United States of America, Plaintiff-appellee, v. Eric Scott Jeffries, Defendant-appellant, 42 F.3d 1392 (7th Cir. 1994)

ORDER

Eric Scott Jeffries was convicted of filing fictitious claims for income tax refunds²  in violation of 18 U.S.C. § 287. He was sentenced to 24 months' imprisonment, followed by a three-year term of supervised release and payment of $2,700 as restitution. On appeal, Jeffries argues that the sentencing court erred in denying him a reduction for acceptance of responsibility because, while on pretrial release, he tested positive for drugs three times, and was arrested for battery twice.

Section 3E1.1 of the United States Sentencing Guidelines (U.S.S.G.) provides that the offense level may be reduced by two levels if "the defendant clearly demonstrates acceptance of responsibility for his offense." U.S.S.G. Sec. 3E1.1(a). The sentencing court may consider defendant's "withdrawal from criminal conduct." U.S.S.G. Sec. 3E1.1, comment (n. 1). Defendant bears the burden of demonstrating that he is entitled to a reduction for acceptance of responsibility. United States v. Guadagno, 970 F.2d 214, 224 (7th Cir. 1992). We will overturn the sentencing court's determination only if it is clearly erroneous. United States v. Yanez, 985 F.2d 371, 374 (7th Cir. 1994). However, questions of law relating to a sentencing decision are reviewed de novo. United States v. Prevatte, 16 F.3d 768, 779 (7th Cir. 1994).

In this case, the district court found that after his arrest defendant failed to distance himself from criminal behavior. Defendant argues that the post-arrest offenses³  were dissimilar from the drug charges, and therefore should not have been considered. Initially we note that there is a connection between the offense of conviction and the use of drugs. Defendant stated that the filing of false tax claims was motivated by his need for drug money, and at least one of the battery charges involved alcohol or drug use.

Moreover, a sentencing court can consider any post-arrest conduct, related or not, when deciding whether to allow a reduction for acceptance of responsibility. United States v. Kirkland, 28 F.3d 49 (7th Cir. 1994) (gun possession charged; post-arrest drug use and failure to appear for drug testing); United States v. McDonald, 22 F.3d 139 (7th Cir. 1994) (counterfeiting charged; post-arrest drug use). Accord United States v. O'Neil, 936 F.2d 599 (1st Cir. 1991) (mail theft charged; post-arrest use of marijuana and breaking into a building); United States v. Watkins, 911 F.2d 983 (5th Cir. 1990) (check forging charged; use of cocaine while awaiting sentence; United States v. Scroggins, 880 F.2d 1204, 1215-16 (11th Cir. 1989) (postal theft charged; use of cocaine while awaiting sentence). In McDonald, 22 F.3d at 143-44, we acknowledged that the Sixth Circuit has taken an opposing position in United States v. Morrison, 983 F.2d 730 (6th Cir. 1993), and we expressly rejected that position.

The district court properly considered defendant's post-arrest conduct. We AFFIRM the judgment of the district court.