Vacated by Supreme Court, January 24, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4011
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROBERT ALTON HARRIS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Robert C. Chambers,
District Judge. (CR-03-18)
Submitted: July 9, 2004 Decided: July 30, 2004
Before TRAXLER and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Andrew J. Katz, THE KATZ WORKING FAMILIES LAW FIRM, L.C.,
Charleston, West Virginia, for Appellant. Kasey Warner, United
States Attorney, Stephanie L. Haines, Assistant United States
Attorney, Huntington, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Robert Alton Harris appeals his sentence, following a
guilty plea to transmitting a threatening communication, in
violation of 18 U.S.C. § 876 (2000). The district court sentenced
Harris to forty-one months of imprisonment, to be followed by a
three-year term of supervised release. Harris contends that the
district court clearly erred in denying his request for a downward
sentencing adjustment for acceptance of responsibility, pursuant to
U.S. Sentencing Guidelines Manual § 3E1.1 (2003). Harris also
requests a remand to the district court for a new sentencing
hearing based on a violation of Brady v. Maryland, 373 U.S. 83
(1963). Finding no reversible error, we affirm.
A district court’s determination as to the defendant’s
acceptance of responsibility is a factual question reviewed for
clear error. United States v. Ruhe, 191 F.3d 376, 388 (4th Cir.
1999). The burden is on the defendant to establish by a
preponderance of the evidence that he is entitled to the
adjustment. United States v. Urrego-Linares, 879 F.2d 1234, 1238-
39 (4th Cir. 1989). A guilty plea does not automatically entitle
a defendant to a reduction for acceptance of responsibility. See
USSG § 3E1.1, comment. (n.3). A defendant may not be entitled to
a sentencing adjustment for acceptance of responsibility if the
defendant engages in conduct inconsistent with acceptance of
responsibility. Id. Although Harris admitted that he sent a
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threatening communication to his wife, two witnesses testified that
Harris made additional threats against his wife and others involved
in his case even after he pled guilty. Thus, the district court
did not clearly err in concluding that Harris’s conduct after he
pled guilty was inconsistent with acceptance of responsibility.
Further, because we find no Brady violation, we decline Harris’s
request to remand the case to the district court.
Accordingly, we affirm Harris’s sentence. 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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