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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-13157
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:16-cr-00412-AKK-HNJ-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

RASHAAD DESHAUN FOSTER,

                                                          Defendant-Appellant.

                       ________________________

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

                              (May 21, 2018)

Before MARCUS, JILL PRYOR and FAY, Circuit Judges.

PER CURIAM:
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      Rashaad Deshaun Foster appeals his 110-month sentence which the district

court imposed after he pled guilty to being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). Foster challenges the district court’s denial of

his request for a sentence reduction for acceptance of responsibility, pursuant to

U.S.S.G. § 3E1.1. After careful review, we affirm.

                              I.      BACKGROUND

      After responding to a call reporting gunshots fired in the area, Birmingham

police officers, acting on a witness’s description of the vehicle from which the

shots were fired, made an investigatory stop of Foster’s vehicle. During the stop,

one of the officers observed what appeared to be a gun magazine lying on the front

passenger seat. The officer asked Foster to step out of the vehicle. Upon exiting

the vehicle, Foster attempted to flee, but the officers quickly apprehended him and

placed him under arrest. A subsequent search of the vehicle yielded a .45 caliber

loaded pistol found underneath the driver’s seat. Foster was arrested due to his

previous felony conviction.

      In the days following his arrest, Foster placed a phone call using another

inmate’s PIN number. During the call, Foster offered to pay an individual to claim

ownership of the gun charged in this case, which also had led to a state criminal

charge. Over the next two weeks, Foster made three more phone calls, during

which he further pressured the individual to claim ownership of the gun. Foster


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coached the individual through the circumstances leading up to Foster’s arrest,

preparing the individual to testify falsely in state court on his behalf. The

individual falsely testified in Foster’s state-court case, claiming ownership of the

gun.

       A federal grand jury indicted Foster for being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). In an interview at the jail, Foster

said that he accepted responsibility for possessing the gun, adding that he had

requested a plea deal from the government on multiple occasions. Approximately

ten months after the phone calls, Foster entered a guilty plea without a plea

agreement.

       Leading up to sentencing, a probation officer prepared a Presentence

Investigation Report (“PSI”). In the PSI, the probation officer applied a two-level

enhancement under U.S.S.G. § 3C1.1 for obstruction of justice and refused to

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

responsibility. Foster objected to the refusal to apply a two-level reduction for

acceptance of responsibility, arguing that three factors, together, entitled him to the

reduction. First, he pled guilty in the absence of a plea agreement despite knowing

the government was seeking a maximum sentence. Second, he did not contest the

obstruction of justice enhancement. Third, he submitted a contrite letter to the

district court, accepting responsibility for possession of the firearm.


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      During sentencing, the district court applied the obstruction of justice

enhancement due to Foster’s repeated phone calls urging an individual to testify

falsely on his behalf. The district court also refused to apply a two-level reduction

for acceptance of responsibility. The district court weighed the factors Foster

presented against the nature of his obstructive conduct, specifically that he “was

trying to get someone to ultimately say the gun was theirs so that he would avoid

potential liability,” and, “[b]ased on the circumstances as a whole,” the court

refused to apply the two-level acceptance of responsibility reduction. Doc. 36 at

12-13. 1 The district court sentenced Foster to 110 months’ imprisonment. This is

his appeal.

                          II.        STANDARDS OF REVIEW

      We review the district court’s denial of an acceptance of responsibility

sentencing adjustment under U.S.S.G. § 3E1.1 for clear error. United States v.

Tejas, 868 F.3d 1242, 1246 (11th Cir. 2017). A factual finding at sentencing is

clearly erroneous when, “although there is evidence to support it, the reviewing

court on the entire evidence is left with the definite and firm conviction that a

mistake has been committed.” United States v. Barrington, 648 F.3d 1178, 1195

(11th Cir. 2011) (internal quotation marks omitted). The district court is in a

unique position to evaluate whether a defendant has accepted responsibility for his


      1
          Citations to “Doc. #” refer to docket entries in the district court record.
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acts, and this determination is entitled to great deference on review. U.S.S.G.

