United States v. Graham

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 03-4343

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

DAVID JAMES GRAHAM,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Aiken. Cameron McGowan Currie, District Judge.
(CR-02-1177)

Submitted: January 28, 2004 Decided: March 3, 2004

Before WIDENER and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Robert J. Harte, ROBERT J. HARTE, P.C., Aiken, South Carolina, for
Appellant. James Strom Thurmond, Jr., United States Attorney,
Stacey Denise Haynes, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

David James Graham pled guilty to two counts of

possession of firearms and ammunition by a convicted felon, 18

U.S.C. §§ 922(g)(1), 924(a) (2000). The district court sentenced

him to concurrent fifty-seven-month prison terms on each count.

Graham’s counsel has filed a brief in accordance with Anders v.

California, 386 U.S. 738 (1967), stating that, in his view, there

are no meritorious grounds for appeal. However, he raises the

issues of whether the district court complied with Rule 11 of the

Federal Rules of Criminal Procedure in accepting Graham’s guilty

plea, and whether the district court erred in denying Graham an

adjustment for acceptance of responsibility. Graham has filed a

pro se supplemental brief asserting that he was entitled to an

adjustment for acceptance of responsibility. Finding no reversible

error, we affirm.

After reviewing the transcript of the plea proceeding, we

conclude that the district court fully complied with the

requirements of Rule 11 in accepting Graham’s guilty plea. Turning

to the sentencing issue, the district court’s determination

regarding acceptance of responsibility is factual, and we review it

with great deference for clear error. U.S. Sentencing Guidelines

Manual § 3E1.1, comment. (n.5) (2002); United States v. Ruhe, 191

F.3d 376, 388 (4th Cir. 1999).

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 Graham assaulted another inmate while awaiting

sentencing. In deciding whether a defendant has accepted

responsibility, the district court may consider whether he has

voluntarily terminated or withdrawn from criminal conduct. See

USSG § 3E1.1, comment. (n.1(b)). In light of the intervening

assault, the district court did not clearly err in denying the

reduction. See United States v. Kidd, 12 F.3d 30, 34 (4th Cir.

1993) (finding that defendant’s continued criminal conduct is

inconsistent with acceptance of responsibility).

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. We therefore affirm Graham’s conviction and sentence.

This court requires that counsel inform his client, in writing, of

his right to petition the Supreme Court of the United States for

further review. If the client requests that a petition be filed,

but counsel believes that such a petition would be frivolous, then

counsel may move in this court for leave to withdraw from

representation. Counsel’s motion must state that a copy thereof

was served on the client.

We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

AFFIRMED

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