The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16319 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 15, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 05-00024-CR-005-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNY HODGES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(June 15, 2009)
Before BIRCH, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Johnny Hodges appeals his 137-month sentence for conspiracy to distribute
cocaine base and cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1) and
846, and 18 U.S.C. § 2. Hodges argues that the district court erred by (1)
sentencing him based on (a) contested facts contained in the presentence
investigation report (“PSI”) and (b) a November 2004 drug transaction, and (2)
denying him a two-level reduction for acceptance of responsibility pursuant to
U.S.S.G. § 3E1.1. After careful review, we affirm.
The district court’s findings concerning relevant conduct for sentencing
purposes are reviewed for clear error. United States v. Query, 928 F.2d 383, 386
(11th Cir. 1991). Additionally, we review the district court’s finding of the drug
quantity attributable to a defendant for clear error. United States v. Zapata, 139
F.3d 1355, 1357 (11th Cir. 1998). We also review a district court’s factual
findings concerning a reduction for acceptance of responsibility for clear error.
United States v. Williams, 408 F.3d 745, 756 (11th Cir. 2005). However, where a
defendant fails to raise an issue before the district court, we review for plain error.
See United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir. 2005).
We will correct a plain error only if (1) an error occurred, (2) the error was plain,
and (3) the error affected substantial rights. United States v. Zinn, 321 F.3d 1084,
1087 (11th Cir. 2003). “If all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if . . . the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” United
States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (quotations omitted).
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First, we find no merit in Hodges’s claim that the bases of the district court’s
sentence were incorrect. A member of a drug conspiracy is liable for his own acts
and the reasonably foreseeable acts of others in furtherance of the activity that the
defendant agreed to undertake. See United States v. Ismond, 993 F.2d 1498, 1499
(11th Cir. 1993); U.S.S.G. § 1B1.3(a)(1)(B). The district court must first make
individualized findings concerning the scope of criminal activity undertaken by a
particular defendant, and then determine the drug quantities reasonably foreseeable
in connection with that level of participation. See Ismond, 993 F.2d at 1499. Even
if the district court does not make individualized findings, the sentence can be
upheld if the record supports the amount of drugs attributed to a defendant. Id.
The district court may rely on undisputed statements in the PSI, even in the
absence of supporting evidence. See United States v. Hedges, 175 F.3d 1312, 1315
(11th Cir. 1999). “A sentencing error, under the Guidelines, is harmless if a court
considers the proceedings in their entirety and determines that the error did not
affect the sentence or had but very slight effect.” United States v. Campa, 529
F.3d 980, 1013 (11th Cir. 2008) (quotations omitted). “If we can say with fair
assurance that the sentence was not substantially swayed by the error, we may
affirm.” Id. (quotations omitted).
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As the record here shows, Hodges never objected to paragraphs 17, 21, and
22 in the PSI, and the district court was therefore entitled to accept the statements
contained in these paragraphs as true. See Hedges, 175 F.3d at 1315. Based on the
undisputed statements contained in these paragraphs of the PSI, together with the
facts contained in the plea agreement, a preponderance of the evidence established
that Hodges knew of or reasonably foresaw his co-conspirators’ concealment of
drugs in the area surrounding the club, and the district court did not commit clear
error by attributing these drug quantities to Hodges. Furthermore, although the
district court erred in considering the 2004 transaction as part of the conspiracy,
this error was harmless, because it had only a slight, if any, effect, on his ultimate
sentence. See Campa, 529 F.3d at 1013.1
We also reject Hodges’s argument that the district court erred in determining
that he was not entitled to an offense level reduction for acceptance of
responsibility. A defendant is entitled to a two-level reduction if he “clearly
demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a).
In determining whether a defendant qualifies for the two-level reduction, a district
1
While it could be argued that the district court would have sentenced Hodges to a mid-
or low-range sentence -- rather than the high-end sentence he received -- if the total drug amount
was reduced and the 2004 transaction was not considered as part of the conspiracy, we are not
persuaded that the district court would have done so. Indeed, the district court specifically stated
that the high-end sentence was based on Hodges’s prior criminal history and the fact that the
court did not apply the career offender enhancement. Furthermore, even without the 2004
transaction, the drug quantity involved remained well above the 1,000 kilogram amount.
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court may consider whether the defendant “truthfully admitt[ed] the conduct
comprising the offense(s) of conviction, and truthfully admitt[ed] or [did] not
falsely deny[] any additional relevant conduct for which the defendant is
accountable under § 1B1.3 (Relevant Conduct).” U.S.S.G. § 3E1.1, comment.
(n.1(a)). “[A] defendant who falsely denies, or frivolously contests, relevant
conduct that the court determines to be true has acted in a manner inconsistent with
acceptance of responsibility.” Id.
As an initial matter, we review for plain error Hodges’s objection to the
denial of an acceptance of responsibility reduction, because Hodges failed to object
to the denial of the reduction either in his PSI objections or at sentencing.
Although Hodges objected to paragraph 29 of the PSI, which explained the denial
of an acceptance of responsibility reduction, he simply requested that the paragraph
be amended to reflect that he played a minor role in the conspiracy. Nor did his
inquiry at the conclusion of the sentencing proceeding regarding whether the
district court factored an acceptance of responsibility reduction into its calculations
take the form of an objection to the failure to grant such a reduction.
On this record, it was not error, let alone plain error, for the district court to
deny Hodges an acceptance of responsibility reduction. In his objections to the
PSI and at his sentencing hearing, Hodges challenged the drug quantities
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attributable to him. In addition, at sentencing Hodges admitted only to “being in
the nightclub working there and being around people who sell drugs.” He further
denied selling drugs for a co-conspirator and denied the assertion that he was
involved in a conspiracy. Hodges at no time during sentencing or in his objections
to the PSI admitted to being involved in the conspiracy or admitted that he was
responsible for any quantity of narcotics. Under these circumstances, Hodges was
not entitled to a reduction for acceptance of responsibility and the court’s failure to
grant such a reduction was not error, let alone plain error.
Accordingly, we affirm Hodges’ sentence.
AFFIRMED.
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