                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0870n.06
                                                                                                   FILED
                                              No. 11-5993                                    Aug 09, 2012
                                                                                       LEONARD GREEN, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

        Plaintiff-Appellee,                                       On Appeal from the United
                                                                  States District Court for the
                v.                                                Western District of Tennessee

JOHN FORTNER, a/k/a Derrick Quillen,

        Defendant-Appellant.

                                                                 /

Before:         GUY and CLAY, Circuit Judges; HOOD, District Judge *

        RALPH B. GUY, JR., Circuit Judge.                 Defendant John Fortner, a/k/a Derrick

Quillen, appeals his plea-based sentence on one count of conspiracy to manufacture

methamphetamine in violation of 21 U.S.C. §§ 841 and 846. Defendant challenges the denial

of an acceptance-of-responsibility adjustment under USSG § 3E1.1, and argues that the

resulting within-guidelines sentence of 210 months was substantively unreasonable. Both

issues relate to defendant’s post-plea arrest for his involvement in another conspiracy to

manufacture methamphetamine, which defendant claimed to have joined in an attempt to

provide assistance to the government. After a review of the record and applicable law, we

find no error and affirm.


        *
          The Honorable Denise Page Hood, United States District Judge for the Eastern District of Michigan,
sitting by designation.
No. 11-5993                                                                               2

                                             I.

       Defendant was stopped shortly after midnight on April 13, 2010, after being observed

removing a washer and dryer from an apartment in Memphis, Tennessee, and was found to

be in possession of methamphetamine, marijuana, and Xanax. Defendant’s claim that he was

removing his mother’s appliances at her request was not true, although he did have

permission to stay in the apartment until a pending eviction became final. In the apartment,

officers discovered supplies and other evidence indicating that methamphetamine was being

“cooked” there. Defendant admitted that he had allowed others to cook methamphetamine

in the apartment six or seven times, and that he was a “pill gatherer” for an ongoing

conspiracy to manufacture and distribute methamphetamine. Although defendant identified

himself as John Fortner, his given name was later determined to be Derrick Quillen.

       The seven-count indictment charged defendant with conspiracies to manufacture and

to possess with intent to distribute methamphetamine, as well as five substantive offenses

related to the manufacture and distribution of methamphetamine. Pursuant to a written plea

agreement entered in August 2010, defendant agreed to plead guilty to conspiracy to

manufacture methamphetamine in exchange for dismissal of the remaining counts. No

representations were made concerning the sentence to be imposed, and the government

retained sole discretion to decide whether to file a motion for downward departure based on

substantial assistance under USSG § 5K1.1 and 18 U.S.C. § 3553(e). Also, the government

agreed to recommend the maximum reduction for acceptance of responsibility if it

determined that defendant had accepted responsibility for the criminal conduct that was the
No. 11-5993                                                                                           3

subject of the plea agreement. That could change, however, if defendant engaged “in

conduct inconsistent with the acceptance of responsibility, including, but not limited to,

participation in any additional criminal activities between [then] and the time of sentencing.”

        Defendant was forthcoming with information about his criminal activities before and

after the indictment, outlined the distribution operation, and offered to cooperate with the

government. At the change of plea hearing, defendant provided detailed information not only

about his crimes but also about other methamphetamine operations. During a proffer session

involving Detective Brandon Harris, defendant identified 35 individuals in the “tri-state” area

who were involved in methamphetamine operations and offered to assist the government as

a confidential informant with respect to his activities and other drug conspiracies he might

be able to join.1

        Defendant sought release on bond complaining that he was not receiving adequate

medical treatment for a “myriad of ailments, including cancer.”2 The motion was granted

only after the government joined the request for bond to allow the defendant to act as a

confidential informant in the investigation of his and possibly other drug conspiracies. The

conditions of defendant’s release included: not committing a crime, reporting weekly to the

DEA, and not traveling outside the Western District of Tennessee without the prior approval

of Pretrial Services. Defendant was also instructed to contact Detective Harris or Detective


       1
         Memphis, located in the southwestern most part of Tennessee, is near the border of Arkansas and
Mississippi. This presumably is the “tri-state” area to which they refer.
       2
        Defense counsel downplays defendant’s exaggerated medical complaints and acknowledges that
defendant did not have cancer, although defendant previously had surgery to remove part of a collapsed
lung.
No. 11-5993                                                                                    4

Teeters concerning his cooperation upon his release. Defendant’s sentencing was adjourned

to allow time for his cooperation to yield results. Because defendant did not provide

substantial assistance, no motion for downward departure or variance was made at the time

of sentencing.

