UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4133

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

JONATHAN JAMES JARRELL, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Southern 

District of West Virginia, at Beckley. Thomas E. Johnston, 

District Judge. (5:07-cr-00123-2) 

Submitted: October 14, 2008 Decided: October 16, 2008 

Before KING, GREGORY, and AGEE, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne, 

Appellate Counsel, Christian M. Capece, Assistant Federal Public 

Defender, Charleston, West Virginia, for Appellant. Charles T. 

Miller, United States Attorney, John L. File, Assistant United 

States Attorney, Beckley, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. 
PER CURIAM: 

 Jonathan James Jarrell pled guilty to aiding and 

abetting the distribution of cocaine, 21 U.S.C. § 841(a)(1) 

(2000), and was sentenced to a term of twenty-one months 

imprisonment. Jarrell appeals his sentence, arguing that the 

district court clearly erred in denying him an adjustment for 

acceptance of responsibility, U.S. Sentencing Guidelines Manual

§ 3E1.1 (2007), based on two positive drug tests while he was 

free on bond pending his sentencing. We affirm. 

 Jarrell entered his guilty plea in September 2007 and 

was permitted to remain free on bond. In October 2007, he tested 

positive for cocaine use. He also tested positive for cocaine 

use and use of an opiate, Lortab, several days after the first 

positive test, in November 2007. He subsequently admitted 

violating the conditions of his release, including a third 

incident of drug use; his release was revoked; and he was 

detained. At the sentencing hearing in January 2008, the 

district court determined that Jarrell’s conduct was 

inconsistent with acceptance of responsibility and denied the 

adjustment. Jarrell argues on appeal that the admitted drug use 

is an insufficient reason to deny him the adjustment, 

particularly in light of his admission of the offense conduct, 

guilty plea, and cooperation with investigators. 

2 
 Following United States v. Booker, 543 U.S. 220 

(2005), a district court must engage in a multi-step process at 

sentencing. First, it must calculate the appropriate advisory 

Guidelines range. It must then consider the resulting range in 

conjunction with the factors set forth in 18 U.S.C.A. § 3553(a) 

(West 2000 & Supp. 2008) and determine an appropriate sentence. 

United States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006). 

The guideline commentary on which the court relied in denying 

Jarrell the adjustment states that the court may consider 

whether the defendant has voluntarily withdrawn “from criminal 

conduct or associations.” USSG § 3E1.1 comment. (n.1(b)). This 

court has held that a defendant's continued use or sale of drugs 

after conviction may be a basis for denial of acceptance of 

responsibility. United States v. Kidd, 12 F.3d 30, 34 (4th Cir. 

1993); United States v. Underwood, 970 F.2d 1336, 1339 (4th Cir. 

1992). These decisions do not require multiple instances of 

drug use to warrant denial of the adjustment, only some 

continued use of drugs after a guilty plea or conviction. 

Therefore, the district court did not clearly err when it held 

that Jarrell's continued involvement with drugs did not reflect 

acceptance of responsibility. 

3 
4 

 We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 

before the court and argument would not aid the decisional 

process. 

AFFIRMED