   Case: 09-10683       Document: 00511133831          Page: 1    Date Filed: 06/07/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 7, 2010
                                     No. 09-10683
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

JAMES GAYFORD,

                                                   Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:08-CR-350-1




Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*


       James Gayford appeals the sentence imposed after he pleaded guilty of
being a felon in possession of firearms. We affirm.

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 09-10683

      Gayford argues that the guideline calculation was incorrect because the
government improperly refused to move for a third-level reduction for acceptance
of responsibility. We begin our review of a sentence by examining whether the
district court committed any procedural error, “such as failing to calculate (or
improperly calculating) the Guidelines range.” Gall v. United States, 552 U.S.
38, 51 (2007). The government’s refusal to file a motion for the third-level reduc-
tion may be successfully challenged only if “the refusal was (1) animated by an
unconstitutional motive, or (2) not rationally related to a legitimate government
end.” United States v. Newson, 515 F.3d 374, 378 (5th Cir.) (internal quotation
marks and citation omitted), cert. denied, 128 S. Ct. 2522 (2008).
      Nothing in the record suggests that the government was “animated by an
unconstitutional motive,” and Gayford does not contend that it was. He had the
burden of showing entitlement to any reduction for acceptance of responsibility.
See United States v. Tello, 9 F.3d 1119, 1124 (5th Cir. 1993). To obtain credit for
acceptance of responsibility, a defendant must do more than admit the minimum
facts establishing the bare elements of the offense; he must truthfully admit the
criminal conduct and demonstrate sincere contrition for the full extent of his
conduct. United States v. Diaz, 39 F.3d 568, 571-72 (5th Cir. 1994). With regard
to the third-level reduction under subsection (b), “the Government is in the best
position to determine whether the defendant has assisted authorities in a man-
ner that avoids preparing for trial.” U.S.S.G. § 3E1.1, comment. (n.6) (Nov.
2008).
      Gayford was charged with possession of two guns, yet he filed his own fac-
tual basis admitting possession of only one. He waited until two weeks before
sentencing to try to accept the government’s earlier offer of the third-level reduc-
tion in exchange for a waiver of appeal. In a sentencing memorandum and at
sentencing, he persistently sought to minimize his culpability, requiring the gov-
ernment to prepare testimony establishing the full factual basis for the convic-
tion. Thus he did not manifest contrition for the full extent of his conduct. See

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                                 No. 09-10683

Diaz, 39 F.3d at 571-72. He has failed to carry burden of showing entitlement
to the third-level reduction. See United States v. Tello, 9 F.3d 1119, 1124 (5th
Cir. 1993); § 3E1.1, comment. (n.6).
      Further, any error was harmless. The district court acknowledged that it
could not grant the third-level reduction without a motion from the government,
but it nonetheless explained that it was exercising its discretion effectively to
grant the reduction by choosing the sentence that it imposed. The record shows
that the government’s refusal to move for the reduction did not affect the sen-
tence. See United States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009).
      For his second and third contentions, Gayford argues that the court com-
mitted plain error by imposing special conditions of supervised release that re-
quire him to participate in substance-abuse treatment, undergo testing, and ab-
stain from alcohol and other intoxicants. As Gayford concedes, review is for
plain error, because he did not object to the conditions when they were an-
nounced at sentencing. See United States v. Weatherton, 567 F.3d 149, 152 (5th
Cir.), cert. denied, 130 S. Ct. 300 (2009). To show plain error, Gayford must
show an error that is clear or obvious and that affects his substantial rights. See
Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If he makes such a show-
ing, this court has the discretion to correct the error if it seriously affects the
fairness, integrity, or public reputation of the judicial proceedings. See id.
      The presentence report noted that Gayford faced pending charges for drug
crimes. Because the court had reason to believe that he abuses controlled sub-
stances, it could require participation in a drug-abuse treatment program, Unit-
ed States v. Cothran, 302 F.3d 279, 290 (5th Cir. 2002), and restrict Gayford’s
access to other substances, including alcohol and legal drugs presenting a danger
of addiction, see United States v. Ferguson, 369 F.3d 847, 853 (5th Cir. 2004).
The district court did not commit clear or obvious error by imposing the special
conditions concerning drugs and alcohol. See Weatherton, 567 F.3d at 153; Fer-
guson, 369 F.3d at 853.

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                                No. 09-10683

      For his final contention, Gayford asserts that the district court committed
plain error by ordering that his federal sentence be served consecutively to any
prospective state sentences. He concedes that relief is foreclosed by United
States v. Brown, 920 F.2d 1212, 1217 (5th Cir. 1991), overruled on other grounds,
United States v. Candia, 454 F.3d 468, 472-73 (5th Cir. 2006), which held that
a federal district court may require that a federal sentence run consecutively to
an anticipated state sentence.
      The judgment of sentence is AFFIRMED.




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