                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4143



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


PAUL ALLEN HILL,

                                              Defendant - Appellant.


Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (2:06-cr-00078)


Submitted:   October 31, 2007          Decided:     November 16, 2007


Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Krysia Carmel Nelson, NELSON & TUCKER, PLC, Charlottesville,
Virginia, for Appellant. Monica Kaminski Schwartz, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Paul    Allen    Hill   appeals    the    seventy-month     sentence

imposed    following   his    guilty    plea   to    one   count   of   knowingly

maintaining a residence for the purpose of distributing cocaine, in

violation of 21 U.S.C. § 856(a)(1) (2000).             Hill’s attorney filed

a brief in accordance with Anders v. California, 386 U.S. 738

(1967), certifying there are no meritorious grounds for appeal, but

questioning two issues relevant to the district court’s calculation

of Hill’s sentence under the advisory Sentencing Guidelines.                 The

Government did not file a brief, and although advised of his right

to do so, Hill did not file a pro se supplemental brief.                 Finding

no reversible error, we affirm.

            Hill was arrested following an investigation by officers

with the Charleston, West Virginia, Police Department into the

suspected narcotics trafficking of Jesse Smith.                    Hill provided

Smith a key to his apartment in December 2005, and the police

believed Smith was storing drugs there.              Although Hill knew Smith

was using his apartment to sell drugs, he did not prohibit Smith

from continuing to so use it.            In exchange, Smith provided Hill

cocaine.

            Upon executing a search warrant for the apartment, the

police discovered cocaine and tools of narcotics packaging and

distribution.      Hill, who was in the apartment when the warrant was




                                       - 2 -
executed, was arrested, handcuffed, and read his Miranda1 rights.

Hill gave a statement to Detective Tim Palmer in which Hill

reported that Smith brought between five and six ounces of cocaine

to the apartment two or three times per month.                Thus, even using

the   most       conservative     figures,   Hill    estimated   Smith    brought

approximately fifty ounces of cocaine into the apartment during the

five months he used it.           Hill also admitted that, on two separate

occasions, he assisted in packaging approximately one ounce of

cocaine for resale.

                 Although Hill initially pled not guilty, he later entered

into a written plea agreement with the Government.                The district

court conducted a thorough plea colloquy that fully comported with

Fed. R. Crim. P. 11.        Finding there was a sufficient factual basis

to support the guilty plea and that Hill had entered the plea

knowingly and voluntarily, the district court accepted the plea.

                 In the presentence report (“PSR”), the probation officer

relied upon Hill’s statement to Palmer regarding the estimated

quantity of cocaine Smith brought through the apartment to support

the recommendation that fifty ounces of cocaine be attributed to

Hill.     Using this quantity — which converts to 1.42 kilograms of

cocaine      —    Hill’s   base   offense    level    was   twenty-six.      U.S.

Sentencing Guidelines Manual §§ 2D1.1(c)(7), 2D1.1 cmt. n.10,

2D1.8(a)(1) (2005) (“USSG”).            However, during the course of his


      1
        Miranda v. Arizona, 384 U.S. 436 (1966).

                                       - 3 -
presentence interview, Hill retreated from his earlier statement

regarding drug quantity; in light of this retraction, the probation

officer     did    not    recommend         an    adjustment        for    acceptance       of

responsibility.          Coupling Hill’s total adjusted offense level of

twenty-six with a criminal history category II yielded an advisory

Guidelines range of seventy to eighty-seven months’ imprisonment.

USSG ch. 5, pt. A, sentencing table (2005).

             The    district       court         rejected     all    three       of   Hill’s

objections    to    the    PSR     and    sentenced         Hill    to    seventy-months’

imprisonment.      This appeal followed.

             In her Anders brief, counsel presents two issues for

consideration: (1) the propriety of the use of Hill’s statement to

Palmer in determining the drug quantity attributable to Hill; and

(2) the district court’s denial of an adjustment for acceptance of

responsibility.           We   have      reviewed      the    record       and     found   no

reversible error. Thus, for the reasons outlined below, we affirm.



I.      Reasonableness of Hill’s Sentence

        In reviewing a post-Booker sentence for reasonableness, this

court     considers      whether      the    district        court       adhered      to   the

multi-step process set forth in this court’s post-Booker decisions.

First, the district court must properly calculate the defendant’s

advisory Guidelines range.               United States v. Moreland, 437 F.3d

424, 432 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006).                                 The


                                            - 4 -
court     must    then   “determine    whether   a    sentence    within   that

range . . . serves the factors set forth in § 3553(a) and, if not,

select a sentence [within statutory limits] that does serve those

factors.”        United States v. Green, 436 F.3d 449, 455 (4th Cir.),

cert. denied, 126 S. Ct. 2309 (2006).                The court should first

consider whether a traditional Guidelines departure is appropriate.

