                                                          [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                 No. 05-15158                    SEPT 13, 2006
                             Non-Argument Calendar             THOMAS K. KAHN
                           ________________________                CLERK


                       D. C. Docket No. 04-00022-CR-02-3

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

KEVIN MICHAEL LYLES,

                                                              Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                        _________________________

                               (September 13, 2006)

Before DUBINA, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      Kevin Michael Lyles appeals his 120-month sentence, which was imposed

after he pled guilty to possession with the intent to distribute methamphetamine, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii). On appeal, Lyles argues that the
district court erred at sentencing by (1) denying Lyles’s request for an acceptance-

of-responsibility reduction, pursuant to § 3E1.1(a) of the Sentencing Guidelines,

due to Lyles’s drug use while on pretrial release, and (2) comparing his conduct to

his co-defendants’ conduct at a joint sentencing hearing, in violation of Lyles’s

Eighth Amendment right to an individualized sentencing hearing. After careful

review, we affirm.

      We review a district court’s factual findings concerning a reduction for

acceptance of responsibility for clear error. United States v. Williams, 408 F.3d

745, 756 (11th Cir. 2005). Under the clear error standard, the defendant bears the

burden of showing entitlement to the reduction, and the sentencing judge is entitled

to great deference on review. Id.

      As for Lyles’s argument that the district court did not provide him with a

sufficiently individualized sentencing determination, he raises this claim for the

first time here. We review preserved constitutional errors at sentencing de novo,

but will reverse only for harmful error. United States v. Paz, 405 F.3d 946, 948

(11th Cir. 2005). However, if the defendant fails to object before the district court,

our review is for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298

(11th Cir.), cert. denied, 125 S. Ct. 2935 (2005). Under the plain error standard of

review, there must be (1) an error, (2) that is plain, and (3) that affects substantial



                                          2
rights. Id. If these three conditions are met, we may notice the error only if “the

error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (citation and quotation marks omitted).

      The facts relevant to Lyles’s sentencing claims are as follows.           On

September 16, 2004, Lyles and three co-defendants were indicted on drug and

weapons charges relating to a conspiracy to distribute methamphetamine. Lyles

was charged with (1) conspiracy to possess with the intent to distribute and

distribution of 50 grams or more of methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(A)(viii) and 21 U.S.C. §    846 (Count One); (2) aiding and

abetting in distributing methamphetamine, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(B)(viii) and 18 U.S.C. § 2 (Count Three); (3) possession with the intent to

distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii)

(Count Six); and (4) possession of a firearm in furtherance of a drug trafficking

crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count Seven).        After being

released on pretrial bond, Lyles was arrested for violating the conditions of his

pretrial release. Lyles admitted that he used methamphetamine during his pretrial

release, after which his bond was revoked and he was ordered detained pending

trial. Thereafter, pursuant to a written plea agreement, Lyles pled guilty to Count

Six and the government agreed to dismiss the remaining counts.



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      According to the undisputed statement of facts from the presentence

investigation report (“PSI”), an investigation by law enforcement officials revealed

that Lyles was involved in distributing methamphetamine in Soperton, Georgia. In

February 2003, Sven Dickey informed authorities that he and three other

individuals distributed methamphetamine for Lyles, and that Lyles traveled to

Atlanta twice a week to pick up methamphetamine. On January 21, 2004, co-

defendant Anthony Lanier Wilson sold methamphetamine to an undercover agent.

Later that same month, officers established surveillance on Lyles’s residence and

arranged to purchase two ounces of methamphetamine from Wilson. After the

officers observed Wilson and Lyles as they left Lyles’s residence together, the

undercover agent contacted Wilson who stated that he was with his “boss.” Wilson

was later arrested, and he told authorities that he had obtained methamphetamine

from Lyles each week for one year.