       After being released from federal custody on November 26, 2010, defendant called

Detective Harris to tell him that he was going to go visit his mother. Detective Harris told

the defendant to call again when he returned. Without getting permission to leave the district

from Pretrial Services, defendant traveled to Alabama where his mother Sandra Fortner and

stepfather John Fortner lived. Harris did not hear back from defendant, and later learned that

the defendant had been arrested in Alabama on December 3, 2010. Defendant was arrested

after the car he was riding in was stopped. A search of the vehicle yielded coffee filters, salt,

two lithium batteries, two bottles of drain cleaner, a package of cold pills, and a small bag

containing a white substance.       Defendant was charged with possession of precursor

substances with intent to manufacture methamphetamine and with falsely identifying himself

as John Fortner.

       Defendant’s bond was revoked, he was returned to federal custody, and the

government took the position that defendant’s post-plea conduct was inconsistent with the

acceptance of responsibility. Defense counsel filed a sentencing memorandum which argued,

among other things, that defendant should not lose credit for acceptance of responsibility on

account of his post-plea conduct. During the sentencing hearing, the district court heard

testimony from Detective Harris, considerable argument on the issue of acceptance of
No. 11-5993                                                                                     5

responsibility, and defendant’s assertion during allocution that he thought he was doing “the

right thing.”

       The district court denied the adjustment for acceptance of responsibility and calculated

the sentencing guidelines range accordingly. The district court accepted the parties’ more

conservative estimate of the quantity of drugs involved and determined defendant’s base

offense level to be 28 under USSG § 2D1.1. Three points each were added (1) because the

manufacture of methamphetamine created a substantial risk of harm to others or the

environment, USSG § 2D1.1(b)(10)(C)(ii); and (2) because defendant’s role in the offense

was as a manager or supervisor, USSG § 3B1.1(b). Without the adjustment for acceptance

of responsibility, defendant’s total offense level was 34.3

       Defendant’s criminal history score consisted of 5 points for prior offenses and 2 points

for having committed the instant offense while on probation for another offense, which

resulted in a criminal history category of IV. The district court found the recommended

sentencing guidelines range to be 210 to 262 months, considered the relevant sentencing

factors, and sentenced defendant to a term of 210 months of imprisonment to be followed by

five years of supervised release. This appeal followed.

                                               II.

       The district court’s determination regarding acceptance of responsibility is entitled to

“great deference” and is reviewed for clear error. United States v. Webb, 335 F.3d 534, 538

(6th Cir. 2003); USSG § 3E1.1, cmt. 5 (2010) (“the determination of the sentencing judge

       3
        Defendant’s claim that his offense level would have been 30 (instead of 31) is based on an
assumption that he also would have received a reduction under USSG § 5K1.1.
No. 11-5993                                                                                   6

is entitled to great deference on review”); see also United States v. Smagola, 390 F. App’x

438, 444 (6th Cir. 2010).

       A defendant may receive a decrease in his offense level “[i]f the defendant clearly

demonstrates acceptance of responsibility for his offense.” USSG § 3E1.1(a) (two levels);

see also § 3E1.1(b) (a third level). Although a timely plea of guilty combined with truthful

admission of the conduct comprising the offense of conviction is considered to be significant

evidence of acceptance of responsibility, that evidence “may be outweighed by conduct of

the defendant that is inconsistent with such acceptance of responsibility.” USSG § 3E1.1,

cmt. 3. Specifically, post-plea criminal conduct that is of the same kind or is related to the

offense of conviction is inconsistent with the acceptance of responsibility. See United States

v. Banks, 252 F.3d 801, 806-07 (6th Cir. 2001); United States v. Morrison, 983 F.2d 730, 735

(6th Cir. 1993). Defendant cannot claim that his post-plea conduct was unrelated to the

offense of conviction; rather, he asserted that he was acting either at the specific direction

of Detective Harris, or under a well-intentioned if misguided attempt to assist the

government’s investigation.

