* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-51034

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

MONTGOMERY WILLIAMSON

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:07-CR-404-ALL

Before JOLLY, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:*

Montgomery Williamson appeals the district court’s refusal to reduce the

calculation of his offense level by two points for acceptance of responsibility. For

the following reasons, we affirm the sentence imposed by the district court. 

United States Court of Appeals

Fifth Circuit

F I L E D

August 26, 2008

Charles R. Fulbruge III

Clerk
No. 07-51034

1 The underlying facts of Counts One and Two are as follows: On February 7, 2007,

U.S. Immigration and Customs Enforcement (“ICE”) agents stopped Williamson as he drove

into the United States from Mexico at the Bridge of the Americas Port of Entry in El Paso,

Texas. After Williamson was unable to produce identification, the ICE agents discovered that

the car he was driving was stolen. A further inspection revealed 43.95 kilograms of marijuana

concealed in the vehicle. After acknowledging his constitutional rights, Williamson confessed

that he had been offered $1,000 to transport marijuana from Chihuahua, Mexico to El Paso.

He stated that he had already successfully transported one shipment of marijuana the day

before and received $1,000 in payment. In accordance with § 1B1.3 of the Sentencing

Guidelines regarding penalties for relevant conduct, Williamson was held accountable for a

total of 87.9 kilograms of marijuana, which incorporated the net weight of marijuana

transported by Williamson on February 6 and 7. 

2

I. FACTS AND PROCEEDINGS 

Williamson pleaded guilty to importation of marijuana, in violation of 21

U.S.C. §§ 952(a) and 960(a)(1) (Count One), and possession with intent to

distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count Two).1 He was

also charged in a separate indictment and pleaded guilty to escape from a federal

institution, in violation of 18 U.S.C. § 751(a). The district court accepted

Williamson’s pleas and sentenced him for all of the charges against him in both

indictments at the same time. 

The presentence report(“PSR”) recommended that Williamson not receive

a reduction in his offense level for acceptance of responsibility pursuant to

§ 3E1.1(a) of the Sentencing Guidelines because he had escaped from custody

while serving his sentence for a 2000 conviction for drug-trafficking at Dismas

Charities Comprehensive Confinement Center in El Paso, Texas, and had

committed the instant drug offenses while he was a fugitive. At the sentencing

hearing, Williamson argued that the denial of the reduction for acceptance of

responsibility on the basis of his fugitive status, notwithstanding his other

conductthat constituted significant evidence of acceptance of responsibility, was

a misapplication of the Sentencing Guidelines. The district court overruled

Williamson’s objection and sentenced him to 100 months of imprisonment for

Count One, 100 months of imprisonment for Count Two, and 60 months of
No. 07-51034

2 Williamson also received four years of supervised release for Counts One andTwo, and

three years of supervised release for the escape charge, to be served concurrently. The district

court assigned special assessments of $100 for each count, but no restitution. 

3

imprisonment for the escape charge, all to be served concurrently.2 Williamson

now appeals the district court’s denial of a reduction in his offense level for

acceptance of responsibility. 

II. DISCUSSION

“As a result of [the Supreme Court’s decision in United States v. Booker,

543 U.S. 220 (2005)], the [Sentencing] Guidelines are now advisory, and

appellate review of sentencing decisions is limited to determining whether they

are ‘reasonable.’” Gall v. United States, 128 S. Ct. 586, 594 (2007). This court

presumes that a defendant’s sentence is reasonable when it falls within the

recommended range of the Sentencing Guidelines. Rita v. United States, 127 S.

Ct. 2456, 2462–63 (2007); United States v. Williams, 520 F.3d 414, 422 (5th Cir.

2008). 

Because the district court is uniquely positioned to measure and evaluate

a defendant’s acceptance of responsibility, “the determination of the sentencing

judge is entitled to great deference on review.” U.S. SENTENCING GUIDELINES

MANUAL § 3E1.1, cmt. n.5 (2006). We review a district court’s finding on

acceptance of responsibility “for clear error but under a standard of review even

more deferential than a pure clearly erroneous standard.” United States v.

Outlaw, 319 F.3d 701, 705 (5th Cir. 2003) (internal quotations omitted). 

