United States v. Mitchell, De Andre , 206 F. App'x 591 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 15, 2006
Decided November 22, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
No. 06-1919
Appeal from the United States
UNITED STATES OF AMERICA, District Court for the
Plaintiff-Appellee, Western District of Wisconsin
v. No. 06-CR-006-S-01
DE ANDRE MITCHELL, John C. Shabaz,
Defendant-Appellant. Judge.
ORDER
After prison officials found a homemade knife in De Andre Mitchell’s cell, he
pleaded guilty to being an inmate in possession of a weapon in violation of 18 U.S.C.
§ 1791(a)(2) and (d)(1)(B). The district court denied Mitchell the two-point
reduction for acceptance of responsibility under U.S.S.G. § 3E1.1 because he would
not identify the inmate who supplied him with the knife, and sentenced him to 30
months. Mitchell challenges the denial of the reduction, which increased the
advisory guidelines range from 24- to 30-months to 30- to 37-months. Because
sentencing courts may deny acceptance points when defendants refuse to disclose
information about the source of contraband, we affirm.
After receiving a tip from another inmate, prison officials found a ten-inch
homemade knife in Mitchell’s cell in November 2005. When questioned by prison
No. 06-1919 Page 2
officials, Mitchell admitted that the knife was his and said he made the weapon.
According to the presentence investigation report (“PSR”), he “could not recall the
name of the individual who supplied him with the metal he used to fashion the
homemade knife.” When the FBI subsequently questioned Mitchell, he again
admitted that the knife was his, but this time he said that he “acquired the
homemade weapon from another inmate around August 2005.” Mitchell “would not
identify the inmate” to the FBI.
In the government’s words, “Mitchell did not dither” once he was charged.
He pleaded guilty eight days after his arraignment, foregoing the benefit of a plea
agreement. During the plea colloquy he admitted that he was an inmate, that the
homemade knife belonged to him, and that it was a weapon. A presentence
investigation report was prepared and the probation officer recommended a two-
level reduction for acceptance of responsibility under § 3E1.1. This brought
Mitchell’s offense level down from 13 to 11, which, combined with a criminal history
category of V, yielded an advisory guidelines range of 24 to 30 months. Neither
party objected to the PSR.
At sentencing the court on its own announced that it saw no reason to apply
the acceptance of responsibility reduction. While not as specific as it might have
been, the court noted in its written statement of reasons that Mitchell “acquired a
homemade weapon from another inmate but would not identify the inmate.”
Without the reduction, the court determined Mitchell’s offense level was 13, which
increased his advisory guidelines range from 24- to 30-months to 30- to 37-months.
The court’s sentence of 30 months fell within both of these ranges.
The crux of Mitchell’s argument on appeal is that he “did all that is required
of a defendant in order to receive a reduction for acceptance of responsibility”
because he acknowledged guilt for the charged offense, did not refuse to answer any
questions posed to him by the district court or probation office, and was under no
obligation to “affirmatively volunteer information that nobody asked him about.”
This court reviews an acceptance-of-responsibility determination for clear
error. See United States v. Gilbertson, 435 F.3d 790, 798 (7th Cir. 2006); United
States v. Lister, 432 F.3d 754, 759 (7th Cir. 2005). The defendant bears the burden
of proving that he is entitled to the § 3E1.1 reduction, and pleading guilty does not
in and of itself entitle a defendant to the acceptance-of-responsibility reduction. See
United States v. Leahy, 464 F.3d 773, 790-01 (7th Cir. 2006). Moreover, “when
defendants refuse to provide information about the source of the contraband they
possess, they may be denied the sentence reduction for acceptance of responsibility.”
United States v. Larkin, 171 F.3d 556, 557-58 (7th Cir. 1999) (upholding denial of
§ 3E1.1 reduction where inmate refused to tell the probation office or the court
where he got the marijuana underlying his inmate-in-possession-of-contraband
No. 06-1919 Page 3
conviction); see United States v. Hammick, 36 F.3d 594, 601 (7th Cir. 1994)
(upholding denial of acceptance-of-responsibility reduction where defendant
convicted of fraud refused to reveal source of counterfeit credit cards); In re Sealed
Case, 350 F.3d 113, 123 (D.C. Cir. 2003) (sentencing court may deny acceptance-of-
responsibility reduction based on the defendant’s refusal to reveal source of
contraband possessed at the time of arrest).
Mitchell did not come clean about the source of the homemade knife—even
when asked about it directly by the FBI—and therefore the district court did not
clearly err in denying him the § 3E1.1 reduction. The PSR states that when
questioned by the FBI, “he would not identify the inmate” who supplied him with
the knife. Mitchell did not object to the PSR, so the district court could rely on the
information contained within it in denying him the acceptance-of-responsibility
points. See Fed. R. Crim. P. 32(i)(3)(A) (a district court at sentencing “may accept
any undisputed portion of the presentence report as a finding of fact”); United
States v. Salinas, 365 F.3d 582, 587 (7th Cir. 2004) (when court relies on PSR
information at sentencing, “the defendant bears the burden of showing that the
presentence report is inaccurate or unreliable”).
Mitchell raises several other issues on appeal—that the district court failed
to make certain findings of fact and should not have denied him acceptance points
based on his pre-plea conduct. We have considered these arguments and find no
merit to them. Accordingly, Mitchell’s sentence is AFFIRMED.