NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 18-3778 _____________

UNITED STATES OF AMERICA

v.

MYRON OWENS, Appellant ________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3:15-cr-00013-006) District Judge: Hon. James M. Munley ________________

Submitted under Third Circuit LAR 34.1(a) on September 9, 2019 _____________

Before: CHAGARES, JORDAN, and RESTREPO, Circuit Judges.

(Filed: November 25, 2019)

____________

OPINION * ____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. CHAGARES, Circuit Judge.

Myron Owens challenges three aspects of the sentence imposed upon him by the

District Court: (1) the denial of a minor role reduction under United States Sentencing

Guidelines (“U.S.S.G.”) § 3B1.2; (2) the denial of an acceptance of responsibility

reduction under U.S.S.G. § 3E1.1; and (3) the substantive reasonableness of the court’s

48-month variance below the guideline range. We will affirm.

I.

Owens, along with seven co-defendants, was charged by a grand jury with

conspiracy to distribute heroin and cocaine and possession with intent to distribute heroin

and cocaine in violation of

(a)(1) and (b)(1)(B). Owens then violated

multiple conditions of his pre-trial release: he was arrested and convicted for disorderly

conduct and harassment, he falsified employment timesheets and paystubs, and he failed

to notify pretrial services of his change of address. Owens pleaded guilty to conspiracy

to distribute and possess with intent to distribute more than 100 grams of heroin and

cocaine. As part of his plea, the parties agreed the amount of heroin was less than 400

grams.

The base offense level for his conviction was 24. See U.S.S.G. § 2D1.1(c)(8).

Because of his designation as a career offender pursuant to two prior felony convictions

for controlled substance offenses, his offense level increased to 34. See U.S.S.G. §

4B1.1(b)(2). The pre-sentence report recommended no adjustments for acceptance of

responsibility or minor role. Based on his criminal history category of VI and total

offense level of 34, his advisory guidelines range was 262 to 327 months.

2 At sentencing, Owens raised two objections to the guidelines calculation; he asked

for reductions based on his minor role and his acceptance of responsibility. Owens

conceded that he qualified as a career offender but argued that the lack of severity of his

predicate offenses should be taken into consideration under

(a). The

court overruled his objections but granted a three-level reduction based on cooperation,

resulting in a guidelines range of 188 to 235 months. The court varied downward by 48

months, resulting in a term of imprisonment of 140 months. Owens timely appealed.

II. 1

Owens appeals three aspects of his sentence: the denial of the minor role

reduction, the denial of the acceptance of responsibility reduction, and the substantive

reasonableness of his sentence. We will discuss each in turn.

A.

A downward adjustment denied on factual grounds is reviewed for clear error.

United States v. Brown,

(3d Cir. 2001). “[T]he determination of

whether a defendant is entitled to a minor role adjustment is highly dependent on the

facts of particular cases,” so we afford district courts “broad discretion in applying this

section, and their rulings are left largely undisturbed by the courts of appeals.” United

States v. Isaza-Zapata,

(3d Cir. 1998). This offense level reduction “is

available for a defendant whose role in the offense makes him substantially less culpable

than the average participant.”

But, “the mere fact that a defendant was less culpable

1 The District Court had jurisdiction pursuant to

, and we have appellate jurisdiction pursuant to

and

(a).

3 than his co-defendants does not entitle the defendant to ‘minor participant’ status as a

matter of law.” Brown,

. Factors to consider include: “(1) the

defendant’s awareness of the nature and scope of the criminal enterprise; (2) the nature of

the defendant’s relationship to the other participants; and (3) the importance of the

defendant’s actions to the success of the venture.”

Owens argues the denial of this reduction was procedurally unreasonable because

the court did not address each factor. While the District Court’s analysis was cursory, its

conclusion is supported by the record, and we cannot find that it clearly erred. See

United States v. Carr,

(3d Cir. 1994) (“Although the district court did

not specifically follow [the above-listed three factors], the record amply supports the

district court’s conclusion that Carr was not a minor participant.”). At sentencing, Owens

pointed to two co-defendants that he believes were substantially more culpable than him.

