                                            PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                  ______________

                       No. 13-1442
                     ______________

             UNITED STATES OF AMERICA

                             v.

               ERNEST THOMAS HARRIS
                       a/k/a PICKLE
                a/k/a MICHAEL YOUNG
                 a/k/a MICHAEL FORD,
                                    Appellant
                    _______________

        Appeal from the United States District Court
          for the Western District of Pennsylvania
           (D.C. Criminal No. 2:11-cr-00196-001)
        District Judge: Honorable Nora Barry Fischer
                      ______________

                  Argued October 29, 2013

  Before: MCKEE, Chief Judge, FISHER and SLOVITER,
                    Circuit Judges

               (Opinion Filed: May 9, 2014)


Jane M. Dattilo, Esq.(Argued)
Rebecca R. Haywood, Esq.
David J. Hickton, Esq.
Office of United States Attorney
700 Grant Street
 Suite 4000
Pittsburgh, PA 15219
                     Counsel for Appellee
Joseph M. Yablonski, Esq. (Argued)
Yablonski, Costello & Leckie, P.C.
505 Washington Trust Building
30 East Beau Street
Washington, PA 15301
                    Counsel for Appellant

                      ______________

                OPINION OF THE COURT
                    ______________

McKEE, Chief Judge

       Ernest Thomas Harris appeals the 120-month sentence
that the district court imposed on him following his nolo
contendere plea for possession of a firearm by a felon in
violation of 18 U.S.C. § 922(g)(1). Harris claims that his
sentence was substantively and procedurally flawed. The
primary contention that he raises, one of first impression for
this Court, is whether one who pleads nolo contendere to an
offense is thereby ineligible for a reduction in the offense
level for acceptance of responsibility pursuant to U.S.S.G. §
3E1.1. Although we hold that a nolo contendere plea does not
automatically preclude a district court from granting such a
reduction, we will nevertheless, affirm the sentence.

                              I.

       On May 31, 2011, Harris consumed large amounts of
drugs and alcohol from about 4:00 p.m. to 9:00 p.m. in
celebration of his birthday. He continued his celebration by
meeting some friends at a bar in Pittsburgh, Pennsylvania. At
some point after arriving at the bar, Harris brandished a gun
several times as he walked around the bar, sometimes
swaying from side to side. His actions were recorded by the
bar’s video cameras. In response, two patrons inside the bar
called 911 and identified Harris as the man who was
brandishing the gun.

       When Officer Raymond Perry arrived on the scene,
Harris was standing outside of the bar with the gun in his


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hand. With the help of other officers, Officer Perry arrested
Harris and seized the gun. Officer Perry testified that Harris
uttered nonsensical things to the officers as they arrested him.
Officer Perry concluded that Harris was highly intoxicated,
and the officers declined to interview him at that time.

      On August 24, 2011, a federal grand jury returned a
two-count indictment against Harris charging him with
unlawful possession of ammunition (Count One), and
unlawful possession of a firearm by a convicted felon (Count
Two).

        On December 20, 2011, the district court held a change
of plea hearing to determine whether Harris could plead nolo
contendere to Count Two. 1 During the hearing, Harris
testified that, on the night in question, he was so intoxicated
that he did not remember anything after he arrived at the bar.
Officer Perry testified that Harris uttered strange things to
him during the arrest and was too intoxicated to be
interviewed. The district court also watched the video
recording made by the bar’s camera that night, and Harris
admitted he was the man in the video with the gun.

       At the end of this hearing, the government agreed that
Harris probably did not remember the events from that night
and suggested that the district court accept the nolo
contendere plea.      The district court agreed with the
government that Harris was too intoxicated to remember the
details of that night, and concluded that a nolo contendere
plea was appropriate on Count Two.

       The district court thereafter accepted the plea and
subsequently sentenced Harris to the statutory maximum of
120-months imprisonment on Count Two. His base offense
level for violating § 922(g)(1) was 24; he received a 4-level
increase for possessing a firearm in connection with another
felony; and he incurred a 2-level increase for possessing a
stolen firearm. The district court denied Harris’s requests for
a 3-level reduction for acceptance of responsibility under

1 Harris pleaded not guilty to Count One and was
subsequently acquitted after a three day trial.


                               3
U.S.S.G. § 3E1.1 and a downward variance based on his
mental health history. With a base offense level of 30 and a
criminal history category of IV, his advisory sentencing
Guidelines range was 135 to 168 months. The district court
reduced this sentence to the statutory maximum of 120
months.

                              II.
       Harris argues the district court erred in rejecting his
request for a U.S.S.G. § 3E1.1 reduction for acceptance of
responsibility. We review a district court’s determination of
whether the defendant is entitled to an acceptance of
responsibility under reduction for clear error. United States v.
Ceccarani, 98 F.3d 126, 129 (3d Cir. 1996).

