UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 94-5554

WILLIE BEN BEAUFORT,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5002

MATTHEW J. PERRY,
Defendant-Appellant.

Appeals from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(CR-94-22)

Submitted: December 29, 1995

Decided: April 24, 1996

Before HALL, NIEMEYER, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Ann Briks Walsh, Assistant Federal Public Defender, Charleston,
South Carolina; Judith Archer, Chatham, New Jersey, for Appellants.
J. Preston Strom, Jr., United States Attorney, A. Peter Shahid, Jr.,
Assistant United States Attorney, Charleston, South Carolina, for
Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Willie Ben Beaufort appeals his conviction and his 24-month sen-
tence for conspiracy to make false statements with respect to records
kept by a federally licensed firearms dealer, 18 U.S.C. § 371 (1988)
(Count 1); sale of a firearm to a convicted felon, 18 U.S.C.
§ 922(d)(1) (1988), 18 U.S.C.A. § 924(a)(2) (West Supp. 1995)
(Count 10); and making false statements with respect to records kept
by a firearms dealer, 18 U.S.C.A. § 924(a)(1) (West Supp. 1995), 18
U.S.C. § 2 (1988) (Counts 11, 12, 14). Matthew J. Perry appeals only
his 33-month sentence for conspiracy (Count 1), making false state-
ments to a firearms dealer (Count 12), and possession of a firearm by
a convicted felon, 18 U.S.C.A. § 922(g)(1) (West Supp. 1995)
(Count 13). Finding no error, we affirm Beaufort's convictions and
each Appellant's sentence.

In October 1993, Anthony Brown, a confidential informant for the
Bureau of Alcohol, Tobacco, and Firearms (ATF), purchased a fire-
arm at the A & A Pawnbrokers in North Charleston, South Carolina.
Willie Beaufort worked in the pawnshop. Anthony Brown told Beau-
fort that he had a prior felony conviction but wanted to buy a gun.
Beaufort agreed to sell him a gun and instructed Brown to answer
"No" to the questions on the federal and state forms. After Brown
signed the forms, co-defendant Herman Young, the store owner,
signed as the transferor. Brown then said he would like bring in some
friends who were in the same situation as he, to which Beaufort was
agreeable.

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On November 2, 1993, Anthony Brown brought an undercover
agent, Frank Preston, to the pawnshop and introduced him to Beaufort
as "Flex." Beaufort would not allow Brown to be a straw purchaser
for Preston because under South Carolina law only one firearm may
be purchased in a 30-day period. Instead, Beaufort tried without suc-
cess to find another person to complete the required forms.

On November 9, Beaufort telephoned Preston and asked whether
he was still interested in buying a gun and would be willing to pay
a straw purchaser for completing the forms. On November 12, Beau-
fort again called Preston and arranged to sell him three firearms
through straw purchasers. Later that day, Preston went to the A & A
Pawn Shop wearing a recorder. Beaufort filled out the required pur-
chase form, co-defendant Jones Lowe signed the forms as the pur-
chaser, and Young signed as the transferor. Preston gave Beaufort $25
for Lowe; Beaufort kept some for himself. Beaufort then directed
Lowe to carry the firearm outside the store and hand it to Preston.

A short time later, a second purchase was made with Matthew
Perry acting as the straw purchaser. Perry signed the forms, was paid,
and afterward carried the firearm outside and handed it to Preston.
Perry then asked Preston if he could earn more money by finding a
third straw purchaser. After some delay, Perry brought in co-
defendant Curtis Brown, who went through the same procedure to
complete the sale.

Beaufort and Perry went to trial and attempted to persuade the jury
that the straw purchasers did not make any false statements on the
purchase forms because the firearms had in fact been transferred to
the straw purchasers, however briefly. In his cross-examination of
Agent Preston, Beaufort's attorney introduced the dictionary defini-
tions of the words buyer, transferee, seller, and transferor, to establish
the difference between a sale or purchase and a transfer. Defense
counsel unsuccessfully sought a jury instruction on the meanings of
these terms. However, the district court declined to give one, finding
that the terms were used only on the ATF form, not in the statute, and
were ordinary words which did not need special explanation. Beaufort
was convicted of conspiracy, selling a firearm to a person he believed
to be a convicted felon (Anthony Brown), and making false state-
ments in connection with the straw purchases by Preston. Perry was

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convicted of conspiracy, making false statements in connection with
his straw purchase for Preston, and being a felon in possession of a
firearm. He was acquitted of complicity in the straw purchase made
by Curtis Brown.

Beaufort's Conviction and Sentence

Beaufort contends that he was not guilty of conspiracy to make
false statements or of making false statements in connection with the
straw purchases because he accurately represented each straw pur-
chaser as the transferee, a term used on the ATF Form 4473. He
argues that the statements he made were technically true because the
firearm was momentarily transferred to the straw purchaser, even
though he knew that the firearm was being purchased for Agent Pres-
ton with money supplied by Agent Preston and even though he
believed Agent Preston to be a convicted felon. In effect, Beaufort
contends that the straw purchases were perfectly legal.

