                                                               [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                       FILED
                         FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                           ________________________ ELEVENTH CIRCUIT
                                                                  OCT 29, 2008
                                 No. 08-11017                   THOMAS K. KAHN
                             Non-Argument Calendar                  CLERK
                           ________________________

                   D.C. Docket No. 07-00199-CR-ORL-28-KRS

UNITED STATES OF AMERICA,


                                                                Plaintiff – Appellee,

                                       versus

RAYMOND CUTTS, IV,

                                                             Defendant – Appellant.

                           ________________________

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

                                (October 29, 2008)

Before BIRCH, DUBINA and BARKETT, Circuit Judges.

PER CURIAM:

      Raymond Cutts, IV, appeals his sentence of twelve months and one day.

Cutts was convicted, upon his guilty pleas, for filing a fraudulent Hurricane
Katrina claim with the Federal Emergency Management Agency (“FEMA”) in

violation of 18 U.S.C. § 371 (conspiracy to defraud the United States), 18 U.S.C. §

287 (submitting a false claim against the United States), and 18 U.S.C. § 641 (theft

of government funds).

      On appeal, Cutts argues the district court’s reliance on his drug use during

his pretrial release to deny his request for an acceptance of responsibility reduction

was inappropriate as his drug use was unrelated to the offenses of his convictions.

Cutts also contends that the district court abused its discretion in denying his

request for a downward variance so that his sentence would match the lower

sentence received by his father for similar conduct.

                                           I.

      The denial of a reduction for acceptance of responsibility is reviewed for

clear error. United States v. Williams, 408 F.3d 745, 756 (11th Cir. 2005). “The

sentencing judge is in a unique position to evaluate a defendant’s acceptance of

responsibility” and is therefore “entitled to great deference on review.” Id.

Section 3E1.1 of the Sentencing Guidelines permits a district court to give a

defendant a sentence reduction “provided that the defendant ‘clearly demonstrates

acceptance of responsibility for his offense, and he has assisted authorities in the

investigation or prosecution of his own misconduct by taking one or more of the



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following steps: (1) timely providing complete information to the government

concerning his own involvement in the offense; or [2] timely notifying authorities

of his intention to enter a plea of guilty.’” United States v. Gonsalves, 121 F.3d

1416, 1420 (11th Cir. 1997) (quoting U.S.S.G. § 3E1.1). However, continued

criminal activity, such as drug use, during the pretrial period can result in a denial

of this reduction. Gonsalves, 121 F.3d at 1420-21.

      Here, Cutts’s drug use during his pretrial release was unrelated to the

underlying offenses for which he pled guilty. However, in United States v. Pace,

17 F.3d 341, 343 (11th Cir. 1994) we rejected the same argument that Cutts

advances here, namely that because he accepted full responsibility for the non-drug

related offenses with which he was charged, he should not be denied an acceptance

of responsibility reduction for his drug addiction. In Pace, a defendant who pled

guilty to making false statements by filing false tax returns was denied an

acceptance of responsibility reduction due to his marijuana use while out on bond.

17 F. 3d at 342. In reviewing the district court’s decision in Pace, we held that “a

district court is authorized to consider subsequent criminal conduct, even if it is

unrelated to the offense of conviction, in determining whether a decrease for

acceptance of responsibility is appropriate.” Id. at 343. Thus, in accordance with

our precedent, we find that the district court did not clearly err in denying Cutts an



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acceptance of responsibility reduction.

                                          II.

       Next, Cutts argues that he is entitled to a downward variance of his sentence,

pursuant to 18 U.S.C. § 3553(a)(6) in order to avoid a disparity in sentencing

between his sentence of twelve months and one day and his father’s sentence of

five months for similar conduct. Section 3553(a)(6) requires the district court to

consider “the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct.” We review

the reasonableness of a sentence under a deferential abuse of discretion standard.

Gall v. United States, 552 U.S. ___, 128 S. Ct. 586, 591 (2007).

       Upon review of the record and the parties’ briefs, we conclude that the

district court did not abuse its discretion in denying Cutts’s request for a downward

departure. Cutts was not similarly situated to his father in that Cutts had a criminal

history category of VI while his father had a criminal history of IV. Thus, the

resulting difference in their sentences did not create an unwarranted sentencing

disparity. Furthermore, the district court imposed a sentence that was within the

guidelines range and expressly examined that sentence in light of the § 3553(a)

factors.

       AFFIRMED.



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