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

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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[Unpublished]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 SHEPHERD, WOLLMAN, and KOBES, Circuit Judges. 

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PER CURIAM.

Jimmy Garner was sentenced to 105 months in prison for being a felon in 

possession of a firearm. Garner appeals, arguing the district court1 should have 

given him an offense-level reduction for accepting responsibility. We affirm.

1

The Honorable Howard F. Sachs, United States District Judge for the 

Western District of Missouri.
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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. The 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, officers 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 fourpoint 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. The PSR calculated a 

Guidelines range of 120 to 150 months, capped by the statutory maximum of 120 

months. 

 The district court sustained Garner’s objection to the four-level “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 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 

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).
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“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). Conduct that is inconsistent with 

acceptance of responsibility may outweigh a guilty plea. See id. at 810–11 (citing

U.S.S.G. § 3E1.1 cmt. 3). “This Court has consistently denied the acceptance-ofresponsibility 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)). “Even unrelated criminal 

conduct,” such as conduct that occurs before trial, “may make an acceptance of 

responsibility reduction inappropriate.” Id. at 1035 (citation omitted). We 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).

 Even if the detention center attack alone didn’t outweigh Garner’s guilty plea, 

the district court’s decision to deny the reduction wasn’t solely based on the presentence 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 violations include assaults, property crimes, drug offenses, driving

offenses and fleeing from police.
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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 received the same 105-

month sentence even if the district court applied the acceptance of responsibility 

reduction, any error was harmless.

III. 

 We affirm Garner’s sentence.

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