UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 98-4377

BLANE WADE O'NEAL,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CR-92-212)

Submitted: January 19, 1999

Decided: February 10, 1999

Before MURNAGHAN, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Douglas Fredericks, Norfolk, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, Kevin M. Comstock, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Blane Wade O'Neal appeals from the district court's order resen-
tencing him to 262 months imprisonment following the district
court's vacatur of his conviction for using or carrying a firearm dur-
ing and in relation to a drug trafficking offense. On appeal, O'Neal
argues only that the district court erred in determining that it did not
have jurisdiction to reconsider whether O'Neal qualified for a down-
ward departure based on his post-conviction acceptance of responsi-
bility. Finding no error, we affirm.

Following O'Neal's convictions for possession of a firearm by a
convicted felon, use or carry of a firearm in relation to a drug traffick-
ing offense, and possession of crack cocaine with intent to distribute,
the district court denied his request for downward departure for
acceptance of responsibility and sentenced O'Neal to serve 202
months imprisonment on the crack cocaine and the felon-in-
possession charges, and a consecutive 60 months on the use or carry
offense. This court affirmed O'Neal's conviction and sentence.

O'Neal then filed a motion pursuant to 28 U.S.C.A.§ 2255 (West
1994 & Supp. 1998), in which he asserted that his conviction under
18 U.S.C.A. § 924(c)(1) (West Supp. 1998), was brought into ques-
tion by the decision in Bailey v. United States , 516 U.S. 137 (1995).
The district court vacated O'Neal's § 924(c)(1) conviction and sen-
tence, affirmed the convictions on the other charges, and resentenced
O'Neal on the remaining charges enhancing his sentence by two
levels under U.S. Sentencing Guidelines Manual § 2D1.1(b)(1)
(1997), for possession of a dangerous weapon. On appeal, this court
affirmed the vacatur of the § 924(c) conviction, but vacated the sen-
tence and remanded for resentencing on the ground that O'Neal had
a right to be present at sentencing.

Following a hearing with O'Neal present, the district court resen-
tenced him to 262 months imprisonment after imposing the two-level
enhancement under USSG § 2D1.1(b)(1). During this hearing, O'Neal
requested that the court consider whether, based on his post-
conviction rehabilitation, he could receive a downward departure for

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acceptance of responsibility. The district court denied this request,
noting that it did not have jurisdiction to consider that issue, and, even
if it did, the court would deny the request. O'Neal timely noted an
appeal and argues on appeal that the district court erred in determin-
ing that it did not have the authority to consider whether to depart
downward for post-incarceration acceptance of responsibility.

At his resentencing hearing, O'Neal asserted that, during his incar-
ceration on these offenses, he had come to accept responsibility for
his actions. He requested that the court grant him the three-level
decrease in offense level due to his acceptance of responsibility. Sec-
tion 3E1.1 provides the sentencing court with the discretion to
decrease a defendant's offense level in cases in which the defendant
has "clearly demonstrat[ed] acceptance of responsibility for his
offense." USSG § 3E1.1(a). However, "[t]his adjustment is not
intended to apply to a defendant who puts the government to its bur-
den of proof at trial by denying the essential factual elements of guilt,
is convicted, and only then admits guilt and expresses remorse."
USSG § 3E1.1, comment. (n.2). A "determination that a defendant
has accepted responsibility will be based primarily upon pre-trial
statements and conduct," rather than post-conviction rehabilitation.
Id. Here, the conduct upon which O'Neal seeks a determination that
he has accepted responsibility for his actions occurred, not only after
he put the government to its burden of proof at trial, was convicted
and sentenced, but after he served part of his sentence. We agree with
the district court that post-conviction rehabilitation is not a proper
basis for a finding of acceptance of responsibility.

Therefore, we affirm the order of the district court denying a reduc-
tion for acceptance of responsibility and resentencing O'Neal to a
term of 262 months imprisonment. 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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