NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0371n.06 No. 10-2621 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
UNITED STAT ES O F AMERICA, P laintif f-App ellee,
v. P HILIP MA URICE DUNLAP , Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ON AP P EAL F RO M THE UNITED S T ATES DISTRICT COURT F OR THE WEST ERN DISTRICT OF MIC HIGAN

Before: CLAY and GIBBONS, Circuit Judges, and KORM AN, Distr ict Judge. * P er Curiam . On this appea l from a judgme nt, enter ed afte r a guilty plea, convicting him of distributing coca ine base i n v i o l at i o n of 18 U.S.C. § 841, Phili p Maurice Dunlap argues that the district judge err ed in re fu s i n g to g rant him a reduc tion for acc eptanc e of responsibility and in ref using to deem him elig ible for a safe ty valve reduc tion under 18 U.S.C. § 3553(f)
. We revie w a “district court’s deter

mination of whether to apply a Guideli n es reduc tion under the clea r-e rror standard.” United Stat es v. B a co n , 6 17 F.3d 452, 456 (6th Cir. 2010) (citing United States v. Paulette , 457 F.3d 601, 608 (6th Cir. 2006) (apply ing the clea

r err or standard to a revie w of a district court deter

mination whether a defe ndant has acc epted responsibility)). L ikewise, a district c ourt’s

The Honora

ble Edwar d R. Korman, United States District J udg e for the Easter n District of * New Y ork, sitting by

desig nation. 1Nos. 10-2621/11-1019

United States v. Dunlap

decis i o n wh et h er t o g rant a safe ty valve relief is also revie wed for clea r err or. United States v. Hayne s , 468 F.3d 422, 426 ( 6th Cir. 2006). The defe ndant bear s the burden of proof to show by a preponde ranc e of the evidenc e that he or she a cce pts responsibility for the c rime committed. Bacon , 617 F.3d at 458. One wa y to do so require s that the defe ndant “truthfully admit[ ] t he conduc t comprising the offenses of c onviction .

. . .” USSG § 3E1.1 cmt. 1 (A ) (2011). Pleading g uilty does not automatically entitle a defenda nt to the reduc tion. See Bacon , 617 F.3d at 459 (upholding the denial of acc eptanc e of responsibility reduc tion wher e the defe ndant pleade d g uilty but e quivocated about cer tain fac ts, repe atedly made false statements, and blame d others for his crime). As to the safe ty valve relief , five conditions must be met for a defe ndant to be elig ible. Only
one is rele vant here , and it pro v ides that “not later than the time of the sentenc ing hear ing, the defe ndant has truthfully provided to the Gover nment all information and evidenc e the defe ndant has
conce rning the off

en s e o r offe nses that wer e part of the same course of conduct or of a common scheme or plan
. . . .” 18 U.S.C. § 3553(f) (5). The defe n d an t al s o bear s the burden of proving entitlement to the safe ty

valve reduc tion by a preponde ranc e of the evidenc e. Hayne s , 468 F.3d at 427. “Unlike other reduc tion provisions such as . . . acc eptanc e of responsibility
. . . , the provisions of .
. . 18 U.S.C. § 3 5 5 3 (f ) re q uire a defe ndant t o reve al a broade r scope of i nformation about the rele vant criminal conduct to the authorities.” United States v. O’De ll , 247 F.3d 655, 675 (6th Cir. 2001) (quotation omitted).

2Nos. 10-2621/11-1019

United States v. Dunlap

Whil e a reduc tion for ac cepta nce of responsibility

and saf ety valve r elief a

re discr ete lega l
conce pts, we discuss them toge ther beca use, on the rec ord here , Dunlap’s arguments fac tually overla p. Specifica lly , whether Dunlap should have been g rante d either turns on the truthfulness of Dunlap’s story about how he rec eived the cra ck and to whom he sold it. Dunlap told investig ators and probation officia ls that he rece ived narcotics from his friend Echols for safeke ep i n g an d only reta ined possession beca

use Echols died shortly afte r. Dunlap orig inally said he buried the cra ck and dug it up six months later for sporadic use and sale approximately six months befor e retrie ving the
rema inder he sold to the underc over ag ents. Subsequently , he told pr obation that afte r burying the
cra ck, he dug it up approximately one y ear later, trade d a few ounces for marijuana and sold the rest in ounce- siz e quantities to two or thre e diffe rent pe ople. Not only do the i nconsistencies betwee n the account Dunlap g av e t o i n v est iga tors and the
acc ount he g ave to probation cast doubt on his cre dibilit y , the narr ative he prese nted is far -fe tched. Multipl e underc over office rs purcha sed cra ck from Dunlap in the cour s e o f t h e five underc over purcha ses that lead to his arr est. Moreove r, the witnesses Dunlap prese nted at sentenc ing failed to
corr oborate his story

in any meaning ful way
. I n sum, the di strict judge acc urate ly found t hat t here was no evidenc e to support Dunlap’s story about the source of the drug s, and that it was “inher ently incre dible.” Acc ording ly , the ref usal to g rant Dunlap a reduc tion for acc eptanc e of responsibi l i t y o r s afety valve relief was not clea rly
err oneous.

3Nos. 10-2621/11-1019

United States v. Dunlap

AFF I RMED.

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