                       PUBLISHED


UNITED STATES COURT OF APPEALS
             FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,             
                Plaintiff-Appellee,
               v.                          No. 11-4442
CHARLES LEE SMOOT,
             Defendant-Appellant.
                                      
       Appeal from the United States District Court
        for the District of Maryland, at Greenbelt.
         Alexander Williams, Jr., District Judge.
                  (8:09-cr-00070-AW-1)

                 Argued: March 21, 2012

                 Decided: August 13, 2012

 Before TRAXLER, Chief Judge, and KING and WYNN,
                  Circuit Judges.



Affirmed by published opinion. Judge King wrote the opin-
ion, in which Chief Judge Traxler and Judge Wynn joined.


                        COUNSEL

ARGUED: Christopher Bowmar Mead, LONDON &
MEAD, Washington, D.C., for Appellant. Anthony William
Vitarelli, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. ON BRIEF: Rod J. Rosen-
2                       UNITED STATES v. SMOOT
stein, United States Attorney, Baltimore, Maryland, Stacy
Belf, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland;
Lanny A. Breuer, Assistant Attorney General, Greg D.
Andres, Acting Deputy Assistant Attorney General, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Appellee.


                                OPINION

KING, Circuit Judge:

   Following a jury trial in the District of Maryland, Charles
Lee Smoot was convicted and sentenced to prison for being
a felon in possession of a firearm. Smoot contends on appeal
that his possession of the firearm was legally justified, or, in
the alternative, that he is entitled to a new trial on the ground
that the jury was misinstructed on an essential element of the
offense. We reject Smoot’s challenges to his conviction, and
another to his sentence, and we affirm.

                                      I.

   On October 3, 2008, the police department of Hyattsville,
Maryland, received a call from a citizen advising that there
was an outstanding warrant for the arrest of Charles Smoot,
and that he was located in a house at 4404 Oliver Street.1 That
address was known to the authorities as a place where narcot-
ics activity frequently occurred. After confirming the exis-
tence of the warrant with the Prince George’s County Sheriff,
   1
     The facts set forth herein are derived from the record on appeal, includ-
ing an ATF agent’s November 26, 2008 affidavit supporting Smoot’s fed-
eral arrest warrant, and the evidence presented at Smoot’s trial. We recite
the latter in the light most favorable to the government, as the prevailing
party at trial. See United States v. Singh, 518 F.3d 236, 241 n.2 (4th Cir.
2008).
                        UNITED STATES v. SMOOT                              3
the Hyattsville police dispatched several officers to execute it.
Upon arriving at the Oliver Street residence, the officers
divided into three teams and began a search for Smoot. Two
officers approaching the property from a rear alley encoun-
tered a man matching Smoot’s description in the backyard of
the residence. They ordered the man to the ground, and one
of the officers recognized him from previous encounters as
Smoot. During the ensuing patdown, an officer seized a
loaded .38 caliber Smith and Wesson revolver from the left
side of Smoot’s waistband.

   Smoot was charged on November 26, 2008, and then
indicted on February 11, 2009, for having possessed a firearm
as a felon, in violation of 18 U.S.C. § 922(g)(1).2 Prior to trial,
on October 4, 2010, Smoot filed objections to the govern-
ment’s proposed jury instructions, wherein he indicated that
the Supreme Court’s decision in District of Columbia v.
Heller, 128 S. Ct. 2783 (2008), had constitutionally autho-
rized him to possess a firearm in his home. Smoot posited that
Heller had effectively created an additional element of a
§ 922(g)(1) offense requiring the government, as part of its
  2
   The indictment alleged the § 922(g)(1) offense in the following terms:
      On or about October 3, 2008, in the District of Maryland, the
      defendant,
                        CHARLES LEE SMOOT,
      having been convicted of a crime punishable by imprisonment for
      a term exceeding one year, did knowingly and unlawfully possess
      a firearm, to wit: a Smith and Wesson .38 caliber revolver bear-
      ing serial number D817726, in or affecting commerce.
J.A. 10. To establish a § 922(g)(1) offense, the government is obliged to
prove: (1) the defendant was a convicted felon; (2) who knowingly pos-
sessed a firearm; and (3) the firearm had travelled in interstate commerce.
See United States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). The
indictment also sought the forfeiture of the Smith and Wesson revolver
that had been seized from Smoot. The forfeiture allegation, however, is
not relevant to this appeal. (Citations herein to "J.A. ___" refer to the con-
tents of the Joint Appendix filed by the parties to this appeal.)
4                          UNITED STATES v. SMOOT
case-in-chief, to affirmatively rebut a presumption that his
possession of the revolver was for legitimate self-defense pur-
poses.

