UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4719

CLIVE ALEXANDER GRANT,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
James C. Fox, Chief District Judge.
(CR-96-8-F)

Submitted: July 24, 1997

Decided: August 4, 1997

Before HAMILTON, LUTTIG, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James M. Ayers, II, STUBBS, PERDUE & AYERS, P.A., New Bern,
North Carolina, for Appellant. Janice McKenzie Cole, United States
Attorney, William A. Webb, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Clive Alexander Grant appeals the sentence imposed by the district
court on his guilty plea for his role in a conspiracy to possess with
the intent to distribute crack cocaine. See 21 U.S.C. § 841(a)(1)
(1994); 21 U.S.C. § 846 (1994); see also 18 U.S.C. § 924(c) (1994).
Specifically, Grant claims that the district court erred in denying him
the benefit of a reduction in offense level for the acceptance of
responsibility. United States Sentencing Commission, Guidelines
Manual § 3E1.1 (Nov. 1995). Finding no merit to Grant's contention,
we affirm the district court's judgment.

Grant pleaded not guilty the day before the selection of the jury
was to begin in his criminal trial. Grant changed his plea the next
morning prior to voir dire. The original presentence investigation
report (PSR) prepared in advance of sentencing suggested reducing
Grant's total offense level by two based on his acceptance of respon-
sibility. However, the probation officer filed a second PSR, which
reported an unserved warrant charging Grant with assault on a gov-
ernment officer arising from an incident in the New Hanover County
Jail. Based on the incident, the probation officer omitted the adjust-
ment for acceptance of responsibility. Grant objected to the omission
of the reduction, but did not make a factual objection to the inclusion
of the incident at the jail in the PSR.

This court reviews a denial of an adjustment for acceptance of
responsibility under USSG § 3E1.1 under a clearly erroneous stan-
dard. See United States v. Kidd, 12 F.3d 30, 34 (4th Cir. 1993). A dis-
trict court's ruling is clearly erroneous only where the reviewing court
is left with the "definite and firm conviction that a mistake has been
made." United States v. United States Gypsum Co., 333 U.S. 364, 395
(1948). Grant contends that the record does not contain any grounds
on which district court could premise the denial of his adjustment for
the acceptance of responsibility. In doing so, he suggests that the
report regarding the outstanding warrant cannot form the basis for the
denial of the adjustment because the Government failed to produce
evidence to support the allegation.

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This suggestion ignores the burden of proof with regard to alleg-
edly inaccurate information in a PSR. The defendant has the burden
of showing that information in the presentence report which he dis-
putes is unreliable or inaccurate. See United States v. Terry, 916 F.2d
157, 162 (4th Cir. 1990). Grant presented no evidence whatsoever at
the sentencing hearing, much less any evidence that would cast doubt
on the veracity of the probation officer's report. Furthermore, Grant
did not object to the portion of the amended PSR which provided the
factual basis for the denial of the adjustment. See Fed. R. Crim. P.
32(c)(3)(D). It appears from the record that the thrust of his conten-
tion before the district court was that on the facts as they stood, he
was entitled to the adjustment.

A sentencing court properly denies the reduction despite a defen-
dant's guilty plea and cooperation where he continues his criminal
conduct after his indictment and plea agreement. See Kidd, 12 F.3d
at 34. An assault against a prison guard is strong evidence that Grant
has not fully accepted his responsibility for his conduct. Conse-
quently, this court is not left with a "definite and firm conviction" that
the district court made a mistake in declining to reduce Grant's
offense level. In addition, because the timeliness of an admission of
responsibility is a factor which the district court may properly con-
sider, see United States v. Jones, 31 F.3d 1304, 1315 (4th Cir. 1994),
the fact that Grant waited until the day of his trial to finally plead
guilty further buttresses the district court's conclusion that Grant was
not entitled to the adjustment.*

Finding that the district court did not clearly err in denying Grant
_________________________________________________________________

*We note that there was no written plea agreement in this case. This
court has recently observed that "justice requires and common sense dic-
tates memorializing the terms of [a] plea agreement." United States v.
McQueen, 108 F.3d 64, 66 (4th Cir. 1997). However, in this case, Grant
does not suggest that the oral plea agreement contained a provision that
the acceptance of responsibility reduction was material to the plea agree-
ment, or was a part of the agreement at all. Consequently, unlike
McQueen, this case does not turn on an alleged breach of the plea agree-
ment. See id. at 65-66. Any error that might have been engendered by the
failure to reduce the agreement to writing was therefore harmless. See
Fed. R. Crim. P. 52.

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the benefit of the offense level adjustment for acceptance of responsi-
bility, we affirm the district court's judgment. We dispense with oral
argument because the facts and legal contentions are adequately pres-
ented in the materials before the Court and argument would not aid
the decisional process.

AFFIRMED

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