United States v. Washington ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4626
ESTEE B. WASHINGTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, District Judge.
(CR-97-55)
Submitted: June 9, 1998
Decided: June 24, 1998
Before MURNAGHAN, HAMILTON, and WILLIAMS,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Cary B. Bowen, Amy Curtis, BOWEN, BRYANT, CHAMPLIN &
CARR, Richmond, Virginia, for Appellant. Helen F. Fahey, United
States Attorney, S. David Schiller, Assistant United States Attorney,
Richmond, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Estee Washington appeals his conviction for possession of a fire-
arm by a convicted felon in violation of 18 U.S.C.A.§ 922(g) (West
Supp. 1998) for which he was sentenced to fifty-one months impris-
onment. Washington claims, first, that the evidence was insufficient
to support his conviction, and, second, that the district court improp-
erly denied him a reduction for acceptance of responsibility. See
USSG § 3E1.1.* Finding no error, we affirm.
The evidence presented at Washington's trial showed that on Feb-
ruary 5, 1997, Richmond police officers observed Washington seated
behind the wheel of a parked car. One of the officers was aware that
Washington's driving privileges in Virginia had previously been sus-
pended and verified this information through the Department of
Motor Vehicles. After observing Washington drive away, the officers
performed a traffic stop and placed Washington under arrest for being
a habitual offender. As Washington exited the vehicle, the officers
saw a Glock 9 mm pistol on the floorboard of the driver's side of the
vehicle, directly beneath the steering wheel. Washington told the offi-
cers he had borrowed the car to pick up his sick children and denied
any knowledge that a weapon was in the car. The car was not titled
or registered in Washington's name. Washington claims that this evi-
dence was insufficient to show that he constructively possessed the
firearm. We disagree.
A conviction must be affirmed if there is substantial evidence,
viewed in the light most favorable to the government, to support a
finding of guilt. See Glasser v. United States , 315 U.S. 60, 80 (1942).
Circumstantial and direct evidence are both considered, and the gov-
ernment is given the benefit of all reasonable inferences from the
_________________________________________________________________
*U.S. Sentencing Guidelines Manual (1997).
2
facts proven to the facts sought to be established. See United States
v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). Possession of a fire-
arm for the purposes of 18 U.S.C. § 922 may be constructive. See
United States v. Blue, 957 F.2d 106, 107 (4th Cir. 1992); United
States v. Poore, 594 F.2d 39, 43 (4th Cir. 1979). A felon has construc-
tive possession of a firearm if he has "dominion ... or control over ...
[the] vehicle in which the [firearm] is[found]." Blue, 957 F.2d at 107.
Here, Washington was the driver of a car in which a firearm was
found. That the firearm was plainly visible creates a strong inference
that Washington knew the gun was in the car. See United States v.
Lewis, 701 F.2d 972, 974 (D.C. Cir. 1983) (upholding a jury's finding
that a defendant constructively possessed a firearm where the gun was
plainly visible on the back floorboard of a car he had borrowed and
was driving). Accordingly, we find that the evidence was sufficient
to show that Washington constructively possessed the firearm at
issue.
Second, Washington claims that the district court erred by denying
him a two-point reduction for acceptance of responsibility under
USSG § 3E1.1. The adjustment for acceptance of responsibility is not
intended to apply to a defendant unless he "clearly demonstrates
acceptance of responsibility for his offense." See USSG § 3E1.1(a).
The burden is on the defendant to establish by a preponderance of the
evidence that he is entitled to the adjustment. See United States v.
Urrego-Linares, 879 F.2d 1234, 1239 (4th Cir. 1989). Moreover, the
adjustment for acceptance of responsibility is not intended to apply to
a defendant who contests his factual guilt at trial. See USSG § 3E1.1,
comment. (n.2); United States v. Muldoon, 931 F.2d 282, 289 (4th
Cir. 1991) (noting that absent rare circumstances, USSG § 3E1.1 pre-
cludes a downward adjustment for acceptance of responsibility where
a defendant exercises his constitutional right to a trial).
Whether the reduction is warranted "is primarily a factual question,
[and] due deference for the sentencing court requires an appellate
court to accept its findings unless they are clearly erroneous." See
United States v. Cusack, 901 F.2d 29, 31 (4th Cir. 1990). The district
court denied Washington's request on the grounds that he had not
clearly accepted responsibility and that his purported acceptance
occurred after trial and just prior to sentencing. Because timeliness of
3
the admission of responsibility is a factor which the district court may
consider, see United States v. Jones, 31 F.3d 1304, 1315 (4th Cir.
1994), and because Washington did not unambiguously acknowledge
his criminal conduct, see United States v. Castner, 50 F.3d 1267,
1280 (4th Cir. 1995), the district court did not clearly err in denying
him the adjustment.
Accordingly, we affirm Washington's conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
4