   Having been alerted that Smoot likely intended to mount a
constitutional challenge to § 922(g)(1), the government took
the preemptive step of moving in limine to bar Smoot’s argu-
ment from being presented to the jury and to exclude any evi-
dence that might be offered in support. Smoot objected to the
motion and also contested the government’s proposed instruc-
tion on the third element of § 922(g)(1), i.e., that the revolver
had travelled in interstate commerce. Smoot argued that the
instruction was an incomplete statement of law — and thus
incorrect — on the theory that a firearm could surrender its
nexus to interstate commerce if enough time had passed since
its manufacture in one state and shipment to another. Smoot
contended that the government’s instruction, as proposed,
directed a jury finding against him on the interstate commerce
nexus element.3

  Smoot’s trial began in Greenbelt on October 12, 2010. That
morning, prior to jury selection, the district court heard argu-
ment on the government’s motion in limine. In granting the
    3
    Smoot’s proposed instruction on the third element of § 922(g)(1),
rejected by the district court, would have required the government to prove
his possession of the firearm had an ongoing effect on interstate com-
merce. The rejected instruction agreed in substance with that offered by
the government insofar as it acknowledged that previous interstate travel
could satisfy the element, but Smoot proposed to further instruct the jury
that:
        You may also consider whether the firearm had lost its interstate
        character or stopped its interstate movement at the time of the
        alleged offense. However, if you find that the government has not
        proved that the defendant’s continuing possession of the firearm
        had an ongoing effect on interstate commerce, even if slight, then
        you must acquit the defendant.
United States v. Smoot, 8:09-cr-00070, Docket No. 17 (D. Md. Oct. 4,
2010).
                    UNITED STATES v. SMOOT                      5
motion, the court relieved the government from having to
prove that Smoot had not possessed the revolver in his home
for self-defense, observing along the way that nothing in the
record supported Smoot’s contention that he was, at any rele-
vant time, actually in his home. Indeed, after hearing from the
parties, the court related that, "even the proffer that [defense
counsel has] made is just a generic, general proffer about
someone at another one’s home, in a yard walking around
with a gun." J.A. 73. The ruling also barred Smoot from argu-
ing to the jury, by reference to the government’s evidence,
that the revolver had lost its nexus to interstate commerce by
having been manufactured and sold across state lines a full
thirty-five years previously.

   The government presented its case to the jury later that
same day, introducing into evidence Smoot’s .38 revolver and
its ammunition, and calling two of the arresting officers as
witnesses. The officers testified that Smoot was carrying the
loaded revolver in his waistband when he was arrested. One
of the officers, Danielle Gray, saw Smoot outside the resi-
dence, in its backyard, but never saw him exit the house. The
other officer, Sergeant Bergling, first saw Smoot after he had
been subdued in the backyard, whereupon he seized the
loaded revolver from Smoot’s waistband. The government
also called an official of Smith and Wesson, who confirmed
that the revolver seized from Smoot had been manufactured
in Massachusetts in 1975 and shipped to Maryland that same
year.

   Smoot neither testified nor presented any evidence at trial.
His lawyer informed the jury during argument, however, that
Smoot did not contest having possessed the .38 Smith and
Wesson revolver as alleged, or that the weapon had been
shipped from Massachusetts to Maryland in 1975. Notably,
the parties stipulated before the jury that the revolver satisfied
the statutory definition of a firearm, and that Smoot had been
previously convicted of a crime punishable by imprisonment
for a term exceeding one year.
6                   UNITED STATES v. SMOOT
   At the close of the evidence, the court instructed the jury
on the elements of a § 922(g)(1) offense. That is, the jury was
advised that the government was obliged to prove beyond a
reasonable doubt "that the defendant was convicted in any
court of a crime punishable by imprisonment for a term
exceeding one year as charged; two, that the defendant know-
ingly possessed the firearm as charged; and, three, that the
possession charged was in or affecting commerce." J.A. 185.
Prior to the instructions being given, Smoot recited several
objections to their substance, mirroring those he had argued
in connection with the motion in limine. Thereafter, on the
afternoon of October 12, 2010, the jury returned its guilty ver-
dict.

