UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                        No. 98-4635

CHARLES RANDLE SHIRES,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CR-98-10)

Argued: March 5, 1999

Decided: May 10, 1999

Before WIDENER and NIEMEYER, Circuit Judges, and
BROADWATER, United States District Judge for the
Northern District of West Virginia, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Janet Sue Reincke, Assistant United States Attorney,
Norfolk, Virginia, for Appellant. Rodolfo Cejas, II, Norfolk, Virginia,
for Appellee. ON BRIEF: Helen F. Fahey, United States Attorney,
Norfolk, Virginia, for Appellant.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

On May 5, 1998, a jury convicted Charles Shires on one count of
possession of a firearm by a convicted felon in violation of 18 U.S.C.
§§ 922(g)(1), 924(e)(1). At sentencing, the district court awarded
Shires a two-level reduction in offense level for his sentence pursuant
to United States Sentencing Guidelines (U.S.S.G. or Guidelines)
§ 3E1.1 for acceptance of responsibility. The government now
appeals the district court's determination that Shires was entitled to
this reduction. We affirm.

On July 4, 1997, police officers for the city of Portsmouth, Virginia
responded to a dispatched radio call reporting gunshots. Thomas
Edwards, Shires's neighbor, placed the call to the police after hearing
the gunshots and briefly discussing the gunfire with Shires. Upon
their arrival, the officers found Shires sitting on a couch in the den
area of his home. After a brief conversation, the officers asked Shires
to accompany them outside. The officers handcuffed Shires and
placed him in a police cruiser for safety purposes. The officers
requested permission to search Shires's house. Shires reportedly
answered that "[he] didn't see what the big deal was. I just shot a cou-
ple of shots. It's no big deal. It's the Fourth of July, for Christ's sake."
The officers told Shires that they needed to locate the firearm, and he
replied that "the gun is under the table." The officers confirmed
Shires's consent before entering Shires's house and discovering a .38
caliber Smith & Wesson revolver under a coffee table.

A jury convicted Shires of being a felon who did unlawfully and
knowingly possess a revolver that had been shipped or transported in
interstate commerce pursuant to 18 U.S.C. § 922(g)(1). At sentencing,
the district court commenced with a base offense level of 24 pursuant
to U.S.S.G. § 2K2.1(a)(2). The court further determined that Shires
was entitled to a two-level reduction in offense level for acceptance

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of responsibility, relating that he never denied the charges against
him, admitted that he possessed the weapon, and did not present
untruthful testimony during the course of his trial. The resulting
offense level was 22, with a Criminal History VI, for a guideline
range of 84 to 105 months. The court sentenced Shires to 84 months
imprisonment. The government appeals the court's award of a two-
level reduction to Shires for his acceptance of responsibility.

U.S.S.G. § 3E1.1 permits the district court to decrease a defen-
dant's offense level by two "if the defendant clearly demonstrates
acceptance of responsibility for his offense." In reviewing the district
court's determination, the Guidelines provide that the district court "is
in a unique position to evaluate a defendant's acceptance of responsi-
bility," and its decision "is entitled to great deference on review."
U.S.S.G. § 3E1.1, app. note 5; United States v. White, 875 F.2d 427,
430-31 (4th Cir. 1989). This deference is necessary because "[a]
defendant's credibility and demeanor play a crucial role in evaluating
whether he is genuinely contrite and has accepted responsibility," and
the district court is in the best position to evaluate the defendant.
United States v. Harris, 882 F.2d 902, 905 (4th Cir. 1989). The dis-
trict court's determination of whether to grant a reduction for accep-
tance of responsibility is a factual matter that we may not disturb on
appeal unless clearly erroneous. United States v. Castner, 50 F.3d
1267, 1279 (4th Cir. 1995). In order to receive reduction for accep-
tance of responsibility, "a defendant must prove by a preponderance
of the evidence that he has clearly recognized and affirmatively
accepted `personal responsibility for his criminal conduct.'" Castner,
50 F.3d at 1279 (quoting United States v. Martinez, 901 F.2d 374, 377
(4th Cir. 1990)).

In this case, the government challenges the district court's factual
determination of acceptance of responsibility on two grounds. First,
the government contends that Shires did not accept responsibility for
his criminal conduct because he never admitted criminal intent. Sec-
ond, the government argues that because a jury convicted Shires of
the crime, his acceptance of responsibility was not timely and he is
not entitled to a finding of acceptance of responsibility. We hold that
the district court's decision was not clearly erroneous.

We disagree with the government's first contention that Shires
failed to accept responsibility for his criminal conduct. The record

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supports the district court's determination that Shires never denied his
criminal possession of the revolver. After the police officers arrived
at his house, Shires stated: "[He] didn't see what the big deal was. I
just shot a couple of shots. It's no big deal. It's the Fourth of July,
for Christ's sake." This statement indicates that Shires never denied
his possession of the revolver. Rather, by admitting that he fired the
gun, Shires had to admit that he was in possession of the gun. The
government to the contrary, Shires could not have fired the gun with-
out having it in his possession at the time he fired it.

Furthermore, Shires explicitly admitted his conduct during his sen-
tencing proceedings. In his position papers filed with the court relat-
ing to sentencing, Shires stated that "[he] has always admitted his
guilt in possessing the weapon but he has, in his own mind, disputed
that he intended to violate the law by his possession on July 4, 1997."
Shires also admitted that he possessed the firearm when he testified
during his sentencing hearing.

          I was, uh -- it's no excuse. I just didn't think about what
          I was doing. I didn't mean any criminal intent, but I guess
          I realize now how bad it was, what I did. I'm sorry for what
          I did.

Throughout the prosecution of his crime and sentencing, Shires
repeatedly admitted that he possessed the revolver.

