UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-4874

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

BOBBY DEAN CHILDERS,

Defendant - Appellant.

Appeal from the United States District Court for the District of

South Carolina, at Florence. Terry L. Wooten, District Judge.

(CR-04-560)

Submitted: October 31, 2006 Decided: November 21, 2006

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael A. Meetze, Assistant Federal Public Defender, Julia

Flumian, Second-Year Law Student, Florence, South Carolina, for

Appellant. Reginald I. Lloyd, United States Attorney, Rose Mary

Parham, Assistant United States Attorney, Florence, South Carolina,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Bobby Dean Childers pled guilty to possession of a

firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2000), and was

sentenced to a term of seventy-two months imprisonment. Childers

appeals his sentence, arguing that the district court clearly erred

in denying him an adjustment for acceptance of responsibility, U.S.

Sentencing Guidelines Manual § 3E1.1 (2004), because he tested

positive for drug use twice while he was on release prior to his

guilty plea. We affirm.

In April 2004, Childers was arrested by state law

enforcement officers, charged with possession of marijuana and

possession of a firearm by a felon, and released on bond. He was

indicted for the federal firearm offense in May 2004.

Subsequently, the state charges were dropped in favor of federal

prosecution, and Childers was continued on bond. Childers tested

positive for marijuana use on January 10, 2005, and tested positive

for cocaine use on February 9, 2005. His bond was revoked. 

At the sentencing hearing, the government asked the court

to give Childers a three-level adjustment for acceptance of

responsibility because the positive drug tests occurred before his

guilty plea and because Childers’ plea had saved the government the

time and effort of a trial. However, the district court declined

to make the adjustment, noting that obtaining and using drugs on

release was continued criminal conduct.
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On appeal, Childers argues that the district court

clearly erred in denying him the adjustment by giving undue weight

to his bond violations. We review a district court’s decision to

grant or deny an adjustment for acceptance of responsibility for

clear error. United States v. May, 359 F.3d 683, 688 (4th Cir.

2004). Under USSG § 3E1.1, a defendant “must prove by a

preponderance of the evidence that he has clearly recognized and

affirmatively accepted personal responsibility for his criminal

conduct.” May, 359 F.3d at 693 (internal quotation marks and

citation omitted). “A guilty plea does not automatically entitle

a defendant to a reduction for acceptance of responsibility.”

United States v. Kise, 369 F.3d 766, 771 (4th Cir. 2004). One of

the factors the district court considers in making its

determination is whether the defendant has voluntarily terminated

or withdrawn from criminal conduct or associations. USSG § 3E1.1,

comment. (n.1(b)). 

Childers argues that the district court clearly erred by

basing its decision against the adjustment only on his bond

violation while ignoring other factors that weighed in favor of the

adjustment. Those factors were: the government’s stipulation to

the adjustment; the fact that the bond violation was unrelated to

the offense of conviction; and Childers’ “cooperation regarding the

offense,” by which he apparently means his guilty plea. Childers

also argues that he accepted responsibility for his drug use on
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release as well as his firearm offense because he did not contest

his positive drug tests. 

As stated above, a guilty plea does not entitle the

defendant to the adjustment, and the plea agreement specified that

the government’s stipulation concerning acceptance of

responsibility was not binding on the district court. Moreover,

although the Sixth Circuit has held that new criminal conduct

unrelated to the offense of conviction may not be the basis for

denial of acceptance of responsibility, see United States v.

Morrison, 983 F.2d 730, 733-35 (6th Cir. 1993), this court has not

adopted that rule. 

Childers also contends that the unpublished opinions

cited by the district court at sentencing were factually dissimilar

to his and thus were not helpful in deciding his case. However, in

each of the cases cited, the defendant was denied the adjustment

because he used drugs while on release, conduct which constituted

additional criminal conduct rather than termination of criminal

conduct. We conclude that the district court did not clearly err

in denying Childers a decrease in offense level for acceptance of

responsibility.

We therefore affirm the sentence imposed by the district

court. We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED