The opinion
Case: 19-12601 Date Filed: 08/05/2020 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-12601
Non-Argument Calendar
________________________
D.C. Docket No. 8:18-cr-00400-VMC-SPF-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRESE COLSTON,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(August 5, 2020)
Before GRANT, LUCK and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Terrese Colston (“Colston”) appeals the district court’s imposition
of a 360-month sentence for carjacking, brandishing a firearm during a carjacking,
Case: 19-12601 Date Filed: 08/05/2020 Page: 2 of 7
and being a felon in possession of a firearm and ammunition. He argues that the
district court erred when it concluded that he was a career offender because, he
contends, his prior Florida controlled substance convictions should not count as
predicate offenses and that the district court erred when it did not award him a two-
level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. He also
challenges the substantive reasonableness of his sentence.
I.
We review de novo the district court’s interpretation of the guidelines and its
application of the guidelines to the facts. United States v. Cingari, 952 F.3d 1301,
1305 (11th Cir. 2020). We review de novo the district court’s decision to classify a
defendant as a career offender under U.S.S.G. § 4B1.1. United States v. Gibson,
434 F.3d 1234, 1243 (11th Cir. 2006). We review a district court’s determination
of whether to apply a reduction for acceptance of responsibility for clear error.
United States v. Moriarty, 429 F.3d 1012, 1022 (11th Cir. 2005) (per curiam).
“The district court is in a unique position to evaluate whether a defendant has
accepted responsibility for his acts, and this determination is entitled to great
deference on review.” United States v. Tejas, 868 F.3d 1242, 1247 (11th Cir.
2017) (per curiam). We review the substantive reasonableness of a sentence under
2
Case: 19-12601 Date Filed: 08/05/2020 Page: 3 of 7
an abuse of discretion standard. United States v. Gomez, 955 F.3d 1250, 1255
(11th Cir. 2020) (per curiam).
II.
Colston contends that the district court should not have sentenced him as a
career offender. He argues that his convictions for violations of Florida Statute §
893.13 are too broad to qualify as predicate offenses for a career offender
enhancement because the statute does not have a mens rea requirement. Colston
acknowledges that this court’s precedent forecloses this argument.
A defendant is a career offender if, among other things, he has at least two
prior felony convictions for a controlled substance offense. U.S.S.G. § 4B1.1(a).
We have held that a prior conviction under Fla. Stat. § 893.13(1) is a “controlled
substance offense” under U.S.S.G. § 4B1.2(b). See United States v. Pridgeon, 853
F.3d 1192, 1200 (11th Cir. 2017); United States v. Smith, 775 F.3d 1262, 1267-68
(11th Cir. 2014). In Smith, we rejected the argument that a predicate offense, as
defined under § 4B1.2(b), requires a mens rea, noting that neither Congress nor the
Sentencing Commission had called for a mens rea requirement in the prior
offenses. Id. at 1267. Thus, under our binding precedent, we conclude that the
district court did not err in designating Colston as a career offender.
3
Case: 19-12601 Date Filed: 08/05/2020 Page: 4 of 7
III.
Colston argues that the district court erred when it did not grant him a two-
level adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. To
receive a two-level reduction under § 3E1.1(a), the defendant must “clearly
demonstrate[] acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a).
“The determination of whether a defendant has adequately manifested acceptance
of responsibility is a flexible, fact sensitive inquiry. The defendant bears the
burden of clearly demonstrating acceptance of responsibility and must present
more than just a guilty plea.” United States v. Wright, 862 F.3d 1265, 1279 (11th
Cir. 2017) (internal quotations and citations omitted). In determining whether the
defendant is entitled to this adjustment, the district court may consider, among
other relevant factors, whether the defendant truthfully admitted his relevant
conduct. U.S.S.G. § 3E1.1, comment. (n.1(A)). “A defendant who falsely denies .
. . relevant conduct that the court determines to be true has acted in a manner
inconsistent with acceptance of responsibility.” Id.
The record indicates that Colston did not clearly demonstrate acceptance of
responsibility. He attempted to withdraw his plea not because it was involuntary,
coerced, or done without the assistance of counsel, but rather, because he was
displeased with the guideline calculation. He particularly objected to the
4
Case: 19-12601 Date Filed: 08/05/2020 Page: 5 of 7
description of his relevant conduct because it recited the fact that he shot a police
officer and fled from law enforcement after the carjacking incident. The district
court’s denial of an acceptance of responsibility adjustment on this basis was not
erroneous. Cf. Tejas, 868 F.3d at 1248 (holding that district court did not clearly
err in denying an adjustment for acceptance of responsibility where the defendant
had affirmatively denied relevant conduct that the district court found was
established by a preponderance of the evidence). Furthermore, Colston opposed
his restitution assessment for the carjacking victim, which is contrary to a clear
acceptance of responsibility. Cf. U.S.S.G. §3E1.1, comment. (n.1(C)) (voluntary
payment of restitution prior to adjudication of guilt indicates acceptance of
responsibility). Accordingly, we conclude that, based on the record, the district
court did not err in denying Colston an acceptance of responsibility reduction.
IV.
Colston challenges his 30-year sentence as substantively unreasonable. He
contends that the district court abused its discretion because it failed to consider
relevant mitigating factors, such as his difficult childhood and psychological
issues. He also asserts that the district court improperly gave undue weight to its
own biases regarding violence. We conclude from the record that the district court
5
Case: 19-12601 Date Filed: 08/05/2020 Page: 6 of 7
carefully considered all the proper factors, and Colston cannot meet his burden of
proving that his sentence is substantively unreasonable.
On substantive reasonableness review, we will only vacate the sentence if
we “are left with the definite and firm conviction that the district court committed a
clear error of judgment in weighing the 18 U.S.C. § 3553(a) factors by arriving at a
sentence that lies outside the range of reasonable sentences dictated by the facts of
the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc)
(quoting United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008)). When
weighing the § 3553(a) factors, the district court enjoys great discretion. United
States v. Goldman, 953 F.3d 1213, 1222 (11th Cir. 2020). That discretion is
abused if “it (1) fails to consider relevant factors that were due significant weight,
(2) gives an improper or irrelevant factor significant weight, or (3) commits a clear
error of judgment by unreasonably balancing the proper factors.” Id. The burden
is on the defendant to prove that the sentence is substantively unreasonable. Id.
Additionally, a sentence less than “the statutory maximum penalty is an indicator
of [its] reasonableness.” Id.
The district court stated that it considered all the 18 U.S.C. § 3553(a) factors,
and it specifically discussed Colston’s personal history and characteristics. The
district court rejected the government’s request for a 35-year sentence based on the
6
Case: 19-12601 Date Filed: 08/05/2020 Page: 7 of 7
challenges Colston encountered during his childhood and his current mental health
challenges. The district court acknowledged that it considered a downward
variance but ultimately decided not to grant one because of the violent nature of
Colston’s offense. Moreover, the district court did not impose a sentence outside
the range of reasonable sentences, but rather, sentenced Colston to the bottom of
the applicable guideline range of 360-months.
Accordingly, for the aforementioned reasons, we conclude that the district
court was correct that the Florida controlled substance convictions qualified as
predicate offenses, did not clearly err when it declined to apply a reduction for
acceptance of responsibility, and did not abuse its discretion in sentencing Colston
to a total of 360-months. Thus, we affirm Colston’s sentence.
AFFIRMED.
7