           Case: 19-13545   Date Filed: 04/15/2020   Page: 1 of 5



                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-13545
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:18-cr-00468-TFM-SRW-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,


                                 versus


LATRAIL MARCELLUS JACKSON, SR.,

                                                         Defendant-Appellant.

                      ________________________

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

                             (April 15, 2020)

Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      The government charged the appellant Latrail Jackson with several drug and

firearm offenses. The drug charges included one count of possession with intent to

distribute cocaine hydrochloride, one count of possession with intent to distribute

marijuana, and one count of possession with intent to distribute methamphetamine.

Jackson took his case to trial. He testified there that he possessed cocaine and

marijuana, but that he did not intend to distribute those drugs. He also denied flat

out that he possessed or intended to distribute methamphetamine. His latter

testimony conflicted with government evidence showing that a confidential

informant had bought methamphetamine from Jackson several times.

      The jury convicted Jackson of the cocaine and marijuana charges, but it

acquitted him of the methamphetamine charge. At sentencing, Jackson sought a

two-point acceptance-of-responsibility reduction under U.S.S.G. § 3E1.1, given

that he purportedly admitted to the facts underlying the marijuana and cocaine

charges at trial. The district court did not apply the reduction; instead, it found by

a preponderance of the evidence that Jackson had in fact sold methamphetamine

and that his false testimony to the contrary made him ineligible for the acceptance-

of-responsibility reduction. The court then sentenced him to 210 months’

imprisonment. This is Jackson’s appeal. He claims that the district court erred in

denying the reduction.




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      We review for clear error a district court’s decision not to apply a reduction

for acceptance of responsibility under U.S.S.G. § 3E1.1. United States v.

Moriarty, 429 F.3d 1012, 1022–23 (11th Cir. 2005) (per curiam). We will affirm

the district court’s decision unless the record clearly establishes that the defendant

has accepted responsibility. Id.

      The acceptance-of-responsibility provision warrants a two-level decrease in

the defendant’s offense level if “the defendant clearly demonstrates acceptance of

responsibility for his offense.” U.S.S.G. § 3E1.1(a). District courts may consider,

among other things, whether the defendant truthfully admitted the conduct

comprising the offense of conviction. Id. § 3E1.1, comment. (n.1(A)). They may

also consider whether the defendant truthfully admitted or did not falsely deny

“any additional relevant conduct for which the defendant is accountable.” Id. A

defendant who exercises his right to trial and is convicted may clearly demonstrate

acceptance of responsibility “[i]n rare situations,” such as “where a defendant goes

to trial to assert and preserve issues that do not relate to factual guilt.” Id. § 3E1.1,

comment. (n.2). The sentencing judge is best positioned to evaluate the

defendant’s acceptance of responsibility, and thus its determination is entitled to

great deference. Id. § 3E1.1, comment. (n.5).

      “[A] jury’s verdict of acquittal does not prevent the sentencing court from

considering conduct underlying the acquitted charge, so long as that conduct has


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been proved by a preponderance of the evidence.” United States v. Watts, 519 U.S.

148, 157 (1997) (per curiam). “An acquittal on criminal charges does not prove

that the defendant is innocent; it merely proves the existence of a reasonable doubt

as to his guilt.” United States v. Campbell, 491 F.3d 1306, 1317 n.14 (11th Cir.

2007) (alteration accepted).

      The district court did not clearly err in refusing to apply the reduction.

Though Jackson admitted to possessing marijuana and cocaine at trial, he disputed

the methamphetamine charge entirely. The government, in contrast, introduced

evidence that a confidential informant bought methamphetamine from Jackson

several times. The district court, in denying the reduction, was entitled to consider

this relevant acquitted conduct and credit the government’s evidence over

Jackson’s testimony. See Watts, 519 U.S. at 157; U.S.S.G. § 3E1.1, comment.

(n.1(A)). Given this evidence, the district court did not clearly err in concluding

that Jackson falsely testified about relevant acquitted conduct, and thus failed to

accept responsibility.

      Along with this, Jackson has not shown that his partial admission of guilt at

trial qualifies him for the reduction. Though Jackson admitted to possessing

cocaine and marijuana, he stopped short of saying that he intended to distribute

those drugs. He thus forced the government to prove those facts. So there is no

indication that Jackson went to trial simply to “assert and preserve issues that do


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not relate to factual guilt.” U.S.S.G. § 3E1.1, comment. (n.2). As a result, his is

not the “rare instance” in which a defendant can go to trial on the offense of

conviction yet still retain the ability to qualify for an acceptance-of-responsibility

reduction. See id.

      For these reasons, we cannot say that the district court clearly erred in

refusing to apply a reduction for acceptance of responsibility. See Moriarty, 429

F.3d at 1022–23.

      AFFIRMED.




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