UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 18-4145


UNITED STATES OF AMERICA,

             Plaintiff – Appellee,

       v.

TRAVEON SHAQUILLE MARTIN,

             Defendant – Appellant.


Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. W. Earl Britt, Senior District Judge. (5:17-cr-00237-BR-1)


Submitted: August 8, 2018                                   Decided: September 7, 2018


Before KEENAN and THACKER, Circuit Judges, and SHEDD, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


G. Alan DuBois, Federal Public Defender, Jennifer C. Leisten, Research & Writing
Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker,
Assistant United States Attorney, Banumathi Rangarajan, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Traveon Shaquille Martin pled guilty to two federal drug-distribution charges and

two federal firearm charges, and the district court sentenced him to 130 months of

imprisonment. Martin now appeals his sentence, arguing that the court committed

significant procedural error by declining to decrease his sentencing guidelines offense

level by three levels for acceptance of responsibility. See U.S.S.G. § 3E1.1. We affirm.

                                              I

       In October 2016, officers with the Raleigh (NC) Police Department (RPD) made

two separate controlled purchases of crack cocaine from Martin. Martin was not arrested

at that time. Several months later, two RPD officers approached Martin as he walked

down a Raleigh street, knowing that he had outstanding arrest warrants. Martin initially

attempted to flee, but when cornered, he began to resist arrest, injuring one of the officers

in the process. During the altercation, Martin tried to grab something from his waistband,

which the officers interpreted as an attempt to reach for a weapon. The officers

eventually subdued and arrested Martin and seized a loaded .38 caliber revolver (which

was in his waistband), 2 grams of crack cocaine, and $173 in cash.

       A federal grand jury subsequently indicted Martin, charging him with two counts

of distribution of a quantity of cocaine base, possession of a firearm by a felon, and

possession of a stolen firearm. In October 2017, Martin pled guilty to all of the charges

without a plea agreement.

       In November 2017, while Martin was incarcerated in the Brunswick County (NC)

jail awaiting sentencing, he assaulted a corrections officer who was handing out inmate

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food trays. Martin slapped a food tray out of the officer’s hands and punched the officer

several times in the face and head, knocking him to the ground. Martin continued to

attack the officer while he was on the ground. After order was restored, the officer was

transported to the hospital and treated for cuts and abrasions, including one on his head

that required stitches. The officer reported that he had lost consciousness during the

attack. For this incident, Martin was charged with several state-law assault offenses.

       In preparing Martin’s presentence report (PSR), the probation officer calculated a

total offense level of 26. Because Martin was in Criminal History Category IV, his

advisory sentencing range was 92-115 months. As part of the total offense level

calculation, the probation officer determined that because of his attack on the corrections

officer, Martin should not receive a reduction to his offense level under U.S.S.G. § 3E1.1.

That section provides for a two-level reduction in the offense level if the defendant

“clearly demonstrates acceptance of responsibility for his offense.” It further provides

that if the defendant qualifies for the two-level reduction, he may earn an additional one-

level reduction by timely notifying the government of his intent to plead guilty.

       Martin objected to the PSR recommendation, arguing that he should receive a

three-level reduction because he accepted responsibility for his October 2016 and

November 2017 misconduct and timely pled guilty. The probation officer responded by

noting that Application Note 1(b) to § 3E1.1 specifies that an appropriate consideration

for determining whether a defendant qualifies for an acceptance of responsibility

reduction is whether the defendant has voluntarily terminated or withdrawn from criminal

conduct or associations. After recounting the November incident, the probation officer

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again asserted that Martin should not receive the § 3E1.1 reduction. The probation officer

observed, however, that if the district court sustained the objection, Martin’s offense level

would fall to 23 and his advisory sentencing range would be 70-87 months.

       Through his counsel, Martin pressed his objection at his sentencing hearing,

reiterating that he pled guilty in a timely manner and that he accepted responsibility for

the October 2016 and November 2017 incidents. Martin also noted that he potentially

faced additional state imprisonment time for assaulting the corrections officer and

requested that the district court allow him to resolve that matter with the state authorities

separately from his federal sentence. In response, the government acknowledged that

Martin pled guilty in a timely manner, but it otherwise took no position on the issue.

