UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 98-4730

WILLIAM MANNS,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., Chief District Judge.
(CR-98-6)

Submitted: July 13, 1999

Decided: September 14, 1999

Before NIEMEYER and WILLIAMS, Circuit Judges,
and PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Jay T. McCamic, McCAMIC & McCAMIC, Wheeling, West Vir-
ginia, for Appellant. David E. Godwin, United States Attorney, Sam
G. Nazzaro, Assistant United States Attorney, Sharon L. Potter,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

William Manns appeals his sentence of 235 months in prison for
his conviction of conspiracy to possess with intent to distribute crack
cocaine, in violation of 21 U.S.C. § 846 (1994). We affirm.

I.

On April 7, 1998, a federal grand jury indicted Manns and Robert
Ervin. Both were charged with conspiracy to possess with intent to
distribute crack cocaine, and Ervin was named in ten related substan-
tive counts. A month later, Manns entered into a written plea agree-
ment with the United States in which he agreed to plead guilty to the
conspiracy count and to cooperate with the government. The govern-
ment agreed to recommend that Manns receive a reduction for his
minor role in the offense and that he be sentenced at the low end of
the applicable guidelines range. Moreover, the government promised
to support a reduction for timely acceptance of responsibility if the
reduction were recommended by the probation officer.

Manns' interview with the probation officer did not go well. Under
questioning, he denied that he had any intervening convictions since
his 1995 release from prison except a minor traffic offense. This
information was incorrect; Manns had in fact been charged with and
pled guilty to drug trafficking in Ohio state court in 1996. In the pre-
sentence report, the probation officer recommended that Manns'
incorrect answer be deemed an obstruction of justice and that he be
denied a reduction for acceptance of responsibility. Manns objected
to the recommendation.

At sentencing, the parties agreed, and the district court found, that
all issues but one were moot. Because of Manns' history of drug traf-
ficking, he qualified as a "career offender," which made his criminal

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history category VI and his base offense level 34, both of which
exceeded what the probation officer had calculated in the absence of
career offender status (category IV and offense level 30). The only
issue remaining was whether Manns should receive a reduction for
acceptance of responsibility. See U.S.S.G.§ 4B1.1 (directing that the
base offense level for a career offender be the higher of that listed in
the section's table or the level "otherwise applicable," but permitting
adjustments for acceptance of responsibility).

The district court heard evidence on the issue and found that
although Manns had obstructed justice, he had shown that his false
statements were more likely than not the result of confusion or mis-
take. Accordingly, because such false statements do not call for the
application of the U.S.S.G. § 3C1.1 enhancement, see id., comment.
(n.2), they would likewise impose no barrier to the acceptance of
responsibility reduction. See U.S.S.G. § 3E1.1, comment. (n.4). Inas-
much as the government supported the reduction, the court reduced
Manns' offense level to 31. In doing so, however, the court empha-
sized that the issue was close and Manns' case was an unusual one.

          This Court might suspect that some might interpret this rul-
          ing as meaning in cases such as this or perhaps similar to
          this one, all that a Defendant need to do is to provide the
          Court with evidence, expert or otherwise, that somehow
          explain[s] away what is otherwise a clear misstatement to a
          probation officer or other investigator to throw the officer
          off the track. It would be a mistake to make such a conclu-
          sion.

(J.A. at 185-86).

The resulting guidelines range was 188-235 months. The court sen-
tenced Manns at the top of the range. The court explained:

          The Defendant is a career offender. The prior criminal his-
          tory demonstrates to this Court inability and unwillingness
          to conform to the laws of society towards felony controlled
          substance offenses. I think that the sentence at the higher
          end of the guideline range is necessary to protect society,

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          and in this instance will reflect the seriousness of these
          crimes.

(J.A. at 190-91).

Manns appeals.

II.

A.

Manns argues that the district court's decision to sentence him at
the top of the guideline range, rather than at the bottom as recom-
mended by the government, was motivated by vindictiveness over his
objections to the presentence report. See North Carolina v. Pearce,
395 U.S. 711 (1969). In Pearce, the Supreme Court recognized a due
process right to a sentencing free of vindictiveness for the successful
exercise of the right to appeal. See 395 U.S. at 723-25. The Court fur-
ther announced, as a prophylactic rule, a presumption that an
increased sentence imposed after a new trial is the result of vindic-
tiveness. Id. at 726.

B.

At the threshold, the government asserts that we lack jurisdiction
to review a sentence that is imposed anywhere within the lawful
guidelines range. See United States v. Porter , 909 F.2d 789, 794-95
(4th Cir. 1990).

The government overstates the holding of Porter . We do lack the
power to review the ordinary exercise of the district court's discretion
to sentence anywhere within the proper range. On the other hand, the
Constitution is an ultimate check on every action of every court.
Hence, if a defendant alleges that the district court had an unconstitu-
tional motive for choosing a particular sentence, then we have the
power to correct the "error of law" under 18 U.S.C. § 3742(a)(1). See
United States v. Holmes, 60 F.3d 1134, 1137 (4th Cir. 1995). While
Holmes dealt with an alleged equal protection violation--a sentence
taking the defendant's race into account--the right to a non-vindictive

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sentence is protected by the Due Process Clause. See Texas v.
McCullough, 475 U.S. 134, 137-38 (1986). The principle is the same
whatever constitutional clause is invoked: an appellate court pos-
sesses jurisdiction to review allegations of unconstitutional motives
behind a sentence.

III.

That we possess a power to disturb sentences within the proper
guidelines range does not imply that the occasions for its exercise will
be frequent. In cases like this one, where the facts differ from those
creating the presumption in Pearce, the defendant must at least show
circumstances creating a "reasonable likelihood" of vindictiveness in
order to invoke the presumption. Failing that, the defendant must
carry the burden of proving actual vindictiveness. See Alabama v.
Smith, 490 U.S. 794, 799-800 (1989).* Finally, even if the Pearce or
"reasonable likelihood" presumption applies, the sentence should be
affirmed if "`the reasons for [the chosen sentence] affirmatively
appear.'" Id. at 798 (quoting Pearce , 395 U.S. at 726).

The record in this appeal leaves no uncertainty that Manns can sur-
mount none of these hurdles. There is simply nothing here from
which one could infer any ill motive on the part of the district judge.
On the contrary, "[h]ere, the . . . sentencer provide[d] an on-the-
record, wholly logical, nonvindictive reason for the sentence. We read
Pearce to require no more, particularly since trial judges must be
accorded broad discretion in sentencing[.]" McCullough, 475 U.S. at
140. These observations fit this case perfectly. The judgment of the
district court is affirmed.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED
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*Smith overruled Pearce's companion case, Simpson v. Rice, which is
reported along with Pearce at 395 U.S. 711 (1969). Simpson applied the
same prophylactic presumption as Pearce even though the defendant's
first conviction had been by guilty plea. In Smith, the court reasoned that
no likelihood of vindictiveness arises where a first conviction rests on a
guilty plea and the second on a jury verdict. Smith, 490 U.S. at 802-03.

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