UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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conditions of his release, his release was revoked, and he was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defendant has voluntarily withdrawn “from criminal conduct or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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