§ 3E1.1 cmt. n.5; see Tejas, 868 F.3d at 1248. We will not set aside a district

court’s denial of a U.S.S.G. § 3E1.1 adjustment unless the facts in the record

clearly establish that the defendant accepted responsibility. Tejas, 868 F.3d at

1248. The defendant bears the burden of proving he accepted responsibility.

United States v. Sawyer, 180 F.3d 1319, 1323 (11th Cir. 1999).

                             III.        DISCUSSION

      Foster argues that we should reverse the district court’s denial of a two-level

sentencing reduction for acceptance of responsibility based on two lines of

reasoning. First, he contends that the district court failed to consider the totality of

the circumstances, including the nature of his obstructive conduct and the degree

and extent of his acceptance of responsibility. To support this assertion, he focuses

on an Eighth Circuit case in which the court listed several examples of relevant

factors that a district court should consider in its totality of the circumstances

analysis. See United States v. Honken, 184 F.3d 961, 968 (8th Cir. 1999). Second,

Foster argues that the district court appeared to believe, erroneously, that the

application of the sentencing enhancement for obstruction terminated its authority

to consider other factors that might warrant a reduction for acceptance of

responsibility. We are unconvinced by either of these arguments and conclude that




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the district court did not clearly err in denying Foster a reduction for acceptance of

responsibility.

      The Sentencing Guidelines provide for a two-level reduction if the defendant

clearly demonstrates acceptance of responsibility for his offense. U.S.S.G.

§ 3E1.1(a); Tejas, 868 F.3d at 1247. In determining whether a defendant qualifies

for this reduction, appropriate considerations include, but are not limited to: (1)

truthfully admitting to the conduct comprising the conviction; (2) voluntary

termination of criminal conduct; (3) voluntary surrender to authorities promptly

after commission of the offense; (4) post-offense rehabilitation efforts; and (5) the

timeliness of the defendant’s conduct in manifesting acceptance of responsibility.

U.S.S.G. § 3E1.1 cmt. n.1.

      If the defendant enters a guilty plea before trial begins, combined with

truthfully admitting the conduct comprising the offense and not falsely denying

any additional relevant conduct, these factors constitute significant evidence of

acceptance of responsibility. U.S.S.G. § 3E1.1 cmt. n.3. This evidence may be

outweighed, however, by conduct that is inconsistent with acceptance of

responsibility, such as obstructing justice. Id. In fact, the Sentencing Guidelines

specifically note that conduct resulting in an enhancement under U.S.S.G. § 3C1.1

for obstruction of justice ordinarily indicates that the defendant has not accepted

responsibility for his criminal conduct. U.S.S.G. § 3E1.1 cmt. n.4. Only under


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extraordinary circumstances will adjustments under both U.S.S.G §§ 3C1.1 and

3E1.1 apply. Id.

      Addressing Foster’s first argument, the district court did not fail to consider

the totality of the circumstances in this case. Foster argues the district court did

not consider the nature of the obstructive conduct and the degree and extent of his

acceptance of responsibility, citing Honken. Assuming for purposes of this opinion

that we consider Honken to be persuasive authority, Honken does not show that the

district court erred in Foster’s case. In Honken, the Eighth Circuit rejected the

district court’s conclusion that if a defendant who obstructed justice pled guilty to

the underlying offense and committed no further obstructive conduct, the court

must consider the case “extraordinary” and apply a sentencing reduction for

acceptance of responsibility. Id. at 968. In rejecting the district court’s bright-line

rule, the Honken court reasoned that, to determine if a case is extraordinary, the

district court must consider the totality of the circumstances, including the nature

of the defendant’s obstructive conduct and the degree of the acceptance of

responsibility. Id. In considering these circumstances, the Honken court provided

examples of factors courts should consider, including whether: (1) the obstructive

conduct was an isolated incident early in the investigation or an on-going effort to

obstruct the prosecution; (2) the defendant voluntarily terminated the obstructive

conduct or whether law enforcement terminated the conduct; (3) the defendant


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admitted and recanted the obstructive conduct; and (4) the defendant assisted in the

investigation of the underlying offense and offenses of others. Id. Honken made

clear that these examples are not all inclusive, and district courts should consider

all relevant circumstances in their analysis. Id. at 969.

