                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0371n.06

                                             No. 10-2621

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                           FILED
                                                                                       Apr 05, 2012
UNITED STATES OF AMERICA,                          )
                                                                                LEONARD GREEN, Clerk
                                                   )
        Plaintiff-Appellee,                        )
                                                   )    ON APPEAL FROM THE UNITED
v.                                                 )    STATES DISTRICT COURT FOR THE
                                                   )    WESTERN DISTRICT OF MICHIGAN
PHILIP MAURICE DUNLAP,                             )
                                                   )
        Defendant-Appellant.                       )



Before: CLAY and GIBBONS, Circuit Judges, and KORMAN, District Judge.*

        Per Curiam. On this appeal from a judgment, entered after a guilty plea, convicting him of

distributing cocaine base in violation of 18 U.S.C. § 841, Philip Maurice Dunlap argues that the

district judge erred in refusing to grant him a reduction for acceptance of responsibility and in

refusing to deem him eligible for a safety valve reduction under 18 U.S.C. § 3553(f). We review a

“district court’s determination of whether to apply a Guidelines reduction under the clear-error

standard.” United States v. Bacon, 617 F.3d 452, 456 (6th Cir. 2010) (citing United States v.

Paulette, 457 F.3d 601, 608 (6th Cir. 2006) (applying the clear error standard to a review of a district

court determination whether a defendant has accepted responsibility)). Likewise, a district court’s




       *
      The Honorable Edward R. Korman, United States District Judge for the Eastern District of
New York, sitting by designation.

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United States v. Dunlap



decision whether to grant a safety valve relief is also reviewed for clear error. United States v.

Haynes, 468 F.3d 422, 426 (6th Cir. 2006).

        The defendant bears the burden of proof to show by a preponderance of the evidence that he

or she accepts responsibility for the crime committed. Bacon, 617 F.3d at 458. One way to do so

requires that the defendant “truthfully admit[] the conduct comprising the offenses of conviction .

. . .” USSG § 3E1.1 cmt. 1(A) (2011). Pleading guilty does not automatically entitle a defendant

to the reduction. See Bacon, 617 F.3d at 459 (upholding the denial of acceptance of responsibility

reduction where the defendant pleaded guilty but equivocated about certain facts, repeatedly made

false statements, and blamed others for his crime).

        As to the safety valve relief, five conditions must be met for a defendant to be eligible. Only

one is relevant here, and it provides that “not later than the time of the sentencing hearing, the

defendant has truthfully provided to the Government all information and evidence the defendant has

concerning the offense or offenses that were part of the same course of conduct or of a common

scheme or plan . . . .” 18 U.S.C. § 3553(f)(5). The defendant also bears the burden of proving

entitlement to the safety valve reduction by a preponderance of the evidence. Haynes, 468 F.3d at

427. “Unlike other reduction provisions such as . . . acceptance of responsibility . . . , the provisions

of . . . 18 U.S.C. § 3553(f) require a defendant to reveal a broader scope of information about the

relevant criminal conduct to the authorities.” United States v. O’Dell, 247 F.3d 655, 675 (6th Cir.

2001) (quotation omitted).



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United States v. Dunlap



       While a reduction for acceptance of responsibility and safety valve relief are discrete legal

concepts, we discuss them together because, on the record here, Dunlap’s arguments factually

overlap. Specifically, whether Dunlap should have been granted either turns on the truthfulness of

Dunlap’s story about how he received the crack and to whom he sold it. Dunlap told investigators

and probation officials that he received narcotics from his friend Echols for safekeeping and only

retained possession because Echols died shortly after. Dunlap originally said he buried the crack and

dug it up six months later for sporadic use and sale approximately six months before retrieving the

remainder he sold to the undercover agents. Subsequently, he told probation that after burying the

crack, he dug it up approximately one year later, traded a few ounces for marijuana and sold the rest

in ounce-size quantities to two or three different people.

       Not only do the inconsistencies between the account Dunlap gave to investigators and the

account he gave to probation cast doubt on his credibility, the narrative he presented is far-fetched.

Multiple undercover officers purchased crack from Dunlap in the course of the five undercover

purchases that lead to his arrest. Moreover, the witnesses Dunlap presented at sentencing failed to

corroborate his story in any meaningful way.

       In sum, the district judge accurately found that there was no evidence to support Dunlap’s

story about the source of the drugs, and that it was “inherently incredible.” Accordingly, the refusal

to grant Dunlap a reduction for acceptance of responsibility or safety valve relief was not clearly

erroneous.



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United States v. Dunlap



       AFFIRMED.




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