 60 miles from the defendant’s home in one of the defendant’s former

employer’s buildings; (3) the defendant was a disgruntled former employee who

had made implied threats against his former employer; and (4) investigators did not

observe any appropriate dynamite storage facilities on the defendant’s property.

Id. at 846. We concluded that there were no facts in the affidavit from which the

magistrate could reasonably infer that dynamite would be located on the

defendant’s property. Id. at 847.

      The District Court properly found that the search warrant affidavit and

Turner’s sworn oral testimony established probable cause that drug-related


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evidence would be found at Donaldson’s residence. The District Court credited

both Turner’s testimony that he provided sworn oral testimony regarding the

sensitive investigative techniques used by the Richmond County Sheriff’s Office

and Judge Edmonds’s testimony that he was familiar with Investigator Hamrick’s

summary of the investigation and that he often took sworn oral testimony to

supplement search warrant affidavits. These credibility findings are entitled to

deference. See United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir.

2002).

      The evidence before Judge Edmonds showed that within a three day period,

Donaldson spoke on the phone with Dorsett Mandrell Williams, a known drug

dealer, shortly thereafter made an exchange with Williams at a location known to

investigators as Williams’s stash house, and spoke with an individual identified as

“Big” using code words to discuss the purchase of a large quantity of cocaine.

During this time frame, ping records showed that Donaldson or his cell phone was

at his North Augusta residence within hours after his call to Big and also after the

observed exchange with Williams. Based on this evidence, the District Court did

not clearly err in finding that Turner’s statement in the search warrant

application—that Donaldson had possessed cocaine in the last 72 hours and was in

the process of acquiring more cocaine—was not false or reckless.




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      To establish probable cause, Judge Edmonds was permitted to rely upon

Turner’s statement in his affidavit that, based on his training and experience, which

included five years as a narcotics detective, he believed that cocaine or other items

associated with the distribution of cocaine would be present at Donaldson’s

residence. See United States v. Joseph, 709 F.3d 1082, 1100 (11th Cir.), petition

for cert. filed, (U.S. Jul. 10, 2013) (No. 13-5319) (stating that a police officer’s

expectation based on his training and experience that evidence will likely be found

in the place to be searched can establish probable cause). Under the totality of the

circumstances, Judge Edmonds made a common-sense determination that a fair

probability existed that drug-related evidence would be found at the North Augusta

residence. See Gates, 462 U.S. at 238, 103 S.Ct. at 2332.

      Contrary to Donaldson’s argument, there was evidence connecting his

residence with criminal activity. It was not necessary that the residence be the

“locus” of criminal activity. See Bradley, 644 F.3d at 1264. Ping results and

surveillance showed that Donaldson spent a lot of time there during the time period

in which he conducted the exchange with Williams at Williams’s stash house and

spoke with Big in code language about purchasing four kilograms of cocaine.

Although Donaldson cites to Lockett, the instant case is distinguishable because

Turner’s sworn oral testimony provided the facts necessary for Judge Edmonds to

reasonably infer that drugs would be found at the residence. See Lockett, 674 F.2d


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at 845-47. Unlike in Lockett, the evidence here established that the residence was,

in fact, Donaldson’s residence and that he was there during the time in which he

was engaging in drug-related activity. Moreover, Lockett involved a discrete

purchase two weeks before the search warrant was executed; in this case, however,

Donaldson was in an ongoing drug transaction at the time when ping records

showed him or his cell phone at his residence. In sum, the District Court did not

err in concluding that the issuance of the search warrant was supported by probable

cause. 4 See Gates, 462 U.S. at 238, 103 S.Ct. at 2332.

                                                II.

       We review for clear error the District Court’s determination regarding a

reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. United

States v. Moriarty, 429 F.3d 1012, 1022-23 (11th Cir. 2005). Because the court’s

decision regarding a defendant’s acceptance of responsibility is entitled to great

deference, we will not set aside the court’s denial of a § 3E1.1 reduction for

acceptance of responsibility unless the record clearly establishes that the defendant

accepted responsibility. Id. “The defendant bears the burden of clearly

       4
           The facts stated in the R & R, which the District Court adopted, included events that
occurred after Turner applied to Judge Edmonds and he issued the search warrant. Those facts—
which included Donaldson’s admission to the agents with the Richmond County District
Attorney Task Force following his arrests on July 1, 2011, that the $82,000 found in his vehicle
was for the purchase of three kilograms of cocaine—were not considered by the District Court in
ruling on Donaldson’s motion to suppress. Nor are they considered by this court in reviewing
the District Court’s ruling. Those facts are relevant, though, because they bear on the question of
Donaldson’s guilt and his acceptance of responsibility under U.S.S.G. § 3E1.1, which we address
in Part II, infra.
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demonstrating acceptance of responsibility and must present more than just a guilty

plea.” Id. at 1023 (quotation omitted).

