               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 19a0380n.06

                                         No. 18-6193

                                                                                    FILED
                         UNITED STATES COURT OF APPEALS                          Jul 26, 2019
                              FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk
 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,                         ON APPEAL FROM THE UNITED
                                                    STATES DISTRICT COURT FOR THE
 v.
                                                    WESTERN DISTRICT OF
 CHRISTOPHER SMITH,                                 TENNESSEE

        Defendant-Appellant.



BEFORE: SUHRHEINRICH, CLAY, and DONALD, Circuit Judges.

       CLAY, Circuit Judge. Defendant Christopher Smith appeals the district court’s October

29, 2018 order sentencing him to a 97-month term of imprisonment and a 3-year term of supervised

release following his guilty plea to the charge of being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). Defendant’s guilty plea and sentence arise out of a gunfight

between Defendant and two of his childhood friends in which all three individuals were injured.

For the reasons set forth below, we AFFIRM the district court’s sentence.

                                      BACKGROUND

                                     Factual Background

       On April 6, 2017, a gunfight occurred outside a housing complex in Memphis, Tennessee.

The three individuals involved in the gunfight were Defendant and two of his childhood friends,

brothers Darrell Coleman and Avanti Cloyd. Law enforcement officers found Coleman and Cloyd

on the ground in front of the complex with gunshot wounds to the left arm and abdomen
Case No. 18-6193, United States v. Smith


respectively. Law enforcement officers found Defendant on the floor inside of an adjacent housing

complex with gunshot wounds to the right arm. Nearby surveillance footage showed that, after the

gunfight, Defendant followed a resident into the adjacent complex, where he tried to dispose of a

firearm before falling to the floor as a result of his injuries.

        At the outset of the law enforcement investigation into the gunfight, Coleman and Cloyd

told the officers that an unknown man had approached them outside of the housing complex and

shot them for no reason. Defendant told the officers that two unknown men had approached him

outside of the housing complex and shot him as part of an attempted robbery. However, as the

investigation progressed, an entirely different version of events began to take shape.

        One week after the gunfight, Coleman and Cloyd recanted their initial statements, and told

the officers that it was in fact Defendant, a childhood friend, who had shot them. Coleman and

Cloyd explained that Defendant was in a turbulent romantic relationship with their mother, that

their mother reported to them that on several occasions Defendant threatened to kill her, and that

they confronted Defendant about these reports outside of the housing complex. Coleman and

Cloyd further explained that, during the confrontation, Cloyd challenged Defendant to a fistfight,

and Defendant responded by pulling out a firearm and shooting them, at which point Cloyd shot

back in self-defense.

        Shortly thereafter, Defendant was arrested. Defendant refused to recant his initial statement

at that time, but would later confirm that Coleman and Cloyd confronted him outside of the housing

complex about his romantic relationship with their mother. However, Defendant stated that, during

the confrontation, Cloyd pulled out a firearm and shot him, at which point he shot back in self-

defense.




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                                               Procedural History

         On March 29, 2018, Defendant was charged in the United States District Court for the

Western District of Tennessee with being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1).1 On July 27, 2018, Defendant pleaded guilty to the charged offense. (RE 26,

PageID # 27.) And on October 29, 2018, the district court sentenced Defendant to a 97-month term

of imprisonment and a 3-year term of supervised release.

         Two aspects of Defendant’s sentencing hearing are relevant to this appeal. First, Defendant

argued that Cloyd pulled out a firearm and shot him, at which point he shot back in self-defense,

and that as a result the district court should not calculate his base offense level pursuant the

guidelines cross-reference for attempted murder, U.S.S.G. § 2A2.1(a)(2). The government

countered that Defendant pulled out a firearm and shot Coleman and Cloyd, at which point Cloyd

shot back in self-defense. Cloyd testified in accordance with the government’s argument;

Defendant did not testify. And the district court ultimately found that, based upon a preponderance

of the evidence, Defendant “was first to pull his gun and fire the shots,” at which point Cloyd shot

back in self-defense. (RE 37, Sentencing Hearing Transcript, PageID # 192–93, 201.)

