* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 21, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-40286

Conference Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NICKIE ANGELO BATTEN,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:03-CR-134-ALL

--------------------

Before JOLLY, JONES, and WIENER, Circuit Judges.

PER CURIAM:*

Nickie Angelo Batten appeals the sentence imposed following

his guilty-plea conviction for being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g). Specifically, he

challenges the district court’s denial of a three-point reduction

for acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. 

Batten argues that he pleaded guilty in a timely manner,

truthfully admitted all offense conduct and relevant conduct, and

has shown remorse for his conduct. He urges that denial of the
No. 04-40286

-2-

acceptance-of-responsibility reduction should not have been based

upon his alleged marijuana possession since that conduct predated

his plea and has not resulted in any additional criminal charges.

The district court did not err in denying acceptance of

responsibility based on Batten’s pre-plea conduct indicating

continuing criminal behavior, specifically, his possession of

marijuana pending trial. See United States v. Flucas, 99 F.3d

177, 180 (5th Cir. 1996); United States v. Rickett, 89 F.3d 224,

227 (5th Cir. 1996); see also United States v. Watkins, 911 F.2d

983, 984-85 (5th Cir. 1990). Batten acknowledges these cases but

urges the court to revisit them, citing cases from the Ninth

Circuit, which he contends show that the denial of acceptance of

responsibility is more appropriate when the defendant engages in

criminal conduct after pleading guilty. However, no panel of

this court may overrule the decision of a prior panel in the

absence of en banc reconsideration or a superseding Supreme Court

decision. United States v. Lipscomb, 299 F.3d 303, 313 n.34 (5th

Cir. 2002).

The facts contained in the presentence report and adduced at

sentencing establish that Batten possessed marijuana in his jail

cell while he awaited trial. There is no evidence to support

Batten’s contention that the marijuana was not his. The district

court’s denial of acceptance of responsibility was not error. 

See United States v. Chapa-Garza, 62 F.3d 118, 122 (5th Cir.
No. 04-40286

-3-

1995); see also Flucas, 99 F.3d at 180; Rickett, 89 F.3d at 227;

Watkins, 911 F.2d at 984.

In a letter filed pursuant to FED. R. APP. P. 28(j), Batten

argues that the district court’s imposition of sentencing

enhancements under § 2K2.1(b)(1)(A) and (b)(4) violated Blakely

v. Washington, 124 S. Ct. 2531 (2004). This issue is foreclosed

by United States v. Pineiro, 377 F.3d 464, 466 (5th Cir. 2004),

petition for cert. filed (U.S. July 14, 2004) (No. 04-5263).

The district court’s judgment is AFFIRMED.