      A subsequent search of Lyles’s residence uncovered, among other items,

(1) 35 grams of methamphetamine in Lyles’s bedroom; (2) .65 grams of

methamphetamine in his garage; (3) numerous firearms and ammunition; and (4)

digital scales. Lyles agreed to cooperate with investigators and informed them that

he had purchased methamphetamine in “ice” form from co-defendants Billy

Tomlin and Ronnie Butler.      With Lyles’s cooperation, authorities subsequently



                                         4
arrested Tomlin and Butler when they arrived at Lyles’s residence to deliver some

methamphetamine. After Lyles was granted pretrial release, he admitted that he

used methamphetamine and reported that he obtained the methamphetamine from

his ex-wife, with whom he had previously been advised to have no contact.

      The PSI set Lyles’s base offense level at 32, pursuant to U.S.S.G.

§ 2D1.1(c)(4), because the offense involved 103.84 grams of methamphetamine,

and recommended no reduction for acceptance of responsibility, pursuant to

U.S.S.G. § 3E1.1, because Lyles used methamphetamine while on pretrial release.

The probation officer applied a two-level enhancement for possession of a

dangerous weapon, pursuant to U.S.S.G. § 2D1.1(b). With a total offense level of

34 and a criminal history category of I, Lyles’s Guidelines range was 151 to 188

months’ imprisonment. The statutory range of imprisonment was 5 to 40 years.

      Before the sentencing hearing, Lyles objected to the probation officer’s

failure to apply a reduction for acceptance of responsibility and the government

filed a motion for downward departure, pursuant to U.S.S.G. § 5K1.1 and 18

U.S.C. § 3553, noting that Lyles provided substantial assistance.

      Lyles and his three co-defendants were sentenced at a combined hearing. At

the hearing, Lyles argued that his use of methamphetamine while on pretrial

release did not justify the court’s denial of a reduction for acceptance of



                                         5
responsibility because although he was a drug addict, he had immediately accepted

responsibility and cooperated with officials upon his arrest.       He also urged the

court not to apply “a bright-line rule” in deciding whether to grant a reduction for

acceptance of responsibility.    The district court considered letters from Lyles’s

family and friends and heard the testimony of Lyles’s mother, as well as Lyles’s

statement of remorse.

      Prior to imposing sentence, the district court noted that Lyles’s situation was

comparable to that of co-defendants Butler and Wilson, who also violated the

terms of their pretrial release by using drugs. The court acknowledged that it was

“not unmindful of the forces of addiction,” but then denied Lyles, Wilson, and

Butler reductions for acceptance of responsibility because (1) they sold

methamphetamine to others “so that they may be brought into the same unhappy

world”; (2) they did not meaningfully withdraw from further criminal conduct

because   they   engaged    in   criminal       conduct   by   purchasing   and   using

methamphetamine while on pretrial release; and (3) they knew about the

consequences of using drugs while on pretrial release.

       The court further explained that it must attempt to “mold a sentence to fit

the culpability of each [of the defendants]” and stated that it had “afforded each

defendant and his counsel an opportunity to be heard.            I have reviewed and



                                            6
considered the [PSI’s] of each defendant.”      The court then found that (1) a

significant amount of methamphetamine was involved; (2) Lyles was the “brains

behind [the] loosely knit operation;” and (3) Lyles was the most cooperative with

law enforcement. After granting co-defendant Butler a downward departure and

imposing a 72-month sentence on Tomlin, who had a lower Guidelines range than

the others, the court again observed that Lyles was “most likely the brains behind

[the] operation,” and his conduct was “roughly equivalent” to Wilson’s conduct.

The court then sentenced both Lyles and Wilson to 120 months’ imprisonment.

Lyles did not object to the court’s factual findings or the manner in which the

sentence was imposed. This appeal followed.

