UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-5085

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

NATHANIEL TYRONE HARBIN, a/k/a Nate,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Beckley. David A. Faber, Chief

District Judge. (CR-05-91)

Submitted: April 26, 2006 Decided: May 10, 2006

Before KING, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,

Appellate Counsel, George H. Lancaster, Jr., Assistant Federal

Public Defender, Charleston, West Virginia, for Appellant. Charles

T. Miller, Acting United States Attorney, Miller A. Bushong, III,

Assistant United States Attorney, Beckley, West Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Nathaniel Tyrone Harbin appeals his eighty-seven month

prison sentence imposed after his guilty plea to distribution of

cocaine base and possession with intent to distribute cocaine base

in violation of 21 U.S.C. § 841(a)(1) (2000). Finding no error, we

affirm.

Harbin claims that the district court erred in denying

him an adjustment for acceptance of responsibility based on his

drug use while on bond pending sentencing because his conduct did

not relate to the offense of conviction. We review the district

court’s determination for clear error. United States v. Kise, 369

F.3d 766, 771 (4th Cir. 2004). Application Note 1(b) to U.S.

Sentencing Guidelines Manual § 3E1.1(a) (2005), states that the

court may consider whether the defendant has voluntarily withdrawn

“from criminal conduct or associations” without making an exception

for criminal conduct that is different from the offense of

conviction. A defendant’s continued use or sale of drugs after

conviction may be a basis for denial of an adjustment for

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). Harbin further contends his two positive tests

for marijuana are not enough to justify denial of the adjustment.

Our previous decisions do not hold that only multiple instances of

drug use warrant denial of the adjustment, merely that there be
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some use of drugs after conviction. In making its ruling, the

district court did not commit error when it held that by his

continued involvement with drugs Harbin lost the opportunity for

the adjustment.

Harbin also claims that his sentence was unreasonable.

The district court properly calculated the sentencing guideline

range of 87 to 108 months’ imprisonment. As Harbin’s sentence is

within the properly calculated guideline range, it is presumptively

reasonable. United States v. Green, 436 F.3d 449, 457 (4th Cir.

2006). Harbin has not rebutted that presumption as the district

court appropriately treated the guidelines as advisory, calculated

and considered the guideline range, and weighed the relevant

factors under 18 U.S.C. § 3553(a) (2000).

We therefore affirm the sentence imposed by the district

court. 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