   The district court sentenced Smoot on April 13, 2011. At
the sentencing hearing, the court denied Smoot a decrease in
his offense level for acceptance of responsibility. Smoot, the
court reasoned, had gone to trial on the § 922(g)(1) charge,
where he had contested the essential element of whether his
possession of the .38 revolver was in or affecting commerce.
The court opined that Smoot’s challenge was inconsistent
with a finding that he had accepted responsibility for the
offense conduct, and not among those "rare situations" refer-
enced in the Sentencing Guidelines where a defendant’s elec-
tion to stand trial can be overlooked. See USSG § 3E1.1(a)
cmt. n.2 (2010) (illustrating by example "rare situations" per-
mitting defendant to insist upon trial but nevertheless receive
credit for acceptance of responsibility). Relatedly, the court
found that Smoot could have preserved his challenges for
appeal without requiring the government and the court to
endure a jury trial.

  Smoot was determined to be an armed career criminal
under 18 U.S.C. § 924(e). His criminal history level of VI,
combined with an offense level of 33, resulted in an advisory
Guidelines range of 235 to 293 months in prison. The district
court, by its judgment of conviction dated April 14, 2011,
opted to impose the 235-month minimum. By notice filed
                       UNITED STATES v. SMOOT                             7
April 21, 2011, Smoot appeals his conviction and sentence.
We possess jurisdiction pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a).

                                    II.

   We review de novo a defendant’s constitutional challenge
to a criminal statute. See United States v. Moore, 666 F.3d
313, 316 (4th Cir. 2012). We review for abuse of discretion
a defendant’s claim that a trial court erroneously admitted or
excluded evidence, or misinstructed the jury. See United
States v. Hornsby, 666 F.3d 296, 307, 310 (4th Cir. 2012).
Finally, a court’s refusal to grant a sentencing reduction will
not be disturbed absent clear error. See United States v. Jeff-
ery, 631 F.3d 669, 678 (4th Cir. 2011).

                                    III.

   On appeal, Smoot presses his as-applied challenge to
§ 922(g)(1) by reiterating that, even as a convicted felon, he
was entitled under the Second Amendment to possess a fire-
arm in his home for self-defense purposes.4 Next, he asserts
that the district court erred in instructing the jury on the inter-
state commerce nexus element of the § 922(g)(1) offense, and
in not permitting him to argue at trial consistently with his
own proposed instruction. Finally, Smoot maintains that he
was erroneously denied a sentencing reduction for acceptance
of responsibility. We assess these contentions in turn.

                                    A.

   In District of Columbia v. Heller, the Supreme Court iden-
tified an individual right to keep and bear arms embodied in
  4
    We are satisfied to summarily reject the proposition that, under Heller,
the government was required to assume the burden and prove, as an addi-
tional element of the § 922(g)(1) offense, that Smoot did not possess the
.38 revolver in his home for self-defense purposes.
8                       UNITED STATES v. SMOOT
the Second Amendment, without any connection to militia
service. See 128 S. Ct. 2783, 2786 (2008).5 The Court never-
theless acknowledged that "[l]ike most rights, the right
secured by the Second Amendment is not unlimited." Id. at
2816. The Heller Court recited certain familiar limitations on
the arms that may be possessed by citizens, observing that
"presumptively lawful regulatory measures" may be used by
the government to enforce those and similar limitations. Id. at
2814, 2816-17.6 As the Court explained, such "presumptively
lawful measures" include prohibitions on the possession of
firearms by felons and the mentally ill, regulations for pos-
sessing firearms in "sensitive places such as schools and gov-
ernment buildings," and regulations governing the sale of
firearms. Id. at 2816-17.