To prove a violation of § 924(a)(1)(A) (charged in Counts 11, 12,
and 14 in connection with the three straw purchases), the government
was required to show that Beaufort made a false statement with
respect to information that the law requires a federally licensed fire-
arms dealer to keep. A conviction must be affirmed if there is sub-
stantial evidence, taken in the light most favorable to the government,
to support it. Glasser v. United States, 315 U.S. 60, 80 (1942). Cir-
cumstantial evidence is considered, and the government is given the
benefit of all reasonable inferences from the facts proved to those
sought to be proved. United States v. Tresvant , 677 F.2d 1018, 1021
(4th Cir. 1982).

The term used on the ATF Form 4473 is "Transferee (Buyer)." The
essence of the offense is the deliberate sale of a firearm to a convicted
felon who cannot legally purchase a firearm. United States v. Howell,
37 F.3d 1197, 1202 (7th Cir. 1994), cert. denied , 63 U.S.L.W. 3772
(U.S. Apr. 25, 1994) (No. 94-8594). Thus, the statements representing
each of the straw purchasers as the transferee/buyer were false. Id.;
United States v. Ortiz-Loya, 777 F.2d 973, 979 (5th Cir. 1985) (hold-
ing in prosecution under 18 U.S.C. § 922(a)(6) that straw purchaser
makes a misstatement in signing ATF form which is misrepresenta-
tion of material fact); United States v. Lawrence, 680 F.2d 1126, 1128

                    4
(6th Cir. 1982) (holding in prosecution under § 922(a)(6) that straw
purchaser is not transferee or buyer). Consequently, the evidence was
sufficient to convict Beaufort of conspiracy and of the substantive
counts of making false statements in connection with the three straw
purchases.

In a related argument, Beaufort claims that, if the actual buyer of
the firearm (the person who supplies the money and ultimately takes
possession) is also the transferee, then he cannot be guilty under
Count 10 of unlawfully selling a firearm to Anthony Brown, a con-
victed felon, because Brown was a straw purchaser for the ATF. He
points out that the money for the purchase was supplied by ATF and
ATF agents took possession of the firearm immediately after the sale.

This argument is meritless because § 922(d)(1) makes it crime to
sell a firearm to a person either knowing or having reasonable cause
to believe that the person is a convicted felon. Anthony Brown told
Beaufort he had a prior felony conviction and Beaufort went ahead
with the sale, instructing Brown to give false answers on the ATF
form. The fact that it was a straw purchase for the ATF means that
Brown did not commit a crime, but does not absolve Beaufort.

Beaufort also contends that the district court erred in refusing to
instruct the jury on the legal meanings of the terms buyer, seller,
transferee, and transferor. A district court's refusal to give an instruc-
tion requested by a defendant is reversible error only if the requested
instruction "(1) was correct; (2) was not substantially covered by the
court's charge to the jury; (3) and dealt with some point in the trial
so important, that failure to give the requested instruction seriously
impaired the defendant's ability to conduct his defense." United
States v. Lewis, 53 F.3d 29, 32 (4th Cir. 1995) (quoting United States
v. Camejo, 929 F.2d 610, 614 (11th Cir.), cert. denied, 502 U.S. 880
(1991)).

Here, the terms buyer, seller, transferor, and transferee did not have
special legal meaning which required explanation for the jury to
understand either the elements of the offense or Beaufort's defense.
Therefore, the district court did not err in declining to give the
requested instruction.

                     5
In sentencing Beaufort, the district court refused him an acceptance
of responsibility adjustment both because he had gone to trial and
because he had used cocaine and crack while on pre-trial release. We
review the court's factual finding concerning acceptance of responsi-
bility under the clearly erroneous standard. United States v. Curtis,
934 F.2d 553, 557 (4th Cir. 1991). Beaufort contends that, even
though he went to trial, he was entitled to an acceptance of responsi-
bility adjustment for two reasons: first, because he cooperated in the
prosecution of the pawnshop owner after his conviction and, second,
because he did not deny his actions but simply contested the applica-
bility of the statute to his conduct. See USSG § 3E1.1, comment.
(n.2). At the sentencing hearing, the government argued that Beaufort
had not acknowledged the wrongfulness of his conduct. ATF Agent
Paula Almond, responding to a question from Beaufort's attorney,
expressed the same opinion.

The district court found that Beaufort's was not one of the rare
cases in which a defendant who goes to trial can receive an accep-
tance of responsibility reduction. We agree. A defendant must admit
guilty intent as well as the acts he committed. United States v.
Castner, 50 F.3d 1267, 1280 (4th Cir. 1995). Because Beaufort did
not unambiguously acknowledge his criminal conduct, the district
court's determination was not clearly erroneous.

Perry's Sentence

Perry argued that he should be awarded a reduction for acceptance
of responsibility because he was not intelligent enough to understand
the illegality of his conduct before or after his conviction. We find
that the district court did not clearly err in rejecting this contention.

Perry also argued that he was a minimal participant. A minimal
participant is among the least culpable of those involved, as shown by
his lack of understanding of the scope and structure of the activities
of the others involved. USSG § 3B1.2, comment. (n.1). The district
court found that Perry was not a minimal participant because there
was evidence that Perry recruited Curtis Brown to be the third straw
purchaser, and may have been paid for this service. The court's find-
ing that Perry was a minor, but not a minimal, participant was not
clearly erroneous.

                     6
We therefore affirm Beaufort's convictions and the sentences
imposed on Beaufort and Perry. 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

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