United States v. Anderson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-5064

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

MATTHEW SCOTT ANDERSON,

Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
District Judge. (CR-04-33)

Submitted: October 31, 2006 Decided: November 2, 2006

Before WILLIAMS, MICHAEL, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion.

William C. Gallagher, CASSIDY, MYERS, COGAN & VOEGELIN, L.C.,
Wheeling, West Virginia, for Appellant. Thomas E. Johnston, United
States Attorney, John C. Parr, Assistant United States Attorney,
Wheeling, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Matthew Scott Anderson pled guilty to conspiracy to

manufacture and distribute methamphetamine, 21 U.S.C. § 846 (2000),

and was sentenced to a term of seventy-seven months imprisonment.

Anderson appeals his sentence, arguing that the district court

clearly erred in denying him an adjustment for acceptance of

responsibility, U.S. Sentencing Guidelines Manual § 3E1.1 (2004),

based on a single positive drug test while he was free on bond

pending his sentencing. We affirm.

Anderson entered his guilty plea in March 2005 and was

permitted to remain free on bond. In August 2005, he tested

positive for marijuana use. He subsequently admitted violating the

conditions of his release, his release was revoked, and he was

detained. At the sentencing hearing in October 2005, the district

court determined that his conduct was inconsistent with acceptance

of responsibility and denied the adjustment. Anderson argues on

appeal that a single positive test for marijuana use is an

insufficient reason to deny him the adjustment.

Although the guidelines are no longer mandatory, the

sentencing court must determine the correct guideline range and

consider the range, with other factors, before imposing sentence.

United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). The

guideline commentary on which the court relied in denying Anderson

the adjustment states that the court may consider whether the

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defendant has voluntarily withdrawn “from criminal conduct or

associations.” USSG § 3E1.1, comment. (n.1(b)). This court has

held that a defendant’s continued use or sale of drugs after

conviction may be a basis for denial of acceptance of

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

1993); United States v. Underwood, 970 F.2d 1336, 1339 (4th Cir.

1992). These decisions do not require multiple instances of drug

use to warrant denial of the adjustment, only some continued use of

drugs after conviction. Therefore, the district court did not

clearly err when it held that Anderson’s continued involvement with

drugs did not reflect acceptance of responsibility.

We therefore affirm the sentence imposed by the district

court. 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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