   The record reveals several factual obstacles that hinder
Smoot from presenting his Second Amendment challenge in
the light he would prefer. Smoot contends that he was arrested
   5
     The Second Amendment provides that "[a] well regulated Militia,
being necessary to the security of a free State, the right of the people to
keep and bear Arms, shall not be infringed." U.S. Const. amend. II.
   6
     In Heller, the Supreme Court referred to "longstanding prohibitions on
the possession of firearms by felons," such as § 922(g)(1), as presump-
tively lawful regulatory measures. 128 S. Ct. at 2816-17. Several of our
sister circuits have rejected constitutional challenges to § 922(g)(1), and
those decisions have usually been "based at least in part on the ‘presump-
tively lawful’ language from Heller." United States v. Moore, 666 F.3d
313, 317 (4th Cir. 2012)(citing United States v. Torres-Rosario, 658 F.3d
110, 113 & n.1 (1st Cir. 2011); United States v. Barton, 633 F.3d 168,
170–75 (3d Cir. 2011); United States v. Rozier, 598 F.3d 768, 770–71
(11th Cir.), cert. denied, 130 S. Ct. 3399 (2010); United States v. Williams,
616 F.3d 685, 691–94 (7th Cir.), cert. denied, 131 S. Ct. 805 (2010);
United States v. Vongxay, 594 F.3d 1111, 1114–15 (9th Cir.), cert. denied,
131 S. Ct. 294 (2010); United States v. Khami, 362 F. App’x. 501, 507-08
(6th Cir.), cert. denied, 130 S. Ct. 3345 (2010); United States v. McCane,
573 F.3d 1037, 1047 (10th Cir. 2009), cert. denied, 130 S. Ct. 1686
(2010); United States v. Anderson, 559 F.3d 348, 352 n.6 (5th Cir.), cert.
denied, 129 S. Ct. 2814 (2009); United States v. Stuckey, 317 F. App’x.
48, 50 (2d Cir. 2009); United States v. Joos, 638 F.3d 581, 586 (8th Cir.
2011)).
                      UNITED STATES v. SMOOT                         9
inside of his home in possession of the loaded .38 Smith and
Wesson revolver. There is no evidentiary support, however,
for the proposition that Smoot ever lived at 4404 Oliver
Street, but merely conflicting representations made by the
lawyers at the pretrial hearing on the government’s motion in
limine. The government asserted, for example, that the resi-
dence on Oliver Street was actually a "flop house" or "crack
house" for drug use, pointing out that Smoot gave a different
address as his residence when arrested. The defense countered
that Smoot had actually lived at the Oliver Street house, as
indicated by some of his personal property being found inside.
See J.A. 75-76.7

   Moreover, the trial record persuasively indicates, through
the uncontroverted testimony of two police officers, that
Smoot was arrested in the backyard of 4404 Oliver Street, i.e.,
within what could be considered the curtilage of the resi-
dence. Smoot appears to assume for purposes of his Heller
argument, without having recognized or argued the point, that
a home’s curtilage is equivalent to the home itself. In any
event, we need not resolve here whether Smoot was ever
inside the residence, whether it was in fact his residence, or
whether the Second Amendment applies to a curtilage in the
context of an attempted defense to a § 922(g)(1) prosecution.
Even if we grant Smoot the benefit of the doubt on all those
points, his as-applied challenge to his conviction fails.

   As we recently recognized in United States v. Moore, 666
F.3d 313 (4th Cir. 2012), the vast majority of our sister cir-
cuits have rejected similar challenges to § 922(g)(1). See id.
at 316-17; supra note 6. Our friend Judge Agee acknowledged
in Moore, however, the possibility that presumptively lawful
measures could yet be unconstitutional if confronted with a
proper as-applied challenge. See Moore, 666 F.3d at 319;
United States v. Chester, 628 F.3d 673, 679 (4th Cir. 2010).
  7
   At trial, neither party presented any evidence of where Smoot lived.
Indeed, there was no issue raised at trial concerning where he lived.
10                     UNITED STATES v. SMOOT
   That situation does not exist here; Chester and Moore are
dispositive of the issue in Smoot’s case. Chester established
a two-prong test for assessing a Second Amendment chal-
lenge. The first prong, reflecting Heller’s observation that the
Second Amendment embodies rights existing at its ratifica-
tion, requires our historical review to evaluate whether those
rights, as understood in 1791, are "burdened or regulated" by
the statute in question. Chester, 628 F.3d at 680. If so, under
the second prong, the statute must pass constitutional muster
in accordance with the appropriate level of judicial scrutiny.
Id. Moore refined and crystallized our approach, however,
explaining that "the Chester analysis is more streamlined
when a presumptively lawful regulatory measure is under
review." Moore, 666 F.3d at 318.