After reviewing video of the November 2017 incident, which showed Martin assaulting

the corrections officer, the court overruled Martin’s objection.

       Having overruled the objection, the district court set the advisory sentencing range

at 92-115 months. The court then considered the government’s motion for upward

departure, which was premised on Martin’s history of violent conduct. The government

provided an overview of several violent incidents involving Martin, including the

October 2016 and November 2017 incidents; requested an upward departure to an

advisory sentencing range of 120-150 months; and asserted that 150 months would be the

appropriate sentence. Before ruling on the departure motion, the court heard testimony

from one of the RPD officers who arrested Martin, listened to victim-impact statements

from the corrections officer whom Martin attacked and the owner of the stolen firearm



                                             4
Martin possessed, permitted Martin to speak on his own behalf, and considered legal

arguments from counsel.

       Ultimately, after reflecting at length on the relevant sentencing factors, the court

denied the upward departure motion. However, the court varied upward from the

advisory sentencing range and sentenced Martin to 130 months of imprisonment. Among

other things, the court recognized that Martin may suffer from bipolar disorder, which

might be the cause of his “total and complete disregard for the law,” but it nonetheless

explained (based on Martin’s allocution) that Martin was not sorry for his conduct, “he’s

just sorry he got caught.” J.A. 77-78.

                                            II

       Martin’s only contention on appeal is that the district court clearly erred by

denying him a three-level reduction to his offense level for acceptance of responsibility.

Martin acknowledges that voluntary termination or withdrawal from criminal conduct is

an appropriate factor to consider when deciding whether a defendant has accepted

responsibility under § 3E1.1, but he argues that the court gave excessive weight to his

November 2017 attack on the corrections officer. In his view, his timely decision to plead

guilty, his acceptance of responsibility for the underlying drug and firearm offenses, his

bipolar disorder, and the potential additional punishment he might receive under state law

for the November 2017 attack mandate that he receive the three-level reduction.

       We review a district court’s decision concerning an acceptance-of-responsibility

adjustment for clear error. United States v. Dugger, 

, 239 (4th Cir. 2007).

We must give great deference to the district court’s decision because it is in the best

                                            5
position to evaluate the defendant’s acts and statements to determine whether the

defendant has accepted responsibility for his criminal conduct. 

the reduction,

a defendant must prove by a preponderance of the evidence that he has clearly recognized

and affirmatively accepted personal responsibility for his criminal conduct. 

plea may be evidence of acceptance of personal responsibility, but it does not, standing

alone, entitle a defendant to a reduction as a matter of right. 

absence of

evidence compelling us to conclude that the district court has committed clear error in its

evaluation of the defendant, we will uphold its decision on the § 3E1.1 reduction. 

to grant an acceptance-of-responsibility reduction often depends on

the actions of the defendant following his or her arrest or plea.” 

Even unrelated

criminal conduct may make an acceptance of responsibility reduction inappropriate.

United States v. Arellano, 

, 1035 (8th Cir. 2002).

       As we have recounted, in November 2017, while Martin was awaiting sentencing

in this case, he attacked and beat a corrections officer. The evidence supporting this

incident is undisputed. Although Martin offers reasons attempting to explain his conduct

(i.e., bipolar disorder) and to have the district court essentially ignore it for the purposes

of this sentencing determination (i.e., his potential state punishment), neither reason

remotely establishes that the court clearly erred by denying the acceptance of

responsibility reduction. Simply put, Martin pled guilty in a timely manner, but his post-

plea attack on the corrections officer is sufficient evidence to support the court’s finding

that he failed to terminate or withdraw from criminal conduct. We find nothing in the

record to cast doubt on that finding.

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                                          III

      Based on the foregoing, we conclude that the district court did not clearly err by

denying Martin an offense level reduction for acceptance of responsibility. Accordingly,

we affirm Martin’s sentence.

                                                                           AFFIRMED




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