                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-4133


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

JONATHAN JAMES JARRELL,

                  Defendant -    Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.    Thomas E. Johnston,
District Judge. (5:07-cr-00123-2)


Submitted:    October 14, 2008                Decided:   October 16, 2008


Before KING, GREGORY, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Christian M. Capece, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, John L. File, Assistant United
States Attorney, Beckley, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Jonathan      James     Jarrell            pled    guilty    to     aiding        and

abetting    the     distribution         of     cocaine,        21     U.S.C.    § 841(a)(1)

(2000),     and    was     sentenced       to       a    term    of    twenty-one         months

imprisonment.        Jarrell appeals his sentence, arguing that the

district court clearly erred in denying him an adjustment for

acceptance of responsibility, U.S. Sentencing Guidelines Manual

§ 3E1.1 (2007), based on two positive drug tests while he was

free on bond pending his sentencing.                     We affirm.

            Jarrell entered his guilty plea in September 2007 and

was permitted to remain free on bond. In October 2007, he tested

positive for cocaine use.                He also tested positive for cocaine

use and use of an opiate, Lortab, several days after the first

positive    test,     in    November       2007.           He    subsequently         admitted

violating    the     conditions       of      his       release,       including      a    third

incident    of     drug    use;    his     release        was    revoked;       and       he   was

detained.     At     the    sentencing          hearing         in    January     2008,        the

district      court        determined           that       Jarrell’s           conduct         was

inconsistent with acceptance of responsibility and denied the

adjustment.        Jarrell argues on appeal that the admitted drug use

is   an    insufficient           reason      to        deny     him     the     adjustment,

particularly in light of his admission of the offense conduct,

guilty plea, and cooperation with investigators.



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               Following     United    States         v.    Booker,      543    U.S.   220

(2005), a district court must engage in a multi-step process at

sentencing.          First, it must calculate the appropriate advisory

Guidelines range.           It must then consider the resulting range in

conjunction with the factors set forth in 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2008) and determine an appropriate sentence.

United States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006).

The guideline commentary on which the court relied in denying

Jarrell     the       adjustment    states       that      the   court    may    consider

whether the defendant has voluntarily withdrawn “from criminal

conduct or associations.” USSG § 3E1.1 comment. (n.1(b)). This

court has held that a defendant's continued use or sale of drugs

after conviction may be a basis for denial of acceptance of

responsibility.          United States v. Kidd, 12 F.3d 30, 34 (4th Cir.

1993); United States v. Underwood, 970 F.2d 1336, 1339 (4th Cir.

1992).         These decisions do not require multiple instances of

drug     use    to     warrant     denial    of      the    adjustment,        only    some

continued       use    of   drugs    after       a   guilty      plea    or    conviction.

Therefore, the district court did not clearly err when it held

that Jarrell's continued involvement with drugs did not reflect

acceptance of responsibility.




                                             3
            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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