                        UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                            No. 99-4583
LLOYD ANTHONIE WILLIAMS,
             Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Western District of North Carolina, at Shelby.
                Lacy H. Thornburg, District Judge.
                          (CR-98-144-4)

                       Argued: May 9, 2001

                      Decided: June 14, 2001

  Before WILKINS, MICHAEL, and TRAXLER, Circuit Judges.



Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


                            COUNSEL

ARGUED: Mary Elizabeth Euler, CLONINGER, LINDSAY, HENS-
LEY, SEARSON & ARCURI, P.L.L.C., Asheville, North Carolina,
for Appellant. Douglas Scott Broyles, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON
BRIEF: Stephen P. Lindsay, CLONINGER, LINDSAY, HENSLEY,
SEARSON & ARCURI, P.L.L.C., Asheville, North Carolina, for
Appellant. Mark T. Calloway, United States Attorney, Brian Lee
2                     UNITED STATES v. WILLIAMS
Whisler, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.



Unpublished opinions are not binding precedent in this circuit.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


                              OPINION

PER CURIAM:

   Lloyd Anthonie Williams was convicted of unlawful possession of
a firearm. See 18 U.S.C.A. § 922(g)(1) (West 2000). Williams
appeals, challenging his conviction and sentence. We affirm the con-
viction, vacate the sentence, and remand for resentencing.

                                   I.

   Deputy Sheriff Ronald Kreech made a routine traffic stop of a car
driven by Williams. As Kreech was informing police dispatch of the
stop, he saw Williams, who was seated in the car with the door open,
lean down, reach under the seat, and then "make a flipping motion."
J.A. 61. Kreech approached the car and saw a small silver pistol on
the floor of the car on the passenger side. After another officer seized
the gun and learned that it was stolen, Kreech arrested Williams. As
he was being handcuffed, Williams volunteered that he bought the
gun from a thirteen-year-old child and that "he should be given a
medal" because the "kid didn’t know how to handle a gun . . . [and]
could have hurt somebody." J.A. 63-64.

   Williams, a convicted felon, went to trial on a single count of
unlawful possession of a firearm. Prior to trial, the government filed
an information stating that Williams had three prior convictions for
violent felonies or serious drug offenses and that the government
would seek an enhanced sentence under 18 U.S.C.A. § 924(e) (West
                       UNITED STATES v. WILLIAMS                         3
2000), the Armed Career Criminals Act. The jury convicted Williams,
and the district court imposed a sentence of life imprisonment.

                                    II.

   In his only challenge to his conviction, Williams contends that the
district court erred by denying his motion to suppress the statement
about the gun that Williams made to Deputy Kreech when he was
arrested. When reviewing the denial of a motion to suppress, we
review the district court’s factual findings for clear error and its legal
conclusions de novo. See United States v. Raymond, 152 F.3d 309,
311 (4th Cir. 1998).

   At trial, Williams sought to suppress his statement on the grounds
that he had not been given Miranda1 warnings before making the
statement. The district court denied the motion, concluding that the
statement was voluntarily made and was not the product of custodial
interrogation. On appeal, Williams argues that because he had been
arrested and placed in handcuffs before he made his statement, the sit-
uation was the functional equivalent of a custodial interrogation, and
the absence of the Miranda warnings therefore rendered his statement
inadmissible. We disagree.

   It is well settled that "[a] person subjected to custodial interrogation
is entitled to the procedural safeguards prescribed by Miranda, and
therefore, any statements a suspect makes during custodial interroga-
tion are inadmissible in the prosecution’s case in chief unless prior
Miranda warnings have been given." United States v. Leshuk, 65 F.3d
1105, 1108 (4th Cir. 1995). However, it is also well settled that spon-
taneous or volunteered statements that are not the product of interro-
gation or its functional equivalent are not barred by Miranda, even if
the defendant is in custody when the statements are made. See Rhode
Island v. Innis, 446 U.S. 291, 299-301 (1980); United States v.
Wright, 991 F.2d 1182, 1186 (4th Cir. 1993).

   Although Williams was certainly in custody when he made the
statement, there is no evidence showing that the statement was the
  1
   Miranda v. Arizona, 384 U.S. 436 (1966).
4                     UNITED STATES v. WILLIAMS
product of interrogation or its functional equivalent. See Innis, 446
U.S. at 301 (explaining that "interrogation" "refers not only to express
questioning, but also to any words or actions on the part of the police
(other than those normally attendant to arrest and custody) that the
police should know are reasonably likely to elicit an incriminating
response from the suspect" (footnote omitted)). Instead, the record
demonstrates that the statement was spontaneously volunteered by
Williams, perhaps with the misguided hope that it might somehow
exculpate him. Because the record is utterly devoid of any evidence
showing a "measure of compulsion above and beyond that inherent in
custody itself," Innis, 446 U.S. at 300, the district court properly
denied the motion to suppress.

                                  III.

