UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4479

RODNEY EUGENE THOMPSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Winston-Salem.

William L. Osteen, Sr., District Judge.

(CR-95-310)

Submitted: January 23, 1997

Decided: February 10, 1997

Before RUSSELL, WILKINS, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,

North Carolina, for Appellant. Walter C. Holton, Jr., United States

Attorney, Lisa B. Boggs, Assistant United States Attorney, Greensboro, 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Unpublished opinions are not binding precedent in this circuit.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:

Rodney Eugene Thompson pled guilty to a one-count indictment

which charged him with possessing a firearm after being convicted of

a felony, 18 U.S.C. § 922(g)(1) (1994), and violating the armed career

criminal statute, 18 U.S.C. § 924(e) (1994). The district court departed downward for substantial assistance on the government's

motion and imposed a sentence of 209 months. Thompson's attorney

has filed a brief in accordance with Anders v. California, 386 U.S.

738 (1967), questioning the district court's denial of an adjustment for

acceptance of responsibility, USSG § 3E1.1,* but stating that, in his

view, there are no meritorious issues for appeal. Thompson has filed

a pro se supplemental brief raising three issues. Finding no reversible

error, we affirm the conviction and sentence.

The only contested issue at Thompson's sentencing was acceptance

of responsibility. Two police officers testified that Thompson pointed

a .357 revolver at one of the officers during a reverse sting drug deal.

The probation officer testified that Thompson denied knowing there

was a weapon in the car although he had previously told the court at

his change of plea hearing that he knew the gun was in the car. At the

sentencing hearing, Thompson said he had borrowed the car he was

driving and saw the gun between the seats, but did not touch it. The

district court found that Thompson had been "less than candid" and

had not earned the adjustment. The record demonstrates that Thompson changed his story a number of times after his arrest when he perceived some benefit in doing so. Section 3E1.1 calls for truthful

admission of criminal conduct. The district court did not clearly err

in denying the adjustment in this case.

In his pro se brief, Thompson challenges his § 924(e) sentence. He

suggests that his 1977 conviction for breaking and entering may have

been unconstitutionally obtained because the state court record did

not show that he was represented by counsel. Because this issue was

not raised in the district court, we review it for plain error. United

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*United States Sentencing Commission, Guidelines Manual (Nov.

1995).

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States v. Olano, 507 U.S. 725, 734 (1993). At sentencing, a defendant

may challenge the validity of a prior conviction only on the ground

that it was obtained in violation of the right to counsel. Custis v.

United States, 511 U.S. 485, 497 (1994). Thompson does not assert

here that he actually was denied the right to counsel, only that the

record does not establish whether he was respresented. Consequently,

we find that the district court did not commit plain error in finding

that Thompson had the requisite predicate convictions and was an

armed career criminal.

Thompson also claims that the enhanced sentence was not part of

his plea agreement. However, we note that the government had

already filed notice to seek an enhanced sentence when Thompson

signed the plea agreement, and the agreement stated that Thompson

faced a statutory penalty of not less than fifteen years for the offense

charged in the indictment. That fact was also brought out at the

change of plea hearing.

Finally, Thompson contends that the district court erred in accepting his guilty plea before the presentence report had been prepared.

Under Rule 11 of the Federal Rules of Criminal Procedure, the court

is not required to defer acceptance of a plea or a plea agreement. Consequently, the district court did not plainly err in accepting Thompson's guilty plea at the Rule 11 hearing. However, the sentencing

guidelines direct the court to defer acceptance of the agreement and

any nonbinding recommendations. See USSG§ 6B1.1(c), p.s. We

previously recognized but did not resolve the conflict in United States

v. Ewing, 957 F.2d 115, 119 (4th Cir.), cert. denied, 505 U.S. 1210

(1992). Here, the court carefully explained to Thompson that his sentence, including any adjustments, would be determined by the court

after preparation of the presentence report and that any recommendations by the government were not binding. Thompson specifically

questioned the court on this point and consulted with his attorney

before deciding to enter his guilty plea. While the court did not state

that it was deferring acceptance of the plea agreement, it complied

substantially with USSG § 6B1.1(c).

In accordance with Anders, we have examined the entire record in

this case and find no meritorious issues for appeal. Accordingly, the

conviction and sentence are affirmed. This court requires that counsel

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inform his client, in writing, of his right to petition the Supreme Court

of the United States for further review. Counsel's motion to withdraw

is therefore denied at this time. If the client requests that a petition be

filed, but counsel believes that such a petition would be frivolous,

then counsel may again move in this court for leave to withdraw from

representation. Counsel's motion must state that a copy thereof was

served on the client.

We dispense with oral argument because the facts and legal contentions are adequately presented in the record and briefs, and oral argument would not aid the decisional process.

AFFIRMED

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