                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            JULY 11, 2007
                             No. 07-10939                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                D. C. Docket No. 06-00445-CR-2-IPJ-TMP

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

DERRICK DEJUAN HALL,

                                                         Defendant-Appellant.


                       ________________________

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

                              (July 11, 2007)

Before BIRCH, DUBINA and CARNES, Circuit Judges.

PER CURIAM:
      Derrick Dajuan Hall appeals his 30-month sentence, imposed for unlawful

possession of an unregistered short-barreled firearm, alleging that the district court

erred in denying him a downward adjustment to his base offense level for

acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1, based solely upon his

testing positive for marijuana use. Because Hall’s positive test for marijuana use is

a factor that the district court correctly considered in denying Hall the reduction,

the court did not clearly err in denying Hall an acceptance-of-responsibility

reduction under § 3E1.1. For the reasons that follow, we AFFIRM.

                                I. BACKGROUND

      Derrick Dajuan Hall was indicted for unlawful possession of an unregistered

short-barreled firearm, in violation of 26 U.S.C. § 5861(d). He subsequently

pleaded guilty to the charge.

      According to the undisputed facts in the Presentence Investigation Report

(“PSI”), Hall was involved in an argument with another individual inside the Blues

Palace Club in Birmingham, Alabama. An off-duty police officer working at the

club broke up the argument and ejected Hall from the club. However, Hall did not

leave the premises; rather he walked around the parking lot and then returned to the

club. The off-duty officer observed Hall walking in a manner that indicated there

may be something concealed in his pant leg and, based upon this observation, one



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of the police officers at the club frisked Hall. During this pat down, the officer felt

a hard object on Hall’s right hip. Officers escorted Hall outside the club, where

they lifted his shirt and saw part of a shotgun protruding from Hall’s pants. The

gun was an Iver Johnson single-barrel, 12 gauge shotgun with a crudely cut off

barrel 13 7/8 inches in length and one loaded round of ammunition. The gun was

not registered in the National Firearms Registration and Transfer Record.

      The probation officer found that Hall had a total adjusted base offense level

of 18 and a criminal history category of II, which produced a sentencing range of

30 to 37 months. In calculating the total adjusted base offense level, the officer

did not recommend an adjustment for acceptance of responsibility, pursuant to

U.S.S.G. § 3E1.1, based upon Hall’s “positive drug screen results for marijuana

and his failure to comply with drug court conditions.” Hall objected to the PSI not

including a downward adjustment for acceptance of responsibility.

      At his sentencing hearing, Hall renewed his objection to the PSI, although he

admitted that he failed three drug tests. The district court overruled the objection,

stating: “It does not show acceptance of responsibility if you keep violating the

law, and positive drug screenings for illegal drugs is a violation of the law. It’s not

just one time. It’s three times.” R4 at 4. The district court accepted the PSI’s

recommended guideline calculations and, noting that the guideline sentencing



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range was advisory, sentenced Hall to 30 months’ incarceration and 3 years’

supervised release. Id. at 4-7.

                                  II. DISCUSSION

      Hall argues on appeal that the district court erred in denying him a

downward adjustment for acceptance of responsibility. Admitting that he tested

positive for marijuana during two drug screenings between his indictment and his

sentencing hearing, Hall contends, inter alia, that the positive drug tests are

insufficient to deny him an adjustment for acceptance of responsibility. In support,

he notes that “he admitted his guilt timely, entered a plea early in the case and did

not commit any further crimes after his plea.” Appellant’s Br. at 10. He also

relies upon dicta in the Second Circuit’s decision in United States v. Woods, 927

F.2d 735, 736 (2d Cir. 1991), in which that circuit expressed doubt whether the

defendant’s failure of three drug tests after pleading guilty “would, standing alone,

provide an adequate ground for denying Woods a sentence reduction.” Id. at 736.

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). The defendant bears the burden of showing entitlement to the

reduction, and, under the clear error standard, the sentencing judge is entitled to

great deference on review. Id. at 756-57.



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      The Guidelines provide for a two-level decrease in a defendant’s base

offense level if “the defendant clearly demonstrates acceptance of responsibility for

his offense.” U.S.S.G. § 3E1.1(a). An additional one-level reduction is permitted

for acceptance of responsibility “[i]f the defendant qualifies for a reduction under §

3E1.1(a), the offense level determined prior to the application of the two-level

decrease is level 16 or greater,” and the government submits a motion “stating that

the defendant assisted authorities in the investigation or prosecution of his own

misconduct by timely notifying authorities of his intention to enter a plea of

guilty.” U.S.S.G. § 3E1.1(b).

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

this section as a matter of right.” U.S.S.G. § 3E1.1 cmt. n.3; see also Williams,

408 F.3d at 756-57 (holding that the district court did not clearly err when it

denied defendant an acceptance-of-responsibility reduction because defendant’s

guilty plea was not sufficient to show his acceptance of responsibility where he had

testified falsely at plea proceeding and sentencing). Although a guilty plea “will

constitute significant evidence of acceptance of responsibility[,] . . . this evidence

may be outweighed by conduct of the defendant that is inconsistent with such

acceptance of responsibility.” U.S.S.G. § 3E1.1 cmt. n.3. An appropriate




                                            5
consideration is whether the defendant truthfully admits conduct comprising the

offense conduct and any additional relevant conduct. Id. cmt. n.1(a).

      Moreover, we held in United States v. Pace, 17 F.3d 341, 344 (11th Cir.

1994), that the district court did not err in declining to grant an adjustment for

acceptance of responsibility based upon the defendant’s drug use alone. See Pace,

17 F.3d at 344. In Pace, the defendant tested positive for marijuana on the day of

his guilty plea and admitted that he had used marijuana a few days earlier. Id. at

342. His marijuana use constituted a violation of a condition of his release on bail.

Id. The probation officer declined to recommend a downward adjustment for

acceptance of responsibility. Id. Over Pace’s objection, the district court denied

the adjustment, and we affirmed. We reasoned that a “district court is authorized

to consider [a defendant’s] 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. at 343.

      The district court did not clearly err in denying Hall an

acceptance-of-responsibility reduction under § 3E1.1. Although Hall pleaded

guilty, that fact alone did not automatically entitle him to the reduction. See

Williams, 408 F.3d at 756-57. During his release pending sentencing, Hall tested

positive for marijuana use, which is a factor the court correctly considered in



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denying Hall the reduction. See Pace, 17 F.3d at 344. We accord great deference

to a district court’s decision to deny a sentence reduction, and, based on the record

here, we cannot find that the district court’s decision to deny a reduction

constituted “clear error.” See Williams, 408 F.3d at 756-57. The Second Circuit’s

decision in Woods does not change this result.

                                III. CONCLUSION

      The district court did not err in considering Hall’s admitted drug use during

his probation in the time period prior to the offense of conviction and in denying

Hall’s request for a sentence reduction for acceptance of responsibility.

Accordingly, we AFFIRM.




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