UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4143

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

PAUL ALLEN HILL,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Charleston. John T. Copenhaver, Jr.,

District Judge. (2:06-cr-00078)

Submitted: October 31, 2007 Decided: November 16, 2007

Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Krysia Carmel Nelson, NELSON & TUCKER, PLC, Charlottesville,

Virginia, for Appellant. Monica Kaminski Schwartz, OFFICE OF THE

UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Paul Allen Hill appeals the seventy-month sentence

imposed following his guilty plea to one count of knowingly

maintaining a residence for the purpose of distributing cocaine, in

violation of 21 U.S.C. § 856(a)(1) (2000). Hill’s attorney filed

a brief in accordance with Anders v. California, 386 U.S. 738

(1967), certifying there are no meritorious grounds for appeal, but

questioning two issues relevant to the district court’s calculation

of Hill’s sentence under the advisory Sentencing Guidelines. The

Government did not file a brief, and although advised of his right

to do so, Hill did not file a pro se supplemental brief. Finding

no reversible error, we affirm.

Hill was arrested following an investigation by officers

with the Charleston, West Virginia, Police Department into the

suspected narcotics trafficking of Jesse Smith. Hill provided

Smith a key to his apartment in December 2005, and the police

believed Smith was storing drugs there. Although Hill knew Smith

was using his apartment to sell drugs, he did not prohibit Smith

from continuing to so use it. In exchange, Smith provided Hill

cocaine. 

Upon executing a search warrant for the apartment, the

police discovered cocaine and tools of narcotics packaging and

distribution. Hill, who was in the apartment when the warrant was
1

Miranda v. Arizona, 384 U.S. 436 (1966).

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executed, was arrested, handcuffed, and read his Miranda1 rights.

Hill gave a statement to Detective Tim Palmer in which Hill

reported that Smith brought between five and six ounces of cocaine

to the apartment two or three times per month. Thus, even using

the most conservative figures, Hill estimated Smith brought

approximately fifty ounces of cocaine into the apartment during the

five months he used it. Hill also admitted that, on two separate

occasions, he assisted in packaging approximately one ounce of

cocaine for resale.

Although Hill initially pled not guilty, he later entered

into a written plea agreement with the Government. The district

court conducted a thorough plea colloquy that fully comported with

Fed. R. Crim. P. 11. Finding there was a sufficient factual basis

to support the guilty plea and that Hill had entered the plea

knowingly and voluntarily, the district court accepted the plea. 

In the presentence report (“PSR”), the probation officer

relied upon Hill’s statement to Palmer regarding the estimated

quantity of cocaine Smith brought through the apartment to support

the recommendation that fifty ounces of cocaine be attributed to

Hill. Using this quantity — which converts to 1.42 kilograms of

cocaine — Hill’s base offense level was twenty-six. U.S.

Sentencing Guidelines Manual §§ 2D1.1(c)(7), 2D1.1 cmt. n.10,

2D1.8(a)(1) (2005) (“USSG”). However, during the course of his
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presentence interview, Hill retreated from his earlier statement

regarding drug quantity; in light of this retraction, the probation

officer did not recommend an adjustment for acceptance of

responsibility. Coupling Hill’s total adjusted offense level of

twenty-six with a criminal history category II yielded an advisory

Guidelines range of seventy to eighty-seven months’ imprisonment.

USSG ch. 5, pt. A, sentencing table (2005). 

The district court rejected all three of Hill’s

objections to the PSR and sentenced Hill to seventy-months’

imprisonment. This appeal followed. 

In her Anders brief, counsel presents two issues for

consideration: (1) the propriety of the use of Hill’s statement to

Palmer in determining the drug quantity attributable to Hill; and

(2) the district court’s denial of an adjustment for acceptance of

responsibility. We have reviewed the record and found no

reversible error. Thus, for the reasons outlined below, we affirm.

I. Reasonableness of Hill’s Sentence

In reviewing a post-Booker sentence for reasonableness, this

court considers whether the district court adhered to the

multi-step process set forth in this court’s post-Booker decisions.

First, the district court must properly calculate the defendant’s

advisory Guidelines range. United States v. Moreland, 437 F.3d

424, 432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). The
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court must then “determine whether a sentence within that

range . . . serves the factors set forth in § 3553(a) and, if not,

select a sentence [within statutory limits] that does serve those

factors.” United States v. Green, 436 F.3d 449, 455 (4th Cir.),

cert. denied, 126 S. Ct. 2309 (2006). The court should first

consider whether a traditional Guidelines departure is appropriate.

