UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 96-4758

BRYAN A. VANMETER,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
Irene M. Keeley, District Judge.
(CR-96-4)

Submitted: March 11, 1997

Decided: April 22, 1997

Before HAMILTON and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Barry P. Beck, POWER, BECK & MATZUREFF, Martinsburg, West
Virginia, for Appellant. William D. Wilmoth, United States Attorney,
Thomas O. Mucklow, Assistant United States Attorney, Wheeling,
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Unpublished opinions are not binding precedent in this circuit.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:

Appellant Bryan VanMeter, after extensive cooperation with the
government, pled guilty to conspiracy to transport stolen motor vehi-
cles in interstate commerce.1 While awaiting sentencing, VanMeter
was arrested for retail theft, receiving stolen property, criminal con-
spiracy, fleeing or attempting to elude a police officer, reckless driv-
ing, and driving a vehicle at an unsafe speed. Because of this new
criminal conduct, the district found that VanMeter had not accepted
responsibility for his criminal actions and denied him a two-point
downward adjustment in his base offense level under U.S. SENTENCING
GUIDELINES MANUAL § 3E1.1 (1995). VanMeter challenges the district
court's denial of a downward adjustment for acceptance of responsi-
bility, and his sentence of twenty-one months incarceration. After
review, we find no reversible error and affirm VanMeter's sentence.

VanMeter argues that his guilty plea, admission of relevant con-
duct, and substantial cooperation with the government mandate an
acceptance of responsibility award. We find no merit in this chal-
lenge. The burden is on VanMeter to show that he is entitled to a
downward adjustment,2 and "the district court's decision not to reduce
the offense level [on acceptance of responsibility grounds] will not be
disturbed unless clearly erroneous."3 Given that there is probable
cause to believe that VanMeter engaged in continued illegal activity
after the plea agreement, we do not think that the district court erred
in denying credit for acceptance of responsibility. The sentencing
judge is in a unique position to evaluate a defendant's acceptance of
responsibility,4 and we will not tie the district court's hands in its
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1 18 U.S.C. §§ 371, 2312 (1994).
2 See United States v. Myers, 66 F.3d 1364, 1371 (4th Cir. 1995).
3 United States v. Curtis, 934 F.2d 553, 557 (4th Cir. 1991).
4 USSG § 3E1.1, comment. (n.5) (1995).

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determination of how to consider the defendant's criminal conduct for
which he was indicted after his guilty plea.

Accordingly, we affirm VanMeter's sentence. 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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