Moreland, 437 F.3d at 432.             If the § 3553(a) factors are not

satisfied by the departure sentence, the sentencing court may then

consider whether to impose a variance sentence.             Id.    This court

affords     sentences    that   fall    within   the    properly    calculated

Guidelines range a presumption of reasonableness, a presumption

permitted by the Supreme Court.         Rita v. United States, __ U.S. __,

127 S. Ct. 2456, 2459, 2462 (2007); Green, 436 F.3d at 457

(internal quotation marks and citation omitted).

             As the first step in reviewing a post-Booker sentence is

to assess whether the district court properly calculated the

defendant’s advisory Guidelines range, Moreland, 437 F.3d at 432,

we first address the two issues raised by counsel as they are both

relevant to this assessment.



     A.      Relevant Conduct Determination

             Hill first questions whether the Government satisfied its

burden of proof regarding the drug quantity found attributable to

Hill.   The district court properly relied upon Hill’s statement to


                                       - 5 -
Palmer to determine this issue, and no further proof was required.

In addition to the statement being constitutionally sound,2 the

statement was also admissible under the Federal Rules of Evidence.

“[T]here is no bar to the use of hearsay in sentencing,” United

States v. Love, 134 F.3d 595, 607 (4th Cir. 1998), and this type of

statement   against   interest      of   the   uttering   party-opponent     is

considered non-hearsay under Fed. R. Evid. 801(d)(2)(A).                 Hill’s

statement regarding quantity, as testified to by Palmer, was more

than sufficient to satisfy the Government’s burden.



      B.    Denial of Acceptance of Responsibility Adjustment

            Hill next questions whether the district court properly

denied him an adjustment for acceptance of responsibility.                  We

agree with counsel that this claim is “without merit.”

            Under USSG § 3E1.1 (2005), a defendant may receive a two

or   three-level   reduction   in    his    offense   level   if   he   clearly

demonstrates he has accepted responsibility for his offense.                In

order to receive such a reduction, “the defendant must prove by a

preponderance of the evidence that he has clearly recognized and

affirmatively accepted personal responsibility for his criminal

conduct.”   United States v. May, 359 F.3d 683, 693 (4th Cir. 2004)

(internal quotation marks and citation omitted). “[A]n adjustment


      2
      Hill gave his statement to Palmer after being read his
Miranda rights and there is nothing in the record to indicate any
deficiency therein.

                                    - 6 -
for acceptance of responsibility does not flow automatically from

a guilty plea.” Id.

               In    deciding    whether   an     acceptance    of   responsibility

adjustment is warranted, the sentencing court should consider

whether   the        defendant   has   “truthfully      admitt[ed]     the   conduct

comprising the offense(s) of conviction, and truthfully admitt[ed]

or not falsely den[ied] any additional relevant conduct for which

the defendant is accountable under § 1B1.3 (Relevant Conduct).”

USSG § 3E1.1 cmt. n.1(a) (2005).                  The false denial of relevant

conduct justifies a denial of acceptance of responsibility. United

States v. Falesbork, 5 F.3d 715, 721-22 (4th Cir. 1993).                           This

court reviews a district court’s decision to grant or deny an

adjustment for acceptance of responsibility for clear error.                       May,

359 F.3d at 688.

               The    district    court    properly    concluded     Hill    was   not

entitled to an reduction in his base offense level for acceptance

of responsibility.         Although it appears Hill was initially honest

in his statement to Palmer, his later attempts to downplay the

extent    of    Smith’s     drug    trafficking       reflect    a   frivolous      and

unfounded denial of relevant conduct which supports the denial of

the acceptance of responsibility reduction.3                    USSG § 3E1.1 cmt.




     3
      It is beyond dispute that Smith’s drug trafficking was
properly considered relevant conduct germane to Hill’s sentencing.
See USSG § 1B1.3(a)(1) (2005).

                                          - 7 -
n.1(a).   There was no error, let alone clear error, in the district

court’s adjudication of this issue.

           In accordance with Anders, we have reviewed the entirety

of the record and found no meritorious issues.           Accordingly, we

affirm the district court’s judgment.           In addition to denying

counsel’s motion to withdraw from representation, we require that

counsel inform Hill, in writing, of the right to petition the

Supreme Court of the United States for further review.          If Hill

requests that a petition be filed, but counsel believes that such

a petition would be frivolous, then counsel may move in this court

for leave to withdraw from representation.        Counsel’s motion must

state that a copy thereof was served on Hill.           We dispense with

oral   argument   because   the   facts   and   legal   contentions   are

adequately set forth in the materials before the court and argument

would not aid the decisional process.



                                                                AFFIRMED




                                  - 8 -
