UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4874
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BOBBY DEAN CHILDERS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-04-560)
Submitted: October 31, 2006 Decided: November 21, 2006
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael A. Meetze, Assistant Federal Public Defender, Julia
Flumian, Second-Year Law Student, Florence, South Carolina, for
Appellant. Reginald I. Lloyd, United States Attorney, Rose Mary
Parham, Assistant United States Attorney, Florence, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Bobby Dean Childers pled guilty to possession of a
firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was
sentenced to a term of seventy-two months imprisonment. Childers
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), because he tested
positive for drug use twice while he was on release prior to his
guilty plea. We affirm.
In April 2004, Childers was arrested by state law
enforcement officers, charged with possession of marijuana and
possession of a firearm by a felon, and released on bond. He was
indicted for the federal firearm offense in May 2004.
Subsequently, the state charges were dropped in favor of federal
prosecution, and Childers was continued on bond. Childers tested
positive for marijuana use on January 10, 2005, and tested positive
for cocaine use on February 9, 2005. His bond was revoked.
At the sentencing hearing, the government asked the court
to give Childers a three-level adjustment for acceptance of
responsibility because the positive drug tests occurred before his
guilty plea and because Childers’ plea had saved the government the
time and effort of a trial. However, the district court declined
to make the adjustment, noting that obtaining and using drugs on
release was continued criminal conduct.
- 2 -
On appeal, Childers argues that the district court
clearly erred in denying him the adjustment by giving undue weight
to his bond violations. We review a district court’s decision to
grant or deny an adjustment for acceptance of responsibility for
clear error. United States v. May, 359 F.3d 683, 688 (4th Cir.
2004). Under USSG § 3E1.1, a defendant “must prove by a
preponderance of the evidence that he has clearly recognized and
affirmatively accepted personal responsibility for his criminal
conduct.” May, 359 F.3d at 693 (internal quotation marks and
citation omitted). “A guilty plea does not automatically entitle
a defendant to a reduction for acceptance of responsibility.”
United States v. Kise, 369 F.3d 766, 771 (4th Cir. 2004). One of
the factors the district court considers in making its
determination is whether the defendant has voluntarily terminated
or withdrawn from criminal conduct or associations. USSG § 3E1.1,
comment. (n.1(b)).
Childers argues that the district court clearly erred by
basing its decision against the adjustment only on his bond
violation while ignoring other factors that weighed in favor of the
adjustment. Those factors were: the government’s stipulation to
the adjustment; the fact that the bond violation was unrelated to
the offense of conviction; and Childers’ “cooperation regarding the
offense,” by which he apparently means his guilty plea. Childers
also argues that he accepted responsibility for his drug use on
- 3 -
release as well as his firearm offense because he did not contest
his positive drug tests.
As stated above, a guilty plea does not entitle the
defendant to the adjustment, and the plea agreement specified that
the government’s stipulation concerning acceptance of
responsibility was not binding on the district court. Moreover,
although the Sixth Circuit has held that new criminal conduct
unrelated to the offense of conviction may not be the basis for
denial of acceptance of responsibility, see United States v.
Morrison, 983 F.2d 730, 733-35 (6th Cir. 1993), this court has not
adopted that rule.
Childers also contends that the unpublished opinions
cited by the district court at sentencing were factually dissimilar
to his and thus were not helpful in deciding his case. However, in
each of the cases cited, the defendant was denied the adjustment
because he used drugs while on release, conduct which constituted
additional criminal conduct rather than termination of criminal
conduct. We conclude that the district court did not clearly err
in denying Childers a decrease in offense level for acceptance of
responsibility.
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
- 4 -
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
- 5 -