        Under U.S.S.G. § 3E1.1(a), a defendant who “clearly
demonstrates acceptance of responsibility for his offense” is
entitled to a 2-level reduction to his calculated offense level. 2
The defendant, however, must show by a preponderance of
the evidence that s/he is entitled to this reduction. United
States v. Boone, 279 F.3d 163, 193 (3d Cir. 2002). Moreover,
in assessing whether a defendant has adequately accepted
responsibility, the district court “has the obligation to assess
the totality of the situation.” United States v. Cohen, 171
F.3d 796, 806 (3d Cir. 1999) (internal citation and quotation
marks omitted) (emphasis added).

       Harris claims he did everything he could to
demonstrate acceptance of responsibility. According to
Harris, he had to plead nolo contendere rather than guilty

2 In his brief, Harris mentions that, in addition to the 2-level
reduction under § 3E1.1(a), he expected a 1-level reduction
under § 3E1.1(b). To qualify for a § 3E1.1(b) reduction,
however, the defendant must first qualify for a 2-level
reduction under § 3E1.1(a). The government must also
submit a motion “stating that the defendant has assisted
authorities . . . by timely notifying [them] of his intention to
enter a plea of guilty thereby permitting the government to
avoid preparing for trial and . . . allocate their resources
efficiently.” Since we agree that Harris did not qualify for a §
3E1.1(a) reduction, and the government did not submit the
requisite motion, Harris is ineligible for this 1-level reduction.

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because he was so “high” from ingesting alcohol and
controlled substances that he simply could not remember the
events of the night in question. Nevertheless, he argues that
he told the truth and immediately accepted responsibility for
his actions, and should therefore have been afforded the
benefit of a reduced offense level. He argues that he should
not be forced to perjure himself by admitting to actions under
oath that he could not remember in order to receive the
benefit of U.S.S.G. § 3E1.1. Although we do not disagree,
Harris’s argument ignores the circumstances surrounding his
plea.

       The district court found Harris’s statements that he
could not recall the evening in question credible, and we
therefore do not doubt that Harris simply could not recall the
circumstances leading to his arrest to the extent required to
admit his conduct under oath. We are not unsympathetic to
Harris’s claim that he should not be lured into perjury in order
to admit to conduct that he simply cannot remember.
Nevertheless, on this record, we are not prepared to say that
the district court committed clear error in concluding that
Harris was not sufficiently remorseful to receive the benefit
of U.S.S.G. § 3E1.1.

        The district court was in a unique position to assess his
sincerity, and “we are           especially deferential to [its]
assessment of whether the defendant accepted responsibility.”
United States v. Williams, 344 F.3d 365, 379 (3d Cir. 2003);
see also U.S.S.G. § 3E1.1 cmt. 5. Here, the district court was
able to carefully evaluate Harris’s demeanor prior to
imposing this sentence. During Harris’s change of plea
hearing, the district court observed Harris’s demeanor as the
court viewed the surveillance video from the bar. The district
court could also observe Harris as the video played in court.
Even though Harris did not remember his actions in the bar,
he saw what he did. Although we certainly do not expect him
to admit to something he did not remember just so that he
could “game the system” into giving him a reduction under
U.S.S.G. § 3E1.1, Harris’s claim of clear error ignores the
fact that the district court could draw certain conclusions from
Harris’s reaction to the surveillance video. The court
concluded that, even though he could not then remember his
actions in the bar, his demeanor when confronted with the


                               5
video suggested an absence of remorse for what he saw.
Even if his conduct did not endanger anyone in the bar – a
rather dubious proposition that we will accept for purposes of
argument – he clearly placed the people in the bar in fear of
imminent harm.

       We are simply not prepared to say that it was clearly
erroneous for the district court to conclude that Harris’s
reaction to that video was inconsistent with an expression of
remorse for the conduct depicted.              Despite Harris’s
arguments to the contrary, this situation is simply not the
same as penalizing him for his inability to recall his conduct
that night, and we cannot agree that he received a greater
sentence because he refused to perjure himself and admit to
conduct he did not remember. The district court closely and
carefully assessed the totality of the situation, and there is no
clear error.
                                  III.

        Harris also argues that the district court erred by
applying U.S.S.G. §§ 2K2.1(b)(6)(B) and 2K2.1(b)(4)(A) to
his sentence. We “review factual findings relevant to the
[Sentencing] Guidelines for clear error.” United States v.
Grier, 475 F.3d 556, 570 (3d Cir. 2007). A district court’s
‘“finding is clearly erroneous when . . . the reviewing body on
the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” United States
v. Ali, 508 F.3d 136, 143 (3d Cir. 2007) (quoting Concrete
Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust
for S. Cal., 508 U.S. 602, 622 (1993)).
                                  A.

        Under U.S.S.G. § 2K2.1(b)(6)(B), a defendant incurs a
4-level enhancement if the district court finds that he “[u]sed
or possessed any firearm or ammunition in connection with
another felony offense.” In making this determination, the
district court applies a preponderance of the evidence
standard. United States v. West, 643 F.3d 102, 104-05 (3d
Cir. 2011).