      Foster relies on the first and third examples discussed by the Eighth Circuit

in Honken—whether the obstructive conduct was isolated and whether the

defendant admitted and recanted the obstructive conduct—and asserts that the

district court in his case erred by failing to consider these factors. He emphasizes

that considerable time had passed between his obstructive conduct and sentencing,

and that, during that time, he did not replicate any similar obstructive behavior.

Foster also points to his statements accepting responsibility, recounted in the PSI,

including that he accepted responsibility for the firearm, never wanted to take his

case to trial, and requested a plea deal from the government on multiple occasions.

Further, he notes that he pled guilty, despite the government’s refusal to offer a

plea agreement, while facing the statutory maximum sentence.

      Foster’s argument does not establish that the district court failed to consider

the totality of the circumstances, however, and Foster also fails to mention the

remaining factors from Honken, which ultimately weigh against a reduction for

acceptance of responsibility. The record reflects that the district court heard

argument on a number of facts and circumstances related to Foster’s obstructive


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conduct and acceptance of responsibility and based its conclusion on the totality of

the circumstances.

      The district court listened to Foster’s argument regarding his letter to the

court accepting responsibility for his conduct and the absence of a plea agreement,

which exposed Foster to the statutory maximum sentence. The district court

weighed these factors against the nature and extent of the obstructive conduct,

including that Foster placed phone calls from jail—using another inmate’s PIN

number to avoid law enforcement detection—in order to pay someone to testify

falsely in state court, and that individual did in fact commit perjury on Foster’s

behalf in state court. Foster’s failure to voluntarily terminate the obstructive

conduct is in direct contrast with the Sentencing Guidelines commentary and the

Honken court’s examples of when both adjustments should apply. See U.S.S.G.

§ 3E1.1 cmt. n.1; see also Honken, 184 F.3d at 968. Not only did Foster fail to

terminate the obstructive conduct, but the obstructive conduct achieved its purpose,

convincing an individual to commit perjury on his behalf, which resulted in the

commission of an additional crime. While Foster did not engage in any similar

obstructive conduct during the time between the conduct and sentencing, it is

unclear what incentive to further obstruct justice remained after Foster had

succeeded in his original plan. Foster presented no evidence that he assisted in the

investigation of his offense or the offenses of others. See Honken, 184 F.3d at 968.


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The nature of the obstructive conduct in this case weighs against Foster’s

acceptance of responsibility, and the circumstances do not fall into the

extraordinary category contemplated by the Sentencing Guidelines where both

adjustments should apply.

         Regarding Foster’s second argument, he has failed to show that the district

court erroneously believed that application of the obstruction enhancement

rendered it without authority to consider other factors that might suggest Foster

accepted responsibility for his offense. The district court stated that its decision

was “based on the circumstances as a whole,” indicating that the court recognized

its authority to weigh each factor, without a bright-line rule preventing the court

from applying an acceptance of responsibility reduction. Doc. 36 at 12.

Considering the totality of circumstances, the district court simply did not find this

case to be so extraordinary as to warrant a sentence reduction for acceptance of

responsibility after Foster obstructed justice.

         Based on the district court’s unique position to evaluate whether a defendant

has accepted responsibility, and Foster’s failure to overcome his burden to show

clear error, for the reasons set forth above, we affirm the judgment of the district

court.

         AFFIRMED.




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