                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 13a0727n.06

                                           No. 12-4072                                FILED
                                                                                   Aug 06, 2013
                           UNITED STATES COURT OF APPEALS                    DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )
v.                                                   )
                                                     )      ON APPEAL FROM THE
NORMAN CONNER,                                       )      UNITED STATES DISTRICT
                                                     )      COURT FOR THE NORTHERN
       Defendant-Appellant.                          )      DISTRICT OF OHIO
                                                     )



       BEFORE: GIBBONS and WHITE, Circuit Judges; GREER, District Judge.*


       PER CURIAM. Norman Conner appeals the district court’s denial of a sentencing reduction

for acceptance of responsibility. We affirm Conner’s sentence.

           On February 5, 2011, Conner was a passenger in a vehicle that was stopped by police for

a traffic violation. When the officers opened the passenger-side door of the vehicle they saw that

Conner had a gun. A struggle ensued, and the gun went off twice. The shots hit and injured the

driver of the vehicle.

       Conner pleaded guilty without a plea agreement to possession of a firearm by a felon in

violation of 18 U.S.C. § 922(g)(1). Conner’s Presentence Investigation Report (PSR) provided for

two enhancements of his base-offense level of 20: (1) a 4-level increase pursuant to U.S.S.G.



       *
       The Honorable J. Ronnie Greer, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
No. 12-4072
United States v. Conner

§ 2K2.1(b)(6)(B) for using the firearm in connection with another felony offense, threatening the life

of a law enforcement officer and discharging the firearm, and (2) a 6-level increase pursuant to

U.S.S.G. § 3A1.2(c)(1) for assaulting a law enforcement officer during the course of the offense or

immediate flight therefrom. The PSR did not calculate a reduction in Conner’s base-offense level

for acceptance of responsibility under U.S.S.G. § 3E1.1 because in Conner’s statement to the

probation officer, he denied that he fired the weapon, a 9-millimeter semiautomatic pistol, and stated

that “the police officer fired his1 weapon at him, missed, and shot” Conner’s companion. (Id.). The

PSR calculated Conner’s total offense level of 30 and criminal history category of III, which

corresponded to a guidelines range of 121 to 151 months’ imprisonment, exceeding the statutory

maximum of 120 months. (Id. at 19). See 18 U.S.C. § 924(a)(2).

       At sentencing, Conner objected to the enhancements of his base-offense level and asserted

that he was entitled to a reduction for acceptance of responsibility. Two police officers who were

present at the scene testified that Conner fired his weapon twice during the struggle to disarm him

and repeatedly threatened to kill them. Law enforcement recovered two 9-millimeter shell casings

from the scene, one of which was confirmed to have been fired from Conner’s pistol. The police

officers testified that they carried .40 caliber weapons and that no officer fired a weapon during the

incident.

       Conner’s counsel acknowledged that Conner violated the felon-in-possession statute.

However, defense counsel asserted that the pistol went off inadvertently when an officer grabbed


       1
         It is not clear from the PSR whether Conner asserted that the officer fired Conner’s gun or
the officer’s gun.

                                                 -2-
No. 12-4072
United States v. Conner

Conner’s hands, and that the shooting was not a “knowing act.” Defense counsel also pointed out

that only one of the shell casings recovered from the scene could be matched to Conner’s gun.

       Overruling Conner’s objections, the district court upheld both enhancements and denied a

reduction for acceptance of responsibility, finding that “the defendant’s version of events simply

does not hold water when all the evidence and testimony is viewed together. Clearly defendant’s gun

was discharged twice during a struggle with the officers . . . [and] that the defendant further has

falsely denied relevant conduct. That is inconsistent with an acceptance of responsibility under

section 3E1.1.” Considering the sentencing factors under 18 U.S.C. § 3553(a), the court varied

downward to the guidelines range for an offense level of 28 and sentenced Conner to the bottom of

that range—97 months of imprisonment.

       Conner challenges the district court’s denial of a reduction for acceptance of responsibility.

