UNPUBLISHED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Affirmed by unpublished per curiam opinion.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, Wheeling, 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Unpublished opinions are not binding precedent in this circuit.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 diversionary 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 February 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 § 60A4-407 (1992). The statute provides in pertinent part:

Whenever any person who has not previously been convicted 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 hallucinogenic 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 proceedings and place him on probation upon terms and conditions.

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1 United States Sentencing Commission, Guidelines Manual (Nov.

1996).

 2
(Emphasis added.)

Diversionary dispositions resulting from a finding or admission of

guilt in open court are counted as part of a defendant's criminal history. USSG § 4A1.2(f), comment. (n.7). The probation officer recommended 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 finding, the state court would have been without authority to order a conditional 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 inconsistent 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 ordering 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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