                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-4499



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


JERRY LEE MOORE, a/k/a Bug,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:05-cr-00031-4)


Submitted: March 22, 2007                     Decided: March 27, 2007


Before WIDENER and WILKINSON, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


M. Victoria Jayne, Hickory, North Carolina, for Appellant. Amy
Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Jerry Lee Moore pled guilty pursuant to a plea agreement

to one count of conspiracy to possess with intent to distribute

fifty   grams   or   more   of   a   mixture   or   substance   containing   a

detectable amount of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1); 846 (2000).        The district court sentenced Moore to

154 months’ imprisonment.            We find no error and affirm Moore’s

conviction and sentence.

            On appeal, counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), arguing the Government breached

the terms of the plea agreement by failing to recommend a two-level

reduction   under    U.S.   Sentencing     Guidelines   Manual   §   3E1.1(a)

(2005), as well as move for an additional one-level reduction under

§ 3E1.1(b).     Moore, however, “admits” in his pro se supplemental

brief that the Government did not breach the plea agreement.

Instead, Moore contends that the district court erred in its

application of § 3E1.1(a).           The Government elected not to file a

responsive brief.

            Initially, Moore’s counsel contends that the Government

breached the plea agreement by refusing to recommend and move for

a reduction under § 3E1.1.             However, because the Government’s

recommendation and motion were conditioned upon Moore’s compliance

with the conditions of pre-sentence release, and Moore acknowledges




                                      - 2 -
in his pro se supplemental brief that he did not comply, we

conclude that the Government did not breach the plea agreement.

          Moore contends that the district court erred in its

application of § 3E1.1(a) by considering unrelated, post-indictment

misconduct in making its determination as to whether a reduction

was warranted.    When reviewing the district court’s application of

the Sentencing Guidelines, we review findings of fact for clear

error and questions of law de novo.          United States v. Green, 436

F.3d 449, 456 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006).

Because post-indictment misconduct may be considered in determining

whether a defendant qualifies for an acceptance of responsibility

reduction, see, e.g., United States v. Underwood, 970 F.2d 1336,

1339 (4th Cir. 1992) (per curiam) (determining post-indictment drug

use was sufficient to support decision not to reduce offense level

under § 3E1.1), we conclude the district court did not err in its

application of § 3E1.1(a).

          In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.   Accordingly, we affirm Moore’s conviction and sentence.

This court requires that counsel inform her client, in writing, of

his right to petition the Supreme Court of the United States for

further review.    If the client requests that a petition be filed,

but counsel believes that such a petition would be frivolous, then

counsel   may    move   this   court   for    leave   to   withdraw   from


                                  - 3 -
representation.   Counsel’s motion must state that a copy thereof

was served on the client.   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 in the

decisional process.



                                                          AFFIRMED




                               - 4 -