U.S.S.G. § 3E1.1(a) provides for a two-level decrease in a defendant’s offense level “[i]f the

defendant clearly demonstrates acceptance of responsibility for his offense.” Because “[t]he

sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility . . .

the determination of the sentencing judge is entitled to great deference on review.” U.S.S.G.

§ 3E1.1, comment. (n.5); see United States v. Webb, 335 F.3d 534, 538 (6th Cir. 2003). We review

that determination for clear error. United States v. Theunick, 651 F.3d 578, 588 (6th Cir. 2011).

       In determining whether a defendant has accepted responsibility, the district court may

consider whether the defendant truthfully admits or does not falsely deny “any additional relevant

conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct).” U.S.S.G.

§ 3E1.1, comment. (n.1(A)). Although “a defendant is not required to volunteer, or affirmatively

                                                 -3-
No. 12-4072
United States v. Conner

admit, relevant conduct beyond the offense of conviction in order to obtain a reduction . . . , 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.” Id. All “acts and

omissions” qualify as relevant conduct if they were “committed . . . during the commission of the

offense of conviction . . . or in the course of attempting to avoid detection or responsibility for that

offense.” U.S.S.G. § 1B1.3(a) & comment background. A defendant must demonstrate his

acceptance of responsibility by a preponderance of the evidence. United States v. Bacon, 617 F.3d

452, 458 (6th Cir. 2010).

        Conner contends that the district court impermissibly penalized him for exercising his right

to challenge the government’s proof at sentencing. We rejected this same argument in United States

v. Lay, 583 F.3d 436 (6th Cir. 2009):

        Lay argues that upholding his sentence will put defendants in an impossible position
        of being unable to contest improper sentencing enhancements without jeopardizing
        credit for acceptance of responsibility. But this argument ignores the court-found
        facts of this case. The district court did not find Lay to be fully forthright or to have
        admitted all relevant conduct. Had the court made such findings, and also denied
        credit for acceptance of responsibility, a quite different case might be presented.
        There is no reason to assume that in some other case a defendant . . . would not be
        able to present evidence . . . without jeopardizing credit for acceptance of
        responsibility.

        Certainly, the position of a defendant who must testify in order to contest an
        improper enhancement requires the treading of a fine line. But the solution to that
        dilemma is to testify honestly, without falsely denying relevant conduct.

Id. at 449 (citation omitted). After reviewing the evidence presented at sentencing, the district court

made the factual finding that the discharge of the firearm was not accidental. Based on this

conclusion, the district court was within its discretion in determining that Conner’s denial of related

                                                  -4-
No. 12-4072
United States v. Conner

relevant conduct outweighed his decision to admit to possessing the firearm, and thus a reduction

for acceptance of responsibility was unwarranted. See United States v. Keys, 359 F. App’x 585,

587–89 (6th Cir. 2009); U.S.S.G. § 3E1.1, comment. (n.3) (“A defendant who enters a guilty plea

is not entitled to an adjustment . . . as a matter of right.”). As we stated in Keys, “[w]ithout the

opportunity to observe [Conner’s] demeanor and with only a transcript that sets forth competing

accounts of the confrontation, we are in no position to second-guess the district court’s ring-side

accounting of what happened,” namely, that Conner was lying about the encounter rather than

truthfully asserting that he fired the gun intentionally. Keys, 359 F. App’x 585, 588 (6th Cir. 2009).

       The unpublished Ninth Circuit decision upon which Conner relies, United States v. Allen,

No. 96-30050, 1997 WL 289446 (9th Cir. May 29, 1997), is distinguishable because the district

court did not make a finding that the defendant in that case provided materially-false information.

Id. at *5. Here, the district court explicitly found that Conner had falsely denied relevant conduct,

and that such a denial was inconsistent with an acceptance of responsibility reduction under U.S.S.G.

§ 3E1.1.

       We can discern no clear error in the district court’s determination that Conner falsely denied

relevant conduct of discharging a firearm during the commission of a felony. Accordingly, we affirm

the district court’s denial of a reduction for acceptance of responsibility.




                                                 -5-
