Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 94 CR 20--Robert L. Miller, Jr., Judge.
Before BAUER, COFFEY, and FLAUM, Circuit Judges.
Michael Dawson pled guilty to possession with intent to distribute marijuana, in violation of 21 U.S.C. sec. 841(a)(1). The district court sentenced him to sixty months imprisonment. He appeals the district court's refusal to reduce his sentence for acceptance of responsibility. U.S.S.G. sec. 3E1.1. We affirm.
The Illinois State Police contacted the Indiana State Police in March, 1994, with information that they had intercepted a shipment of marijuana intended for delivery to Michael Dawson in South Bend, Indiana. The Indiana State Police arranged for a controlled delivery to Dawson on March 5, 1994. Dawson was arrested and then released on bond. One of the conditions of his release was that he refrain from any use or unlawful possession of a narcotic drug or other controlled substance and submit to random urine tests. During the period of his bond, two-thirds of Dawson's thirty urine drops tested positive for marijuana and/or cocaine. Although Dawson initially ceased use of controlled substances, *fn1 he faltered soon thereafter. Dawson maintained that he never used illegal substances, but the record reflects that all tests taken since May, 1994 were positive. The district court sentenced him on August 23, 1994.
Dawson pled guilty to the charge in April, 1994. At sentencing, the district court acknowledged Dawson's early plea, his cooperation with the authorities, and his payment of taxes on income he had earned illegally. *fn2 However, given Dawson's drug use while on bond, the district court declined to reduce his sentence for acceptance of responsibility. Dawson then appealed.
A district court may reduce a defendant's offense level by two levels if "the defendant clearly demonstrates acceptance of responsibility for his offense." U.S.S.G. sec. 3E1.1(a). "The sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility. For this reason, the determination of the sentencing judge is entitled to great deference on review." U.S.S.G. sec. 3E1.1, comment n.5; see 18 U.S.C. sec. 3742(e); United States v. McDonald, 22 F.3d 139, 141 (7th Cir. 1994). Whether a defendant accepts responsibility under sec. 3E1.1 "is essentially a question of fact for the district court to resolve." United States v. Franklin, 902 F.2d 501, 505 (7th Cir.), cert. denied, 498 U.S. 906 (1990). We review factual findings only for clear error. Id.; United States v. Pitz, 2 F.3d 723, 732 (7th Cir. 1993), cert. denied, 114 S. Ct. 2141 (1994).
The sole issue on appeal is whether the district court erred in refusing to reduce Dawson's offense level for acceptance of responsibility. The plea agreement between the government and Dawson provided that the government would recommend a reduction for acceptance of responsibility pursuant to sec. 3E1.1 if Dawson refrained from engaging in criminal conduct and from using controlled substances. Specifically, the agreement stated:
The government agrees that in recognition of the defendant's acceptance of responsibility for his conduct, he is entitled to the maximum reduction in the offense level permissible under Guideline sec. 3E1.1; however, the government's obligation to recommend acceptance of responsibility under this plea agreement is contingent upon my continuing manifestation of acceptance of responsibility. Should I deny my involvement, give conflicting statements of my involvement, or engage in additional criminal conduct such as the personal use of controlled substances, the government shall not be bound to recommend any reduction in offense level for acceptance of responsibility. The defendant understands that the Court makes the final decision whether or not to award points for acceptance of responsibility. *fn3
Because he tested positive for marijuana on many occasions after he signed the agreement, the government declined to recommend the reduction. Dawson claims that he is an addict and could not help using drugs. Further, he sought treatment for his addiction but was denied a recommended in-house treatment due to his impending incarceration. Dawson reasons that his addiction, coupled with his attempt to receive treatment, outweigh his drug use while on pre-trial release and thus entitle him to a reduction for acceptance of responsibility.
Two recent cases in this circuit are instructive here. First, in McDonald, we concluded that a sentencing court could consider a defendant's "use of drugs and failure to comply with the terms of his release on bond in determining whether a defendant should receive the two-level reduction for acceptance of responsibility." 22 F.3d at 144. While on pre-trial release awaiting sentencing for a counterfeiting charge, McDonald ...