                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 18-4054


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

SHAIONA MARIE SMITH, a/k/a Slyfox,

                     Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, Chief District Judge. (5:16-cr-00012-D-12)


Submitted: August 21, 2018                                        Decided: August 29, 2018


Before GREGORY, Chief Judge, WYNN and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Elisa C. Salmon, SALMON LAW FIRM, LLP, Lillington, North Carolina, for Appellant.
Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Shaiona Marie Smith appeals the 78-month sentence she received after pleading

guilty to committing a violent crime in aid of racketeering, to wit: assault with a dangerous

weapon, and aiding and abetting the same, in violation of 18 U.S.C. §§ 1959(a)(3), 2

(2012). Smith does not contest the validity of her conviction. Instead, Smith challenges

the procedural and substantive reasonableness of her sentence, which was at the top of the

Sentencing Guidelines range calculated by the district court. For the reasons that follow,

we reject the two arguments pressed on appeal and affirm the judgment.

       “As a general matter, in reviewing any sentence whether inside, just outside, or

significantly outside the Guidelines range, we review for an abuse of discretion.” United

States v. Bolton, 858 F.3d 905, 911 (4th Cir. 2017) (internal quotation marks omitted). This

court must first ensure that the district court did not commit a significant procedural error.

Gall v. United States, 552 U.S. 38, 51 (2007). In considering the district court’s application

of a particular sentencing guideline, we evaluate the relevant factual findings for clear

error, but review de novo the pertinent legal conclusions. United States v. Savage, 885

F.3d 212, 225 (4th Cir.), petition for cert. filed (U.S. July 9, 2018) (No. 18-5225). In

conducting clear error review, “we will only reverse if left with the definite and firm

conviction that a mistake has been committed.” Id. (internal quotation marks omitted). If

there is no procedural error, we then assess the substantive reasonableness of the sentence,

taking into account the totality of the circumstances. Gall, 552 U.S. at 51. It is well

established that “[a] within-Guidelines range sentence is presumptively reasonable.”

United States v. White, 850 F.3d 667, 674 (4th Cir.), cert. denied, 137 S. Ct. 2252 (2017).

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       The lone procedural argument presented to us pertains to the district court’s denial

of the parties’ joint motion for a three-level reduction for acceptance of responsibility. See

U.S. Sentencing Guidelines Manual § 3E1.1 (2016). We review the district court’s denial

of the acceptance of responsibility adjustment for clear error, affording “great deference”

to the district court’s decision in this regard, “because the sentencing judge is in a unique

position to evaluate a defendant’s acceptance of responsibility.” United States v. Dugger,

485 F.3d 236, 239 (4th Cir. 2007) (alteration and internal quotation marks omitted).

       To earn a § 3E1.1 reduction, the defendant must prove by a preponderance of the

evidence “that [s]he has clearly recognized and affirmatively accepted personal

responsibility for [her] criminal conduct.” United States v. Nale, 101 F.3d 1000, 1005 (4th

Cir. 1996). Of course, a guilty plea does not automatically entitle a defendant to a reduction

for acceptance of responsibility. Dugger, 485 F.3d at 239. Indeed, district courts consider

several factors in the USSG § 3E1.1 analysis, including a defendant’s postarrest and

postplea criminal conduct. United States v. Knight, 606 F.3d 171, 176-77 (4th Cir. 2010);

Dugger, 485 F.3d at 240; United States v. Kidd, 12 F.3d 30, 34 (4th Cir. 1993); see USSG

§ 3E1.1 cmt. n.1 (listing factors to be considered by district court in acceptance of

responsibility analysis).

       Here, the district court found that Smith was not entitled to a reduction for

acceptance of responsibility based, primarily, on her continued use of illegal drugs while

on pretrial supervision. This conduct occurred after Smith’s initial arrest and release on

her own recognizance, but prior to entry of her guilty plea. Smith contends that so denying

the reduction amounted to procedural error because the court did not account for the fact

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that the Government agreed that a reduction was appropriate and, in so ruling, the court

effectively allowed one aspect of the § 3E1.1 analysis to trump all other relevant

considerations.

