            Case: 19-10142   Date Filed: 10/15/2019   Page: 1 of 9


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-10142
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 3:17-cr-00030-MCR-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

BRANDEN LAVON MILLENDER,

                                                          Defendant-Appellant.

                       ________________________

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

                             (October 15, 2019)

Before TJOFLAT, WILSON, and JORDAN, Circuit Judges.

PER CURIAM:
              Case: 19-10142      Date Filed: 10/15/2019   Page: 2 of 9


      Branden Lavon Millender appeals his 84-month sentence for being

convicted as a felon in possession of a firearm in violation of 18 U.S.C. §§

922(g)(1), 924(a)(2). On appeal, he argues that the district court clearly erred in

applying a four-level enhancement under the Sentencing Guidelines, U.S.S.G.

§ 2K2.1(b)(4)(B), after finding that he possessed a firearm with an altered serial

number. He also argues that the district court clearly erred when it refused to

apply a three-level reduction under U.S.S.G. § 3E1.1 for acceptance of

responsibility. After careful review of the parties’ briefs and the record, we affirm.

                                           I

      In the Sentencing Guidelines context, we review issues of statutory

interpretation de novo, factual findings for clear error, and the “application of the

guidelines to the facts with due deference,” which is “tantamount to clear error

review.” United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010) (internal

quotation mark omitted). We “must be left with a definite and firm conviction that

a mistake has been committed” to find clear error. Id.

      A defendant convicted of a firearm offense receives a four-level increase if

the firearm has “an altered or obliterated serial number.” U.S.S.G.

§ 2K2.1(b)(4)(B). The focus of the parties’ briefs is the proper interpretation of

“altered” within the meaning of § 2K2.1(b)(4)(B). Everyone agrees that the serial

number was severely scratched but legible; they disagree about whether a severely


                                           2
                 Case: 19-10142        Date Filed: 10/15/2019        Page: 3 of 9


scratched but legible serial number is “altered” under the guideline. Millender

argues that “altered or obliterated” means “materially changed in a way that makes

accurate information less accessible,” and that “significant alteration” is necessary.

The government defends the district court’s interpretation of “altered”: “changed in

some way.” The Sentencing Commission has not defined “altered” (or

“obliterated”) for purposes of this enhancement. Therefore, we will consult the

traditional rules of statutory construction. United States v. Warren, 820 F.3d 406,

407 (11th Cir. 2016) (per curiam). The statute’s words generally take their

ordinary meaning from the time of enactment. New Prime Inc. v. Oliveira, 586

U.S. __, 139 S. Ct. 532, 539 (2019). Absent ambiguity, we can end our inquiry

there. Warren, 820 F.3d at 407.

       The Sentencing Guidelines took effect on November 1, 1987. U.S.S.G.

Ch.1, Pt.A, Subpt.1, intro. comment. In 1986, “alter” meant “to cause to become

different in some particular characteristic (as measure, dimension, course,

arrangement, or inclination) without changing into something else;” “to become

different in some respect;” or to “undergo change usually without resulting

difference in essential nature.” Webster’s Third New International Dictionary,

Unabridged 63 (1986). 1 “Obliterate” meant “to remove from significance and


1
 Other dictionaries defined “alter” as “to make different in some particular, as size, style, course,
or the like;” to “modify;” or “to change [or] become different or modified,” The Random House
Dictionary of the English Language 60 (2d ed. 1987), and “[t]o change or make different;”
                                                 3
               Case: 19-10142       Date Filed: 10/15/2019     Page: 4 of 9


bring to nothingness[,] such as” (a) “to make undecipherable or imperceptible by

obscuring, covering, or wearing or chipping away;” (b) “to remove utterly from

recognition, cognizance, consideration, or memory;” or (c) “to remove from

existence[;] make nonexistent[; or] destroy utterly all traces, indications,

significance of.” Id. at 1557. These definitions have persisted over time. See

Webster’s Third New International Dictionary, Unabridged 63, 1557 (2002).

       Here, the district court did not err in interpreting or applying the law. The

district court interpreted “altered” to mean “changed in some way,” which is

functionally indistinguishable from the ordinary meaning of “altered” as defined

above. The district court justifiably rejected Millender’s “significant alteration”

standard because the plain language says “altered,” not “significantly altered.”

And the district court properly declined to adopt an interpretation of “altered” that

would require illegibility because that interpretation would render “obliterated”

superfluous. See Corley v. United States, 556 U.S. 303, 314 (2009) (recalling a

basic interpretive canon that we construe statutes to avoid rendering any part

superfluous). Satisfied with the district court’s take on the law, we now turn to its

application.




“modify;” or “to change or become different,” The American Heritage Dictionary of the English
Language 99 (2d ed. 1982).
                                              4
              Case: 19-10142     Date Filed: 10/15/2019    Page: 5 of 9


      We see no clear error because the district court’s application dovetailed with

its interpretation. Considering that “altered” means “changed in some way,” and

following its personal examination of the firearm, the district court concluded that

“the serial number . . . has certainly been changed in some way.” The district court

described the scratches on the serial number as “far more than a casual scratch

mark.” “[T]here’s no doubt in my mind,” the district court said, “that someone at

some point in that firearm’s history took a knife or something sharp to that metal

and scratched it in an effort to remove the serial number or to affect it in a way that

it would not be legible.” In no way are we left with a definite and firm conviction

that the district court committed a mistake in applying § 2K2.1(b)(4)(B). See

Rothenberg, 610 F.3d at 624.