   In order for Smoot to rebut the presumption of lawfulness
regarding § 922(g)(1) as applied to him, he "must show that
his factual circumstances remove his challenge from the realm
of ordinary challenges." Moore, 666 F.3d at 319. In Moore,
the defendant’s criminal history placed him outside the scope
of Second Amendment protections for "law-abiding responsi-
ble citizens to use arms in defense of hearth and home." Id.
(quoting Heller, 128 S. Ct. 2783). Smoot’s criminal history is
likewise remarkably egregious, and he can hardly be consid-
ered a "law-abiding responsible citizen." Smoot therefore can-
not avail himself of whatever succor Heller may offer.8

  Smoot seeks to otherwise distinguish his situation from the
normal application of § 922(g)(1), emphasizing that the anon-
ymous tip leading to his arrest advised that "other people were
  8
   Smoot’s presentence report reveals he has been arrested thirty-two
times and convicted sixteen times over the course of twenty-one years. See
J.A. 236. He has accrued a wide range of convictions –– including assault
on a police officer, possession of various controlled substances, possession
of cocaine with intent to distribute, firearms offenses, and destruction of
property –– which in the aggregate demonstrate a pattern of criminality
placing his character well outside any definition of "law-abiding." J.A.
235-36.
                       UNITED STATES v. SMOOT                          11
looking for him." J.A. 127. The meaning of that cryptic lan-
guage, however, was the subject of dispute. The government,
in the pretrial proceedings, characterized the tip as acknowl-
edging that other members of law enforcement were seeking
to arrest Smoot, while the defense countered that it reflected
a threat on Smoot’s life. Even taking the defense’s view, there
is no indication in the record that Smoot himself knew of a
possible threat, or that there could be dire consequences if the
threat were credible. Like the threat in Moore –– the potential
for being robbed in a bad neighborhood –– any threat to
Smoot was "far too vague and unsubstantiated to remove his
case from the typical felon in possession case." Moore, 666
F.3d at 320. In any event, had there been a credible threat
against Smoot, his appropriate response would have been to
seek the aid of law enforcement, rather than arm himself.

   The Third Circuit’s decision in United States v. Barton, 633
F.3d 168 (3rd Cir. 2011), illustrates the typical felon-in-
possession case. The Barton court recognized that a felon
maintains an interest in securing the "defense of hearth and
home," but ruled that a felony conviction nonetheless excises
the felon’s right to possess arms for that purpose. Barton, 633
F.3d at 175.9 As the court explained, § 922(g)(1), like other
disabilities, "does not depend on how or for what reason the
right is exercised." Id.

   Assuming, as we did in Moore, that a criminal defendant
may demonstrate, in an appropriate case, that § 922(g)(1) is
being applied to him inconsistently with the Second Amend-
ment, Smoot’s situation falls far short of any such hypotheti-
cal. Put simply, the circumstances surrounding Smoot’s
possession of the loaded .38 Smith and Wesson revolver in
his waistband in the backyard on Oliver Street do not distin-
  9
    The court of appeals in Barton identified disabilities accompanying a
felony conviction that the Supreme Court has already found constitutional,
including disenfranchisement and restrictions on the right to travel. See
Barton, 633 F.3d at 175 (citations omitted).
12                  UNITED STATES v. SMOOT
guish his challenge from the typical application of
§ 922(g)(1). We are therefore satisfied that Smoot has failed
to rebut the presumptively lawful status of the statute under
which he was prosecuted.

                               B.

   Smoot’s objections relating to the interstate commerce
nexus element of his conviction are twofold. Smoot first con-
tends that the district court erred as a matter of law in reject-
ing his proposed jury instruction, see supra note 3, and
denying him the opportunity to make arguments and present
trial evidence contesting the legal sufficiency of the govern-
ment’s proof. Secondly, Smoot maintains that the instruction
actually given the jury resulted in a directed finding on that
element, contrary to United States v. Gaudin, 515 U.S. 506
(1995).

   On the interstate commerce nexus element of § 922(g)(1),
the court instructed the jury, in pertinent part:

        [T]he third element that the government must
     prove beyond a reasonable doubt is that the firearm
     the defendant is charged with possessing was in or
     affecting interstate or foreign commerce. This means
     that the government must prove that at some point
     prior to the defendant’s possession, the firearm had
     traveled in interstate commerce.

        It is sufficient for the government to satisfy this
     element by proving that at any time prior to the date
     charged in the indictment, the firearm crossed a state
     line or the United States border.

                             ***

        In this regard, there has been evidence that the
     firearm in question was manufactured in a different
                    UNITED STATES v. SMOOT                     13
    state than the state where the defendant is charged
    with possessing it. You are permitted to infer from
    this fact that the firearm traveled in interstate com-
    merce. However you are not required to do so.

J.A. 187-88 (emphasis added).