      Pursuant to § 3E1.1(a), a defendant is entitled to a two-level reduction in his

offense level if he clearly demonstrates acceptance of responsibility. U.S.S.G

§ 3E1.1(a). The commentary to § 3E1.1 states that:

      In determining whether a defendant qualifies under subsection (a),
      appropriate considerations include, but are not limited to, the
      following:

      (A) truthfully admitting the conduct comprising the offense(s) of
          conviction, and truthfully admitting or not falsely denying any
          additional relevant conduct for which the defendant is
          accountable under § 1B1.3 (Relevant Conduct) . . . . 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[.]

U.S.S.G. § 3E1.1, comment. (n.1(A)). The reduction for acceptance of

responsibility “is not intended to apply to a defendant who puts the government to

its burden of proof at trial by denying the essential factual elements of guilt, is

convicted, and only then admits guilt and expresses remorse.” Id., comment. (n.2).

However, a defendant who is convicted at trial is not automatically precluded from

a reduction. Id. “In rare situations a defendant may clearly demonstrate an

acceptance of responsibility for his criminal conduct even though he exercises his

constitutional right to a trial.” Id. This may occur when a defendant goes to trial




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“to make a constitutional challenge to a statute or a challenge to the applicability of

a statute to his conduct.” Id.

      A district court may also deny a reduction for acceptance of responsibility

based on a defendant’s conduct, even if that conduct involves asserting a

constitutional right. United States v. Smith, 127 F.3d 987, 989 (11th Cir. 1997) (en

banc). We have held that a defendant who challenged the admissibility of the

evidence necessary to support his conviction was not entitled to a reduction for

acceptance of responsibility. United States v. Gonzalez, 70 F.3d 1236, 1239 (11th

Cir. 1995); see also United States v. Knight, 562 F.3d 1314, 1328 (11th Cir. 2009)

(holding that a defendant was not entitled to an adjustment for acceptance of

responsibility when he pled guilty on the eve of trial, only after he had

unsuccessfully moved to suppress the evidence against him). In Gonzalez, the

defendant challenged the dispositive evidence against him in a four-day

suppression hearing and did not plead guilty, but instead required the court to

expend resources on a bench trial. 70 F.3d at 1239-40. We stated that by

challenging the essential evidence against him, Gonzalez tried to avoid a

determination of factual guilt and thereby escape responsibility for his crime. Id. at

1239. Thus, we held that the District Court did not clearly err by considering

Gonzalez’s efforts to fight the evidence against him and his failure to plead guilty

in denying the reduction, pursuant to § 3E1.1. Id. at 1240.


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      In this case, the District Court did not clearly err in denying Donaldson a

reduction for acceptance of responsibility. The court’s finding that Donaldson was

not entitled to the reduction is entitled to great deference, and Donaldson has not

met his burden of clearly demonstrating that he accepted responsibility for his

crimes. Moriarty, 429 F.3d at 1022-23. Although Donaldson waived his right to a

jury trial, he put the Government to its burden of proof at the bench trial. See

U.S.S.G. § 3E1.1, comment. (n.2). An an acceptance of responsibility reduction

may be denied even where the defendant is asserting a constitutional right. See

Smith, 127 F.3d at 989.

      While there are rare situations where a defendant may show an acceptance

of responsibility despite exercising his right to trial, Donaldson has not done so

here. See U.S.S.G. § 3E1.1, comment. (n.2). This case is not like the rare

situations listed as examples in the commentary to § 3E1.1. See U.S.S.G. § 3E1.1,

comment (n.2). Donaldson did not admit all the facts the Government sought to

prove, but rather required the Government to come forward and prove them. As in

Gonzalez, Donaldson was trying to avoid a finding of factual guilt. See Gonzalez,

70 F.3d at 1239. Furthermore, if he had succeeded on his motion to suppress it

would not have resulted in acquittal; instead, it would have simply put the

Government to the task of trying to prove his guilt with other evidence—by




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providing Williams’s testimony, as the Government in fact did at Donaldson’s

trial.

         Donaldson also argues that he proceeded to trial because the Government’s

plea offer contained a waiver of his right to appeal issues concerning the

application of the Sentencing Guidelines. There was no evidence presented to the

District Court, only counsel’s arguments, as to the plea negotiations between

Donaldson and the Government. In any event, Donaldson’s argument, even if true,

is unavailing. First, there is no constitutional right to appeal. See United States v.

Bushert, 997 F.2d 1343, 1347 (11th Cir. 1993). Second, even if Donaldson went to

trial because the plea agreement offered by the Government would have waived his

right to challenge the application of the Guidelines, this did not show that the

District Court clearly erred in finding that he did not clearly demonstrate

acceptance of responsibility, especially in light of his putting the Government to its

burden of proof at trial. In sum, because Donaldson has not clearly shown that he

accepted responsibility, the District Court did not clearly err in denying the§ 3E1.1

reduction.

         Donaldson’s convictions and sentences are

         AFFIRMED.




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