United States v. Narcisse ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4788
KEVIN LAMAR NARCISSE,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-02-100)
Submitted: March 18, 2003
Decided: March 28, 2003
Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Charles H. Harp, II, Lexington, North Carolina, for Appellant. Anna
Mills Wagoner, United States Attorney, Randall S. Galyon, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. NARCISSE
OPINION
PER CURIAM:
Kevin Lamar Narcisse appeals his conviction and twenty-four
month sentence for knowingly making false statements in the acquisi-
tion of firearms in violation of 18 U.S.C. § 922(a)(6) and 924(a)(2).
On appeal, Narcisse raises four issues: (1) insufficiency of the evi-
dence to support his convictions; (2) the improper admission of evi-
dence concerning where the firearms purchased by Narcisse were
recovered; (3) the district court’s failure to find Narcisse a "minor
participant" in the offense; and (4) the district court’s failure to give
Narcisse a downward adjustment for acceptance of responsibility.
Finding no reversible error, we affirm.
Narcisse’s first argument on appeal is that the district court erred
by declining to grant his motion for acquittal due to insufficiency of
the evidence. To determine whether there was sufficient evidence to
support a conviction, this Court considers whether, taking the evi-
dence in the light most favorable to the Government, any reasonable
trier of fact could have found the defendant guilty beyond a reason-
able doubt. Glasser v. United States, 315 U.S. 60, 80 (1942). This
Court does not weigh the evidence or determine the credibility of the
witnesses. Rather, the jury verdict must be upheld if there is substan-
tial evidence to support the verdict. Id.; United States v. Murphy, 35
F.3d 143, 148 (4th Cir. 1994). A defendant challenging the suffi-
ciency of the evidence to support his conviction faces a heavy burden.
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). In light
of trial testimony supporting the jury’s verdict, including evidence
that Narcisse purchased fifteen guns from federally licensed firearm
dealers with money given to him by Rayshawn Rucker; that Rucker
could not purchase the guns himself because he was on probation; and
that several of the guns were recovered in various cities along the East
Coast in connection with crimes, Narcisse’s claim of insufficiency of
the evidence fails.
Next, Narcisse argues the Government’s rebuttal evidence, estab-
lishing that the firearms purchased by Narcisse were recovered out-
side of North Carolina, was not relevant to whether he made false
statements in the acquisition of those firearms. Narcisse also argues
UNITED STATES v. NARCISSE 3
that this evidence was highly prejudicial and misleading because it
made Narcisse appear to be involved in the illegal distribution of the
firearms, although his conduct was limited to their purchase only. A
district court’s rulings on the admission and exclusion of evidence
will not be disturbed absent an abuse of discretion. United States v.
Bostian, 59 F.3d 474, 480 (4th Cir. 1995). This Court will find an
abuse of discretion only if the district court’s evidentiary ruling was
arbitrary or irrational. United States v. Achiekwelu, 112 F.3d 747, 753
(4th Cir. 1997). Evidence is relevant and may be admitted if it tends
to make the existence of any fact that is of consequence to the deter-
mination of the action more probable or less probable than it would
be without the evidence. Fed. R. Evid. 401; see also Fed. R. Evid.
402. Even if evidence is relevant, it can only be admitted if its proba-
tive value outweighs its prejudicial effect. Fed. R. Evid. 403.
Despite Narcisse’s claims, evidence of the recovery of the firearms
outside of North Carolina was, in fact, relevant to prove that he was
purchasing guns for others, and to disprove his assertion that the guns
would be returned to him. To the extent Narcisse also complains that
he was prejudiced by testimony that several handguns he purchased
were ultimately used by others engaged in criminal activity, we note
that this evidence was not introduced in the Government’s case in
chief, but was elicited by defense counsel during cross-examination
of two Government witnesses. We accordingly reject Narcisse’s chal-
lenge to the district court’s evidentiary rulings.
Narcisse’s third argument is that he should have received a reduc-
tion in his offense level for being a minor participant as defined by
U.S. Sentencing Guidelines Manual § 3B1.2 (2000). This Court
reviews a district court’s determination regarding the defendant’s role
in the offense for clear error. United States v. Daughtrey, 874 F.2d
213, 218 (4th Cir. 1989). A defendant seeking a mitigating adjustment
under § 3B1.2 bears the burden of proving by a preponderance of the
evidence that he is entitled to the adjustment. United States v.
Palinkas, 938 F.2d 456, 460 (4th Cir. 1991). A defendant may play
a minor role if he is less culpable than most other participants but has
more than a minimal role. USSG § 3B1.2 comment. (n.3). However,
the court should not only compare the defendant’s culpability to that
of the other participants, but also measure it against the elements of
the offense of conviction. United States v. Reavis, 48 F.3d 763, 769
4 UNITED STATES v. NARCISSE
(4th Cir. 1995). The critical inquiry is thus not just whether the defen-
dant has done fewer bad acts than [his] codefendants, but whether the
defendant’s conduct is material or essential to committing the offense.
Palinkas, 938 F.2d at 460. Having fully considered the evidence and
the district court’s ruling, we conclude that the district court did not
commit clear error in refusing to find Narcisse was a minor partici-
pant.
Finally, Narcisse asserts the district court erred by denying him a
downward adjustment for his acceptance of responsibility. The denial
of an adjustment for acceptance of responsibility is a factual determi-
nation reviewed for clear error. United States v. Miller, 77 F.3d 71,
74 (4th Cir. 1996). The determination of the district court on review
is due great deference. United States v. Nale, 101 F.3d 1000, 1005
(4th Cir. 1996) (citing U.S. Sentencing Guidelines Manual § 3E1.1,
comment. (n.5) (1993)). The burden is on the defendant to establish
by a preponderance of the evidence that he is entitled to the adjust-
ment. United States v. Urrego-Linares, 879 F.2d 1234, 1238-39 (4th
Cir. 1989). Application note 2 of USSG § 3E1.1 states that the down-
ward adjustment for acceptance of responsibility is not intended to
apply to a defendant who puts the Government to its burden of proof
at trial by denying the essential factual elements of guilt, is convicted,
and only then admits guilt and expresses remorse. Although applica-
tion note 2 to section 3E1.1 states that the reduction is available to a
defendant who goes to trial solely to assert and preserve issues unre-
lated to his factual guilt, this exception does not apply in Narcisse’s
case.
The district court found that Narcisse was not eligible for a two
level reduction for acceptance of responsibility because Narcisse put
the Government to the effort and expense of trial, and because the
court had difficulty with the story that Narcisse thought those guns
were going to be his. In fact, even at sentencing Narcisse continued
to claim that he honestly believed the guns would be returned to him.
At no time during his trial or sentencing did Narcisse take responsibil-
ity for his criminal actions; therefore, the district court did not err in
denying Narcisse a downward adjustment for acceptance of responsi-
bility.
Accordingly, we affirm Narcisse’s conviction and sentence. We
dispense with oral argument because the facts and legal contentions
UNITED STATES v. NARCISSE 5
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED