            Case: 16-16408   Date Filed: 08/23/2017   Page: 1 of 5


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-16408
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:16-cr-20385-JEM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

BERRY GREEN,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (August 23, 2017)

Before ED CARNES, Chief Judge, MARCUS and FAY, Circuit Judges.

PER CURIAM:
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      Berry Green was charged with one count of being a felon in possession of a

firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). Before trial his

lawyer filed a motion to continue the trial date, requesting more time “to

effectively prepare this matter for change of plea or for trial.” The district court

denied that motion. On the morning of the first day of his trial, Green told the

district court that he was concerned that the government was planning to pursue the

180-month mandatory minimum sentence set out in the Armed Career Criminal

Act (ACCA), 18 U.S.C. § 924(e)(1), and that he did not believe he qualified as an

armed career criminal because his previous offenses occurred when he was a

juvenile. He also told the district court that he was willing to plead guilty if he

could be assured that he (1) did not qualify as an armed career criminal, (2) would

not be subject to the ACCA’s 180-month minimum sentence, and (3) would be

sentenced within the advisory United States Sentencing Guidelines range. The

district court explained that it could not take part in any plea negotiation and then

gave Green a few minutes to speak with his attorney and decide whether to plead

guilty.

      After speaking with counsel, Green said that he wanted to enter into a guilty

plea, but when the district court began the plea colloquy he indicated that his

decision to plead guilty was conditioned on the assurance that he would not be

subject to the ACCA and would be sentenced within the advisory guidelines range.


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At that point, the district court ended the plea colloquy and began the jury selection

process. After a two-day trial, the jury found Green guilty of the charged count,

and the district court found that the ACCA applied and sentenced him to 200

months imprisonment. He now appeals his conviction and sentence.

      Green first contends that the district court erred by denying his motion to

continue the trial date. “To prevail on such a claim, a defendant must show that

the denial of the motion for continuance was an abuse of discretion which resulted

in specific substantial prejudice.” United States v. Verdarame, 51 F.3d 249, 251

(11th Cir. 1995). He asserts that the district court abused its discretion because it

failed to give him and his attorney enough time to discuss whether he would be

subject to the ACCA’s mandatory minimum sentence, and that he would have

pleaded guilty had the continuance been granted.

      Even if the district court abused its discretion by denying Green’s motion for

a continuance, the error did not result in specific substantial prejudice because the

record shows that Green would have proceeded to trial even if the district court had

granted the continuance. The record is clear that Green was willing to plead guilty

to being a felon in possession of a firearm only if he was not subject to the

ACCA’s mandatory minimum sentence, and he does not argue on appeal that the

district court erred in finding that the ACCA applied to his case. Because the

record is clear that he was willing to plead guilty only if the ACCA did not apply,


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and because the ACCA did apply and Green offers no evidence showing that it

would not have applied had he pleaded guilty, he would have ultimately proceeded

to trial even if the district court had granted the continuance. As a result, any

abuse of discretion in denying Green’s motion to continue did not result in specific

substantial prejudice, and reversal is not warranted.

      Green also appeals the district court’s denial of his request for a two-level

guidelines reduction based on his acceptance of responsibility. See U.S.S.G.

§ 3E1.1(a) (“If the defendant clearly demonstrates acceptance of responsibility for

his offense, decrease the offense level by 2 levels.”). We review for clear error a

denial of a reduction of a sentence for acceptance of responsibility, “and that

finding is entitled to great deference on review and should not be disturbed unless

it is without foundation.” United States v. Knight, 562 F.3d 1314, 1322 (11th Cir.

2009).

      Green contends that the district court erred in denying his request for the

two-level reduction for acceptance of responsibility because he entered into

stipulations concerning his status as a felon and the fact that the firearm at issue

had traveled in interstate commerce and because he did not testify at trial. While

“[i]n rare situations a defendant may clearly demonstrate an acceptance of

responsibility for his criminal conduct even though he exercises his constitutional

right to a trial,” U.S.S.G. § 3E1.1 cmt. n.2, the district court did not clearly err in


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finding that Green had not accepted responsibility. Although he stipulated to his

status as a felon and to the fact that the firearm had travelled in interstate

commerce, those stipulations ensured that the jury at trial would not hear about his

previous offenses (which led to his felon status) or learn that the gun he possessed

had been stolen. And while Green did not testify, his defense at trial was that the

officer who testified to seeing him with the gun was not a credible witness.

Because his defense at trial was that he never possessed the weapon, and because

his stipulations prevented the government from offering prejudicial evidence, the

district court did not clearly err in finding that he had not demonstrated acceptance

of responsibility and was not entitled to the two-level reduction under § 3E1.1(a).

      Green also contends that the district court should have applied § 3E1.1(a)’s

two-level reduction based on his willingness to plead guilty. As we have already

discussed, the record was clear that Green was willing to plead guilty only if he

was assured that the ACCA’s 15-year mandatory minimum did not apply. The

district court did not clearly err in finding that his conditional willingness to plead

guilty did not demonstrate acceptance of responsibility.

      AFFIRMED.




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