                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4780


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MATTHEW IAN HAUGHT,

                Defendant – Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.     Frederick P. Stamp,
Jr., Senior District Judge. (5:09-cr-00005-FPS-JES-1)


Submitted:   May 7, 2010                      Decided:   July 2, 2010


Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Brendan S. Leary, Assistant Federal Public Defender, Wheeling,
West Virginia, for Appellant.    Betsy C. Jividen, Acting United
States Attorney, Randolph J. Bernard, John C. Parr, Assistant
United States Attorneys, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Matthew Ian Haught was charged with a “straw purchase”

of a firearm in violation of Title 18 U.S.C. §§ 922(a)(6) and

924(a)(2), and with possession of a firearm by a person addicted

to    heroin    in    violation     of   Title        18    U.S.C.    §§    922(g)(3)    and

924(a)(2).        Haught was released on bond and later executed a

plea    agreement      whereby      he   pled     guilty       to    Count    Two   of   the

Indictment.           Haught   appeared         before       the     district    court    on

June 23, 2009, and entered his guilty plea, which was accepted.

               Immediately after the plea hearing, Haught met with

his probation officer.               During that interview, the probation

officer asked Haught when he last used drugs, and Haught stated

that his last drug use was in January 2009.                           Before concluding

the interview, the probation officer directed Haught to report

to    the   probation     office     for    a    drug       test    before    leaving    the

federal building.         Despite this explicit instruction, Haught did

not report to the probation office.

               After missing his drug test on June 23, 2009, Haught

was     instructed       to    report       to        the     probation         office    on

June 26, 2009, for a rescheduled drug test.                            A urine specimen

obtained       from   Haught   on    June       26,    2009,       tested    positive    for

marijuana, a finding that was later verified by an independent

laboratory.



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          A    petition   was    filed      by   Haught’s     probation      officer

requesting that his pre-trial release be revoked since he failed

to appear for a drug test on June 23, 2009, and subsequently

tested positive for marijuana on June 26, 2009.                       Following a

hearing, Haught’s pre-trial release was revoked.

          The     probation     officer      issued     an     addendum      to    the

Presentence Report asserting that Haught was not entitled to an

offense   level    adjustment     for       acceptance       of   responsibility.

Haught filed an objection thereto; however, the district court

nevertheless    determined      that    Haught    was    not      entitled    to   an

adjustment for acceptance of responsibility, and sentenced him

to 33 months’ imprisonment, which was at the low end of the

applicable guideline range.        Haught appealed.

          Whether an individual has accepted responsibility for

his crime is a factual question, which this court reviews for

clear error.      United States v. Dugger, 485 F.3d 236, 239 (4th

Cir. 2007).       A district court’s evaluation and determination

regarding a defendant’s acceptance of responsibility is entitled

to great deference on review and should not be disturbed unless

it is without foundation.        United States v. Cusack, 901 F.2d 29,

31-32 (4th Cir. 1990).

          Haught argues that the district court erred by denying

him an adjustment based on acceptance of responsibility.                           He

maintains that the lie he told his probation officer regarding

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his   drug   use    was       “immaterial,”      that    his     disregard   for     the

probation officer’s instruction to take a drug test on June 23,

2009, was an “innocent mistake,” and that the district court

erred because the evidence established that Haught’s marijuana

use could have just as easily occurred before the entry of his

plea agreement as it could have after it.                  We find that Haught’s

arguments lack merit.

             It    is       the   defendant’s    burden     to    establish,    by    a

preponderance of the evidence, that he is entitled to an offense

level   adjustment          for   acceptance     of     responsibility.        United

States v. May, 359 F.3d 683, 693 (4th Cir. 2004); United States

v. Gordon, 895 F.2d 932, 935 (4th Cir. 1990).                          “A guilty plea

does not automatically entitle a defendant to a reduction for

acceptance of responsibility.”                 United States v. Kise, 369 F.3d

766, 771 (4th Cir. 2004).                Moreover, this court has previously

found that continued criminal conduct, including drug use, after

a defendant has been charged may be a sufficient basis for a

court   to   deny       a    defendant    an    adjustment       for   acceptance    of

responsibility.         See United States v. Underwood, 970 F.2d 1336,

1339 (4th Cir. 1992).

             Moreover, even if the timing of Haught’s drug use was

somehow relevant to whether or not he could show an entitlement

to an offense level adjustment for acceptance of responsibility,

Haught’s argument is a self-defeating one.                     According to Haught,

                                            4
the district court erred by failing to give him an adjustment

where the evidence showed that it was equally likely that he

used drugs before entering his guilty plea as it was that he

used them afterwards; however, Haught ignores the fact that it

was his burden to establish an entitlement to an adjustment.

Thus, to the extent that Haught needed to show that he used

drugs before pleading guilty, rather than afterwards, he has

failed to do so by a preponderance of the evidence, because, as

Haught    argues,   the   evidence   was    in   equipoise   regarding    the

timing of his drug use. *

            Accordingly, we affirm the district court’s judgment.

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




      *
       As the Government points out, Haught has offered                     no
explanation or evidence as to when his drug use occurred.



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