Accordingly, the district court applied the guidelines cross-reference for attempted murder.

         Second, the government argued that during the law enforcement investigation into the

gunfight, Defendant provided two false statements regarding the gunfight, and that as a result the

district court should not reduce Defendant’s total offense level pursuant to the guidelines reduction

for acceptance of responsibility, U.S.S.G. § 3E1.1(a). Specifically, the government argued that

Defendant initially falsely stated that two unknown men had approached him outside of the



         1
           On August 10, 2017, Defendant was charged in Tennessee state court with attempted murder, employing
a firearm with intent to commit a felony, and being a felon in possession of a firearm, in violation of Tennessee state
law.

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Case No. 18-6193, United States v. Smith


housing complex and shot him as part of an attempted robbery, and that Defendant later falsely

stated that Cloyd pulled out a firearm and shot him, at which point he shot back in self-defense.

Defendant countered that he pleaded guilty before trial, admitted to being a felon in possession of

a firearm, and did not frivolously contest the facts surrounding the shooting, all of which evince

acceptance of responsibility. And the district court ultimately found that Defendant both “went out

of his way to . . . send the police . . . down a wild goose chase” by initially making a false, “self-

serving” statement about an attempted robbery, and later made a “false denial” by “contesting the

fact[]” that he pulled out a firearm and shot Coleman and Cloyd, at which point Cloyd shot back

in self-defense. (Id. at PageID # 197–98, 200–01.) Accordingly, the district court did not apply the

guidelines reduction for acceptance of responsibility.

        This appeal followed.

                                           DISCUSSION

        On appeal, the only issue is whether Defendant’s sentence was procedurally unreasonable

because the district court improperly determined that the acceptance of responsibility reduction

should not be applied. Defendant argues that the district court used the wrong test in determining

that the acceptance of responsibility reduction should not be applied. The government argues that

the district court used the correct test in determining that the acceptance of responsibility reduction

should not be applied. Because the record clearly indicates that the district court used the correct

test, we hold that Defendant’s sentence was not procedurally unreasonable.

   I.      Standard of Review

        Typically, we review for clear error the factual aspects of district court’s acceptance of

responsibility determination, and review de novo the propriety of applying the acceptance of

responsibility reduction to uncontested facts. United States v. Denson, 728 F.3d 603, 614 (6th Cir.



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Case No. 18-6193, United States v. Smith


2013). However, in this case, Defendant does not appear to contest the district court’s factual

findings that he initially falsely stated that two unknown men had approached him outside of the

housing complex and shot him as part of an attempted robbery, and that he later falsely stated that

Cloyd pulled out a firearm and shot him, at which point he shot back in self-defense.2 And

Defendant also does not appear to contest the propriety of applying the acceptance of responsibility

reduction to those factual findings.3 Rather, Defendant argues that the district court used the wrong

test in determining that the acceptance of responsibility reduction should not be applied.

         However, “‘where a party has failed to object to a procedural defect’ at the sentencing

hearing, ‘we review claims of procedural unreasonableness for plain error.’” United States v. King,

914 F.3d 1021, 1024 (6th Cir. 2019) (quotation omitted). Defendant concedes that he did not object

at the sentencing hearing to the test that the district court used. And Defendant’s claims on appeal

is that his sentence was procedurally unreasonable. See United States v. Mackety, 650 F.3d 621,

624 (6th Cir. 2011); see also United States v. Hill, 620 F. App’x 380, 382 (6th Cir 2015). Thus, in

this case, we review only for plain error whether the district court used the wrong test in

determining that the acceptance of responsibility reduction should not be applied. See United