      Under U.S.S.G. § 3E1.1(a), a sentencing court may grant a two-level

decrease in offense level if the defendant “clearly demonstrates acceptance of

responsibility for his offense. . . .”   United States Sentencing Commission,

Guidelines Manual, § 3E1.1(a) (Nov. 2004). In United States v. Hromada, 49 F.3d

685, 691 (11th Cir. 1995), we held that a defendant who tested positive for drug

use during pretrial release, but before his guilty plea, and lied about using drugs

was not entitled to a reduction for acceptance of responsibility.     Likewise, in

United States v. Scroggins, 880 F.2d 1204, 1215-16 (11th Cir. 1989), we found no

clear error in the district court’s denial of the reduction where the defendant



                                         7
accepted responsibility and provided authorities with information, but continued to

use cocaine after his arrest, and, therefore, had not turned away from the lifestyle

that motivated his offense. Because a defendant’s continued use of illegal drugs

constitutes a continuation of the drug offense for which he was convicted, a district

court’s denial of a reduction for acceptance of responsibility on this ground is not

clearly erroneous. See United States v. Matthews, 168 F.3d 1234, 1250 (11th Cir.

1999); see also U.S.S.G. § 3E1.1, comment. (n.1(b)) (providing that, in

determining whether a defendant has accepted responsibility, the court may

consider   “voluntary   termination   or   withdraw    from   criminal    conduct   or

associations”).

      In the instant case, the district court did not clearly err by making the factual

finding that Lyles’s continued use of drugs while on pretrial release showed that he

did not accept responsibility because he had not voluntarily terminated his criminal

conduct.    The Guidelines unambiguously provide that whether a defendant

voluntarily withdraws from criminal conduct is a factor the district court can

consider in determining whether to grant a reduction for acceptance of

responsibility, and Lyles does not dispute that he purchased and used




                                           8
methamphetamine while on pretrial release.                   Accordingly, the district court’s

denial of the reduction was not clear error.1

       We also are unpersuaded by Lyles’s second argument, that his Eighth

Amendment right to an individualized sentencing hearing was violated because the

district court compared his conduct with his co-defendants’ conduct at a joint

sentencing hearing. In United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir.

1993), we held that, in determining a defendant’s liability for the acts of co-

conspirators, “the district court must first make individualized findings concerning

the scope of criminal activity undertaken by a particular defendant.” Once the

extent of the defendant’s participation in the conspiracy is established, the district

court may determine the drug quantity that was reasonably foreseeable based on

the level of the defendant’s participation in the conspiracy. Id.




       1
           Lyles’s argument that the district court improperly applied a bright-line rule that if an
addict uses drugs, he has not accepted responsibility for his crime, is without merit. The Guidelines
enumerate that, in determining whether a defendant qualifies for a reduction for acceptance of
responsibility, the court may consider, but is not limited to considering, several factors, including
the defendant’s voluntary withdrawal from criminal conduct. However, the Guidelines do not state
that the district court must consider these factors, and the sentencing judge is entitled to great
deference on review. Lyles cites no relevant caselaw or Guidelines commentary in support of his
position that the district court must look to factors other than the defendant’s continued drug use
while on pretrial release. From our review of the transcript of the sentencing hearing, even if the
district court would err by applying a bright-line rule, it is clear in this case that the court applied
no such rule, as the court acknowledged that while it was “not unmindful of the forces of addiction,”
Lyles knew about the consequences of using drugs, and he sold drugs with the knowledge that others
would likely become addicted, too. On this record, we can discern no error in the district court’s
application of the Guidelines.

                                                   9
      Our review of the sentencing transcript and Lyles’s PSI reveals that the

district court fully complied with the requirements of Ismond. The court provided

Lyles the opportunity to present argument and to provide the court with mitigating

evidence in the form of letters from family and friends and the testimony of Lyles

himself and his mother. Moreover, Lyles’s PSI contained individualized factual

statements as to his involvement in the conspiracy and, at the sentencing hearing,

the district court made individualized findings about the scope of Lyles’s

involvement in the conspiracy, including that he, unlike his co-defendants, was

“the brains” behind the methamphetamine operations and was in possession of a

significant number of firearms, “some of which were uniquely configured to be of

use to a drug dealer.” On this record, Lyles has not shown error -- the first prong

of his burden under the plain error test -- and we, accordingly, affirm.

      AFFIRMED.




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