            Case: 13-12650   Date Filed: 02/21/2014   Page: 1 of 6


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12650
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:12-cr-00463-JHH-JEO-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                versus

BENJAMIN TODD ACTON,

                                                          Defendant-Appellant.



                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                             (February 21, 2014)

Before WILSON, HILL, and ANDERSON, Circuit Judges.
               Case: 13-12650     Date Filed: 02/21/2014    Page: 2 of 6




PER CURIAM:

      Benjamin Acton appeals his total 91-month sentence after pleading guilty to

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); and

possession of a firearm which had a barrel less than 18 inches and which was not

registered to him in the National Firearms Registration and Transfer Record, in

violation of 26 U.S.C. § 5861(d). On appeal, Acton argues that the district court

clearly erred in denying him a reduction in his total offense level for acceptance of

responsibility, pursuant to U.S.S.G. § 3E1.1. He maintains that the act of

withdrawing a guilty plea does not automatically preclude a reduction for

acceptance of responsibility. After review, we affirm.

      We review for clear error the district court’s determination regarding a

reduction for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. United

States v. Moriarty, 429 F.3d 1012, 1022-23 (11th Cir. 2005). Because the district

court’s determination regarding a defendant’s acceptance of responsibility is

entitled to great deference, we will not set aside the district court’s decision that a

defendant is not entitled to a downward reduction for acceptance of responsibility

unless the record clearly establishes that the defendant accepted responsibility. Id.

“The defendant bears the burden of clearly demonstrating acceptance of




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responsibility and must present more than just a guilty plea.” Id. at 1023

(quotation omitted).



      Pursuant to § 3E1.1(a), a defendant is entitled to a two-level reduction in his

offense level if he clearly demonstrates acceptance of responsibility. U.S.S.G

§ 3E1.1(a). The commentary to § 3E1.1 states that:

      In determining whether a defendant qualifies under subsection (a),
      appropriate considerations include, but are not limited to, the
      following:

      (A) truthfully admitting the conduct comprising the offense(s) of
          conviction, and truthfully admitting or not falsely denying any
          additional relevant conduct for which the defendant is
          accountable under § 1B1.3 (Relevant Conduct) . . . . However, a
          defendant who falsely denies, or frivolously contests, relevant
          conduct that the court determines to be true has acted in a manner
          inconsistent with acceptance of responsibility[.]

U.S.S.G. § 3E1.1, comment. (n.1(A)). The entry of a guilty plea combined with a

truthful admission of the conduct comprising the offense charged constitutes

significant evidence of acceptance of responsibility. Id. § 3E1.1, comment. (n.3).

“A defendant who enters a guilty plea is not entitled to an adjustment under this

section as a matter of right.” Id.

       “Although a guilty plea can constitute significant evidence of acceptance of

responsibility, it may be outweighed by conduct of the defendant inconsistent with

an acceptance of responsibility.” Moriarty, 429 F.3d at 1023. We have noted that


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the act of moving to withdraw a guilty plea does not automatically prevent a

reduction for acceptance of responsibility. United States v. McCarty, 99 F.3d 383,

387 (11th Cir. 1996). However, the district court may consider a defendant’s

post-offense conduct, whether related or unrelated to the offense of conviction, in

determining whether a downward adjustment for acceptance of responsibility is

warranted. United States v. Pace, 17 F.3d 341, 343 (11th Cir. 1994).

      We have held that a defendant was not entitled to an adjustment for

acceptance of responsibility when he pled guilty on the eve of trial, only after he

had unsuccessfully moved to suppress the evidence against him. United States v.

Knight, 562 F.3d 1314, 1328 (11th Cir. 2009); see also United States v. Gonzalez,

70 F.3d 1236, 1239 (11th Cir. 1995) (holding that defendant who had challenged

the admissibility of the evidence necessary to support his conviction was not

entitled to a reduction for acceptance of responsibility).

      Here, the district court did not clearly err in denying Acton a reduction for

acceptance of responsibility. Although a guilty plea constitutes significant

evidence of acceptance of responsibility, Acton’s unsuccessful motion to withdraw

his guilty plea was conduct inconsistent with an acceptance of responsibility.

Moriarty, 429 F.3d at 1023. While we have stated that the act of moving to

withdraw a guilty plea does not automatically prevent the reduction for acceptance

of responsibility, the record in this case does not clearly establish that Acton


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accepted responsibility for his offenses. See McCarty, 99 F.3d at 387; Moriarty,

429 F.3d at 1022-23. First, Acton pled guilty only after the district court denied

his motion to suppress the sawed-off shotgun found during the search of his home,

and we have held that defendants were not entitled to a reduction where they had

challenged the admissibility of the evidence against them. See Knight, 562 F.3d at

1328; see also Gonzalez, 70 F.3d at 1239. Furthermore, Acton’s motion to

withdraw his guilty plea stated only that his guilty plea was “not intelligent,

knowing, or voluntary” and that he was in essence dissatisfied with his attorney.

Acton never claimed that he did not fully understand the legal ramifications of his

plea in his motion to withdraw his plea, but instead raised this argument for the

first time in his objections to the presentence investigation report.

      The district court’s conclusion that Acton was not entitled to the reduction,

pursuant to § 3E1.1, is entitled to great deference. See Moriarty, 429 F.3d at 1022-

23. Acton does not meet his burden with his contention that there is nothing in the

record establishing that he contested the wrongfulness of his actions because his

guilty plea alone does not suffice to establish that he accepted responsibility. See

Moriarty, 429 F.3d at 1022-23; see also U.S.S.G. § 3E1.1, comment. (n.3).

Although he contends that his Rule 11 plea colloquy did not address the

consequences his plea would have on his pending state law charges, Acton did not

raise any argument regarding the district court’s denial of his motion to withdraw


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his guilty plea in his appellate brief. United States v. Jernigan, 341 F.3d 1273,

1283 n.8 (11th Cir. 2003) (noting that a passing reference in a brief without

substantive legal argument is insufficient to preserve an issue). Accordingly, we

affirm.

      AFFIRMED.




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