### The Honorab le H. Franklin Waters, Chief Judge, United States 1 

### District Court for the Western District of Arkansas. ___________ No. 95-2988

___________ United States of America, * * Appellee, * * v. * Appeal from the United States * District Court for the Rodger C. Seratt, also known as * Western District of Arkansas Roy Scott, also known as Roc * Scott, also known as Kenneth * (UNPUBLISHED) Funke, * * Appellant. *

___________ Submitted: May 1, 1996 Filed: May 8, 1996

___________ Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges.

___________ PER CURIAM.
Rodger C. Seratt appeals from the final judgment entered in th e District Court for the Western Dist rict of Arkansas following his plea of 1 guilty to attempted possession of a listed chemical (ephedrine) wit h knowledge that it wou ld be used to manufacture a controlled substance, in violation of 21 U.S.C. §§ 841(d)(2) and 846, and to criminal forfeiture, in violation of 21 U.S.C. § 853. On appeal, Seratt challenges hi s sentence. For the reasons set forth below, we affirm.
At sentencing, Seratt argued that he was not a career offender under U.S.S.G. § 4B1.1, because one of the prior convictions

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underlying his career-offender status--a 1988 New Mexico conviction fo r which he received a deferred sentence and one year unsupervised probation-

- was a deferred prosecution and thus was not countable under U.S.S.G. § 4A1.2(f) (diversionar y dispositions from judicial process without finding of gui lt, e.g., deferred prosecutions, not counted). Seratt als o challenged the assessment of one criminal history point for a 1986 Missour i conviction for which he received a suspended sentence and two year s super vised probation, because that also was a deferred prosecution

. Finall y, Seratt argued that he was entitled to an acceptance-of

re sponsibility reduction. After overruling Seratt's objections, th e district court sentenced Seratt to 120 months imprisonment and two years supervised release and ordered him to pay a $12,500 fine.

On appeal , Seratt first argues the district court erred in counting his New Mexico conviction as a prior sentence. "A diversionary dispositio n
res ulting from a finding or admission of guilt, or a plea of nol o contendere , in a judicial proceeding is counted as a sentence under § 4A1.1(c) even if a conviction is not formally entered, except tha t dive rsion from juvenile court is not counted." U.S.S.G. § 4A1.2(f)

. Because the record shows that Seratt received a diversionary disposition of his New Mexico charge after pleading "no contest" to the charge, w e conclude the district court properly counted the sentence unde r U.S.S.G.§ 4A1.2(f). See United States v. Pierce , 60 F.3d 886, 892-93 (1st Cir. 1995) (plea of nolo contendere and state's withholding of adjudicatio n is di versionary disposition properly calculated in defendant's crimina l his tory category), petition for cert. filed , No. 95-6474 (U.S. Oct. 19 , 1995) ; United States v. Rockman , 993 F.2d 811, 812-14 (11th Cir. 1993 ) (same), cert. denied , 114 S. Ct. 900 (1994).

Altho ugh Seratt argues that he received a dismissal of the charg e after he served his probationary sentence, Serat t's guilt as to the charge
was estab lished when he entered his plea. See U.S.S.G. § 4B1.2(3) (fo r purposes of § 4B1.1, date that defendant

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sustai ned conviction shall be date that defendant's guilt has bee n established "whether by guilty plea, trial, or plea of nolo contendere "); United States v.Pierce , 60 F.3d at 892 (under § 4B1.2(3) guilt-establishin g event --such as plea where defendant states he does not wish to contes t charges--and not formal entry of adjudicatory ju dgment, determines whether conviction is countable; withheld adjudication following nolo contendere ple a constitutes conviction under § 4B1.1); United States v. Jones , 91 0 F.2d 7 60, 761 (11th Cir. 1990) (per curiam) (withheld adjudicatio n following nolo- contendere plea constitutes conviction under § 4B1.1).
We will not consider Seratt's arguments that the New Mexico div ersion statute created a liberty interest and that the dismissal order wa s tantamount to an expungement, because these arguments are raised for the first time on appeal. See United States v. White , 890 F.2d 1033, 1034 (8t h Cir. 1989) (claim as to constitutionality of sen tencing entrapment statute not raised below was not properly before appellate court); accord United States v. Bost , 968 F.2d 729, 734 n.4 (8th Cir. 1992).

Next, we reject Seratt's argument--to the extent it is not moo t because of his career-offender status--that the district court erroneously assessed one criminal history point for his Missouri sentence. The recor d shows that he pleaded guilty to the charge. See United States v. Frank , 932 F.2d 700, 701 (8th Cir. 1991) (state probation sentence properl y counted as prior sent ence under § 4A1.2(f) where defendant pleaded guilty to state charge).
Seratt also argues that the district court erroneously denied him an acceptance-of-responsibility reduction. A district court may reduce the offens e level of a defendant who "clearly demonstrates acceptance o f responsibility for his offense." U.S.S.G. § 3E1.1. Whether a defendant has accepted responsibility is a factual question that depends in larg e part on the district court's credibility assessm ents; the district court's decision to

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grant or deny the reduction is given great deference on appeal and will no t be disturbed unless clearly erroneous. United States v. Evans , 51 F.3 d 764, 766 (8th Cir. 1995). A defendant who enters a guilty plea is no t entitled as a matter of right to a reduction for acceptance o f responsibility. U.S.S.G. § 3E1.1, comment. (n.3).

We conclude the district court did not clearly err in denying th e reduction, because the district court found as a credibility matter that Seratt was not remorseful. See United States v. Adipietro , 983 F.2d 1468, 1472 (8th Cir. 1993). We reject Seratt's assertion that the district cour t denied him the reduction based solely on his prior convictions. The recor d shows that the district court considered Seratt' s past record only insofar
as it was relevant to the determination of whether Seratt was remorseful for the instant offense or was instead essentially manipulating the justic e system. See United States v. Byrd , 76 F.3d 194, 196-97 (8th Cir. 1996). Moreov er, Seratt failed to present any evidence beyond his attorney' s statements to support the reduction. See United States v. Morales , 92 3 F.2d 621, 628 (8th Cir. 1991) (defendant bears burden for establishin g acceptance of responsibility).

Serat t next argues that the district court erroneously determine d that he could pay a fine. In all cases, a district court shall impose a fine unless "the defendant establishes that he i s unable to pay and is not likely t o become able to pay any fine." U.S.S.G. § 5E1.2(a). Becaus e Seratt presented no evidence to the contrary, we conclude the distric t court did not err in finding that Seratt could p ay a $12,500 fine based on the length of his sentence and prison work opportunities. See Unite d States v. West , 15 F. 3d 119, 122 (8th Cir.) (affirming $15,000 fine where defend ant failed to present any evidence fine was unreasonable), cert
. denied , 115 S. Ct. 177 (1994).
Finally, we deny Seratt's pro se motion for a change of

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counsel and for leave to file a supplemental brief.
The judgment is affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.