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File Name: 16a0027n.06

Case No. 15-1422

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID SEARER, JR.,

Defendant-Appellant.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE WESTERN DISTRICT OF

MICHIGAN

BEFORE: SILER, CLAY, and KETHLEDGE, Circuit Judges.

SILER, Circuit Judge. Pursuant to a plea agreement, David Searer, Jr., pleaded guilty to 

conspiracy to manufacture and distribute marijuana. At sentencing, the district court denied 

Searer’s acceptance-of-responsibility reduction based on his use of opiates and amphetamines 

while on bond. Searer appeals that determination. For the following reasons, we AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

Searer was indicted for his involvement in a conspiracy to manufacture and distribute 

marijuana. Soon after his initial appearance, Searer violated the conditions of his bond by testing 

positive for opiates and amphetamines. However, he was permitted to remain on bond in order 

to receive substance abuse treatment. Nevertheless, he continued to use controlled substances 

numerous times before his bond was eventually revoked.
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When the probation officer recommended that Searer be denied the acceptance-ofresponsibility reduction, Searer objected, arguing the existence of mitigating circumstances. 

Specifically, he noted that he attempted to enter inpatient treatment but could not find a program 

that would accept him since he did not have insurance. The district court denied him an

acceptance-of-responsibility reduction, providing the following explanation:

I’m not suggesting that Mr. Searer is willful and wanting to rub the law’s face into 

the ground by continuing to use. He may well have, certainly seems to have, 

serious problems with addiction, and that needs to be addressed. But in terms of 

the guideline issue, it seems to me regardless of substance abuse problems, 

particularly after Pretrial worked with him and got him into KPEP initially, where 

the behavior continues unabated, . . . acceptance-of-responsibility credit is not 

appropriate.

Although Searer’s Guidelines range was twenty-seven to thirty-three months, the district court 

imposed a below-Guidelines sentence of twenty-four months.

ANALYSIS

Searer contends the district court erred in denying his acceptance-of-responsibility 

reduction. “We review a sentence imposed by the district court for reasonableness.” United 

States v. Webb, 616 F.3d 605, 608-09 (6th Cir. 2010) (citing United States v. Richardson,

437 F.3d 550, 553 (6th Cir. 2006)). Generally, the reasonableness of a sentence is reviewed 

under the abuse-of-discretion standard. Id. at 609. But where the challenge to the sentence 

involves the denial of credit for acceptance of responsibility, we review for clear error.1 United 

States v. Surratt, 87 F.3d 814, 821 (6th Cir. 1996).

 

1

Searer claims that because no facts are in dispute, this court should review the denial of his acceptance-ofresponsibility credit de novo. However, following the Supreme Court’s decision in Buford v. United States, 

532 U.S. 59 (2001), even if the facts are not in dispute, “this court has held that our standard of review of a district 

court’s application of provisions of the Sentencing Guidelines to the facts should be treated deferentially and should 

not be disturbed unless clearly erroneous.” United States v. Webb, 335 F.3d 534, 537 (6th Cir. 2003) (citing United 

States v. Jackson-Randolph, 282 F.3d 369, 389-90 (6th Cir. 2002)). 
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The Sentencing Guidelines entitle a defendant who “clearly demonstrates acceptance of 

responsibility for his offense” to receive a two-level reduction in his sentence. USSG § 3E1.1(a). 

While a defendant’s truthful admission to wrongdoing “will constitute significant evidence of 

acceptance of responsibility for the purposes of [USSG § 3E1.1](a). . . . this evidence may be 

outweighed by conduct of the defendant that is inconsistent with such acceptance of 

responsibility.” USSG § 3E1.1 cmt. n.3. One factor that may weigh against a defendant’s 

admission of guilt is whether he “voluntar[ily] terminat[ed] or withdr[ew] from criminal conduct 

or associations.” Id. cmt. n.1(B). “[T]he phrase ‘voluntary termination or withdrawal from 

criminal conduct’ refers to conduct which is of the same type or that is related to the underlying 

offense, and not illegal conduct generally.” United States v. Redmond, 475 F. App’x 603, 612 

(6th Cir. 2012) (emphasis added) (quoting USSG § 3E1.1 cmt. n.1(B)). 

