United States v. Earnest Washington

1 The Honorable James E. Gritzner, United States District Judge for the
Southern District of Iowa, sitting by designation.
2 The Honorable Lyle E. Strom, United States District Judge for the District
of Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-2500
___________
United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
David R. Boettger, *
*
Defendant-Appellant. *
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Submitted: January 14, 2003
Filed: January 27, 2003
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Before WOLLMAN and MURPHY, Circuit Judges, and GRITZNER,1 District Judge.
___________
MURPHY, Circuit Judge.
David Robert Boettger was convicted of conspiracy to distribute over 500
grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and
sentenced by the district court 2 to 168 months. Boettger appeals from the judgment,
contending that he was entitled to receive a three level reduction in his guideline

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calculation under § 3E1.1. See United States Sentencing Commission, Guidelines
Manual, § 3E1.1 (Nov. 2001) [USSG]. We affirm.
The United States filed an indictment on February 22, 2001, charging that
Boettger conspired to distribute and to possess with the intent to distribute 500 grams
or more of a substance containing a detectable amount of methamphetamine.
Boettger was arrested, and he entered a not guilty plea on March 2, 2001. Special
conditions of release were set, and he was released pending trial. One of the
conditions of Boettger’s release required him to refrain from using or possessing
controlled substances. After Boettger tested positive for methamphetamine use on
five separate occasions, a petition charging violation of release conditions was filed
and an arrest warrant issued. On May 21, 2001, the magistrate judge found that
Boettger had absconded and was not available for trial. He remained at large until
December 13, 2001.
On February 8, 2002, Boettger entered a plea of guilty under a plea agreement
which indicated that he had given a cooperative interview to law enforcement. After
the plea proceeding, he was remanded to custody, but was later mistakenly released
from jail on March 3, 2002. When he telephoned his attorney to inquire about his
release, his attorney said he needed to speak with the marshal’s office before
answering. The attorney learned that there was a federal detainer still in effect, but
he was unable to locate Boettger, and another warrant issued for his arrest. On March
19, 2002, Boettger returned to the Dawson County Courthouse on an unrelated state
charge. He fled when he was told about the arrest warrant, but he was eventually
captured.
At the sentencing hearing, Boettger objected to the sections of the presentence
report that recommended an enhancement for obstruction of justice and no reduction
for acceptance of responsibility. The district court declined to impose either an
obstruction of justice enhancement or an acceptance of responsibility reduction. It

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found that Boettger’s conduct was inconsistent with acceptance of responsibility.
On appeal Boettger argues that the district court erred by not granting a three
offense level reduction under § 3E1.1. He claims that he met his burden of
demonstrating acceptance of responsibility by entering a plea of guilty and discussing
his role in the offense with law enforcement on three separate occasions. He contends
that any “bad conduct” did not outweigh other acts consistent with acceptance of
responsibility so he should have received a three level reduction. The district court
then would have been able to consider all of his conduct in deciding at which point
within the guideline range he should be sentenced. The United States argues that the
district court correctly denied Boettger’s request for an offense level reduction under
§ 3E1.1.
We review the district court’s findings with respect to the acceptance of
responsibility reduction for clear error. See United States v. Ervasti, 201 F.3d 1029,
1043 (8th Cir. 2000). We give great deference to the factual determinations of the
district court and only reverse a finding if it is so clearly erroneous that it lacks
foundation. See United States v. Ngo, 132 F.3d. 1231, 1233 (8th Cir. 1997). The
facts that Boettger hid after being inadvertently released from jail and fled from
officers when he learned he was to be taken back into custody support the district
court’s finding that he had not accepted responsibility. Other conduct, including
Boettger’s continued use of methamphetamine awhile awaiting trial and the fact that
he fled before his first trial date, also supports the decision to deny the offense level
reduction. We conclude that the district court did not err in finding that Boettger’s
conduct was inconsistent with an acceptance of responsibility and in denying a
reduction under § 3E1.1.
According, we affirm the judgment of the district court.

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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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