         2
           To the extent that Defendant does contest these factual findings, neither was clearly erroneous. With regard
to the former, Defendant conceded that his initial statement about the gunfight was false. And “[w]hen, as here, the
defendant admits to [engaging in certain conduct], it is not clearly erroneous for the [district] court to determine that
a preponderance of the evidence establishes that the defendant [engaged in that conduct].” United States v. Wilson,
954 F.2d 374, 377 (6th Cir. 1992). With regard to the latter, the district court acknowledged that there were “multiple
versions of what happened” outside of the housing complex and that it “d[id] [its] best” to evaluate each version,
before finding that Defendant’s later statement about the gunfight was also false. (RE 37, PageID # 109, 188, 192–
93.) And “[c]lear error will not be found where two permissible views of the evidence exist.” United States v. Jeross,
521 F.3d 562, 570 (6th Cir. 2008).
         3
           In one paragraph of his brief to this Court, Defendant asserts, without any citation, that he “truthfully
admitted his guilt in connection with the offense for which he was charged,” which “was significant evidence of
acceptance of responsibility.” (Brief for Appellant at 18.) But “the mere entry of a guilty plea does not entitle a
defendant to a sentence reduction as a matter of right.” United States v. Edwards, 272 F.3d 812, 815 (6th Cir. 2001).
In the same paragraph, Defendant also asserts, without any citation, that this “significant evidence of acceptance of
responsibility” “outweighs” his conduct inconsistent with acceptance of responsibility. (Brief of Appellant at 18.) But
such a “conclusory argument” made “without any further discussion or citation to authority” is forfeited. General Star
Nat. Ins. Co. v. Administratia Asigurarilor de Stat, 289 F.3d 434, 441 (6th Cir. 2002).


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Case No. 18-6193, United States v. Smith


States v. Forte, 81 F.3d 215, 217 (D.C. Cir. 1996) (reviewing the same argument only for plain

error because the defendant did not object at the sentencing hearing to the test applied by the

district court). Plain error requires “(1) error, (2) that was obvious or clear, (3) that affected [the

defendant’s] substantial rights and (4) that affected the fairness, integrity, or public reputation of

the judicial proceedings.” King, 914 F.3d at 1024 (quotation omitted).

   II.         Analysis

         U.S.S.G. § 3E1.1(a) states that “[i]f the defendant clearly demonstrates acceptance of

responsibility for his offense,” the district court must “decrease the [total] offense level by 2

levels.” The defendant bears the burden to demonstrate acceptance of responsibility by a

preponderance of the evidence. United States v. Denson, 728 F.3d 603, 614 (6th Cir. 2013). And

the test for determining whether the defendant has met that burden is a “two-step inquiry:” first,

whether the defendant has “demonstrated significant evidence of acceptance of responsibility;”

and second, whether that evidence is “outweighed by conduct inconsistent with such

acceptance[.]” United States v. Hollis, 823 F.3d 1045, 1047 (6th Cir. 2016).

         With regard to the first step of the inquiry, “[t]he guidelines recognize that the combination

of three acts—‘pleading guilty before trial, truthfully admitting the conduct comprising the offense

of conviction, and truthfully admitting or not falsely denying any additional relevant conduct’”—

is one way in which a defendant can demonstrate “significant evidence of acceptance of

responsibility.” Denson, 728 F.3d at 614 (quotation omitted). Accordingly, this Court has

frequently recognized that a defendant’s false denial of relevant conduct is an appropriate basis for

determining that the acceptance of responsibility reduction should not be applied. See, e.g., United

States    v.    Heredia-Pieto,   742   F.   App’x       962,   967   (6th   Cir.   2018)   (“[R]elevant

precedent . . . consistently affirms denials of acceptance-of-responsibility reductions when the



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Case No. 18-6193, United States v. Smith


defendant falsely denied the [relevant] conduct.”) (alterations in original) (collecting cases);

United States v. Lay, 583 F.3d 436, 448 (6th Cir. 2009) (“The district court’s denial of the reduction

for acceptance of responsibility was not erroneous, notwithstanding [the defendant’s] guilty plea

and statement purporting to accept responsibility. The court explicitly found [the defendant] not

to be credible or honest when testifying on certain relevant matters.”). The commentary to § 3E1.1

confirms as much, stating that while a defendant “is not required to volunteer, or affirmatively

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.” U.S.S.G. § 3E1.1

cmt. 1(A).