Moreland, 437 F.3d at 432. If the § 3553(a) factors are not

satisfied by the departure sentence, the sentencing court may then

consider whether to impose a variance sentence. Id. This court

affords sentences that fall within the properly calculated

Guidelines range a presumption of reasonableness, a presumption

permitted by the Supreme Court. Rita v. United States, __ U.S. __,

127 S. Ct. 2456, 2459, 2462 (2007); Green, 436 F.3d at 457

(internal quotation marks and citation omitted). 

As the first step in reviewing a post-Booker sentence is

to assess whether the district court properly calculated the

defendant’s advisory Guidelines range, Moreland, 437 F.3d at 432,

we first address the two issues raised by counsel as they are both

relevant to this assessment. 

A. Relevant Conduct Determination

Hill first questions whether the Government satisfied its

burden of proof regarding the drug quantity found attributable to

Hill. The district court properly relied upon Hill’s statement to
2Hill gave his statement to Palmer after being read his

Miranda rights and there is nothing in the record to indicate any

deficiency therein. 

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Palmer to determine this issue, and no further proof was required.

In addition to the statement being constitutionally sound,2

 the

statement was also admissible under the Federal Rules of Evidence.

“[T]here is no bar to the use of hearsay in sentencing,” United

States v. Love, 134 F.3d 595, 607 (4th Cir. 1998), and this type of

statement against interest of the uttering party-opponent is

considered non-hearsay under Fed. R. Evid. 801(d)(2)(A). Hill’s

statement regarding quantity, as testified to by Palmer, was more

than sufficient to satisfy the Government’s burden. 

B. Denial of Acceptance of Responsibility Adjustment

Hill next questions whether the district court properly

denied him an adjustment for acceptance of responsibility. We

agree with counsel that this claim is “without merit.” 

Under USSG § 3E1.1 (2005), a defendant may receive a two

or three-level reduction in his offense level if he clearly

demonstrates he has accepted responsibility for his offense. In

order to receive such a reduction, “the defendant must prove by a

preponderance of the evidence that he has clearly recognized and

affirmatively accepted personal responsibility for his criminal

conduct.” United States v. May, 359 F.3d 683, 693 (4th Cir. 2004)

(internal quotation marks and citation omitted). “[A]n adjustment
3It is beyond dispute that Smith’s drug trafficking was

properly considered relevant conduct germane to Hill’s sentencing.

See USSG § 1B1.3(a)(1) (2005). 

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for acceptance of responsibility does not flow automatically from

a guilty plea.” Id.

In deciding whether an acceptance of responsibility

adjustment is warranted, the sentencing court should consider

whether the defendant has “truthfully admitt[ed] the conduct

comprising the offense(s) of conviction, and truthfully admitt[ed]

or not falsely den[ied] any additional relevant conduct for which

the defendant is accountable under § 1B1.3 (Relevant Conduct).”

USSG § 3E1.1 cmt. n.1(a) (2005). The false denial of relevant

conduct justifies a denial of acceptance of responsibility. United

States v. Falesbork, 5 F.3d 715, 721-22 (4th Cir. 1993). This

court reviews a district court’s decision to grant or deny an

adjustment for acceptance of responsibility for clear error. May,

359 F.3d at 688. 

The district court properly concluded Hill was not

entitled to an reduction in his base offense level for acceptance

of responsibility. Although it appears Hill was initially honest

in his statement to Palmer, his later attempts to downplay the

extent of Smith’s drug trafficking reflect a frivolous and

unfounded denial of relevant conduct which supports the denial of

the acceptance of responsibility reduction.3 USSG § 3E1.1 cmt.
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n.1(a). There was no error, let alone clear error, in the district

court’s adjudication of this issue. 

In accordance with Anders, we have reviewed the entirety

of the record and found no meritorious issues. Accordingly, we

affirm the district court’s judgment. In addition to denying

counsel’s motion to withdraw from representation, we require that

counsel inform Hill, in writing, of the right to petition the

Supreme Court of the United States for further review. If Hill

requests that a petition be filed, but counsel believes that such

a petition would be frivolous, then counsel may move in this court

for leave to withdraw from representation. Counsel’s motion must

state that a copy thereof was served on Hill. We dispense with

oral argument because the facts and legal contentions are

adequately set forth in the materials before the court and argument

would not aid the decisional process. 

AFFIRMED