                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                    FILED
                        ________________________         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                                May 1, 2008
                              No. 07-14642                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                   D. C. Docket No. 06-00042-CR-WDO-5

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

MARC ANTHONY ADAMS,

                                                          Defendant-Appellant.


                        ________________________

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

                               (May 1, 2008)

Before BLACK, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Marc Adams appeals his 41-month sentence for conspiracy to possess with
intent to distribute marijuana, in violation of 21 U.S.C. § 846. Initially, the

government argues that Adams knowingly and voluntarily waived his right to

appeal his sentence and is therefore precluded from raising sentencing issues. We

find the waiver invalid and address the two issues raised in Adams’s appeal. First,

Adams argues that the district court unreasonably denied the government’s motion,

pursuant to U.S.S.G. § 3E1.1(b), to allow him a three-level decrease for acceptance

of responsibility. Specifically, he argues that the district court improperly

considered his criminal history in denying the motion. Second, Adams argues that

the district court’s denial of the government’s motion for a downward departure

under U.S.S.G. § 5K1.1 for substantial assistance was “inherently unreasonable”

because the district court provided no explanation for its decision.

                                           I.

      We review the validity of a sentence appeal waiver de novo. United States v.

Weaver, 275 F.3d 1320, 1333 n.21 (11th Cir. 2001). A sentence appeal waiver will

only be enforced if the waiver was knowing and voluntary. United States v.

Bushert, 997 F.2d 1343, 1350-51 (11th Cir. 1993). For a sentence appeal waiver to

be knowing and voluntary, the government must show that: (1) the district court

specifically questioned the defendant about the waiver during the plea colloquy, or

(2) the record is “manifestly clear” that the defendant otherwise understood the



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significance of the appeal waiver. Weaver, 275 F.3d at 1333; Bushert, 997 F.2d at

1351. The waiver will be unenforceable where the district court’s questions are

confusing. Bushert, 997 F.2d at 1352-53. For example, in Bushert, we stated that

a sentence appeal waiver was unenforceable when the district court informed the

defendant generally that he could appeal his sentence under “some circumstances,”

but “did not clearly convey . . . that he was giving up his right to appeal under most

circumstances.” Id. (emphasis in original). The appropriate remedy in a situation

where the record shows that a defendant did not knowingly and voluntarily waive

his right to appeal his sentence is to sever the waiver from the remainder of the

agreement and to consider on appeal the sentencing issues raised by the defendant

that would have been barred by the waiver. See id. at 1353-54.

      Because the district court did not adequately question Adams regarding the

appeal waiver, he did not knowingly and voluntarily waive his appeal rights. See

id. at 1352-53. Therefore, we will consider those sentencing issues that Adams

raises on appeal.

                                          II.

      Because of its proximity to the defendant, a district court’s assessment of a

defendant’s acceptance of responsibility under § 3E1.1 is entitled to great

deference. United States v. Moriarty, 429 F.3d 1012, 1022 (11th Cir. 2005) (per



                                           3
curiam). “Whether a defendant is entitled to a sentencing reduction for acceptance

of responsibility is a factual determination that must be affirmed on appeal unless

clearly erroneous.” United States v. Hromada, 49 F.3d 685, 688-89 (11th Cir.

1995).

         Under § 3E1.1, a two-level decrease is warranted if the defendant “clearly

demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). If

this is found, the offense level may be decreased by one additional level, “upon

motion of the government stating that the defendant has 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). According to the

commentary for § 3E1.1, one of the factors that a district judge should consider

when deciding whether a defendant has accepted responsibility is the “voluntary

termination or withdrawal from criminal conduct or associations.” U.S.S.G. §

3E1.1 cmt. n.1.

         If a defendant tests positive for drug use during pretrial release and

associates with drug users, the district court may deny the adjustment for

acceptance of responsibility. See United States v. Gonsalves, 121 F.3d 1416, 1420

(11th Cir. 1997). Because a defendant’s continued use of illegal drugs constitutes

a continuation of the drug offense for which he was convicted, a district court’s



                                             4
denial of an adjustment for acceptance of responsibility on this ground is not

clearly erroneous. United States v. Matthews, 168 F.3d 1234, 1250 (11th Cir.

1999). When a district court erroneously considers past criminal history in

denying a motion for an acceptance of responsibility reduction, we will not disturb

its decision if it also considered other legitimate and sufficient factors and the issue

was not presented to the district court. Gonsalves, 121 F.3d at 1420-21.

      Accordingly, because Adams’s continued drug use was sufficient grounds to

deny the acceptance of responsibility reduction, and he did not object to the

additional consideration of his criminal history at sentencing, we affirm the district

court’s denial of the reduction. See id.

                                           III.

      Generally, we lack jurisdiction to review a district court’s refusal to grant the

government’s § 5K1.1 motion, unless the district court erroneously believed that it

lacked the authority to apply a downward departure. United States v. Harness, 180

F.3d 1232, 1237 (11th Cir. 1999). We have explained that, “when nothing in the

record indicates otherwise, we assume the sentencing court understood it had

authority to depart downward.” United States v. Chase, 174 F.3d 1193, 1195 (11th

Cir. 1999).

      Because the record does not indicate that the district court erroneously



                                            5
believed that it was without the authority to grant a reduction under § 5K1.1, we

lack jurisdiction to review the district court’s denial of a downward departure in

Adams’s sentence. Accordingly, Adams’s sentence is AFFIRMED.




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