       However, the commentary to § 3E1.1 also confirms that a defendant’s false denial of

relevant conduct does not automatically preclude application of the acceptance of responsibility

reduction. Specifically, the commentary states that “the fact that a defendant’s challenge [to

relevant conduct] is unsuccessful does not necessarily establish that it was either a false denial or

frivolous.” U.S.S.G. § 3E1.1 cmt. 1(A) (emphasis added). This sentence was added to the

commentary by a 2018 amendment in “respon[se] to concerns that some courts ha[d] interpreted

the commentary to § 3E1.1 . . . to automatically preclude application of the 2-level reduction for

acceptance of responsibility when the defendant makes an unsuccessful good faith, non-frivolous

challenge to relevant conduct.” U.S.S.G. Suppl. to App’x C, Amendment 810 (2018) (emphasis

added); see, e.g., United States v. Forte, 81 F.3d 215, 217–18 (D.C. Cir. 1996) (“The Guidelines

and cases are somewhat murky on the effect of a defendant’s lying about relevant conduct upon

his ability to receive § 3E1.1’s acceptance of responsibility adjustment. . . . A strong reading [of

the commentary to § 3E1.1] would mean that mendacity as to relevant conduct would be an



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Case No. 18-6193, United States v. Smith


absolute bar to the reduction; a weak reading would mean that it only counted against award of

the reduction.”) (emphasis added).4

         Thus, while a defendant’s false denial of relevant conduct is an appropriate basis for

determining that the acceptance of responsibility reduction should not be applied, it does not

automatically preclude application of the acceptance of responsibility reduction. Rather, it is one

of multiple considerations that the district court may weigh in making its determination. See Hollis,

823 F.3d at 1047. Other permissible considerations include, for instance, “voluntary termination

or withdrawal from criminal conduct or associations,” “voluntary payment of restitution prior to

adjudication of guilt,” “voluntary surrender to authorities promptly after commission of the

offense,” and “the timeliness of the defendant’s conduct in manifesting the acceptance of

responsibility.” See U.S.S.G. § 3E1.1 cmt. 1(A)–(H). Courts should ultimately “weigh the totality

of a defendant’s conduct.” United States v. Bradshaw, 102 F.3d 204, 214 (6th Cir. 1996).

         In this case, Defendant argues that the district court impermissibly held that his false denial

of relevant conduct automatically precluded application of the acceptance of responsibility

reduction. In contrast, the government argues that the district court permissibly held that

Defendant’s false denial of relevant conduct was an appropriate basis for its determination that the



         4
           Although the 2018 amendment to the commentary to § 3E1.1 became effective on November 1, 2018, two
days after Defendant was sentenced, it is plainly a retroactive amendment. See United States v. Curb, 625 F.3d 968,
971 (6th Cir. 2010). “Whether [an amendment] applies retroactively . . . turns on whether it was ‘clarifying’ or
‘substantive.’” United States v. Jackson, 901 F.3d 706, 709 (6th Cir. 2018). A clarifying amendment applies
retroactively, while a substantive amendment does not. See id. When determining whether an amendment is
“clarifying” or “substantive,” we consider three factors: “(1) how the Sentencing Commission characterized the
amendment; (2) whether the amendment changes the language of the guideline itself or changes only the commentary
for the guideline; and (3) whether the amendment resolves an ambiguity in the original wording of the guideline.”
United States v. Geerken, 506 F.3d 461, 465 (6th Cir. 2007) (quotation omitted). In this case, all three factors favor
classifying Amendment 810 as “clarifying.” The Sentencing Commission explicitly characterized the amendment as
“clarif[ying].” U.S.S.G. Suppl. to App’x C, Amendment 810 (2018). The amendment changes only the commentary
for § 3E1.1 as opposed to § 3E1.1 itself. Id. And the amendment resolves an ambiguity in the original wording of the
commentary. Id.; see e.g. Forte, 81 F.3d at 217–18 (explaining the ambiguity). Accordingly, Amendment 810 is
plainly a “clarifying,” and therefore retroactive, amendment. See Geerken, 506 F.3d at 466; see also United States v.
Carter, 662 F. App’x 342, 349 (6th Cir. 2016).

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Case No. 18-6193, United States v. Smith


acceptance of responsibility reduction was inapplicable. The record clearly indicates that the

government’s argument prevails.

