On October 30, 2017, the 11th Circuit vacated and remanded a 60-month sentence in United States v. Mathews.  In Mathews, the defendant, a VA nurse, altered medical records to cover up his lack of care for a veteran recovering from surgery.  The veteran ultimately died as a result.  The defendant pleaded guilty.  While on pretrial release, the defendant had tested positive for cocaine.  As a result, at sentencing, the district court believed it did not have the discretion to award a three-level downward adjustment for acceptance of responsibility.  The 11th Circuit found this to be error.  While a positive drug test could serve as grounds for denying a downward adjustment for acceptance of responsibility, it does not preclude a judge from doing so (in this case, the defendant had 18 other clean tests).  The 11th Circuit, however, suggested that if the district court had said it would have imposed an above-Guidelines sentence of 60 months regardless of any Guidelines calculation errors, then it would have likely affirmed the sentenced under a harmless error standard. https://law.justia.com/cases/federal/appellate-courts/ca11/16-11191/16-11191-2017-10-30.html