            Case: 14-12789    Date Filed: 11/26/2014   Page: 1 of 5


                                                           [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-12789
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:13-cr-00047-WLS-TQL-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

CURTIS DRAKES,

                                                           Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________

                             (November 26, 2014)

Before HULL, JULIE CARNES and FAY, Circuit Judges.

PER CURIAM:
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       After pleading guilty, Curtis Drakes, a former federal prison guard, appeals

his 24-month sentence for conspiracy to provide contraband in prison, in violation

of 18 U.S.C. §§ 371, 201(b)(2)(C), 1791(a)(1), and 1791(b)(4). On appeal, Drake

argues that his sentence is procedurally unreasonable because the district court

erred in denying him an offense-level reduction for acceptance of responsibility

and that his sentence is substantively unreasonable. After review, we affirm.

       We review the reasonableness of a sentence for an abuse of discretion using

a two-step process. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).

We look first at whether the district court committed any significant procedural

error, such as miscalculating the advisory guidelines range, treating the guidelines

as mandatory, failing to consider the 18 U.S.C. § 3553(a) factors, selecting a

sentence based on clearly erroneous facts, or failing to explain adequately the

chosen sentence.1 Id.

       Then, we examine whether the sentence is substantively unreasonable in

light of the § 3553(a) factors and the totality of the circumstances. Id. The party

challenging the sentence bears the burden of showing that it is unreasonable. Id. at


       1
         The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) pertinent policy statements of the Sentencing Commission; (9)
the need to avoid unwarranted sentencing disparities; and (10) the need to provide restitution to
victims. 18 U.S.C. § 3553(a).
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1189. We will reverse only if “left with the definite and firm conviction that the

district court committed a clear error of judgment in weighing the § 3553(a) factors

by arriving at a sentence that lies outside the range of reasonable sentences dictated

by the facts of the case.” Id. at 1191(quotation marks omitted).

      As to procedural reasonableness, the district court did not clearly err in

denying Drakes a three-level reduction in his offense level, pursuant to U.S.S.G.

§ 3E1.1(a), for acceptance of responsibility. See United States v. Bradley, 644

F.3d 1213, 1283 (11th Cir. 2011) (reviewing for clear error a district court’s

determination of whether a defendant accepted responsibility). As the district

court correctly noted, Drakes was not entitled to a reduction for acceptance of

responsibility as a matter of right even though he pled guilty and readily admitted

to smuggling cell phones into prison and then selling them to inmates. See

U.S.S.G. § 3E1.1, cmt. n.3.

      Although a guilty plea will constitute significant evidence of acceptance of

responsibility, the evidence may be outweighed by conduct that is inconsistent

with acceptance. United States v. Lewis, 115 F.3d 1531, 1537 (11th Cir. 1997).

Here, Drakes does not dispute that while on pretrial supervision, he submitted a

urine sample that tested positive for the presence of marijuana and cocaine and

then failed to comply with court-ordered substance abuse treatment, both of which

are appropriate factors for the district court to consider in determining whether an


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acceptance-of-responsibility reduction is warranted. See U.S.S.G. § 3E1.1, cmt.

n.1(B), (G).

      Further, the district court did not clearly err in determining that Drakes’s

drug-related conduct was inconsistent with acceptance of responsibility. The

district court found that, despite Drakes’s guilty plea, his failure to follow up with

substance-abuse treatment that was intended to end his drug usage showed that he

was not willing to comply with the law. But, even absent his failure to comply

with court-ordered treatment, Drakes’s drug use while on pretrial supervision

provided sufficient evidence for the district court to deny him the three-level

acceptance-of-responsibility reduction. See United States v. Scoggins, 880 F.2d

1204, 1215-16 (11th Cir. 1989) (upholding a district court’s denial of an

acceptance-of-responsibility reduction where the defendant, charged with theft,

used drugs after his arrest).

      Drakes’s sentence is also substantively reasonable. Drakes’s 24-month

sentence is at the low end of the advisory guidelines range of 24 to 30 months’

imprisonment and well below the five-year statutory maximum under 18 U.S.C.

§ 371. See United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008) (explaining

that, while we do not apply a presumption, we ordinarily expect a sentence inside

the advisory guidelines range to be reasonable); United States v. Gonzalez, 550




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F.3d 1319, 1324 (11th Cir. 2008) (citing the fact that the sentence imposed was

well below the statutory maximum as an indication of reasonableness).

      In denying Drakes’s request for a downward variance, the district court

specifically pointed out that: (1) Drakes’s offense involved a violation of his oath

as a law enforcement officer and endangered the prison facility; (2) his actions

were not completely out of character given that the offense involved multiple

(seven) phones and likely would have continued had he not been discovered; and

(3) there was a significant need not only to punish Drakes, but to deter other prison

officers who might be tempted to engage in similar conduct. We cannot say the

district court abused its discretion when it concluded that those factors outweighed

Drakes’s employment history, family obligations, and limited criminal history, the

factors Drakes cited in support of his variance request. See United States v.

Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (stating that “the weight to be

accorded any given § 3553(a) factor is a matter committed to the sound discretion

of the district court.” (quotation marks omitted)).

      In sum, Drakes has not carried his burden to show his sentence is

procedurally or substantively unreasonable.

      AFFIRMED.




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