   At sentencing, the district court did not make an acceptance of
responsibility adjustment to Williams’s offense level, and the court
adopted the probation officer’s recommendation that Williams be sen-
tenced as a career offender pursuant to section 4B1.1 of the United
States Sentencing Guidelines Manual (1998). Williams therefore
received a base offense level of 37, which, with his category VI crimi-
nal history, resulted in a sentencing range of 360 months to life. As
noted above, the district court sentenced Williams to life imprison-
ment.

                                  A.

   In the presentence report, the probation officer concluded that Wil-
liams had not accepted responsibility for his participation in the
instant offense and recommended that Williams should not receive an
adjustment under U.S.S.G. § 3E1.1. Although Williams argues on
appeal that he was entitled to the reduction, he did not object to that
aspect of the presentence report. The issue, therefore, is reviewed
only for plain error. See United States v. Ford, 88 F.3d 1350, 1355
(4th Cir. 1996) ("A defendant’s failure to object to a sentencing issue
amounts to a waiver of his right to raise that issue on appeal, absent
plain error.").

  Williams contends he is entitled to the acceptance of responsibility
adjustment because he admitted his conduct at the scene of his arrest.
                      UNITED STATES v. WILLIAMS                         5
He argues that he went to trial only to challenge the admissibility of
his statement to Deputy Kreech and that his insistence upon going to
trial should not deprive him of the adjustment. We disagree.

   Generally, the acceptance of responsibility adjustment is not appli-
cable where the defendant has "put[ ] the government to its burden of
proof at trial." U.S.S.G. § 3E1.1, comment. (n.2). That the defendant
insisted on going to trial, however,

    does not automatically preclude a defendant from consider-
    ation for such a reduction. In rare situations a defendant may
    clearly demonstrate an acceptance of responsibility for his
    criminal conduct even though he exercises his constitutional
    right to a trial. This may occur, for example, where a defen-
    dant goes to trial to assert and preserve issues that do not
    relate to factual guilt (e.g., to make a constitutional chal-
    lenge to a statute or a challenge to the applicability of a stat-
    ute to his conduct).

Id.; see also United States v. Holt, 79 F.3d 14, 17 (4th Cir. 1996) (per
curiam).

   Although Williams offered no evidence at trial, the record does not
demonstrate that he acknowledged his factual guilt. In fact, Williams
specifically denied possession of the firearm in his objections to the
presentence report. Therefore, even if we accept Williams’s assertion
that he went to trial only to challenge the admissibility of his state-
ment and we assume that the Miranda issue is unrelated to his factual
guilt, this is not one of the "rare cases" where a defendant who goes
to trial has nonetheless clearly demonstrated an acceptance of respon-
sibility. See, e.g., United States v. Nale, 101 F.3d 1000, 1005 (4th Cir.
1996) (explaining that "to receive a reduction under § 3E1.1 for
acceptance of responsibility, the defendant must prove by a prepon-
derance of the evidence that he has clearly recognized and affirma-
tively accepted personal responsibility for his criminal conduct").
Accordingly, we cannot conclude that the district court’s refusal to
award the adjustment constitutes error, plain or otherwise.

                                   B.

  Williams also contends that the district court improperly sentenced
him as a career offender under U.S.S.G. § 4B1.1. We agree.
6                     UNITED STATES v. WILLIAMS
   A defendant is a "career offender" under the guidelines if he is over
eighteen at the time he committed the instant offense, the instant
offense is a felony crime of violence or controlled substance offense,
and he has at least two prior felony convictions for crimes of violence
or controlled substance offenses. See U.S.S.G. § 4B1.1. The commen-
tary to the guidelines, however, specifically provides that "‘[c]rime of
violence’ does not include the offense of unlawful possession of a
firearm by a felon." U.S.S.G. § 4B1.2, comment. (n.1); see also
United States v. Johnson, 953 F.2d 110, 115 (4th Cir. 1991).

   The probation officer recommended that Williams be sentenced as
a career offender because he had one prior conviction for a violent
felony and two prior felony convictions for controlled substance
offenses and because "the instant offense involves a firearm." J.A.
130. However, given that a violation of 18 U.S.C.A. § 922(g) is not
a crime of violence for purposes of section 4B1.1, it was error to sen-
tence Williams as a career offender.

   Although the government does not dispute that application of the
career offender guideline would be improper in this case, the govern-
ment contends that Williams was not sentenced as a career offender
but instead was properly sentenced as an armed career criminal pursu-
ant to 18 U.S.C.A. § 924(e). We cannot agree with this characteriza-
tion of the proceedings.

   Section 924(e) imposes a mandatory minimum sentence of fifteen
years for a violation of section 922(g) if the defendant has three previ-
ous convictions "for a violent felony or a serious drug offense." 18
U.S.C.A. § 924(e)(1). The government filed an information indicating
that it would seek an enhanced penalty under section 924(e), and Wil-
liams’s presentence report reveals prior convictions that perhaps sat-
isfy the requirements of section 924(e).2 Nonetheless, even though the
    2
    To qualify as a predicate "serious drug offense" conviction for pur-
poses of section 924(e), the offense must be one that carries a maximum
term of imprisonment of at least ten years. See 18 U.S.C.A.
§ 924(e)(2)(A). While the presentence report identifies two prior convic-
tions for drug sales, the report shows only that Williams was sentenced
to five years imprisonment on each of those convictions; the report does
not indicate the maximum sentences associated with the convictions.
                      UNITED STATES v. WILLIAMS                         7
presentence report refers to section 924(e), it is clear that the sentence
Williams received resulted from the application of the career offender
guideline.

