UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 98-4326

JOHN PATRICK LITEKY,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

James C. Cacheris, Senior District Judge.

(CR-97-427)

Submitted: August 25, 1998

Decided: September 10, 1998

Before LUTTIG and MOTZ, Circuit Judges, and

HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Bravitt Cola Manley, Jr., Washington, D.C., for Appellant. Helen F.

Fahey, United States Attorney, William C. Henderson, Special Assistant United States Attorney, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

John Patrick Liteky was convicted by a jury of two counts of depredation of government property, 18 U.S.C.A. § 1361 (West Supp.

1998). He received a sentence of twelve months imprisonment. Liteky

appeals his sentence, contending that the district court clearly erred

by refusing to award him a reduction for acceptance of responsibility

under U.S. Sentencing Guidelines Manual§ 3E1.1 (1997). We affirm.

As part of an organized protest seeking to close the Army's School

of the Americas at Fort Benning, Georgia, Liteky threw red dye on

the walls of the Pentagon and in an entrance on September 29, 1997.

A charge was brought against him but dismissed on the government's

motion over his objection. On October 20, 1997, Liteky again threw

red dye on the Pentagon. This time he was prosecuted. Liteky represented himself at trial and stipulated to all elements of the offense

except that he acted willfully and knowingly. He used the trial to

explain his opposition to the School of the Americas.

The district court decided that Liteky had not accepted responsibility because he had put the government to its burden of proof, although

he did not deny throwing the dye. When imposing sentence, the court

also noted that Liteky had indicated that he intended to engage in the

same conduct again.

We review the district court's decision for clear error. See United

States v. Castner, 50 F.3d 1267, 1279 (4th Cir. 1995). The adjustment

for acceptance of responsibility is not intended for defendants who

deny factual guilt and put the government to its burden of proof at

trial. In rare cases, a defendant who goes to trial may demonstrate

acceptance of responsibility for his criminal conduct, if he goes to

trial "to assert and preserve issues that do not relate to factual guilt,"

such as the constitutionality of a statute or the applicability of a statute to the defendant's conduct. USSG § 3E1.1, comment. (n.2).

Liteky argues that his is such a case. However, a determination that

a defendant who has been convicted at trial has accepted responsibility is based mainly on pre-trial statements and conduct. Id. Liteky

deliberately provoked his prosecution and insisted on a trial to drama-

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tize his views on the School of the Americas. While he accepted the

inevitability of a conviction, the issues he sought to raise by means

of a trial were entirely unrelated to the statute under which he was

charged or any legal question arising from his prosecution. Naturally

enough, he expressed no remorse for his actions. In these circumstances, we cannot say that the district court clearly erred in finding

that the adjustment should not apply. See United States v. Harriott,

976 F.2d 198, 202 (4th Cir. 1992) (mere acceptance of fact of conviction is not acceptance of responsibility).

The sentence is accordingly affirmed. 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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