UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4140

SCOTT A. CHARLTON,
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-96-39)

Submitted: June 17, 1997

Decided: July 31, 1997

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

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Affirmed by unpublished per curiam opinion.

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COUNSEL

John J. Pizzuti, CAMILLETTI, SACCO & PIZZUTI, L.C., Wheeling,
West Virginia, for Appellant. William D. Wilmoth, United States
Attorney, Paul T. Camilletti, Assistant United States Attorney, Whee-
ling, 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Unpublished opinions are not binding precedent in this circuit.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:

Scott A. Charlton pled guilty to one count of maliciously damaging
and destroying property by fire and explosive materials, 18 U.S.C.A.
§ 844(i) (West Supp. 1997), and was sentenced to twelve months
imprisonment. He contends on appeal that the district court clearly
erred in awarding him one criminal history point for a prior diversion-
ary sentence, USSG §§ 4A1.1, 4A1.2(f),1 and clearly erred in finding
that he had not accepted responsibility. USSG § 3E1.1. We dismiss
Charlton's bail motion as moot and affirm his sentence.

In April 1996, Charlton entered into a plea agreement and testified
before a grand jury about his own involvement, and that of others, in
the theft of fireworks from a fireworks company and the subsequent
detonation of the fireworks at various locations in West Virginia and
Ohio. Charlton was not sentenced for the instant offense until Febru-
ary 1997. In the interim, he was charged in state court with possession
of marijuana and placed on unsupervised probation for six months
pursuant to a diversionary program under West Virginia Code § 60A-
4-407 (1992). The statute provides in pertinent part:

         Whenever any person who has not previously been con-
         victed of any offense under this chapter or under any statute
         of the United States or of any state relating to narcotic
         drugs, marihuana, or stimulant, depressant, or hallucino-
         genic drugs, pleads guilty or is found guilty of possession of
         a controlled substance under section 401(c) #AD8E # 60A-4-
         401(c)], the court, without entering a judgment of guilt and
         with the consent of the accused, may defer further proceed-
         ings and place him on probation upon terms and conditions.
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1 United States Sentencing Commission, Guidelines Manual (Nov.
1996).

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(Emphasis added.)

Diversionary dispositions resulting from a finding or admission of
guilt in open court are counted as part of a defendant's criminal his-
tory. USSG § 4A1.2(f), comment. (n.7). The probation officer recom-
mended that Charlton receive one criminal history point for the
diversionary sentence after learning from the state prosecutor that
Charlton had offered to plead guilty. When he was sentenced for the
instant federal offense, Charlton was still on probation. However,
Charlton's attorney argued at sentencing that no criminal history point
should be given because there had been no finding or admission of
guilt at the state court hearing.2 Taking the attorney's representation
as true, the district court nevertheless found that there had been either
an express or an implicit finding of guilt because, without such a find-
ing, the state court would have been without authority to order a con-
ditional discharge.

The dispute is essentially a factual one, i.e., whether there was a
finding or admission of guilt "in open court." We therefore review the
district court's decision under the clearly erroneous standard. See
United States v. Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989).
Because the West Virginia statute requires an admission or finding of
guilt and because the state prosecutor informed the probation officer
that Charlton had, at some point, offered to plead guilty, the district
court did not clearly err in deciding that the state court judge made,
at the least, an implicit finding of guilt before ordering the conditional
discharge.

The district court also found that Charlton's continued criminal
conduct, as evidenced by his possession of marijuana, was inconsis-
tent with acceptance of responsibility. The district court may consider
whether a defendant has voluntarily terminated or withdrawn from
criminal conduct or associations in deciding whether he has accepted
responsibility. USSG § 3E1.1, comment. (n.1(b)). Because Charlton
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2 A transcript of the state court hearing was not available, but the same
attorney represented Charlton in both cases. The attorney submitted the
state court order continuing the marijuana possession charge and order-
ing a conditional discharge after six months. The order did not make a
finding of guilt or state that Charlton had admitted guilt at the hearing.

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failed to terminate his criminal conduct, the district court did not
clearly err when it denied him an adjustment for acceptance of
responsibility.

The sentence is therefore affirmed. Charlton's motion for bail
pending appeal is dismissed as moot. 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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