United States v. Slate ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4653
OKEY M. SLATE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Elizabeth V. Hallanan, Senior District Judge.
(CR-95-143)
Submitted: May 19, 1998
Decided: June 24, 1998
Before LUTTIG and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Brian A. Glasser, BOWLES, RICE, MCDAVID, GRAFF & LOVE,
P.L.L.C., Charleston, West Virginia, for Appellant. Rebecca A. Betts,
United States Attorney, Michael L. Keller, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Okey M. Slate pled guilty to possession of a firearm by a convicted
felon in violation of 18 U.S.C.A. § 922(g) (West Supp. 1998), and
received a twenty-five-month prison sentence and three years of
supervised release. Slate appeals his sentence, contending that the dis-
trict court erred by sentencing him in absentia and without a hearing
when it reentered the judgment to reinstate the appeal period and by
refusing to apply a two-level adjustment under U.S. SENTENCING
GUIDELINES MANUAL § 3E1.1 (1994), for acceptance of responsibility.
Finding no error, we affirm.
I.
The district court accepted Slate's guilty plea and sentenced him,
but no notice of appeal was filed. As a result, Slate filed a motion
under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998), contending
that counsel provided ineffective assistance by failing to file a notice
of appeal after being asked to do so. Relying on United States v. Peak,
992 F.2d 39 (4th Cir. 1993), the magistrate judge recommended
vacating the judgment and reentering it to afford Slate an opportunity
to appeal. Neither Slate nor the government filed objections to the
magistrate judge's recommendation. Slate then filed a motion styled
as "Motion to Set Matter for Resentencing with Presence of the
Defendant and New Counsel Pursuant to Rule 32 [of the Federal
Rules of Criminal Procedure] and United States v. Moore, 83 F.3d
1231 (10th Cir. 1996)," in which he sought a new sentencing hearing
so that he could object to the probation officer's failure to recommend
a two-level adjustment for acceptance of responsibility. The district
court granted § 2255 relief, vacated the judgment, and reentered it to
reinstate the appeal period. The court also denied the motion for
resentencing as moot. This appeal followed.
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II.
Slate first contends on appeal that the district court erred by vacat-
ing and reentering the judgment in absentia and without a hearing in
violation of Rules 32 and 43 of the Federal Rules of Criminal Proce-
dure, the Sixth Amendment, and the Due Process Clause. He asserts
that the court had the discretion to sentence him de novo after vacat-
ing his conviction under Peak to afford him the opportunity to file a
direct appeal.
In Peak, we held that a defense attorney's failure to comply with
his client's request to file an appeal constitutes ineffective assistance
regardless of the likelihood of success on the merits. See Peak, 992
F.2d at 42. Consistent with the remedy this court ordered in Peak, the
district court vacated the original judgment of conviction and reim-
posed the original sentence solely to afford Slate a direct appeal. See
id. We therefore find that the district court did not err by reimposing
the original judgment without a hearing and Slate's presence.
III.
Slate also claims that the district court erred by refusing to apply
a two-level adjustment for acceptance of responsibility under
U.S.S.G. § 3E1.1. Slate had a positive urine test for marijuana use
while on bond pending sentencing. As a result, the probation officer
did not recommend a two-level adjustment for acceptance of respon-
sibility. Because Slate lodged no objections to the presentence report
or at the sentencing hearing, he has waived appellate review absent
plain error. See United States v. Perkins, 108 F.3d 512, 516 (4th Cir.
1997).
The district court may find that a defendant has not accepted
responsibility despite a guilty plea and truthful admission of his con-
duct if he engages in conduct inconsistent with acceptance of respon-
sibility. See U.S.S.G. § 3E1.1, comment. (n.3). Slate contends that
new criminal conduct which is unrelated to the offense of conviction
should not be considered in determining acceptance of responsibility.
While the Sixth Circuit has so held, see United States v. Morrison,
983 F.2d 730, 733-35 (6th Cir. 1993), the weight of authority from
other circuits is to the contrary, see United States v. Ceccarani, 98
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F.3d 126, 129-30 (3d Cir. 1996) (holding that post-offense conduct
can shed significant light on sincerity of defendant's claimed
remorse), cert. denied, ___ U.S. #6D 6D6D#, 65 U.S.L.W. 3586 (U.S. Feb.
24, 1997) (No. 96-7616); United States v. Byrd , 76 F.3d 194, 196-97
(8th Cir. 1996); United States v. McDonald, 22 F.3d 139, 142-44 (7th
Cir. 1994); United States v. Pace, 17 F.3d 341, 343-44 (11th Cir.
1994); United States v. O'Neil, 936 F.2d 599, 600-01 (1st Cir. 1991);
United States v. Watkins, 911 F.2d 983, 984-85 (5th Cir. 1990). Fol-
lowing these authorities, we find that there was no error--let alone
plain error--in the district court's finding that Slate had not accepted
responsibility for his criminal conduct based on his positive urine test
for marijuana while on bond.
IV.
Accordingly, we affirm Slate's sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
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