       Defendant claims that the district court failed to resolve a factual dispute over whether

he acted with intent to engage in criminal conduct. Defendant relies on United States v.

Brown, 321 F.3d 347 (2d Cir. 2003), in which a confidential informant left the jurisdiction

to visit his mother and then stopped cooperating with the government. In Brown, the

defendant claimed that he absconded out of fear for his safety, not with the purpose of

violating the law. In fact, the court reversed the imposition of an obstruction-of-justice
No. 11-5993                                                                                    7

enhancement under USSG § 3C1.1 because the district court had failed to conduct a hearing

or make a finding that the defendant had the specific intent to obstruct justice as required

under § 3C1.1. Id. at 351. The court also reversed the denial of the adjustment for

acceptance of responsibility because it was based entirely on the defective application of the

obstruction-of-justice enhancement. Id. at 353-54. Here, the district court conducted an

evidentiary hearing and denied the adjustment for acceptance of responsibility on its own

merits.

          Moreover, it is evident from a review of the transcript of the sentencing hearing that

the district court found that the defendant had not demonstrated that his actions were

consistent with acceptance of responsibility at the time of his arrest in Alabama.

Significantly, defendant had asserted in a handwritten letter to the district judge that he had

been acting at the specific direction of Detective Harris at the time of his post-plea arrest.

The letter stated in part:

          I was doing what I though[t] was right. Going to get the drugs and find out
          what was going on. I called the Harris and told him about it. He said go with
          it. Call him when I gite [sic] everything set up. The next night I was arrested
          for the crime that violated my bond. I feel like I didn’t go [sic] that.

Defendant did not testify, so was not subject to cross-examination regarding this claim, but

he reiterated during allocution that he thought he was doing the “right thing” in Alabama.

(“I wish I could have done the right thing, and the things that happened in Alabama, I thought

I was doing the right thing, like you said the double agent thing, and I accept responsibility

for that, yeah, that was basically what happened, what was kind of happening, and I

apologize for that.”).
No. 11-5993                                                                                  8

       However, Detective Harris testified that he “absolutely” had not asked defendant to

set up any kind of drug deal or arrest in Alabama. Harris also said he did not give permission

for defendant to leave the jurisdiction, which was a determination to be made by Pretrial

Services. Rather, when defendant called Harris to say he was going to go visit his mother,

Harris simply told defendant to call when he returned. That was the last time Harris heard

from him. Ruling on the issue, the district court specifically found:

       adjustment for acceptance of responsibility, I want to be candid, you do what
       the defendant did, you don’t get acceptance. We can have a long discussion
       about it, you have written plenty about that. I understand, but he just got out,
       he immediately disobeyed a supervising officer, he went to Alabama, he’s
       caught in a vehicle with a bunch of methamphetamine. And Mr. Bell, we can
       have a discussion about it, but the evidence is extremely clear.

       In the colloquy that followed, defense counsel argued that defendant’s earlier

cooperation and plea was relevant, and the district court explained that the acceptance-of-

responsibility adjustment requires the voluntary termination or withdrawal from criminal

conduct. The district court addressed defendant’s conduct again, stating:

       you’re expected to not continue to associate with other people who are
       engaged in criminal conduct. There are other things, but those are the two that
       would be most relevant in the case. So he didn’t do the second one, but we
       didn’t know that at first, . . . so when you came in, changed your plea . . . we
       were just fine because we didn’t know anything else. Then he went to
       Alabama and that’s why . . . Detective Harris’ testimony is important because
       they’re trying to figure out, well, did he go there because he was supposed to
       go there, and the answer is well, no, he didn’t.

Noting that no obstruction of justice enhancement was being requested, the district court

explained that defendant did not receive an acceptance of responsibility adjustment because

he
No. 11-5993                                                                                 9

       went back and committed the additional conduct . . . if we go back in and
       commit another offense, it is pretty inconsistent . . . [and defendant] went back
       and associated with other individuals who were engaged in criminal conduct.
       That doesn’t really seem to be in any material doubt at all.