       Here, the district court found by a preponderance of
the evidence that Harris committed simple assault in violation
of 18 Pa. Cons. Stat. Ann. § 2701(a)(3) by placing patrons in


                               6
the bar in fear of imminent bodily injury with his actions.
Harris argues that the evidence was insufficient to establish
that he committed simple assault. Specifically, Harris
contends that the video recordings demonstrated that he only
possessed and brandished the firearm. He claims that is not
sufficient to constitute simple assault under Pennsylvania law.

        The district court noted that although the surveillance
recording did not have audio, the menacing nature of Harris’s
actions was established by observing the video. Moreover,
the district court listened to recordings of the 911 calls placed
that night from the bar. Those recordings included one caller
affirming that Harris was threatening people in the bar. The
district court found that this was sufficient to establish by a
preponderance of the evidence that Harris’s actions that night
placed patrons in the bar in fear of imminent bodily injury.
Thus, we are not left with a “definite and firm conviction that
a mistake has been committed.” Ali, 508 F.3d at 143.
                                    B.

        Under U.S.S.G. § 2K2.1(b)(4)(A), a defendant incurs a
2-level enhancement if the district court finds that the
defendant possessed a stolen firearm. In making this
determination, the district court again applies a
preponderance of the evidence standard. See Grier, 568 F.3d
at 567.

        Harris claims that the government failed to show by a
preponderance of the evidence that the firearm in question
was stolen. He claims that the firearm owner, who passed
away before Harris’s sentencing hearing, would not have
been a credible witness had he been able to testify at Harris’s
sentencing.      According to Harris, the firearm owner’s
purported lack of credibility establishes that the government
could not prove the firearm was stolen, and therefore the
district court clearly erred in so finding.

       Despite the firearm owner’s possible credibility issues,
the district court determined that sufficient evidence was
present to demonstrate the firearm was stolen. The district
court carefully examined two reports from the Department of
Justice that indicated that the firearm was stolen. The district
court also pointed out that Harris had not presented any


                               7
evidence suggesting he had a lawful right to the firearm. The
district court therefore concluded that the government had
satisfied its burden. We cannot conclude that the district court
clearly erred in applying this enhancement.

                              IV.

        Nor did the district court commit procedural or
substantive error by denying Harris’s request for a downward
variance based on his mental-health. On review of a district
court’s sentencing decision, “[w]e must first ensure that the
district court committed no significant procedural error in
arriving at its decision.” United States v. Wise, 515 F.3d 207,
217 (3d Cir. 2008). This review is for abuse of discretion. Id.
If the district court has committed no substantial procedural
error, “we then review the substantive reasonableness of the
sentence under an abuse-of-discretion standard.” Id. at 218.

        Procedural errors include “failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a)
factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence.” United
States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (quoting
Gall v. United States, 552 U.S. 38, 51 (2007)).

       Here, although not explicitly alleged by Harris, the
only procedural error he could attempt to argue is that the
court did not properly consider all of the factors contained in
18 U.S.C. § 3553(a). Although we do not suggest the district
court did fail to adequately consider § 3553(a), Harris seems
to argue that the court failed to adequately consider the
“history and characteristics of the defendant” under §
3553(a)(1) by failing to sufficiently consider his mental
health history and background.

        Harris asserted that his alcohol and drug problems
were a significant part of his mental health issues. The
district court correctly found that substance abuse problems,
without more, do not necessarily justify a downward variance
under the Guidelines. U.S.S.G. § 5H1.4. The district court
also considered, but rejected, a downward variance based on
U.S.S.G. § 5H1.3. The court concluded that Harris’s case


                               8
was not sufficiently extraordinary to warrant a departure
based on this provision. See U.S.S.G. § 5H1.3. Accordingly,
the district court committed no procedural error.

       Harris’s sentence was also substantively reasonable.
Substantive review of a district court’s sentence “requires us
not to focus on one or two factors, but on the totality of the
circumstances.” Tomko, 562 F.3d at 567. Due to the district
court’s unique position as the sentencing court, “[w]e may not
reverse [it] simply because we would have imposed a
different sentence.” Wise, 515 F.3d at 218. Indeed, we “will
affirm it unless no reasonable sentencing court would have
imposed the same sentence on that particular defendant for
the reasons the district court provided.” Tomko, 562 F.3d at
568. Here, in imposing the statutory maximum sentence on
Harris, the district court adequately considered all of the §
3553(a) factors. Accordingly, there is no reason to conclude
that the sentence was unreasonable. See id. (“[A]bsent any
significant procedural error, we must give ‘due deference to
the district court’s determination that the § 3553(a) factors, on
a whole,’ justify the sentence.” (citation omitted)).

       For these reasons, we will affirm the district court’s
sentence.




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