United States of America v. Brandon Scott Sutton

United States Court of Appeals
For the Eighth Circuit
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No. 12-3547
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Brandon Scott Sutton
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Council Bluffs
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Submitted: April 8, 2013
Filed: June 28, 2013
[Unpublished]
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Before WOLLMAN, BEAM, and MURPHY, Circuit Judges.
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PER CURIAM.
Brandon Scott Sutton appeals from his sentence of 26 months’ imprisonment,
arguing that the district court erred by declining to grant him a three-level reduction1
The Honorable Ronald E. Longstaff, United States District Judge for the1
Southern District of Iowa.

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for acceptance of responsibility under United States Sentencing Guidelines
(Guidelines) § 3E1.1. We affirm.
On October 6, 2011, Sutton responded to his termination from his job with a
tree service company by wielding a large wrench and threatening his coworkers with
violence. These threats included warning his coworkers that he had a gun and knew
where they lived. Sutton’s coworkers called the police after they saw a handgun in
his truck. As a convicted felon, Sutton was prohibited from possessing a firearm, and
he later pleaded guilty to being a felon in possession of a firearm, in violation of 18
U.S.C. §§ 922(g)(1) and 924(a)(2).
Sutton was detained in the Pottawattamie County Jail prior to pleading guilty
and for an additional period thereafter prior to his sentencing. During his time in this
facility, Sutton was involved in several physical and verbal altercations with other
inmates and correctional officers. These incidents included his attacking one inmate,
fighting with another inmate, threatening on two occasions to stab other inmates,
threatening to “jack” a correctional officer across his head, and making a veiled threat
to another correctional officer about being shot on the street.
At sentencing, the district court concluded that Sutton’s behavior while
detained in the Pottawattamie County Jail demonstrated that he had not accepted
responsibility for his crime. The district court thus declined to apply the three-level
reduction for acceptance of responsibility under Guidelines § 3E1.1, which resulted
in a sentencing range of 41 to 51 months’ imprisonment. See Sent. Hr’g Tr. 16:1-10.
Nevertheless, the district court found that a downward variance was appropriate and
sentenced Sutton to 26 months’ imprisonment.
“We review the district court’s denial of an acceptance of responsibility
reduction for clear error.” United States v. Smith, 665 F.3d 951, 957 (8th Cir. 2011).
“A district court’s factual determination on whether a defendant has demonstrated
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acceptance of responsibility is entitled to great deference and should be reversed only
if it is so clearly erroneous as to be without foundation.” United States v. Arellano,
291 F.3d 1032, 1034 (8th Cir. 2002). Application Note 1(B) to § 3E1.1 states that a
relevant consideration in determining whether a defendant is entitled to acceptance
of responsibility is whether there has been a “voluntary termination or withdrawal
from criminal conduct[.]” U.S.S.G. § 3E1.1, cmt. (n.1(B)). “While . . . ‘[t]he fact that
a defendant engages in later, undesirable, behavior does not necessarily prove that he
is not sorry for an earlier offense,’ such conduct ‘certainly could shed light on the
sincerity of a defendant’s claims of remorse.’” United States v. Byrd, 76 F.3d 194,
197 (8th Cir. 1996) (second alteration in original) (quoting United States v. O’Neil,
936 F.2d 599, 600 (1st Cir. 1991)).
Acts of violence and threats by a defendant while incarcerated have been
deemed sufficient grounds for a denial of the acceptance of responsibility reduction
under § 3E1.1. See, e.g., Arellano, 291 F.3d at 1035 (affirming the denial of the
acceptance of responsibility reduction when defendant struck a correctional officer);
United States v. Winters, 411 F.3d 967, 973-74 (8th Cir. 2005) (affirming the denial
of the acceptance of responsibility reduction based upon pretrial disciplinary
problems and a letter containing veiled threats). In light of Sutton’s conduct while
incarcerated at the Pottawattamie County Jail, we conclude that the district court did
not clearly err in denying a reduction for acceptance of responsibility.
We affirm the sentence.
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