   Smoot acknowledges that our decision in United States v.
Gallimore, 247 F.3d 134 (4th Cir. 2001), explains that the
interstate commerce nexus may be established at trial simply
by showing that a firearm was manufactured somewhere other
than the state in which it was discovered. See id. at 138.
There, we explicitly rejected the defendant’s argument that
the government was required to "prove the firearm possessed
in violation of §922(g) was involved in interstate commerce
beyond mere transportation across state lines." Id. In that
sense, then, Smoot seeks futilely to simply reargue the wis-
dom of our binding precedent. See Dickerson v. United States,
530 U.S. 428, 443 (2000) ("While stare decisis is not an inex-
orable command, . . . the doctrine carries such persuasive
force that we have always required a departure from prece-
dent to be supported by some special justification.") (internal
citations and quotation marks omitted).

   In the highly unlikely circumstance that we were disposed
to entertain such an argument, the Supreme Court’s decision
in Scarborough v. United States, 431 U.S. 563 (1997), would
make short shrift of it. The Scarborough Court perceived "no
indication that Congress intended to require any more than the
minimal nexus that the firearm [was], at some time, in inter-
state commerce." Id. at 575.

   It is elementary that a jury instruction is not flawed if it is
a fair and accurate statement of law. See United States v. Rah-
man, 83 F.3d 89, 92 (4th Cir. 1996). The converse is undoubt-
edly true of statements of law that are not fair or accurate. The
instruction given by the district court on the interstate com-
merce nexus element fairly and accurately reflected Supreme
14                     UNITED STATES v. SMOOT
Court and circuit precedent. By contrast, Smoot’s proposed
instruction, requiring the government to show that his contin-
uing possession of the firearm had an impact on interstate
commerce, was clearly contrary to Scarborough and Galli-
more, and thus an incorrect statement of law.10

   Though the district court’s instruction correctly stated the
applicable law, it would yet be impermissible insofar as it pre-
vented the jury from deciding an element of the charged
offense. Smoot suggests that the first paragraph of the court’s
instruction "did not leave the jury free to acquit if it believed
that shipping the firearm across state lines 35 years ago was
not sufficient to establish that Defendant Smoot’s possession
was ‘in or affecting commerce.’" Appellant’s Reply Br. 16.
Smoot’s contention is undermined by the remainder of the
instruction, however, which unambiguously instructs the jury
to decide for itself whether the interstate nexus element had
been proven. Because the question was left to the jury, the
challenged instruction was not defective.

   The Second Circuit’s decision in United States v. Parkes,
497 F.3d 220 (2d Cir. 2007), on which Smoot additionally
relies, is readily distinguishable. In Parkes, a Hobbs Act pros-
ecution, the government asked the district court to instruct
that if the robbery’s object was "to obtain illegal drugs or
money earned from the sale of drugs, the requirement of an
effect on interstate commerce is satisfied." 497 F.3d at 230.
Inasmuch as that language could have described any garden-
variety drug robbery, the instruction assumed that the inter-
  10
     From the outset of the proceedings, Smoot indicated that he planned
to adduce evidence to counter the government’s anticipated proof as to the
interstate commerce nexus element. Smoot’s plan was properly derailed
by the district court. The trial court can limit evidence that may confuse
the jury. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Evi-
dence and arguments that contradict established law present a palpable
risk of confusing the jury as to the legal standard it must apply. Smoot’s
plan of attack being clearly contrary to established precedent, the district
court’s curtailing of Smoot’s presentation was well within its discretion.
                    UNITED STATES v. SMOOT                    15
state commerce nexus had been met, rather than reserving the
question for the jury.

   The court of appeals in Parkes concluded that the trial court
had properly rejected the instruction as invading the province
of the jury: "[t]hat instruction would have impermissibly vio-
lated Parkes’s ‘right to have a jury determine, beyond a rea-
sonable doubt, his guilt of every element of the crime with
which he is charged.’" Id. at 230 (quoting Gaudin, 515 U.S.
at 522-23.). The established precedent supporting the instruc-
tion in Smoot’s case, together with the explicit language prop-
erly reserving the jury’s province, defy any similarity to
Parkes. We therefore reject as meritless Smoot’s arguments
on appeal concerning the interstate commerce nexus element.

                              C.