But one co-defendant pleaded guilty to a fraction of the drugs that Owens did –– 10 to 20

grams as opposed to Owens’ 100 to 400 grams. While the co-defendant also pleaded

guilty to a firearms offense and Owens did not, only Owens was a career offender. So

Owens’ sentencing exposure was much higher than his co-defendant’s, making the two

sentences an inapposite comparison. The parties agree that the second co-defendant led

the conspiracy, but that alone does not make Owens a minor participant. See Brown,

. We hold that the District Court did not clearly err in denying the minor role

reduction here.

4 B.

We review for clear error the denial of a reduction for acceptance of responsibility.

United States v. DeLeon-Rodriguez,

(3d Cir. 1995).

A two-level reduction is available when a defendant “clearly demonstrates

acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a). Accordingly, the

defendant bears the burden of proving by a preponderance of the evidence that he has

accepted responsibility and a departure is warranted. DeLeon-Rodriguez,

.

Insofar as “the sentencing judge is in a unique position to evaluate a defendant’s

acceptance of responsibility, we give great deference on review to a sentencing judge’s

decision not to apply the two-level reduction for acceptance of responsibility to a

particular defendant.” United States v. Barr,

(3d Cir. 1992) (citation

omitted). We have recognized that “[c]ontinual criminal activity, even differing in nature

from the convicted offense, is inconsistent with an acceptance of responsibility and an

interest in rehabilitation.” United States v. Ceccarani,

(3d Cir. 1996).

The District Court overruled Owens’ objection based on the criminal and deceitful

behavior that continued after his arrest, which included additional convictions and lying

to pre-trial services. Finding that Owens did not clearly demonstrate that he accepted

responsibility for his criminal conduct was not clearly erroneous.

C.

Owens does not dispute his designation as a career offender. Instead, he argues

that it was substantively unreasonable that the court departed below his guideline range

by only 48 months. We review this decision for an abuse of discretion. United States v.

5 Levinson,

(3d Cir. 2008). “The touchstone of ‘reasonableness’ is

whether the record as a whole reflects rational and meaningful consideration of the

factors enumerated in

(a).” United States v. Grier,

(3d Cir. 2007) (en banc). The sentence imposed will be affirmed “unless no reasonable

sentencing court would have imposed the same sentence on that particular defendant for

the reasons the district court provided.” United States v. Tomko,

(3d

Cir. 2009) (en banc).

Owens’ two predicate offenses that render him a career offender were non-violent

offenses involving marijuana and resulted in short imprisonment terms of only 12 and 13

months, so he argues it was substantively unreasonable to vary downward by only 48

months. On this record, however, we are not convinced that the District Court abused its

discretion in sentencing Owens to 140 months of imprisonment. In considering the

§ 3553(a) factors, the court focused on Owens’ long criminal history, the seriousness of

his heroin offense, and his family’s support. As to his criminal history, Owens’ prior

convictions include “attempt to deliver marijuana, possession with intent to deliver

controlled substances, retail theft, disorderly conduct, harassment, and he has violated

conditions of probation and parole on several occasions.” App. 110. The court also

pointed to statements by two confidential witnesses; one purchased cocaine from Owens

about three times a week for the previous six months and the other bought three to four

bricks of heroin from Owens. As to the seriousness of the underlying offense, the court

discussed how heroin “is destroying lives in our community” and “heroin-related

overdose[s]” are an “epidemic.” App. 111. And the amount of heroin that Owens

6 pleaded guilty to distributing translates to 4,000 to 16,000 retail bags of “potentially

deadly heroin.” App. 111. The court also credited the support of his family, who spoke

at the sentencing and wrote letters on his behalf. The court agreed that a guidelines

sentence would be “unjust” because of the nature of the predicate offenses and the young

age at which he committed them, and it concluded that varying downward by 48 months

was appropriate. App. 112. This was not an abuse of discretion.

III.

For the foregoing reasons, we will affirm the District Court’s judgment of

sentence.

7