UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4719

CLIVE ALEXANDER GRANT,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

James C. Fox, Chief District Judge.

(CR-96-8-F)

Submitted: July 24, 1997

Decided: August 4, 1997

Before HAMILTON, LUTTIG, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James M. Ayers, II, STUBBS, PERDUE & AYERS, P.A., New Bern,

North Carolina, for Appellant. Janice McKenzie Cole, United States

Attorney, William A. Webb, Assistant United States Attorney,

Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Clive Alexander Grant appeals the sentence imposed by the district

court on his guilty plea for his role in a conspiracy to possess with

the intent to distribute crack cocaine. See 21 U.S.C. § 841(a)(1)

(1994); 21 U.S.C. § 846 (1994); see also 18 U.S.C. § 924(c) (1994).

Specifically, Grant claims that the district court erred in denying him

the benefit of a reduction in offense level for the acceptance of

responsibility. United States Sentencing Commission, Guidelines

Manual § 3E1.1 (Nov. 1995). Finding no merit to Grant's contention,

we affirm the district court's judgment.

Grant pleaded not guilty the day before the selection of the jury

was to begin in his criminal trial. Grant changed his plea the next

morning prior to voir dire. The original presentence investigation

report (PSR) prepared in advance of sentencing suggested reducing

Grant's total offense level by two based on his acceptance of responsibility. However, the probation officer filed a second PSR, which

reported an unserved warrant charging Grant with assault on a government officer arising from an incident in the New Hanover County

Jail. Based on the incident, the probation officer omitted the adjustment for acceptance of responsibility. Grant objected to the omission

of the reduction, but did not make a factual objection to the inclusion

of the incident at the jail in the PSR.

This court reviews a denial of an adjustment for acceptance of

responsibility under USSG § 3E1.1 under a clearly erroneous standard. See United States v. Kidd, 12 F.3d 30, 34 (4th Cir. 1993). A district court's ruling is clearly erroneous only where the reviewing court

is left with the "definite and firm conviction that a mistake has been

made." United States v. United States Gypsum Co., 333 U.S. 364, 395

(1948). Grant contends that the record does not contain any grounds

on which district court could premise the denial of his adjustment for

the acceptance of responsibility. In doing so, he suggests that the

report regarding the outstanding warrant cannot form the basis for the

denial of the adjustment because the Government failed to produce

evidence to support the allegation.

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This suggestion ignores the burden of proof with regard to allegedly inaccurate information in a PSR. The defendant has the burden

of showing that information in the presentence report which he disputes is unreliable or inaccurate. See United States v. Terry, 916 F.2d

157, 162 (4th Cir. 1990). Grant presented no evidence whatsoever at

the sentencing hearing, much less any evidence that would cast doubt

on the veracity of the probation officer's report. Furthermore, Grant

did not object to the portion of the amended PSR which provided the

factual basis for the denial of the adjustment. See Fed. R. Crim. P.

32(c)(3)(D). It appears from the record that the thrust of his contention before the district court was that on the facts as they stood, he

was entitled to the adjustment.

A sentencing court properly denies the reduction despite a defendant's guilty plea and cooperation where he continues his criminal

conduct after his indictment and plea agreement. See Kidd, 12 F.3d

at 34. An assault against a prison guard is strong evidence that Grant

has not fully accepted his responsibility for his conduct. Consequently, this court is not left with a "definite and firm conviction" that

the district court made a mistake in declining to reduce Grant's

offense level. In addition, because the timeliness of an admission of

responsibility is a factor which the district court may properly consider, see United States v. Jones, 31 F.3d 1304, 1315 (4th Cir. 1994),

the fact that Grant waited until the day of his trial to finally plead

guilty further buttresses the district court's conclusion that Grant was

not entitled to the adjustment.*

Finding that the district court did not clearly err in denying Grant

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*We note that there was no written plea agreement in this case. This

court has recently observed that "justice requires and common sense dictates memorializing the terms of [a] plea agreement." United States v.

McQueen, 108 F.3d 64, 66 (4th Cir. 1997). However, in this case, Grant

does not suggest that the oral plea agreement contained a provision that

the acceptance of responsibility reduction was material to the plea agreement, or was a part of the agreement at all. Consequently, unlike

McQueen, this case does not turn on an alleged breach of the plea agreement. See id. at 65-66. Any error that might have been engendered by the

failure to reduce the agreement to writing was therefore harmless. See

Fed. R. Crim. P. 52.

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the benefit of the offense level adjustment for acceptance of responsibility, we affirm the district court's judgment. 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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