Searer argues that his continued use of controlled substances while on bond was 

unrelated to his offense of conviction. To further his position, Searer cites to multiple cases in 

which this court found the defendant’s post-plea conduct unrelated to the offense of conviction 

and thus not a permissible basis to deny the acceptance-of-responsibility credit. But those cases 

involve instances in which the offense of conviction was significantly different from the postplea conduct. See United States v. Hughes, 420 F. App’x 533, 537 (6th Cir. 2011)

(“[Defendant’s] post-plea conduct of drug dealing is ‘wholly distinct’ from his illegal possession 

of a firearm.”); United States v. Ackerman, 246 F. App’x 996, 999 (6th Cir. 2007) (finding a 

firearm conviction unrelated to defendant’s use of marijuana while on bond); United States v. 

Banks, 252 F.3d 801, 807 (6th Cir. 2001) (“[Defendant’s] post-plea assault and destruction of 

property charges were plainly unrelated to the offenses for which he was being sentenced (drug 

trafficking and firearm possession).”). Rather, where a defendant is convicted of a crime 
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involving drugs, such as conspiracy to distribute, and later tests positive for use of that drug 

while on bond, we have found the offense of conviction and post-plea conduct sufficiently 

related to deny the acceptance-of-responsibility reduction. See United States v. Walker, 182 F.3d 

485, 489-90 (6th Cir. 1999) (holding a defendant’s conviction for conspiracy to distribute 

cocaine and use of cocaine while on bond related); United States v. Zimmer, 14 F.3d 286, 289 

(6th Cir. 1994) (concluding a defendant’s conviction for manufacturing marijuana and use of 

marijuana while on bond related). 

Searer argues that unlike other cases finding relatedness in drug cases, his offense of 

conviction involved a different drug than the ones that resulted in his bond revocation. True 

enough, but we have affirmed the denial of a defendant’s acceptance-of-responsibility credit

even when the drug involved in the offense of conviction is different from the drug used while 

on bond. See United States v. Humphreys, 108 F. App’x 329, 329-30 (6th Cir. 2004). 

In Humphreys, the defendant, convicted of conspiracy to manufacture methamphetamine, was 

denied the acceptance-of-responsibility reduction for violating the terms of her bond by testing 

positive for marijuana use. Id. at 330. Searer asserts that Humphreys is distinguishable from his 

case because of “the sheer number and variety of [Humphreys’s] bond violations were viewed as 

adequate grounds for denying acceptance.” This is only partially true; before even addressing 

Humphrey’s multiple violations, we noted that “Humphreys tested positive for illegal drug use 

while she was on bond, which constitutes continued criminal conduct.” Id. at 330 (emphasis 

added). Moreover, not only did Searer test positive for use of controlled substances, but he also

failed to attend substance abuse treatment and diluted his urine samples. 

In another analogous case, a defendant pleaded guilty to manufacturing 

methamphetamine and possessing chemicals used in the manufacture of methamphetamine. 
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United States v. Redmond, 475 F. App’x 603, 604 (6th Cir. 2012). While awaiting sentencing, 

the defendant tried to convince a co-defendant to help him smuggle drugs into the prison. Id. at 

607. Like Searer, the defendant contended his post-plea conduct only evidenced “his drug 

problem and d[id] not indicate less remorse for his involvement in drug-trafficking offenses.” Id. 

at 613. We disagreed, explaining “both the [defendant’s] underlying offense and the subsequent 

conduct were drug-related.” Id. The same is true here. Searer’s continued use of controlled 

substances while awaiting sentencing demonstrated that “he has not turned away from the 

lifestyle that led to his original drug offense.” Id. Therefore, the district court did not clearly err

in denying Searer’s acceptance-of-responsibility reduction.

AFFIRMED.