   Smoot’s final contention is that his offense level under the
Guidelines should have been decreased by 2 levels for accep-
tance of responsibility. Although Smoot’s presentence report
recommended that he be awarded the decrease, the district
court declined at hearing to adopt the probation officer’s rec-
ommendation. Smoot was found to have a criminal history
level of VI and an offense level of 33, resulting in an advisory
sentencing range of 235 to 293 months. With a 2-level
decrease, Smoot’s offense level would have been 31 and the
advisory range 188 to 235 months. Smoot characterizes his
position on acceptance of responsibility as consistent with
Application Note 2 of Guidelines § 3E1.1(a), which advises:

    This adjustment is not intended to apply to a defen-
    dant 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 . . . .
    In rare situations a defendant may clearly demon-
    strate an acceptance of responsibility for his criminal
    conduct even though he exercises his constitutional
    right to a trial. This may occur, for example, where
16                   UNITED STATES v. SMOOT
     a defendant goes to trial to assert and preserve issues
     that do not relate to factual guilt (e.g., to make a con-
     stitutional challenge to a statute or a challenge to the
     applicability of a statute to his conduct).

USSG § 3E1.1(a) cmt. n.2 (2010).

   Smoot advances two grounds supporting his assertion that
the district court erroneously denied the offense level decrease
for acceptance of responsibility. First, Smoot reiterates that he
was not allowed to affirmatively present evidence or argu-
ment supporting his interpretation of the interstate commerce
nexus element; thus, he could not have actually contested his
factual guilt. Second, Smoot disagrees with the court’s finding
that a trial was unnecessary to preserve his constitutional
challenges.

   As we have emphasized, Smoot did not dispute the govern-
ment’s evidence. Indeed, the parties stipulated that Smoot was
a felon in possession of a firearm that had travelled in inter-
state commerce thirty-five years earlier. See J.A. 108-09, 191-
92. Smoot reaffirmed the stipulation at closing argument, stat-
ing to the jury:

     We do not dispute the only evidence that the govern-
     ment has offered with respect to in or affecting com-
     merce. The only evidence of in or affecting
     commerce that the government offered is that 35
     years ago this firearm was shipped into the state of
     Maryland and that’s it.

Id. at 192 (emphasis added).

   The court acknowledged Smoot’s concession on the factual
evidence supporting the interstate commerce nexus element,
but stressed his refusal to agree to the legal conclusion that
the firearm was "in or affecting commerce." Id. at 230. The
court thus understood Smoot’s defense to have implicitly
                    UNITED STATES v. SMOOT                   17
raised the argument that the evidence on that element was
insufficient to convict. See id. at 162, 226-27 (reflecting the
court’s observations that defense contested the interstate com-
merce nexus at trial and sentencing).

   Smoot nevertheless contends that he cannot be considered
to have contested "the essential factual elements of guilt," as
contemplated by Application Note 2, because he was not
allowed to squarely and pointedly argue that the government’s
proof of the revolver’s nexus to interstate commerce was too
remote in time to the charged possession. See Appellant’s Br.
31-32. It is plain, however, that regardless of Smoot’s asser-
tion that his case was handicapped, the interstate commerce
nexus element was presented to the jury as a point in contro-
versy that it was required to decide. Defense counsel’s closing
argument hammering the "only evidence" of an interstate
commerce nexus invited the jury to conclude that the govern-
ment had not proved each and every element of its case.

   We agree with the government that Smoot’s situation is
reminiscent of the one in United States v. Dickerson, 114 F.3d
464 (4th Cir. 1997). In Dickerson, a perjury prosecution, the
defendant did not contest the facts presented, i.e., that he had
made certain false statements before the grand jury, but
insisted that the statements lacked materiality, an essential
element of the offense. We nonetheless concluded that the
defendant’s argument amounted to "[a] [challenge] [to] his
‘factual guilt.’" Id. at 470. Because Smoot likewise attacked
the legal sufficiency of an essential element of his offense, he
contested his guilt in fact. Thus, the district court appropri-
ately denied him an offense level decrease for acceptance of
responsibility.

   Finally, Smoot maintains that there was no alternative to a
trial that would have allowed him to maintain his appellate
rights. The district court rejected that proposition, however,
finding that Smoot could have, for example, agreed to a com-
prehensive stipulation of facts, which would have preserved
18                  UNITED STATES v. SMOOT
his grounds for appeal without putting the government to its
burden of proof. We defer to the court’s finding as not clearly
erroneous, and we will therefore not disturb its sentencing cal-
culus.

                              IV.

   Pursuant to the foregoing, we affirm the judgment of the
district court.

                                                   AFFIRMED
