19 F3d 23 Dean v. United States of America

19 F.3d 23

Ralph DEAN, Appellant,
v.
UNITED STATES OF AMERICA, Appellee.

No. 93-2672.

United States Court of Appeals,
Eighth Circuit.

Submitted: February 15, 1994.
Filed: February 25, 1994.

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action.

Before, FAGG, Circuit Judge, HEANEY, Senior Circuit Judge, and LOKEN, Circuit Judge.

PER CURIAM.

1

Ralph E. Dean pleaded guilty to knowingly and intentionally possessing with intent to distribute approximately one kilogram of cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 841(b)(1)(B)(ii)(II). He was initially sentenced to be imprisoned for a period of 262 months as a career offender pursuant to U.S.S.G. Sec. 4B1.1. Dean moved to vacate his original sentence under 28 U.S.C. Sec. 2255. That motion was granted, and Dean was resentenced to a term of eighty-eight months.

2

On appeal Dean argues that the district court erred in failing to reduce his offense level by three points, rather than two, for acceptance of responsibility. The district court first asserted that it did not have the authority to grant the third point, but added that in any event the record did not justify the three-point reduction. Given the alternative grounds for the district court's decision, we need only address the finding that the facts did not warrant reducing Dean's offense level by a third point.

3

We review this finding by the district court under the clearly erroneous standard. United States v. Furlow, 980 F.2d 476, 476 (8th Cir. 1992) (en banc), cert. denied, 113 S.Ct. 3253 (1993). Having done so, we affirm.