UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-4052

JAMES DAVID SLUSS,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
David A. Faber, District Judge.
(CR-97-112)

Submitted: June 30, 1998

Decided: July 22, 1998

Before NIEMEYER and LUTTIG, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Hunt L. Charach, Federal Public Defender, George H. Lancaster, Jr.,
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Rebecca A. Betts, United States Attorney, John L. File,
Assistant United States Attorney, Charleston, West 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Unpublished opinions are not binding precedent in this circuit.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:

James David Sluss pled guilty to possession with intent to distrib-
ute marijuana and distribution of marijuana in violation of 21 U.S.C.
§ 841(a)(1) (1994). He was sentenced to fourteen months' imprison-
ment followed by three years of supervised release. Sluss timely
noted an appeal from the district court's order. Finding no error, we
affirm.

Sluss contends that the district court erred by denying him a reduc-
tion in his offense level for acceptance of responsibility under U.S.
Sentencing Guidelines Manual § 3E1.1 (1995). We review the district
judge's factual determination regarding a defendant's acceptance of
responsibility under the clearly erroneous standard. See United States
v. Myers, 66 F.3d 1364, 1372 (4th Cir. 1995). The guidelines provide
for a reduction in sentencing if the defendant "clearly demonstrates
acceptance of responsibility for his offense." USSG § 3E1.1. In addi-
tion, in order to receive a reduction under § 3E1.1 for acceptance of
responsibility, the defendant must prove by a preponderance of the
evidence that he has clearly recognized and affirmatively accepted
personal responsibility for his criminal conduct. See Myers, 66 F.3d
at 1371. "The sentencing judge is in a unique position to evaluate a
defendant's acceptance of responsibility. For this reason, the determi-
nation of the sentencing judge is entitled to great deference on
review." USSG § 3E1.1 comment. (n.5).

The district court denied Sluss the reduction under§ 3E1.1 because
Sluss directly violated the court's order which imposed electronic
monitoring home detention. Sluss, who was confined to his parents'
home prior to sentencing, got into an argument with his father and
another man at his parents' house. Sluss then cut the transmitting
device off his ankle and left his parents' home. 1 Some time later that
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1 Sluss contends that he left his parents' home because he feared the
argument would escalate into a physical confrontation.

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evening, Sluss contacted his mother, who informed him that she had
called the probation office and the state police. Sluss then also con-
tacted the state police.

Sluss pled guilty and readily admitted the conduct specified in the
indictment; however, he directly violated the court's order imposing
electronic monitoring home detention. Although a guilty plea may be
considered when determining whether to grant an adjustment under
§ 3E1.1, the plea does not automatically entitle a defendant to the
reduction. See United States v. Harris, 882 F.2d 902, 905-07 (4th Cir.
1989). Further, when determining the sincerity of a defendant's
acceptance of responsibility, the district court may consider post-plea
criminal conduct, even when it is unrelated to the offense of conviction.2
See United States v. Ceccarani, 98 F.3d 126, 129-30 (3d Cir. 1996),
cert. denied, ___ U.S. ___, 65 U.S.L.W. 3586 (U.S. Feb. 24, 1997)
(No. 96-7616); United States v. Byrd, 76 F.3d 194, 197 (8th Cir.
1996) (collecting cases); but see United States v. Morrison, 983 F.2d
730, 733-35 (6th Cir. 1993) (finding that new unrelated criminal con-
duct should not be considered).

We find that Sluss's disregard of the district court's order imposing
electronic monitoring home detention shows that he has not clearly
recognized and affirmatively accepted personal responsibility for his
criminal conduct. See Myers, 66 F.3d at 1371. Accordingly, the dis-
trict court's denial of the adjustment for acceptance of responsibility
was not clearly erroneous. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.

AFFIRMED
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2 Any person who willfully disobeys a court order shall be prosecuted
for contempt. See 18 U.S.C.A. § 402 (West 1966 & Supp. 1998). Thus,
Sluss's willful disregard of the district court's home detention order con-
stituted criminal conduct.




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