United States v. Jayway Theson, Jr. ( 2023 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-2520
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United States of America
Plaintiff - Appellee
v.
Jayway Dion Theson, Jr.
Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Jefferson City
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Submitted: January 9, 2023
Filed: March 10, 2023
[Unpublished]
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Before GRASZ, MELLOY, and KOBES, Circuit Judges.
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PER CURIAM.
Jayway Theson, Jr. pleaded guilty to being a felon in possession of a firearm,
18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court1 denied Theson an acceptance
1
The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.
of responsibility reduction and sentenced him to 42 months in prison. We affirm
Theson’s sentence.
Theson challenges the district court’s denial of acceptance of responsibility,
which we review for clear error. United States v. Seys, 27 F.4th 606, 611 (8th Cir.
2022). A defendant may receive a two-level sentencing reduction if he “clearly
demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). A
guilty plea and admitting to the offense conduct constitute “significant evidence” in
favor of a reduction. United States v. Cooper, 998 F.3d 806, 810 (8th Cir. 2021)
(citation omitted). But “this evidence may be outweighed by conduct of the
defendant that is inconsistent with such acceptance of responsibility,” id. (citation
omitted), like further criminal conduct, see United States v. William, 681 F.3d 936,
939 (8th Cir. 2012); United States v. Arellano, 291 F.3d 1032, 1035 (8th Cir. 2002)
(“Even unrelated criminal conduct may make an acceptance of responsibility
reduction inappropriate, and a defendant’s behavior in jail while awaiting sentencing
is a relevant consideration.” (citation omitted)).
Theson argues that the district court erred when it relied on unsubstantiated
PSR allegations to deny him the reduction. We disagree. “Unless a defendant
objects to a specific factual allegation contained in the PSR, the court may accept
that fact as true for sentencing purposes.” United States v. Razo-Guerra, 534 F.3d
970, 975 (8th Cir. 2008) (cleaned up). That is, an objection must “be made with
specificity and clarity before a district court is precluded from relying on” the PSR’s
factual allegations. Id. at 976 (cleaned up).
Theson’s blanket objection to the PSR’s allegations wasn’t sufficiently
specific or clear, so the district court was allowed to accept the PSR as true. And
the district court didn’t clearly err when it found that Theson hadn’t accepted
responsibility. The PSR alleged that Theson assaulted and robbed other inmates and
forged a commissary document while in custody. This criminal conduct was enough
to deny acceptance. See William, 681 F.3d at 939. We affirm.
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