United States v. Harbin , 179 F. App'x 193 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5085
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NATHANIEL TYRONE HARBIN, a/k/a Nate,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. David A. Faber, Chief
District Judge. (CR-05-91)
Submitted: April 26, 2006 Decided: May 10, 2006
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, George H. Lancaster, Jr., Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant. Charles
T. Miller, Acting United States Attorney, Miller A. Bushong, III,
Assistant United States Attorney, Beckley, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Nathaniel Tyrone Harbin appeals his eighty-seven month
prison sentence imposed after his guilty plea to distribution of
cocaine base and possession with intent to distribute cocaine base
in violation of 21 U.S.C. § 841(a)(1) (2000). Finding no error, we
affirm.
Harbin claims that the district court erred in denying
him an adjustment for acceptance of responsibility based on his
drug use while on bond pending sentencing because his conduct did
not relate to the offense of conviction. We review the district
court’s determination for clear error. United States v. Kise, 369
F.3d 766, 771 (4th Cir. 2004). Application Note 1(b) to U.S.
Sentencing Guidelines Manual § 3E1.1(a) (2005), states that the
court may consider whether the defendant has voluntarily withdrawn
“from criminal conduct or associations” without making an exception
for criminal conduct that is different from the offense of
conviction. A defendant’s continued use or sale of drugs after
conviction may be a basis for denial of an adjustment for
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). Harbin further contends his two positive tests
for marijuana are not enough to justify denial of the adjustment.
Our previous decisions do not hold that only multiple instances of
drug use warrant denial of the adjustment, merely that there be
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some use of drugs after conviction. In making its ruling, the
district court did not commit error when it held that by his
continued involvement with drugs Harbin lost the opportunity for
the adjustment.
Harbin also claims that his sentence was unreasonable.
The district court properly calculated the sentencing guideline
range of 87 to 108 months’ imprisonment. As Harbin’s sentence is
within the properly calculated guideline range, it is presumptively
reasonable. United States v. Green, 436 F.3d 449, 457 (4th Cir.
2006). Harbin has not rebutted that presumption as the district
court appropriately treated the guidelines as advisory, calculated
and considered the guideline range, and weighed the relevant
factors under 18 U.S.C. § 3553(a) (2000).
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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