## United States Court of Appeals
**For the Eighth Circuit**

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No. 20

- 3160

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United States of America

Plaintiff - Appellee

v.

Jimmy L. Garner

Defendant - Appellant

____________ Appeal from United States District Court for the Western District of Missouri - Kansas City

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Submitted: September 21, 2021 Filed: December 7, 2021 [Unpublished]

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Before S HEPHERD, WOLLMAN, and KOBES, Circuit Judges.

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PER CURIAM.

Jimmy Garner was sentence d to 105 months in prison for being a felon in possession of a firearm. Garner appeals, arguing th e district court 1 should have given him an offense

- level reduction for accepting responsibility. W e affirm.

1 The Honorable Howard F. Sachs, United States District Judge for the Western District of Missouri.-2- I.

Garner fled after police tried to stop him for driving a stolen car. He committed several traffic violations during the pursuit, which ended when he ran a stop sign at 60 miles per hour and crashed into another car. T he officers then saw Garner jump into the passenger seat, pull something from his waistband, and put it behind his back. After taking Garner into custody, o fficers searched the car and
found a loaded gun on the passenger seat.

Garner pleaded guilty to one count of possessing a firearm as a convicted
felon. The PSR recommended a total offense level of 26, which included a four

point enhancement for possessing a gun in connection with a felony. The PSR assigned a criminal history score of 42

, placing him in category VI. Before sentencing , Garner and another inmate attacked a third inmate , who required medical attention. Because of this, the PSR recommended he not receive a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1

. T he PSR calculated a Guidelines range of 120 to 150 months, capped by the statutory maximum of 120
months

.

T he district court sustained Garner’s objection to the four -l evel “in connection
with” enhancement but denied him credit for acceptance of responsibility. This resulted in a new Guidelines range of 84 to 105 months. The district court sentenced
him to 105 months in prison.

II.

“We review the district court ’ s den ial 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 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).-3- “U.S.S.G. § 3E1.1(a) provides for a two

- level reduction if the defendant ‘clearly demonstrates acceptance of responsibility for [his] offense.’” United States
v. Davis , 875 F.3d 869, 875 (8th Cir. 2017) (quoting § 3E1.1(a)). The defendant
bears the burden. Id. (citing U.S.S.G. § 3E1.1 cmt. 2). A defendant is not automatically entitled to the reduction simply for pleading guilty. See United States v. Cooper, 998 F.3d 806, 810 (8th Cir. 2021). C onduct that is inconsistent with acceptance of responsibility may outweigh a guilty plea. See id. at 8 10

– 11 ( citing
U.S.S.G. § 3E1.1 cmt. 3). “This Court has consistently denied the acceptance

- of

responsibility reduction to defendants whose conduct belies their claims of
contrition.” United States v. Nguyen, 52 F.3d 192, 194 (8th Cir. 1995).

Because Garner committed an assault between conviction and sentencing, the
district court found that he hadn’t accepted responsibility for the offense. The commentary to § 3E1.1 includes a non

- exhaustive list of factors to consider in deciding whether to grant the acceptance of responsibility reduction. See § 3E1.1 cmt. 1. “One factor in determining whether a defendant has clearly demonstrated acceptance is whether he has withdrawn from ‘criminal conduct.’” Arellano , 291
F.3d at 1034

– 35 (quoting U.S.S.G. § 3E1.1 cmt. 1( b )). “ E ven unrelated criminal
conduct ,” such as conduct that occurs before trial, “ may make an acceptance of responsibility reduction inappropriate

. ” Id. at 1035 (citation omitted). W e have considered acts of violence and threats by a defendant while incarcerated to be sufficient grounds for a denial of the acceptance of responsibility reduction under § 3E1.1. See United States v. Sutton , 511 F. App’x 591, 592 (8th Cir. 2013).

E ven if th e detention center attack alone didn’t outweig h Garner’s guilty plea

, the district court ’s decision to deny the reduction wasn’t solely based on the pre

sentence assault. It also highlighted his “continuous stream of law violations” 2 and
noted that , “ taking the presentence report all in all, it’s pretty hard to find acceptance of responsibility.”

2 Garner’s v iolations includ e assaults, property crimes, drug offenses, driving offenses and fleeing from police.-4- Plus , any possible error was harmless. “An incorrect Guidelines calculation is harmless error where the district court specifies the resolution of a particular issue did not affect the ultimate determination of a sentence, such as when the district
court indicates it would have alternatively imposed the same sentence even if a lower guideline range applied.” United States v. Dace, 842 F.3d 1067, 1069 (8th Cir. 2016) (per curiam) ( citation omitted )

, overruled on other grounds by United States v. Swopes , 866 F.3d 668, 671 (8th Cir. 2018). Here, the district court ultimately
sentenced Garner to 105 months, on “the high end of the Guidelines,” and specified that it would have imposed the same sentence “regardless of rulings

. . . made regarding the guidelines.” Because Garner would have receive d the same 105

- month sentence even if the district court applied the acceptance of responsi bility reduction, any error was harmless.

III.

W e affirm Garner’s sentence.

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