UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4562
CLYDE E. FOCKLER, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-00-48-2)
Submitted: January 19, 2001
Decided: March 6, 2001
Before WILKINS, MICHAEL, and MOTZ, Circuit Judges.
Affirmed in part and dismissed in part by unpublished per curiam
opinion.
COUNSEL
R. Clark Vandervort, Charleston, West Virginia, for Appellant.
Rebecca A. Betts, United States Attorney, Samuel D. Marsh, Assis-
tant United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. FOCKLER
OPINION
PER CURIAM:
Clyde E. Fockler, Jr. appeals his 210 month sentence for conspir-
acy to distribute heroin in violation of 21 U.S.C. § 846 (1994). Fock-
ler argues that the district court erred in denying him a reduction in
offense level for acceptance of responsibility pursuant to U.S. Sen-
tencing Guidelines Manual § 3E1.1 (1998) due to Fockler’s four posi-
tive tests for cocaine after indictment. Fockler further argues that the
resulting sentence as a career offender pursuant to USSG § 4A1.3
overstates his criminal history, and that the district court should have
departed downward. We affirm Fockler’s sentence, and dismiss his
appeal in part.
This Court reviews a district court’s decision to deny an acceptance
of responsibility adjustment for clear error. United States v. Ruhe, 191
F.3d 376, 1279 (4th Cir. 1999). The burden is on the defendant to
prove by a preponderance of the evidence that he has clearly recog-
nized and affirmatively accepted personal responsibility for his crimi-
nal conduct. United States v. Martinez, 901 F.2d 374, 377 (4th Cir.
1990). A defendant’s post-indictment drug use may be sufficient justi-
fication for a district court’s finding that the defendant has not fully
accepted responsibility for his criminal behavior, see United States v.
Kidd, 12 F.3d 30, 34 (4th Cir. 1993), even where the underlying
offense involves dissimilar conduct. See United States v. Walter, 62
F.3d 1082, 1083 (8th Cir. 1995); United States v. McDonald, 22 F.3d
139, 142 (7th Cir. 1994). Because the district court is in a unique
position to evaluate a defendant’s acceptance of responsibility, its
determination is entitled to great deference on review. USSG § 3E1.1,
comment. (n.5).
We have reviewed the briefs and materials submitted in the joint
appendix and find no clear error in the district court’s decision to
deny Fockler a reduction in offense level for acceptance of responsi-
bility. Accordingly, we affirm Fockler’s sentence.
To the extent that Fockler seeks review of the district court’s deci-
sion not to depart downward in sentencing him as a career offender,
such decisions are not reviewable absent an indication that the district
UNITED STATES v. FOCKLER 3
court misperceived its power to do so. United States v. Bayerle, 898
F.2d 28, 30-31 (4th Cir. 1990). We have reviewed the briefs and
materials submitted in the joint appendix and find no such indication.
We therefore dismiss Fockler’s appeal in part. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
in the decisional process.
AFFIRMED IN PART, DISMISSED IN PART