       We reject this argument as it runs contrary to established Fourth Circuit precedent.

Specifically, in Dugger, we affirmed the district court’s denial of acceptance of

responsibility where the defendant was indicted for distributing cocaine base and, after his

arrest, he sold marijuana and Xanax while in jail awaiting trial—despite the fact that, like

Smith, the defendant pled guilty, cooperated with the authorities, and engaged in criminal

conduct that was marginally different from the basis for his federal charge. * 485 F.3d at

238, 240. Similarly, in Kidd, we held that the district court did not err in denying the

reduction where the defendant continued to use and distribute cocaine after his indictment

and plea agreement related to a drug offense, even though the defendant pled guilty,

admitted to measures of relevant conduct, cooperated with his probation officer, and

voluntarily participated in rehabilitation. 12 F.3d at 32, 34.

       Although Smith points to various factors that weighed in favor of awarding the

reduction—including her prompt admission of guilt, her expressions of remorse at

sentencing, and her refusal to cast blame on others—the district court acted well within its

province in concluding that Smith’s recurring use of illegal drugs while on pretrial release


       *
         On this latter point, many federal courts of appeals agree that the defendant’s
postarrest criminal conduct need not even be of the same type as that to which he pled
guilty in order for acceptance of responsibility to be denied. United States v. Worrell, 292
F. App’x 220, 221 (4th Cir. 2008) (No. 08-4009); see United States v. Jordan, 549 F.3d
57, 61 (1st Cir. 2008) (collecting cases).

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outweighed these positive considerations. See Bolton, 858 F.3d at 915 (recognizing that

this court has “upheld denials of reductions for acceptance of responsibility where, as here,

the defendant continues criminal activity after apprehension, indictment, or guilty plea”);

see accord United States v. McLaughlin, 378 F.3d 35, 41 (1st Cir. 2004) (opining that

defendant’s criminal conduct while on pretrial supervision, which included possessing

heroin and driving while intoxicated, “belied the genuineness of any self-serving claim of

remorse,” and upholding the denial of the § 3E1.1 reduction on this basis). While “the

district court certainly could have weighed the evidence differently,” we will defer to its

ruling because there is no “evidence clearly undermining its decision.” United States v.

Harris, 890 F.3d 480, 489 (4th Cir. 2018).

       Smith’s next and final argument is that the 78-month sentence is substantively

unreasonable when considered against the totality of the circumstances. On this record,

though, we cannot say that the district court abused its discretion in selecting the 78-month,

within-Guidelines sentence for Smith’s crime. The district court considered, but flatly

rejected, the arguments proffered by the defense in favor of a lower sentence, and rationally

found that the selected sentence was appropriate considering Smith’s role in the crime of

conviction.   To be sure, the district court might have agreed that the reasons and

circumstances advanced by Smith supported the imposition of a lower sentence. However,

the mere fact that the court rejected Smith’s arguments does not render the selected

sentence substantively unreasonable. Because there is a range of permissible outcomes for

any case, an appellate court must resist the temptation to “pick and choose” among possible

sentences and rather must “defer to the district court’s judgment so long as it falls within

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the realm of these rationally available choices.” United States v. McComb, 519 F.3d 1049,

1053 (10th Cir. 2007); see United States v. Jeffery, 631 F.3d 669, 679 (4th Cir. 2011)

(observing that “district courts have extremely broad discretion when determining the

weight to be given each of the § 3553(a) factors”); United States v. Carter, 538 F.3d 784,

790 (7th Cir. 2008) (noting substantive reasonableness “contemplates a range, not a point”

(internal quotation marks omitted)). The selected within-Guidelines sentence qualifies as

such a rational choice.

       Accordingly, we affirm the criminal judgment. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

                                                                                AFFIRMED




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