60 F.3d 835

MEMORANDUM**

Stanley Lee Vance, a federal prisoner, appeals pro se the district court’s denial of his 28 U.S.C. Sec. 2255 motion. We have jurisdiction under 28 U.S.C. Sec. 2255, and we affirm.

Vance contends that he was improperly sentenced as an armed career criminal pursuant to 18 U.S.C. Sec. 924(e). The district court properly declined to consider the merits of this argument. We rejected this contention in Vance’s direct appeal. See United States v. Vance, No. 91-50565 (unpublished disposition) (9th Cir. April 28, 1992). A contention previously rejected on direct appeal cannot be the basis of a Sec. 2255 motion absent an intervening change in the law or manifest injustice, neither of which are present here. See Walter v. United States, 969 F.2d 814, 816-17 (9th Cir. 1992); United States v. Redd, 759 F.2d 699, 701 (9th Cir. 1985).

Vance also contends that his guilty plea was not knowing and intelligent due to his counsel’s incompetence in failing to inform him that he could be sentenced as an armed career criminal. We disagree. The plea hearing transcript establishes that both Vance’s counsel and the court advised him that he could be sentenced as an armed career criminal (Transcript of 4/24/94 at pp. 6-11).

AFFIRMED.

MEMORANDUM**

Pablo Dominguez-Alvarado appeals the 70-month sentence imposed following his guilty pleas to conspiracy to distribute and possession with intent to distribute heroin in violation of 21 U.S.C. Secs. 841(a) and 846. Dominguez-Alvarado contends the district court erred by refusing to grant an additional one-level reduction for acceptance of responsibility pursuant to U.S.S.G. Sec. 3E1.1(b)(2). We have jurisdiction under 28 U.S.C. Sec. 1291. We vacate and remand.

We review de novo the district court’s application of the Sentencing Guidelines. United States v. Kimple, 27 F.3d 1409, 1412 (9th Cir. 1994). Whether a defendant is entitled to a reduction for acceptance of responsibility is a factual determination that we review for clear error. Id.

A defendant is entitled to a two-level downward adjustment of his offense level if he “clearly accepts responsibility for his offense.” U.S.S.G. Sec. 3E1.1(a). The Guidelines mandate an additional one-point reduction for acceptance of responsibility when the defendant: (1) qualified for the two-point reduction under section 3E1.1(a); (2) has a base offense level of 16 or greater before the reduction; and (3) has assisted authorities either by timely providing complete information, or by timely entering a guilty plea. See U.S.S.G. Sec. 3E1.1(b); see also United States v. Narramore, 36 F.3d 845, 846 (9th Cir. 1994); Kimple, 27 F.3d at 1412.

When the defendant has met the first two requirements for the one-level reduction under section 3E1.1(b), the court must make a factual determination as to whether the defendant assisted the authorities by timely providing information or pleading guilty.1 United States v. Colussi, 22 F.3d 218, 220 (9th Cir. 1994).

Dominguez-Alvarado contends that the district court erroneously exercised its discretion in denying his request for an additional one-level reduction. We agree. Where, as here, the defendant has met the conditions set forth under section 3E1.1(b), the additional reduction is mandatory. See id.

In the PSR, the probation officer recommended against granting any reduction for acceptance of responsibility because Dominguez-Alvarado’s continuing involvement in heroin trafficking while in custody indicated a lack of remorse.2 See United States v. Cooper, 912 F.2d 344, 348 (9th Cir. 1990) (the district court may consider a defendant’s continued criminal conduct as evidence of a lack of remorse for the offense of conviction, in spite of the defendant’s statements to the contrary); see also U.S.S.G. Sec. 3E1.1 comment. (n.1(b)).

At sentencing, Dominguez-Alvarado argued that the allegations regarding his continued involvement in the distribution of heroin were insufficient for the court to make a finding. In addition, Dominguez-Alvarado argued that his timely guilty plea and his expressions of remorse over his involvement evidenced acceptance of responsibility.

The district court granted the two-level reduction pursuant to section 3E1.1(a), but denied Dominguez-Alvarado’s request for the additional one-level reduction under section 3E1.1(b). In doing so, the court failed to make the requisite factual finding to determine whether Dominguez-Alvarado’s plea was sufficiently timely under section 3E1.1(b).3 See Colussi, 22 F.3d at 220.

Here, Dominguez-Alvarado entered his guilty plea one month after the disposition of pretrial motions and before a trial date was set. Thus, his plea was sufficiently timely to warrant an additional reduction under section 3E1.1(b)(2). See Kimple, 27 F.3d at 1414-15. The record indicates that Dominguez-Alvarado wanted to plead guilty earlier, but that he had to wait because the district judge assigned to the case was away for a month.

Based upon the district court’s grant of two points for acceptance of responsibility and Dominguez-Alvarado’s timely guilty plea, we conclude that the district court erred by denying the additional one-point reduction pursuant to section 3E1.1(b). See Kimple, 27 F.2d at 1415. Accordingly, we vacate Dominguez-Alvarado’s sentence and remand to the district court for resentencing consistent with this memorandum disposition. See id.

VACATED AND REMANDED.