           Case: 15-13202   Date Filed: 06/03/2016   Page: 1 of 5


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-13202
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 3:14-cr-00196-HES-JRK-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

EMMIT WADE, JR.,

                                                         Defendant-Appellant.

                      ________________________

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

                              (June 3, 2016)

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Emmit Wade, Jr., pled guilty to mail fraud, in violation of 18 U.S.C. § 1341.

The presentence investigation report, which the district court adopted at

sentencing, prescribed a Guidelines sentence range of 24 to 30 months’

imprisonment. The court varied downward from that range and sentenced Wade to

prison for a year and a day.

      Wade appeals the sentence, asserting it is procedurally unreasonable in that

the district court erred in calculating the Guidelines sentence range. He argues that

the court erred in failing to adjust the Guidelines offense level downward pursuant

to sections 3B1.2 and 3E1.1 for having played a mitigating role in the offense and

for accepting responsibility for his criminal conduct. United States Sentencing

Commission, Guidelines Manual, §§ 3B1.2, 3E1.1. We find no error and therefore

affirm.

                                         I.

      We review for clear error the factual findings on which a district court bases

its denial of a mitigating-role adjustment. United States v. Bernal-Benitez, 594

F.3d 1303, 1320–21 (11th Cir. 2010). Section 3B1.2(a) states that if a defendant

was a minimal participant in the crime, his offense level should be decreased by

four. U.S.S.G. § 3B1.2(a). If he was a minor participant, section 3B1.2(b) states

that his offense level should be decreased by two. Id. § 3B1.2(b). If his

participation was between minimal and minor, his offense level should be


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decreased by three. Id. § 3B1.2. A minimal participant is a defendant who is

“plainly among the least culpable of those involved in the conduct of a group.” Id.

§ 3B1.2, comment. (n.4). A minor participant is a defendant “who is less culpable

than most other participants . . . , but whose role could not be described as

minimal.” Id. § 3B1.2 comment. (n.5).

      The district court must first “compare the defendant's role in the offense with

the relevant conduct attributed to him in calculating his base offense level.”

Bernal-Benitez, 594 F.3d at 1320–21 (quotation marks omitted) (quoting United

States v. Alvarez-Coria, 447 F.3d 1340, 1343 (11th Cir. 2006) (per curiam)).

Second, the district “‘court may compare the defendant's conduct to that of other

participants involved in the offense.’ The defendant must prove his [minimal or]

minor role by a preponderance of the evidence.” Id. (citation omitted) (quoting

Alvarez-Coria, 447 F.3d at 1343).

      The district court did not clearly err in denying the offense-level reduction

for playing a minimal or minor role in the crime. Although Wade did not devise

the fraud scheme, his role in the mail fraud was not minimal nor minor. He is not

plainly among the least culpable in the entire group, under section 3B1.2,

comment. (n.4), when compared with other, similarly situated defendants.

Additionally, the mail fraud could not have happened without Wade providing his

personal information, agreeing for it to be used, intending to defraud, and opening


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a bank account into which the money was deposited, so he cannot be described as a

minor actor. Bernal-Benitez, 594 F.3d at 1320–21; U.S.S.G. § 3B1.2 comment.

(n.5). There was no showing by Wade that he was differently situated than any

other participant in the scheme other than Kelly, who devised the fraud scheme.

U.S.S.G. § 3B1.2 comment. (n.5)

                                         II.

      We review for clear error the factual findings on which a district court bases

its denial of an acceptance-of-responsibility adjustment. United States v. Moriarty,

429 F.3d 1012, 1022 (11th Cir. 2005) (per curiam). “[T]he determination of the

sentencing judge is entitled to great deference on review.” Id. (quotation marks

omitted) (quoting U.S.S.G. § 3E1.1 comment. (n.5)). “Although a guilty plea can

constitute significant evidence of acceptance of responsibility, it may be

outweighed by conduct of the defendant inconsistent with an acceptance of

responsibility.” Id. at 1023; U.S.S.G. § 3E1.1 comment. (n.3).

      In United States v. Scroggins, we concluded that the district court properly

denied a sentence reduction under section 3E1.1(a) when the defendant had

continued to use cocaine after his arrest, even though the defendant had otherwise

comported with section 3E1.1 by admitting criminal responsibility and cooperating

with authorities. 880 F.2d 1204, 1215–16 (11th Cir. 1989). “[A] district court is

authorized to consider subsequent criminal conduct, even if it is unrelated to the


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offense of conviction, in determining whether a decrease for acceptance of

responsibility is appropriate.” United States v. Pace, 17 F.3d 341, 343 (11th Cir.

1994).

      The district court did not clearly err in denying the offense-level reduction

for acceptance of responsibility. The court properly denied the reduction because

Wade had not ceased criminal activity, namely, cocaine use. Scroggins, 880 F.2d

at 1215–16. Although Wade pled guilty to mail fraud, enrolled in drug treatment

and counseling, and kept regular employment, the court was authorized in finding

that his drug use, characterized by the district court as a new law violation,

outweighed everything else. Moriarty, 429 F.3d at 1023; Pace, 17 F.3d at 343.

      AFFIRMED.




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