   Section 4B1.4 of the Sentencing Guidelines governs the sentencing
of defendants who qualify as armed career criminals under 18
U.S.C.A. § 924(e). Section 4B1.4 provides that the offense level for
an armed career criminal is the greatest of: (1) the offense level deter-
mined pursuant to Chapters Two and Three of the Sentencing Guide-
lines; (2) the offense level determined under section 4B1.1, the career
offender guideline, if applicable; or (3) the offense level set forth in
subsection 4B1.4(b)(3). See U.S.S.G. § 4B1.4(b). Subsection
4B1.4(b)(3) establishes an offense level of 34 if the defendant used
or possessed the firearm in connection with a crime of violence or
controlled substance offense or if the firearm involved was one of the
dangerous weapons described in 26 U.S.C.A. § 5845(a), and an
offense level of 33 for all other cases. See U.S.S.G. § 4B1.4(b)(3).

   In this case, the probation officer recommended and the district
court adopted an offense level of 37, a level that was reached by
applying the career offender guideline. But since Williams does not
qualify as a career offender, the career offender guideline is not appli-
cable. Thus, Williams’s offense level if he qualifies as an armed
career criminal could only be 33, given that his offense level calcu-
lated under Chapters Two and Three was less than 33 and the charged
offense does not satisfy the requirements of subsection 4B1.4(b)(3).
With an offense level of 33 and a category VI criminal history, Wil-
liams faced a sentencing range of 235 to 293 months as an armed
career criminal; the life sentence he received was possible only
through the application of the career offender guideline.

   During sentencing, however, Williams did not argue that the career
offender guideline was inapplicable because his section 922(g) con-
viction was not a crime of violence. Instead, he argued only that his
prior state court convictions should have been counted as one convic-
tion, see U.S.S.G. § 4A1.2, comment. (n.3), and that he therefore did
not have the prior convictions necessary to trigger application of the
career offender guideline. Because the error in applying the career
offender provisions of the Sentencing Guidelines was plain and
resulted in the imposition of a life sentence that Williams otherwise
8                      UNITED STATES v. WILLIAMS
could not have received (absent an upward departure),3 we believe
this is a proper case to exercise our discretion to notice the error. See,
e.g., United States v. Hastings, 134 F.3d 235, 239 (4th Cir. 1998)
(explaining that under plain error review, the defendant "must show
that an error occurred, that the error was plain, and that the error
affected his substantial rights," and that even if these requirements are
met, the court will notice the error only if "the error seriously affects
the fairness, integrity or public reputation of judicial proceedings"
(alteration and internal quotation marks omitted)). We therefore
vacate Williams’s sentence and remand for resentencing without
application of the career offender guideline.

                                    IV.

   To summarize, we affirm Williams’s conviction. However, because
the district court erred when sentencing Williams, we vacate the sen-
tence and remand for resentencing. On remand, the district court shall
determine whether Williams should be sentenced as an armed career
criminal under 18 U.S.C.A. § 924(e). When making this determina-
tion, the district court is free to consider the issue de novo, including
the challenges to sentencing as an armed career criminal made on
appeal by Williams in his pro se materials, challenges about which we
express no opinion. If the district court determines that Williams does
not qualify as an armed career criminal, then the court shall impose
a sentence consistent with Williams’s criminal history category and
offense level.4
    3
     Williams argues in his pro se materials that an upward departure upon
resentencing would be improper. This issue is not yet ripe and we do not
consider it.
   4
     When calculating Williams’s base offense level, the district court
imposed a four-level enhancement based on its determination that Wil-
liams used or possessed a firearm in connection with another felony
offense. See U.S.S.G. § 2K2.1(b)(5). Although Williams challenges that
enhancement on appeal, we decline to consider the issue at this juncture.
The enhancement will be material only if the district court concludes on
remand that Williams cannot be sentenced as an armed career criminal
under section 924(e). If the district court so concludes, it is free to con-
sider de novo the propriety of the 2K2.1(b)(5) enhancement. As to the
issue raised by counsel for Williams based on Apprendi v. New Jersey,
530 U.S. 466 (2000), and all other issues raised by Williams in his pro
se submissions that are not specifically mentioned in this opinion, we
have considered the issues and find them to be without merit.
                     UNITED STATES v. WILLIAMS                    9
   Accordingly, for the foregoing reasons, we affirm Williams’s con-
viction, but we vacate the sentence and remand for resentencing in
accordance with this opinion.

                       AFFIRMED IN PART, VACATED IN PART,

                         AND REMANDED WITH INSTRUCTIONS
