      [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

         United States Court of Appeals
                       For the First Circuit


No. 00-1466

                           UNITED STATES,

                             Appellee,

                                 v.

                       ARTHUR D’AMARIO, III,

                       Defendant, Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF RHODE ISLAND

    [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]*


                               Before

                        Lipez, Circuit Judge,
              Campbell and Cyr, Senior Circuit Judges.


     Arthur D’Amario, III on brief pro se.
     Margaret E. Curran, United States Attorney, Donald C.
Lockhart and Stephanie S. Browne, Assistant United States
Attorneys, on brief for appellee.




                         February 12, 2001


_________________
*Of the District of New Hampshire, sitting by designation.




             Per Curiam.     Arthur D'Amario, III, appeals his

 conviction and sentence for being a felon-in-possession of

 a firearm, in violation of 18 U.S.C. § 922(g)(1).                     We

 affirm.

                                  I.

             Debra Sellers (who dated D'Amario once or twice)

 obtained an abuse prevention order against D'Amario from a

 Massachusetts state court, on the ground that D'Amario was

 harassing    her.      Thereafter,    she   received   two    printed

 anonymous cards which she believed were sent by D'Amario.

 In February 1999, Attleboro, Massachusetts police obtained

 a search warrant for evidence that D'Amario had produced the

 cards, i.e., "any typewriter, computer, word processor,

 printer,    typewriter    ribbons,    computer    ribbons,   computer

 discs, computer software, hard drive computer components or

 any other component or part of any instrument or machine

 capable of producing a printed document."

             D'Amario lived in Smithfield, Rhode Island and the

 search was conducted by both Attleboro, Massachusetts and

 Smithfield,    Rhode   Island   police.     The    police    seized    a

 typewriter and ribbons and, thereafter, while searching in
a dresser drawer, found a firearm and ammunition.                         One of

the officers knew at that time that D'Amario had previous

convictions in Rhode Island and Massachusetts and that at

least one of those convictions resulted in a sentence longer

than   one     year.         The    officers     seized     the    firearm      and

ammunition.

             At       the   time    of    this   search,    D'Amario      was    on

probation      from     both      the     Massachusetts    and    Rhode   Island

convictions and he was arrested a few days after the search

and held on Rhode Island state charges of violating his

probation.        Eventually, he was charged in federal court with

being a felon-in-possession, in violation of 18 U.S.C. §

922(g)(1).        D'Amario and the government stipulated that (1)

he had a prior felony conviction; (2) the weapon met the

definition of a firearm; and (3) the gun had traveled in

interstate commerce prior to his possession.                       Nonetheless,

D'Amario went to trial before a jury.                        In essence, he

apparently        hoped     for    jury    nullification.         Although      the

element of "knowing possession" of the firearm meant that

the government only had to prove that D'Amario knew that the

weapon   was      a    firearm      and    voluntarily     and    intentionally

possessed it -- something that D'Amario did not contest --

D'Amario     sought         to    show    that   the   firearm     was    legally


                                           -3-
purchased in 1987, i.e., before his felony conviction, and

that he thereafter simply failed to dispose of it.

         D'Amario was convicted and sentenced to 18 months.

The sentence reflected a downward departure of one level,

giving consideration to the fact that D'Amario's possession

of a weapon, unloaded, in a drawer for twelve years appeared

to have been passive, i.e., there was no indication that

D'Amario had ever used or brandished the gun.




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                                II.

            We discuss D'Amario's appellate issues in the same

order in which he has presented them.

1. Entitlement to judgment of acquittal

            Whether or not, for purposes of precluding the

possession of firearms, Rhode Island law makes a distinction

between    felons   convicted   of    violent    versus       nonviolent

felonies is irrelevant.    Section 922(g)(1), which prohibits

previously convicted felons from possessing a firearm, makes

no such distinction between defendants convicted of violent

versus     nonviolent   felonies.        See     United       States   v.

Chamberlain, 159 F.3d 656, 660 (1st Cir. 1998); United

States v. Tavares, 21 F.3d 1, 4 (1st Cir. 1994) (en banc).

The government did not need to prove that D'Amario knowingly

violated the law; it only needed to prove that D'Amario

knowingly possessed the firearm, which D'Amario effectively

conceded in his testimony.      See United States v. Smith, 940

F.2d 710, 713 (1st Cir. 1991).        Moreover, we have previously

rejected a theory of defense in a § 922(g)(1) prosecution

based on a defendant's claim that he had not been advised

that he could not possess firearms under federal law and

believed     that   a   state's       issuance     of     a     Firearms

Identification card, allowing the possession of a firearm


                                -5-
under state law, gave him the right to possess firearms.

See United States v. Caron, 64 F.3d 713, 714-17 (1st Cir.

1995), cert. denied, 518 U.S. 1027 (1996).




