United States of America, Plaintiff-appellee, v. Michael P. Dewyea, Defendant-appellant, 978 F.2d 1256 (4th Cir. 1992)

Michael P. Dewyea entered a guilty plea to two counts of manufacturing marijuana in violation of 21 U.S.C. § 841 (1988). He appeals the sentence he received.^*  We affirm.

West Virginia authorities executing a search warrant at Dewyea's residence seized sixty-seven marijuana plants which were under cultivation on his property. An agent of the Drug Enforcement Administration who was present testified to this number of plants at Dewyea's guilty plea hearing. Because there were more than fifty plants, the district court treated each plant as the equivalent of one kilogram of marijuana. See United States Sentencing Commission, Guidelines Manual, § 2D1.1(c), comment. (n.14) (Nov. 1991). Dewyea's constitutional challenge to this sentencing scheme is vitiated by our holding in United States v. Underwood, F.2d, No. 91-5356 (4th Cir. July 7, 1992).

Dewyea also argues that the district court erred in not requiring the government to produce the plants for a recount at sentencing, as he requested. However, a defendant who claims that information in his presentence report is inaccurate has the burden of supporting his claim. United States v. Terry, 916 F.2d 157 (4th Cir. 1990). Dewyea testified at sentencing, but presented no evidence to show that there were fewer than fifty plants. This is insufficient.

Although Dewyea expressed remorse at his sentencing and said he had made a big mistake, we find no clear error in the district court's determination that he had not accepted responsibility for his criminal conduct. In a letter to the probation officer, Dewyea stated categorically that he was not guilty of a crime because he was treating his medical condition with marijuana. His attitude at sentencing was much the same. We do not review the district court's refusal to depart. United States v. Bayerle, 898 F.2d 28 (4th Cir.), cert. denied, 59 U.S.L.W. 3244 (U.S. 1990).

The judgment of the district court is therefore affirmed. 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.

AFFIRMED