The district court also rejected defense counsel’s suggestion that “maybe he did [so] under

the misguided impression that he could somehow engage in his own double agent activity.”

       Defendant argued that, whether mistaken or confused, he had been trying to infiltrate

a methamphetamine conspiracy to gather information for the government. Defense counsel

emphasized that the defendant (1) had been released so he could become an informant, but

did not receive any training or instruction; (2) went to visit family in Alabama and thought

that getting involved a conspiracy there could help the government somehow; (3) was a long-

time heavy drug user who likely had brain damage that could affect his reasoning; and, at

worst, (4) was an addict whose predictable relapse into criminal activity was “more the result

of government negligence than a failure to accept responsibility.” Through the presentence

report, defendant admitted to many years of daily use of methamphetamine, weekly use of

cocaine, and heavy use of marijuana and LSD. There was no evidence of defendant’s mental

state, but defense counsel cited to medical research concerning the effects of

methamphetamine use—including one study reporting that regular methamphetamine users

had as much as an 11% loss of tissue in some areas of the brain.

       Claiming that the district court failed to make necessary findings, defendant points to

the following highlighted comment made in connection with the § 3553(a) factors:

       I don’t think that Detective Harris misunderstood at all, I think what he says
       is accurate and true. I do agree with Mr. Bell that you could make a pretty
       good argument that people who have had the extensive exposure to controlled
No. 11-5993                                                                                     10

          substances over that many years just might not get it right mentally. The
          government doesn’t feel that way. The government feels like it just wasn’t
          true. I don’t really have to resolve that. All I can say is that it didn’t work the
          way it has to work in the process. The person who is going to cooperate with
          the government has to work under the control of the officer. I’m convinced
          that is what the officer conveyed to the defendant. I’m convinced that the
          defendant should have understood that and then . . . decided to go to Alabama.

(Emphasis added.) Whatever the highlighted statement suggests by itself, the record is clear

that the district court considered and rejected defendant’s claim that he was either acting as

an informant or reasonably believed that he was acting as an informant at the time of his

arrest.

          Finally, defendant relies on the same arguments to challenge the decision to deny

defendant the adjustment for acceptance of responsibility notwithstanding his early guilty

plea and apparently truthful admission of relevant conduct. However, in reviewing the

district court’s decision with “great deference,” there is no basis to conclude that the district

court committed clear error in finding that defendant’s post-plea conduct was inconsistent

with the acceptance of responsibility for his offense.

                                                 III.

          The substantive reasonableness of a defendant’s sentence is reviewed for abuse of

discretion. United States v. Simmons, 587 F.3d 348, 355, 358 (6th Cir. 2009). Sentences

imposed within the applicable guideline range are afforded a presumption of reasonableness.

United States v. Vowell, 516 F.3d 503, 516 (6th Cir. 2008). A sentence may be substantively

unreasonable if the district court selects the sentence arbitrarily, bases the sentence on
No. 11-5993                                                                                 11

impermissible factors, fails to consider pertinent § 3553(a) factors, or gives an unreasonable

amount of weight to any pertinent factor. Id. at 510.

       Defendant argues that his sentence was substantively unreasonable because the effect

of a “single, understandable mistake” resulted in a substantial increase, if not a doubling, of

his sentence. That mistake was thinking he could provide assistance to the government by

getting involved in a new methamphetamine conspiracy shortly after being released on bond,

which cost him the adjustment for acceptance of responsibility, the chance at a motion for

downward departure for substantial assistance, and the increase in his criminal history

category from II to IV. Defendant estimates that, if not for the arrest, his sentencing

guidelines range would have been 108-135 months (based on an offense level of 30 and a

criminal history category of II). Instead, the applicable guidelines range was determined to

be 210-265 months (based on an offense level of 34 and a criminal history category of IV).

       It is clear from the record, and defendant does not dispute, that the district court

considered the relevant § 3553(a) factors and imposed a sentence at the bottom of the

applicable sentencing guidelines range. Moreover, the district court specifically considered

defendant’s claim that he thought he was doing the “right thing” and did not abuse its

discretion in denying a downward variance.         Because defendant has not rebutted the

presumption of reasonableness afforded a within-guidelines sentence, defendant’s sentence

was not substantively unreasonable.

       AFFIRMED.
