UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4653

OKEY M. SLATE,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Beckley.

Elizabeth V. Hallanan, Senior District Judge.

(CR-95-143)

Submitted: May 19, 1998

Decided: June 24, 1998

Before LUTTIG and WILLIAMS, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Brian A. Glasser, BOWLES, RICE, MCDAVID, GRAFF & LOVE,

P.L.L.C., Charleston, West Virginia, for Appellant. Rebecca A. Betts,

United States Attorney, Michael L. Keller, Assistant United States

Attorney, Charleston, 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Unpublished opinions are not binding precedent in this circuit.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:

Okey M. Slate pled guilty to possession of a firearm by a convicted

felon in violation of 18 U.S.C.A. § 922(g) (West Supp. 1998), and

received a twenty-five-month prison sentence and three years of

supervised release. Slate appeals his sentence, contending that the district court erred by sentencing him in absentia and without a hearing

when it reentered the judgment to reinstate the appeal period and by

refusing to apply a two-level adjustment under U.S. SENTENCING

GUIDELINES MANUAL § 3E1.1 (1994), for acceptance of responsibility.

Finding no error, we affirm.

I.

The district court accepted Slate's guilty plea and sentenced him,

but no notice of appeal was filed. As a result, Slate filed a motion

under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1998), contending

that counsel provided ineffective assistance by failing to file a notice

of appeal after being asked to do so. Relying on United States v. Peak,

992 F.2d 39 (4th Cir. 1993), the magistrate judge recommended

vacating the judgment and reentering it to afford Slate an opportunity

to appeal. Neither Slate nor the government filed objections to the

magistrate judge's recommendation. Slate then filed a motion styled

as "Motion to Set Matter for Resentencing with Presence of the

Defendant and New Counsel Pursuant to Rule 32 [of the Federal

Rules of Criminal Procedure] and United States v. Moore, 83 F.3d

1231 (10th Cir. 1996)," in which he sought a new sentencing hearing

so that he could object to the probation officer's failure to recommend

a two-level adjustment for acceptance of responsibility. The district

court granted § 2255 relief, vacated the judgment, and reentered it to

reinstate the appeal period. The court also denied the motion for

resentencing as moot. This appeal followed.

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II.

Slate first contends on appeal that the district court erred by vacating and reentering the judgment in absentia and without a hearing in

violation of Rules 32 and 43 of the Federal Rules of Criminal Procedure, the Sixth Amendment, and the Due Process Clause. He asserts

that the court had the discretion to sentence him de novo after vacating his conviction under Peak to afford him the opportunity to file a

direct appeal.

In Peak, we held that a defense attorney's failure to comply with

his client's request to file an appeal constitutes ineffective assistance

regardless of the likelihood of success on the merits. See Peak, 992

F.2d at 42. Consistent with the remedy this court ordered in Peak, the

district court vacated the original judgment of conviction and reimposed the original sentence solely to afford Slate a direct appeal. See

id. We therefore find that the district court did not err by reimposing

the original judgment without a hearing and Slate's presence.

III.

Slate also claims that the district court erred by refusing to apply

a two-level adjustment for acceptance of responsibility under

U.S.S.G. § 3E1.1. Slate had a positive urine test for marijuana use

while on bond pending sentencing. As a result, the probation officer

did not recommend a two-level adjustment for acceptance of responsibility. Because Slate lodged no objections to the presentence report

or at the sentencing hearing, he has waived appellate review absent

plain error. See United States v. Perkins, 108 F.3d 512, 516 (4th Cir.

1997).

The district court may find that a defendant has not accepted

responsibility despite a guilty plea and truthful admission of his conduct if he engages in conduct inconsistent with acceptance of responsibility. See U.S.S.G. § 3E1.1, comment. (n.3). Slate contends that

new criminal conduct which is unrelated to the offense of conviction

should not be considered in determining acceptance of responsibility.

While the Sixth Circuit has so held, see United States v. Morrison,

983 F.2d 730, 733-35 (6th Cir. 1993), the weight of authority from

other circuits is to the contrary, see United States v. Ceccarani, 98

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F.3d 126, 129-30 (3d Cir. 1996) (holding that post-offense conduct

can shed significant light on sincerity of defendant's claimed

remorse), cert. denied, ___ U.S. #6D 6D6D#, 65 U.S.L.W. 3586 (U.S. Feb.

24, 1997) (No. 96-7616); United States v. Byrd , 76 F.3d 194, 196-97

(8th Cir. 1996); United States v. McDonald, 22 F.3d 139, 142-44 (7th

Cir. 1994); United States v. Pace, 17 F.3d 341, 343-44 (11th Cir.

1994); United States v. O'Neil, 936 F.2d 599, 600-01 (1st Cir. 1991);

United States v. Watkins, 911 F.2d 983, 984-85 (5th Cir. 1990). Following these authorities, we find that there was no error--let alone

plain error--in the district court's finding that Slate had not accepted

responsibility for his criminal conduct based on his positive urine test

for marijuana while on bond.

IV.

Accordingly, we affirm Slate'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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