UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                      No. 98-4279
SHAWN DANIELS, a/k/a Insurance
Man,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CR-97-336)

Submitted: March 3, 1999

Decided: March 22, 1999

Before HAMILTON, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

J. Kelly Haley, III, Richmond, Virginia, for Appellant. Helen F.
Fahey, United States Attorney, S. David Schiller, Assistant United
States Attorney, Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Shawn Daniels appeals his guilty plea conviction for possession of
a weapon by a convicted felon and for aiding and abetting the same.
See 18 U.S.C.A. § 922(g)(1) (West Supp. 1998), 18 U.S.C. § 2
(1994). On appeal, he alleges that the district court erred by failing
to grant him a reduction for acceptance of responsibility under
§ 3E1.1 of the U.S. Sentencing Guidelines Manual ("USSG") (1997).
For the reasons that follow, we affirm.

The facts are undisputed. Daniels was indicted for four counts of
possessing a weapon as a convicted felon and one count of possession
of marijuana. Under a plea agreement, Daniels pled guilty to one
count of possessing a weapon as a convicted felon. The district court
judge reluctantly allowed Daniels to be free on bond stating: "I will
permit him to remain on bond for sentencing, but I want to tell you,
please talk to him, if he gets picked up for jaywalking, he is going to
the penitentiary."1 The court further warned Daniels: "Now, you get
in any trouble at all, any, you are going to come right back here, and
I am going to keep you a long time. Do you understand that?"2
Despite the court's clear instructions on December 15, 1997, Daniels
was arrested for a state probation violation seven days later, on
December 22, and was found in possession of cocaine. The district
court followed the recommendation made in the presentence report
and denied Daniels a reduction for acceptance of responsibility
because of his cocaine possession following his guilty plea.

Daniels alleges that the district court erred by denying him a reduc-
tion for acceptance of responsibility because his cocaine possession
was unrelated to his conviction for gun possession by a convicted
felon. We review a district court's decision to deny an acceptance of
responsibility decision for clear error. See United States v. Castner,

, 1279 (4th Cir. 1995).
_________________________________________________________________
1 Joint appendix "J.A." at 25.

2 

bears the burden at sentencing to show by a prepon-
derance of the evidence that he is entitled to a reduction for accep-
tance of responsibility under USSG § 3E1.1(a). See United States v.
Nale, 

, 1005 (4th Cir. 1996). Because the sentencing
judge is in a unique position to evaluate whether a defendant has
accepted responsibility, such a determination is entitled to great defer-
ence. See USSG § 3E1.1, comment. (n.5). The district court has lati-
tude to consider conduct outside the offense of conviction in assessing
the sincerity of a defendant's professed acceptance of responsibility.
See United States v. Choate, 

, 1320 (4th Cir. 1993). The
district court may find that a defendant has not accepted responsibility
despite a guilty plea and truthful admission of his conduct if he
engages in conduct inconsistent with an acceptance of responsibility.
See USSG § 3E1.1, comment. (n.3). Criminal conduct committed by
a defendant during the pendency of the criminal proceedings may be
a basis for finding that defendant has not accepted responsibility for
the offense of conviction. See United States v. Kidd, 

, 34
(4th Cir. 1993).

We do not find that the district court clearly erred by denying Dan-
iels an acceptance of responsibility credit under USSG § 3E1.1. The
district court made it abundantly clear that Daniels' release was con-
ditioned upon his lawful conduct and that any deviation would result
in additional incarceration; his attempts on appeal to argue that his
illegal post-plea conduct should be precluded from that same sentenc-
ing court's consideration is not well-taken. Further, we decline Dan-
iels' invitation to follow the reasoning of the Sixth Circuit in United
States v. Morrison, 

, 733-35 (6th Cir. 1993), and note
that the weight of authority is to the contrary. 3 Accordingly, we affirm
Daniels' conviction and sentence.
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3 Morrison held that a sentencing court could not consider a defen-
dant's post-indictment pre-sentence criminal activity for purposes of
USSG § 3E1.1(a) unless the conduct is related to the offense of convic-
tion. Other courts have disagreed with this reasoning. See United States
v. Ceccarani, 

, 129-30 (3d Cir. 1996), cert. denied, 

(1997); United States v. Byrd, 

, 196-97 (8th Cir. 1996);
United States v. McDonald, 

, 142-44 (7th Cir. 1994); United
States v. Pace, 

, 343-44 (11th Cir. 1994); United States v.
O'Neil, 

, 600-01 (1st Cir. 1991); United States v. Watkins,

, 984-85 (5th Cir. 1990).

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We dispense with oral argument because the factual and legal con-
tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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