       At the sentencing hearing, the district court first determined which of the “multiple versions

of what happened” outside of the housing complex was supported by a preponderance of the

evidence. (RE 37, PageID # 109.) Although Defendant argued that Cloyd pulled out a firearm and

shot him, at which point he shot back in self-defense, the district court stated that “[t]hat [was] not

a credible theory” because it was “not at all convinced that [Coleman and Cloyd] were so upset

[about Defendant’s romantic relationship with their mother] that they would’ve tried to initiate a

gunfight.” (Id. at PageID # 189–90.) The district court explained that Cloyd’s testimony that

Defendant pulled out a firearm and shot Coleman and Cloyd, at which point Cloyd shot back in

self-defense, was “uncontroverted” because Defendant “ha[d] not [testified to] his version of

events.” (Id. at PageID # 190–91.) And the district court ultimately found that “the self-defense

argument by the defendant simply d[id] not satisfy the preponderance of the evidence,” whereas

the government’s argument did. (Id. at PageID # 193.)

       The district court then turned to the acceptance of responsibility reduction. The district

court explained that it was “[i]nitially . . . very skeptical of the acceptance of responsibility

[reduction]” because Defendant “went out of his way to . . . send the police . . . down a wild goose

chase” by initially making a false, “self-serving” statement about an attempted robbery. (Id. at

PageID # 197–98.) However, the district court also explained that Defendant “did admit to the

essential elements of th[e] case,” and that “all three” of the individuals initially provided false

statements to the law enforcement officers, likely because “they all grew up together.” (Id at

PageID # 198.) And at this point, the district court was actually inclined to grant Defendant the




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Case No. 18-6193, United States v. Smith


acceptance of responsibility reduction, finding that he “provide[d] enough” evidence of acceptance

of responsibility, albeit “barely.” (Id.)

        However, the government reminded the district court that Defendant had also falsely

denied relevant conduct that the court had determined to be true when he argued that Cloyd pulled

out a firearm and shot him, at which point he shot back in self-defense. The district court then

stated that “[i]n looking at [U.S.S.G. § 3E1.1 cmt. 1(a)], it does indicate that a false denial of

relevant conduct is a basis for denying acceptance [of responsibility credit].” (Id. at PageID # 200.)

(emphasis added). The district court further explained:

        The Court is going to go back and make sure this is clear. . . . [T]he way acceptance
        of responsibility works is it is defined as “clearly demonstrating acceptance of
        responsibility for the offense.” [Defendant] was well on his way to doing that by
        admitting his guilt and making [a] statement to the probation office. But . . . the
        Court has now found that the government has met its burden of proof with regard
        to the shooting and the fact that [Defendant] was first to pull his gun and fire the
        shots. Because of that, as I read the commentary for 3E1.1, I find that [Defendant],
        while it’s not a frivolous objection, he did falsely deny the relevant conduct. And
        that false denial is inconsistent with acceptance of responsibility.

(Id. at PageID # 200–01.) Accordingly, the district court ultimately found that the government’s

argument was “appropriate” and “actually carrie[d] the day,” and that the acceptance of

responsibility reduction should not be applied. (Id. at PageID # 201.)

        This record clearly indicates that the district court did not impermissibly hold that his false

denial of relevant conduct automatically precluded application of the acceptance of responsibility

reduction. Rather, the district court permissibly held that Defendant’s false denial of relevant

conduct was an appropriate basis for its determination that the acceptance of responsibility

reduction should not be applied. Indeed, the district court weighed multiple considerations,

including Defendant’s guilty plea, Defendant’s admission to being a felon in possession of a

firearm, Defendant’s first false statement about an attempted robbery, and Coleman and Cloyd’s



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Case No. 18-6193, United States v. Smith


false statements about a random shooting. The district court also weighed Defendant’s false denial

of relevant conduct, before citing that false denial as “a basis” for its acceptance of responsibility

determination. (Id. at PageID # 200.) Such weighing of considerations is precisely what this

Court’s precedent dictates. See Hollis, 823 F.3d at 1047. Thus, we hold that Defendant’s sentence

was not procedurally unreasonable.

                                          CONCLUSION

       For the reasons set forth above, we AFFIRM the district court’s sentence.




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