Notice: Fourth Circuit Local Rule 36(c) States That Citation of Unpublished Dispositions is Disfavored Except for Establishing Res Judicata, Estoppel, or the Law of the Case and Requires Service of Copies of Cited Unpublished Dispositions of the Fourth Circuit.united States of America, Plaintiff-appellee, v. Gary Z. Hager, Defendant-appellant, 94 F.3d 642 (4th Cir. 1996)

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US Court of Appeals for the Fourth Circuit - 94 F.3d 642 (4th Cir. 1996)

Aug. 19, 1996

Hunt L. Charach, Federal Public Defender, C. Cooper Fulton, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. Rebecca A. Betts, United States Attorney, Margaret Agnes Hickey, Assistant United States Attorney, Charleston, West Virginia, for Appellee.

Before LUTTIG and MOTZ, Circuit Judges, and PHILLIPS, Senior Circuit Judge.



Gary Z. Hager appeals the 33-month sentence he received after he pled guilty to unlawful possession of an unregistered firearm (a short-barrelled shotgun), in violation of 26 U.S.C. §§ 5841, 5861(d), 5871 (1988). He contends that the district court should have granted him an adjustment for acceptance of responsibility. United States Sentencing Commission, Guidelines Manual § 3E1.1 (Nov.1995). We affirm.

Following Hager's guilty plea in West Virginia, he was released on bond and went to stay at his aunt's house in Pittsburgh, Pennsylvania. The next day he went to the police station at his aunt's request to obtain the release of her car, which had been impounded. When the police refused to release the car, Hager became angry and disruptive. He was arrested, convicted of disorderly conduct, sentenced to time served, and fined. He did not inform the probation officer in West Virginia or his pretrial services officer in Pennsylvania of this event. When it was discovered, Hager's bond was revoked. In sentencing Hager for the instant offense, the district court found that his conduct at the police station and failure to report his conviction demonstrated a continued willingness to flout the law. The court accordingly denied him a sentence reduction for acceptance of responsibility.

Hager argues on appeal that the district court misapplied the guideline by considering only one factor among the many listed as appropriate for consideration. See USSG § 3E1.1, comment. (n.1). He also contends that his disorderly conduct was too minor an offense to be awarded criminal history points and thus should not be considered "criminal conduct" within the meaning of the guideline commentary. Id. at comment. (n.1(b)).

We find that the district court correctly applied the guideline. The factors listed as appropriate for consideration in Application Note 1, are not all of equal importance in every case. While Hager's conviction for disorderly conduct was not a serious offense, it was additional criminal conduct which the court was entitled to consider as evidence inconsistent with acceptance of responsibility. See USSG § 3E1.1, comment. (n.3). Application Note 5 states that "the sentencing judge is in a unique position to evaluate a defendant's acceptance of responsibility [and] the determination of the sentencing judge is entitled to great deference on review." Affording the court's decision that deference, we find that the adjustment was properly denied.

We therefore affirm the sentence imposed by the district court. 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.