The principal contention of the government is that Shires never
admitted to a criminal intent which the government argues is a neces-
sary element of the crime. The government, however, would require
Shires to admit more than is necessary for a violation of § 922(g)(1).
The statute, possession of firearm by a convicted felon, requires no
more than Shires's voluntary possession of a firearm. Therefore, as
long as Shires was conscious and aware of his actions--that he did
not act out of ignorance, mistake, accident, or some other innocent
reason-he satisfies the statute. The crime is for a convicted felon "to
. . . possess . . . any firearm or ammunition."

The record indicates both that Shires was fully aware of his posses-
sion and that he admitted it throughout the criminal proceedings.
Shires admitted to the officers at the scene that he fired the revolver,

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and he directed the officers to where they could find the weapon, con-
duct which could only indicate an admission of guilt, possession of
the revolver.1 The record contains no evidence that Shires was any-
thing but conscious and aware of his possession of the firearm and
that he never denied such.

The government also argues that Shires is not entitled to the reduc-
tion for acceptance of responsibility because his acceptance was
untimely. In effect, the government contends that Shires is not entitled
to the two-level reduction because he went to trial on his charges and
was convicted. We disagree with the government's position. The
Guidelines explicitly state that a defendant may still receive the
adjustment for acceptance of responsibility after a criminal trial and
conviction. It is true that the two-level reduction 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 essential factual
elements of guilt, is convicted, and only then admits guilt and
expresses remorse." U.S.S.G. § 3E1.1, app. note 2. Nevertheless, "[a]
defendant may exercise his right to trial and still receive an adjust-
ment for acceptance of responsibility, [although] such situations are
rare and the determination of acceptance must `be based primarily
upon pre-trial statements and conduct.'" Castner, 50 F.3d at 1279
(quoting U.S.S.G. § 3E1.1, app. note 2). Further, while U.S.S.G.
§ 3E1.1, app. note 1(h) states that "the timeliness of the defendant's
conduct in manifesting responsibility" is a consideration for the court
in determining a defendant's eligibility for the reduction, it is not the
dispositive factor.

The district court has substantial discretion on the issue of the time-
liness of a defendant's acceptance of responsibility. U.S. v. Jones, 31
F.3d 1304, 1315 (4th Cir. 1994). This circuit has considered several
cases in which the defendant has accepted responsibility for his crimi-
nal conduct after his conviction by trial, and we have never stated that
post-trial acceptance bars the defendant from receiving the reduction.
See Castner, 50 F.3d at 1279-80; United States v. Gordon, 895 F.2d
932, 937 (4th Cir.), cert. denied, 498 U.S. 846 (1990); United States
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1 During his sentencing, Shires admitted that he was aware that it was
illegal for him to possess a firearm. He stated that he had been warned
against it after his prior felony convictions.

                    5
v. Strandquist, 993 F.2d 395, 401 (4th Cir. 1993). Undoubtedly, the
timing of a defendant's acceptance of responsibility is a factor that the
Guidelines require a district court to consider in awarding a two-level
reduction. We do not, however, interpret U.S.S.G.§ 3E1.1 to prohibit
an adjustment for acceptance of responsibility if the defendant, rather
than pleading guilty, is tried and convicted of the crime. The rule the
government asks us to adopt is very nearly a per se rule of prohibi-
tion, which we decline to do as has the Guidelines.

U.S.S.G. § 3E1.1, app. note 1 lists several considerations that the
district court may consider, but is not limited to, in determining
whether a defendant qualifies for a reduction for acceptance of
responsibility. In addition to the timeliness of the defendant's accep-
tance, these considerations include: "(a) truthfully admitting the con-
duct comprising the offense(s) of conviction; . . . (b) voluntary
termination or withdrawal from criminal conduct or associations; . . .
(d) voluntary surrender to authorities promptly after commission of
the offense; . . . (e) voluntary assistance to authorities in the recovery
of the fruits and instrumentalities of the offense; . . . (h) timeliness of
defendant's conduct in manifesting acceptance of responsibility.
U.S.S.G. § 3E1.1. The record in this case contains evidence that
Shires fulfilled these criteria and no evidence that he did not. Shires
never denied his possession of the revolver and admitted to the offi-
cers that he had fired the gun, which necessarily implies possession.
Shires voluntarily terminated his conduct before the officers arrived
at his house and voluntarily surrendered to the officers by not chal-
lenging them when they handcuffed him and placed him in their
cruiser. Further, Shires voluntarily assisted the officers in recovering
his gun by consenting to the search of his house and directing the offi-
cers to the location of the revolver. Shires admitted possession of the
gun when the officers arrived and has on all occasions since. Shires
never denied his criminal conduct and cooperated with the police in
all aspects of their immediate investigation of his crime.2
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2 At sentencing, the district court noted that one of its reasons for find-
ing that Shires accepted responsibility was that Shires never presented
any untruthful testimony to the court. We recognize that a defendant is
"not entitled to a reduction for acceptance of responsibility merely
because he did not obstruct the administration of justice during his trial."
Castner, 50 F.3d at 1279. Here, however, Shires's conduct presented

                     6
The district court is in a unique position to evaluate the defendant's
acceptance of responsibility, and its factual determination is entitled
to great deference on review. The district court was in the best posi-
tion to assess Shires's demeanor and credibility. We may not second-
guess its judgment unless its determination was clearly erroneous.
Here, the record supports the court's decision because it indicates that
Shires freely admitted his criminal act at all times, never denied his
criminal conduct, accepted full responsibility for his conduct, and
assisted the police in their investigation of his crime.

Accordingly, the sentence is

AFFIRMED.
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additional considerations for the district court to evaluate in determining
whether to award the reduction. The record contains sufficient evidence
beyond Shires's failure to present untruthful testimony to support the
finding of acceptance of responsibility.

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