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2. Request for a continuance

           There was no abuse of discretion, much less "a

manifest   abuse     of     discretion,"       in    the   district        court's

denial of D'Amario's request for a continuance.                       See United

States v. Orlando-Figueroa, 229 F.3d 33, 39 (1st Cir. 2000)

(reciting standard).          The request was tardily filed and no

issue    regarding     a    continuance    was       even    mentioned           when

D'Amario   had   the       opportunity    to    do    so    at    a   telephonic

conference held the week before trial.

3. The competency examination

           D'Amario's        complaints    regarding         the      competency

examination appear baseless as well as moot.                     Moreover, this

court has already reviewed and rejected these complaints.

See In re D'Amario, No. 99-1724 (1st Cir. July 23, 1999).

4. Jury instructions

           By failing to reassert his objection after the

instructions were given, D'Amario has waived consideration

of it.    See United States v. Mendoza-Acevedo, 950 F.2d 1, 4

(1st Cir. 1991).           And, there was no plain error in the

court's refusal to instruct the jury as requested.                         Contrary

to his contention, the Ninth Circuit, in fact, has rejected

the assertions proffered by D'Amario with respect to the

interstate   transportation        of     firearms,         both      as    to    the

                                   -7-
requirement that the movement have "recently" occurred and

the subsumed assertion that the issue of time is a jury

question.    See United States v. Casterline, 103 F.3d 76, 77

(9th Cir. 1996), cert. denied, 522 U.S. 835 (1997).

5. The motion to suppress

            D'Amario   reasserts     his   contentions   that   the

evidence of the gun should have been suppressed because the

search warrant lacked probable cause and the gun was outside

the scope of the warrant.      We review, de novo, a district

court's determination that a given set of facts constituted

probable cause, but defer to the court's findings of fact,

unless clearly erroneous.    See United States v. Charles, 213

F.3d 10, 18 (1st Cir.), cert. denied, 121 S. Ct. 272 (2000).

Upon our review, we find no error in the district court's

denial of D'Amario's motion to suppress.       We need say little

beyond that said by the district court in its order of

November 3, 1999.      The so-called "Catlow report" does not

contradict Sergeant Collins's statements of what he knew at

the time of the search and does not warrant overturning the

district court's refusal to reopen the suppression matter on

the basis of that report.

6. Sentencing




                               -8-
              A district court is not authorized to award credit

at sentencing; it is the Attorney General who computes the

amount   of    credit   after   a   defendant   begins   his   federal

sentence.      See United States v. Wilson, 503 U.S. 329 (1992).

D'Amario's course of relief is to exhaust administrative

remedies with the Bureau of Prisons and, if dissatisfied, to

seek judicial review pursuant to 28 U.S.C. § 2241.              See id.

at 335; Rogers v. United States, 180 F.3d 349, 357-58 (1st

Cir. 1999), cert. denied, 120 S. Ct. 958 (2000).               Contrary

to D'Amario's assertion, United States v. Benefield, 942

F.2d 60 (1st Cir. 1991), is not a "virtually identical

situation," and, in any event, the Sixth Circuit opinion,

upon which we relied, was subsequently reversed in Wilson.

D'Amario's suggestion that his counsel was ineffective in

not getting his state sentence imposed prior to the federal

sentencing is no more than a passing reference, was not

presented      below,    and    would     require   further    factual

exposition.      As such, it is not sufficiently developed for

consideration on this direct appeal.            See United States v.

Martinez-Martinez, 69 F.3d 1215, 1225 (1st Cir. 1995), cert.

denied, 517 U.S. 1115 (1996).

              D'Amario argues error by the district court in

denying his request for a two level downward adjustment for


                                    -9-
acceptance     of   responsibility.         Contrary         to   D'Amario's

contention, however, the district court did not erroneously

believe that D'Amario was ineligible for such a reduction

because he elected to go to trial.               Rather, it is evident

that the court did not find this to be one of the "'rare

situations' [in which] a defendant may elect to exercise his

right to trial and still be eligible for a reduction" for

acceptance of responsibility.           United States v. Ellis, 168

F.3d 558, 564 (1st Cir. 1999) (quoting U.S.S.G. § 3E1.1,

application (n.2)).        We review the district court's refusal

to   award     a    downward       adjustment     for        acceptance    of

responsibility      for    clear   error.       See   United      States   v.

Carrington, 96 F.3d 1, 9 (1st Cir. 1996), cert. denied, 520

U.S. 1150 (1997).         D'Amario has not met that burden.

7. Allegedly "newly available" evidence

             This claim, presented in cursory fashion, in any

event, is not properly before this court.               See United States

v. Graciani, 61 F.3d 70, 77 (1st Cir. 1995).

                                    III.

             While this appeal has been pending, D'Amario has

filed   several     miscellaneous      motions.         In    light   of   our

disposition of this appeal, we deny the motions for release




                                    -10-
pending appeal and for summary reversal.    We also deny, as

moot, the motion to expedite this appeal.

         The conviction and the sentence are affirmed.




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