The Honorable H. Franklin Waters, Chief Judge, United States 1

District Court for the Western District of Arkansas.

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No. 95-2988

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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Scott, also known as Kenneth * (UNPUBLISHED)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. *

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 Submitted: May 1, 1996

 Filed: May 8, 1996

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Before McMILLIAN, WOLLMAN and MURPHY, Circuit Judges.

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PER CURIAM.

Rodger C. Seratt appeals from the final judgment entered in the

District Court for the Western District of Arkansas following his plea of 1

guilty to attempted possession of a listed chemical (ephedrine) with

knowledge that it would 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 his

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 for

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) (diversionary dispositions from judicial process without finding

of guilt, e.g., deferred prosecutions, not counted). Seratt also

challenged the assessment of one criminal history point for a 1986 Missouri

conviction for which he received a suspended sentence and two years

supervised probation, because that also was a deferred prosecution.

Finally, Seratt argued that he was entitled to an acceptance-ofresponsibility reduction. After overruling Seratt's objections, the

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 disposition

resulting from a finding or admission of guilt, or a plea of nolo

contendere, in a judicial proceeding is counted as a sentence under §

4A1.1(c) even if a conviction is not formally entered, except that

diversion 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, we

conclude the district court properly counted the sentence under

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 adjudication

is diversionary disposition properly calculated in defendant's criminal

history 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).

Although Seratt argues that he received a dismissal of the charge

after he served his probationary sentence, Seratt's guilt as to the charge

was established when he entered his plea. See U.S.S.G. § 4B1.2(3) (for

purposes of § 4B1.1, date that defendant
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sustained conviction shall be date that defendant's guilt has been

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-establishing

event--such as plea where defendant states he does not wish to contest

charges--and not formal entry of adjudicatory judgment, determines whether

conviction is countable; withheld adjudication following nolo contendere

plea constitutes conviction under § 4B1.1); United States v. Jones, 910

F.2d 760, 761 (11th Cir. 1990) (per curiam) (withheld adjudication

following nolo- contendere plea constitutes conviction under § 4B1.1).

We will not consider Seratt's arguments that the New Mexico diversion

statute created a liberty interest and that the dismissal order was

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 (8th

Cir. 1989) (claim as to constitutionality of sentencing 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 moot

because of his career-offender status--that the district court erroneously

assessed one criminal history point for his Missouri sentence. The record

shows that he pleaded guilty to the charge. See United States v. Frank,

932 F.2d 700, 701 (8th Cir. 1991) (state probation sentence properly

counted as prior sentence 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

offense level of a defendant who "clearly demonstrates acceptance of

responsibility for his offense." U.S.S.G. § 3E1.1. Whether a defendant

has accepted responsibility is a factual question that depends in large

part on the district court's credibility assessments; the district court's

decision to
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grant or deny the reduction is given great deference on appeal and will not

be disturbed unless clearly erroneous. United States v. Evans, 51 F.3d

764, 766 (8th Cir. 1995). A defendant who enters a guilty plea is not

entitled as a matter of right to a reduction for acceptance of

responsibility. U.S.S.G. § 3E1.1, comment. (n.3).

We conclude the district court did not clearly err in denying the

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 court

denied him the reduction based solely on his prior convictions. The record

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 justice

system. See United States v. Byrd, 76 F.3d 194, 196-97 (8th Cir. 1996).

Moreover, Seratt failed to present any evidence beyond his attorney's

statements to support the reduction. See United States v. Morales, 923

F.2d 621, 628 (8th Cir. 1991) (defendant bears burden for establishing

acceptance of responsibility).

Seratt next argues that the district court erroneously determined

that he could pay a fine. In all cases, a district court shall impose a

fine unless "the defendant establishes that he is unable to pay and is not

likely to become able to pay any fine." U.S.S.G. § 5E1.2(a). Because

Seratt presented no evidence to the contrary, we conclude the district

court did not err in finding that Seratt could pay a $12,500 fine based on

the length of his sentence and prison work opportunities. See United

States v. West, 15 F.3d 119, 122 (8th Cir.) (affirming $15,000 fine where

defendant 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.