The Sentencing Guidelines allow a district court to reduce a defendant’s

offense level by two points “[i]f the defendant clearly demonstrates acceptance

of responsibility for his offense.” U.S. SENTENCING GUIDELINES MANUAL

§ 3E1.1(a) (2006). The application notes for § 3E1.1 state that in determining

whether to award a two-point reduction for acceptance of responsibility when

calculating the offense level, the district court may consider several benchmarks,
No. 07-51034

4

including whether the defendant truthfully admitted the conduct comprising the

offense(s) of conviction and voluntarily withdrew from criminal conduct. Id.

§ 3E1.1 cmt. n.1. The PSR recommended that Williamson not receive a twopoint reduction in offense level for acceptance of responsibility only because he

did not voluntarily withdraw from criminal conduct; however, most of the

benchmarks listed in the application notes for § 3E1.1 do not apply in

Williamson’s circumstances. The record indicates that the district court only

considered whether Williamson voluntarily withdrew from criminal conduct to

determine whether he had accepted responsibility. 

Williamson argues on appeal that a defendant’s failure to withdraw

voluntarily from criminal conduct prior to his arrest cannot be the sole basis for

denying acceptance of responsibility when there is other significant evidence of

acceptance. He points to the facts that he admitted his guilt regarding the drug

offenses atthe time of arrest, he timely notified the governmentthat he intended

to plead guilty to all charges in both indictments, and he pleaded guilty shortly

after being indicted as significant evidence that he accepted responsibility for his

behavior. Williamson further argues that, although it is reasonable for

sentencing courts to consider a defendant’s pre-arrest voluntary withdrawal

from criminal conduct or his post-arrest failure to withdraw from criminal

conduct, the district court here unreasonably considered his pre-arrest failure

to withdraw from criminal conduct as the sole basis for denying the acceptance

reduction. Williamson finally argues that the district court’s error prejudiced

him because he received a harsher sentence than he would have received if the

reduction had been granted.

Williamson’s argument ignores the fact that “[a] defendant who enters a

guilty plea is not entitled to an adjustment [for acceptance of responsibility] as

a matter of right.” Id. § 3E1.1 cmt. n.3; see also United States v. PatinoCardenas, 85 F.3d 1133, 1135 (5th Cir. 1996); United States v. Shipley, 963 F.2d
No. 07-51034

3 Additionally, Williamson continued to make excuses for his escape at the sentencing

hearing. He blamed alleged tragic family difficulties and the authorities at the corrections

center for his decision to escape. This court has affirmed a district court’s denial of a two-point

reduction for acceptance of responsibility where the defendant attempted to excuse his

behavior in addition to other indicators of continued failure to cooperate or accept

responsibility. See United States v. Brigman, 953 F.2d 906, 909 (5th Cir. 1992).

5

56, 58 (5th Cir. 1992) (per curiam). The application notes for § 3E1.1 also

provide that although a defendant’s guilty plea prior to trial can serve as

evidence of acceptance of responsibility, that evidence “may be outweighed by

conduct of the defendant that is inconsistent with such acceptance of

responsibility.” U.S.SENTENCING GUIDELINES MANUAL § 3E1.1, cmt. n.3 (2006).

Indeed, “[t]he fact that a defendant engages in later, undesirable, behavior does

not necessarily prove that he is not sorry for an earlier offense; but, it certainly

could shed light on the sincerity of a defendant’s claims of remorse.” United

States v. O’Neil, 936 F.2d 599, 600 (1st Cir. 1991); see also United States v.

Watkins, 911 F.2d 983, 984 (5th Cir. 1990) (affirming denial of acceptance of

responsibility adjustment where defendant engaged in unrelated illegal behavior

while on release pending sentencing for a federal crime). 

“As a general matter, it is true that courts cannot go back limitlessly in

time in assessing acceptance of responsibility.” United States v. McLaughlin,

378 F.3d 35, 41 (1st Cir. 2004); see also United States v. Ceccarani, 98 F.3d 126,

130 (3d Cir. 1996). We hold, however, that the district court committed no clear

error in refusing to grant Williamson a two-point reduction in offense level for

acceptance of responsibility. While Williamson was serving a sentence for drugtrafficking, he escaped from federal prison before the conclusion ofthat sentence

only to return to drug-trafficking; therefore, the district court could have easily

determined that Williamson’s guilty plea for escape and drug-trafficking lacked

remorse and sincerity and rejected his acceptance of responsibility given of all

of his conduct and continued pattern of crime.3

III. CONCLUSION
No. 07-51034

6

Applying the heightened level of deference to the district court’s findings,

we AFFIRM the sentence imposed by the district court.