United States v. Reedy ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4496
CHARLES B. REEDY,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-96-146)
Submitted: February 23, 1999
Decided: April 22, 1999
Before WILKINS, WILLIAMS, and TRAXLER, Circuit Judges.
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Affirmed and remanded by unpublished per curiam opinion.
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COUNSEL
Matthew A. Victor, Charleston, West Virginia, for Appellant.
Rebecca A. Betts, United States Attorney, Stephen W. Haynie, Assis-
tant United States Attorney, Charleston, West Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Charles B. Reedy appeals the seventy-month sentence he received
after he pled guilty to possession of methamphetamine with intent to
distribute, see 21 U.S.C. § 841 (1994), and an order of the district
court denying his motion to correct the presentence report. Reedy has
filed a motion seeking leave to file a pro se supplemental brief in
which he argues the same issues raised in the brief submitted by coun-
sel. For the reasons explained below, we grant leave to file the supple-
mental brief, affirm the sentence, and remand for correction of an
administrative error.
At Reedy's sentencing hearing, the district court decided against an
enhancement for possession of a firearm during the offense despite
the probation officer's recommendation that the enhancement was
warranted. The court also found that Reedy had not accepted respon-
sibility for his conduct because he used marijuana four or five times
while on bond awaiting sentencing. Reedy did not note an appeal. He
later filed a motion under 28 U.S.C.A. § 2255 (West 1994 & Supp.
1998), contending that his attorney had been ineffective in failing to
file a notice of appeal after Reedy requested an appeal. Reedy also
filed a motion to correct his presentence report to remove references
to the firearms, and pointed out that the district court's factual finding
concerning the firearm enhancement had not been attached to the pre-
sentence report as required by Rule 32(c)(1) of the Federal Rules of
Criminal Procedure. Relying on United States v. Peak, 992 F.2d 39,
42 (4th Cir. 1993), the magistrate judge recommended vacating the
judgment and re-entering it to restore Reedy's appeal right, but deny-
ing the motion to correct the presentence report. The district court
adopted the magistrate judge's recommendation. Following re-entry
of the judgment, Reedy appealed.
We first address Reedy's claim of error in the sentence. After he
was released on bond pending sentencing, Reedy tested positive for
marijuana use on several occasions and his bond was revoked. His
attorney represented at sentencing that Reedy used the marijuana
because he was addicted to drug use and had found some old mari-
juana while cleaning his car. However, the district court found that
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Reedy's decision to use marijuana a number of times rather than seek
help for his addiction demonstrated a lack of acceptance of responsi-
bility.
Continued drug use after a guilty plea constitutes additional crimi-
nal conduct. In deciding whether the defendant has accepted responsi-
bility, it is appropriate for the district court to consider evidence that
the defendant has not voluntarily terminated his criminal conduct. See
USSG § 3E1.1, comment. (n.1(a)); United States v. Underwood, 970
F.2d 1336, 1339 (4th Cir. 1992). Consequently, the district court did
not clearly err in finding that the adjustment was not appropriate. See
United States v. Castner, 50 F.3d 1267, 1279 (4th Cir. 1995) (stan-
dard of review).
Next, we find that, under Rule 32(c)(1), if the district court makes
a finding on a controverted matter at sentencing (or determines that
no finding is necessary because the matter will not be considered in
sentencing), "a written record of these findings and determinations
must be appended to any copy of the presentence report made avail-
able to the Bureau of Prisons." When the district court does not com-
ply with this requirement, the remedy is a remand for attachment of
the district court's findings and transmission of the revised presen-
tence report to the Bureau of Prisons. See United States v. Daniel, 3
F.3d 775, 780 (4th Cir. 1993).* Accordingly, we remand the case
solely to permit the district court's findings to be appended to the pre-
sentence report and for the presentence report with the attachment to
be retransmitted to the Bureau of Prisons. Reedy is not entitled to
revision of the text of the presentence report as he did not object to
the facts in the presentence report at sentencing, but rather to the pro-
bation officer's conclusion that the enhancement applied, and the dis-
trict court decided the issue in his favor. See United States v. Terry,
916 F.2d 157, 162 (4th Cir. 1990) (without affirmative showing by
defendant that information in presentence report is inaccurate, district
court is free to adopt presentence report).
For the reasons discussed, we affirm the sentence. We grant
Reedy's motion for leave to file a supplemental brief. We remand the
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*Daniel deals with a violation of Rule 32(c)(3)(D). The appending
requirement is now in Rule 32(c)(1).
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case for compliance with the appending provision of Rule 32(c)(1).
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED AND REMANDED
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