UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                       No. 98-4254

DARIUS GOODS,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-97-168)

Submitted: July 21, 1999

Decided: August 4, 1999

Before WILLIAMS, MOTZ, and TRAXLER,
Circuit Judges.

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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

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COUNSEL

David Schles, Charleston, West Virginia, for Appellant. Rebecca A.
Betts, United States Attorney, Miller A. Bushong III, Assistant United
States Attorney, Charleston, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Darius Goods pled guilty to a one-count indictment charging that
he possessed cocaine with intent to distribute in violation of 21 U.S.C.
§ 841(a) (1994), and was sentenced to a term of 144 months impris-
onment. He challenges his sentence on appeal, asserting that the dis-
trict court erred in denying him an adjustment for acceptance of
responsibility because he did not testify at the sentencing hearing. See
U.S. Sentencing Guidelines Manual § 3E1.1 (1997). He also argues
that two criminal history points were incorrectly assigned for a
ninety-day New Jersey sentence for contempt. See USSG § 4A1.1(b).
We affirm in part, vacate in part, and remand for resentencing.

Goods was arrested with one kilogram of cocaine powder. After his
guilty plea to possession of cocaine with intent to distribute, he con-
tested the amount of drugs attributed to him in the presentence report,
disputing information provided to the government by William Sales,
another drug dealer. The government called Sales as a witness at sen-
tencing. Goods chose not to testify on the advice of counsel, but prof-
fered that he admitted certain portions of Sales' testimony and denied
other portions. The district court found that Sales' uncorroborated tes-
timony was not sufficiently credible to rely on in sentencing Goods.
The court considered only the kilogram of cocaine Goods possessed
at his arrest and two ounces of crack which Goods did not deny sell-
ing to Sales. However, the court denied Goods an adjustment for
acceptance of responsibility, stating:

          And the Court does not choose to grant acceptance of
          responsibility under these circumstances with the--
          considering the cagy way in which the defense put forth its
          defense, and I'd like to know more about this, but the defen-
          dant has chosen not to take the stand and not to subject him-
          self to cross-examination, and I have to attribute a lack of
          candor on his part in not taking the stand.

                    2
Goods objected to two criminal history points that the probation
officer awarded for a 1995 ninety-day New Jersey municipal court
sentence for contempt resulting from his failure to abide by the condi-
tions of a diversionary sentence he had received two years earlier.
Goods argued that the state court record did not reveal whether he
was represented by counsel.1 Relying on information from the proba-
tion officer that all defendants in New Jersey are supplied with court-
appointed counsel unless they waive representation or retain their
own attorney, the district court decided that the evidence showed that
counsel had been offered to Goods and he had waived it. Goods pre-
sented no evidence.

On appeal, Goods first contests the district court's decision to deny
him an adjustment for acceptance of responsibility. 2 Goods asserts
that he admitted all the relevant conduct that the court found to be
true, and that the district court's only reason for denying him the
adjustment was that he did not testify concerning the amount of drugs
he sold. The court did not draw any adverse factual inferences from
Goods' silence which affected its determination of the relevant con-
duct. The court did, however, deny Goods the acceptance of responsi-
bility adjustment because of his refusal to testify about additional
criminal conduct.

Application Note 1 to § 3E1.1 provides as follows:
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1 Goods also objected to one criminal history point assigned for the
1993 diversionary sentence, but at sentencing he conceded that the court
record showed that he had waived counsel.

2 This case was previously placed in abeyance for Mitchell v. United
States, 119 S. Ct. 1307 (1999). In Mitchell , the Supreme Court held that
a defendant who pleads guilty retains his Fifth Amendment privilege
against self-incrimination through the sentencing proceeding "with
regard to factual determinations respecting the circumstances and details
of the crime." Id. at 1315. No adverse factual inference may be drawn
from a defendant's silence at sentencing. See id. The Court did not
decide whether a defendant's silence at the sentencing hearing "bears
upon the determination of a lack of remorse, or upon acceptance of
responsibility for purposes of the downward adjustment provided in
§ 3E1.1." Id. at 1316.

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          [A] defendant is not required to volunteer, or affirmatively
          admit, relevant conduct beyond the offense of conviction in
          order to obtain a reduction under subsection (a). A defen-
          dant may remain silent in respect to relevant conduct
          beyond the offense of conviction without affecting his abil-
          ity to obtain a reduction under this subsection.

USSG § 3E1.1, comment. (n.1(a)).

The district court here did not hold that Goods' decision not to tes-
tify demonstrated a lack of remorse, but rather based its denial of the
adjustment solely on his unwillingness to give information about his
dealings with Sales. Because the district court gave no reason for
denying the adjustment other than Goods' refusal to provide informa-
tion about additional criminal conduct, we find that the district court
erred in denying him the adjustment on that ground. We are therefore
constrained to vacate the sentence in part and remand for further pro-
ceedings on this issue.

Concerning the district court's determination of his criminal his-
tory, Goods argues on appeal that the question is whether he could
challenge his 1995 state contempt conviction at a federal sentencing
hearing on the ground that he was denied counsel. Under Custis v.
United States, 511 U.S. 485, 496 (1994), a defendant may indeed
challenge a prior conviction on this ground. However, the district
court did not hold otherwise. The court considered the issue on the
merits and held that the evidence showed that Goods had the opportu-
nity for counsel and waived it. The defendant bears the burden of
showing by a preponderance of the evidence that a prior conviction
was invalid. See United States v. Jones, 977 F.2d 105, 110 (4th Cir.
1992); see also Parke v. Raley, 506 U.S. 20, 28-34 (1992) (presump-
tion of regularity attached to final judgments makes it appropriate that
defendant have burden of showing irregularity of prior plea). Here,
Goods failed to make an affirmative showing that he was denied
counsel.3 Therefore, the district court did not err in awarding two
criminal history points for the 1995 sentence.
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3 Goods states in his appeal brief that "no evidence was produced tend-
ing to cast doubt on [his] assertion that he was not represented by coun-
sel and did not waive his right to counsel." Our review of the record
discloses that Goods did not make this assertion at sentencing. Rather,
he argued that the state court records did not show conclusively that he
either had counsel or waived it in connection with the 1995 conviction.

                    4
We therefore affirm the court's ruling concerning criminal history.
We vacate the sentence and remand for further proceedings concern-
ing acceptance of responsibility. 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 IN PART, VACATED IN PART, AND REMANDED

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