                                          II

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

for acceptance of responsibility under § 3E1.1, affording “great deference” to its

decision. United States v. Moriarty, 429 F.3d 1012, 1022 (11th Cir. 2005) (per

curiam); § 3E1.1, comment. (n.5). So “we will not set aside a district court’s

determination that a defendant is not entitled to a § 3E1.1 adjustment unless the

facts in the record clearly establish that the defendant has accepted responsibility.”

Moriarty, 429 F.3d at 1022–23. “The defendant bears the burden of clearly




                                           5
               Case: 19-10142     Date Filed: 10/15/2019    Page: 6 of 9


demonstrating acceptance of responsibility and must present more than just a guilty

plea.” Id. at 1023.

      A defendant is entitled to a two-level reduction in his offense level if he

“clearly demonstrates acceptance of responsibility.” § 3E1.1(a). An additional

one-level reduction is available upon motion by the government. § 3E1.1(b). A

sentencing court may consider whether the defendant has voluntarily terminated or

withdrawn from criminal conduct. § 3E1.1, comment. (n.1(B)). Entering a guilty

plea before trial, plus “truthfully admitting the conduct comprising the offense of

conviction, and truthfully admitting or not falsely denying any additional relevant

conduct . . . , will constitute significant evidence of acceptance of responsibility.”

Id., comment. (n.3). But conduct “inconsistent with such acceptance of

responsibility” may outweigh the other evidence. Id. Further, “[a] defendant who

enters a guilty plea is not entitled to an adjustment under this section as a matter of

right.” Id.

      Millender argues that the district court clearly erred when it denied him

reductions under both § 3E1.1(a) and (b) for acceptance of responsibility. Starting

with the two-level § 3E1.1(a) reduction, the district court concluded that

Millender’s positive drug tests and his abscondence from supervision constituted

conduct “inconsistent with acceptance of responsibility.” Thus, it denied him the

reduction despite other conduct that indicated acceptance of responsibility.


                                           6
               Case: 19-10142     Date Filed: 10/15/2019   Page: 7 of 9


Millender argues first that the district court clearly erred by considering his drug

use and abscondence because they were “not relevant” to the criminal conduct

underlying his conviction for being a felon in possession of a firearm. Second, he

argues that the district court improperly considered that same conduct because his

drug addiction made his conduct “involuntary.” Neither of these arguments

persuade us that the district court erred.

      Contrary to Millender’s first argument, a district court may properly

consider evidence of a defendant’s pretrial-release conduct, even if unrelated to his

conviction, when analyzing a § 3E1.1(a) reduction. United States v. Wright, 862

F.3d 1265, 1279 (11th Cir. 2017); United States v. Pace, 17 F.3d 341, 343–44

(11th Cir. 1994). In Pace, after the defendant pled guilty to conspiracy to make

false claims against the United States arising from a tax fraud scheme, the district

court considered evidence of the defendant’s unrelated pretrial conduct—a positive

test result for marijuana and his admission to pretrial use—when it declined to

reduce his sentence under § 3E1.1(a). Id. at 342. Like Millender does here, the

defendant argued that the district court erred by relying on this conduct to deny the

reduction “because his marijuana use was unrelated to his offense of conviction.”

Id. at 343. We held that “a district court is authorized to consider subsequent

criminal conduct, even if it is unrelated to the offense of conviction, in determining

whether a decrease for acceptance of responsibility is appropriate.” Id. As a


                                             7
               Case: 19-10142     Date Filed: 10/15/2019    Page: 8 of 9


result, we affirmed the district court’s denial of a § 3E1.1(a) reduction. Id. at 344;

see also Wright, 862 F.3d at 1279 (affirming district court’s denial of the reduction

based on a pretrial conviction for possession of marijuana when the sentence

related to a conviction for tax-fraud conspiracy). Therefore, the district court did

not err here either when it considered Millender’s pretrial conduct that was

unrelated to the conduct underlying his conviction to deny the requested § 3E1.1(a)

reduction.

      Next, Millender cites § 3E1.1, comment. (n.1(A) and (B)), for the

proposition that a district court abuses its discretion—and increases punishment

contrary to the guideline’s intent—when it relies on involuntary conduct (such as

conduct driven by drug addiction) to deny a § 3E1.1(a) reduction. But the

commentary does not support his argument. The commentary lists “voluntary

termination or withdrawal from criminal conduct or associations” as an appropriate

consideration for granting a reduction. § 3E1.1, comment. (n.1(B)) (emphasis

added). It does not list allegedly involuntary continuation of criminal conduct as

an inappropriate consideration. Millender provides no support for his apparent

contention that the guideline precludes the district court’s consideration of his

pretrial drug use and abscondence. And we do not independently see error in the

district court’s consideration of this conduct. Finally, we note that the district court

did not increase Millender’s punishment; it declined to reduce his offense level.


                                           8
              Case: 19-10142     Date Filed: 10/15/2019    Page: 9 of 9


      As for the § 3E1.1(b) one-level reduction, Millender ignores the necessity of

a government motion, which he lacked, to qualify for the reduction. And the

district court correctly noted the government’s role in that reduction’s availability.

      In conclusion, we see no error, much less one so clear that it defeats the

great deference we afford the district court’s decision in this context. See § 3E1.1,

comment. (n.5). Accordingly, we affirm the sentence.

      AFFIRMED.




                                           9
