UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4518

STEVEN LACHINSHER SINGLETARY,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-96-312)

Submitted: July 14, 1998

Decided: August 3, 1998

Before MURNAGHAN, WILLIAMS, and MOTZ,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

William F. Nettles, IV, Assistant Federal Public Defender, Florence,
South Carolina, for Appellant. J. Rene Josey, United States Attorney,
Alfred W. Bethea, Jr., Assistant United States Attorney, Florence,
South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Steven Lachinsher Singletary appeals his life sentence imposed
after he pled guilty to being a felon in possession of a firearm in vio-
lation of 18 U.S.C.A. §§ 922(g), 924(e) (West Supp. 1998). Single-
tary challenges his sentence on the grounds that the district court used
the wrong standard of proof in determining relevant conduct, erred in
finding that he intentionally murdered a store clerk during the course
of an armed robbery, and should have awarded a three-level down-
ward adjustment for acceptance of responsibility under U.S.
SENTENCING GUIDELINES MANUAL § 3E1.1 (1995). Finding no reversible
error, we affirm Singletary's sentence.

I.

Singletary first claims that the district court used the wrong stan-
dard of proof in determining relevant conduct based on acquitted con-
duct. Singletary and two co-defendants robbed a convenience store
using a stolen sawed-off, 12-gauge, double-barreled shotgun. During
the robbery, Singletary shot and killed the store clerk. The state prose-
cuted Singletary for murder, arguing that based on forensic evidence
and Singletary's fear of being recognized, Singletary intentionally
killed the clerk. The defense contended that Singletary accidentally
shot the clerk as the clerk tried to wrestle the gun away from Single-
tary. The jury acquitted Singletary of murder but convicted him of
armed robbery, involuntary manslaughter, and weapons offenses.

Singletary correctly notes that the Supreme Court has held that "a
jury's verdict of acquittal does not prevent a sentencing court from
considering conduct underlying the acquitted charge, so long as that
conduct has been proved by a preponderance of the evidence." United
States v. Watts, 519 U.S. 148, ___, 117 S. Ct. 633, 638 (1997) (per
curiam). Singletary relies on the Supreme Court's"acknowledg[ment

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of] a divergence of opinion among the Circuits as to whether, in
extreme circumstances, relevant conduct that would dramatically
increase the sentence must be based on clear and convincing evi-
dence." Id. at ___, 117 S. Ct. at 637 & n.2.

Although Singletary urges this court to adopt the higher standard
of proof, we consistently have required relevant conduct to be proved
by a preponderance of the evidence. See United States v. Jones, 31
F.3d 1304, 1316 (4th Cir. 1994); United States v. Urrego-Linares,
879 F.2d 1234, 1239 (4th Cir. 1989). In any event, the district court
concluded that the government proved relevant conduct under either
standard. Finally, we have previously rejected Singletary's claim that
he essentially was convicted of first-degree murder without being
found guilty by a jury beyond a reasonable doubt. See United States
v. Crump, 120 F.3d 462, 468 (4th Cir. 1997) (finding that "`real
offense' sentencing does not offend the Constitution").

II.

Singletary also challenges the district court's conclusion that he
intentionally killed the store clerk. He claims that the evidence on
which the court relied was equivocal and that his co-defendants' testi-
mony was untruthful. We review the district court's findings of fact
at sentencing to ensure that they are not clearly erroneous. See id. at
468. "If the court's findings may rationally be said to be supported by
a preponderance of the evidence, they may not be disturbed on
appeal." Id.

During lengthy sentencing proceedings, a forensic expert testified
that the evidence at the scene suggested that the victim had fallen to
the ground after Singletary fired the first shot that hit the victim in the
hand and chest. The expert concluded that the second, fatal shot was
a probable contact wound; the shot completely shattered the left side
of the victim's head. Singletary's co-defendants also testified that
Singletary described the killing to them immediately after the robbery
and that he never said the shooting was accidental.

Because Singletary was a convicted felon, the probation officer
applied USSG § 2K2.1 relating to the unlawful possession of fire-
arms. Subsection (c) states that "[i]f the defendant used . . . any fire-

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arm . . . in connection with the commission . . . of another offense,
. . . apply[,] if death resulted, the most analogous offense guideline
from Chapter Two, Part A, Subpart 1 (Homicide)." USSG
§ 2K2.1(c)(1)(B). The probation officer cross referenced to USSG
§ 2A1.1--the first-degree murder guideline--and recommended a
base offense level of forty-three, reasoning that Singletary's conduct
fell within 18 U.S.C.A. § 1111 (West Supp. 1998).* With a criminal
history category of VI as a result of Singletary's status as an armed
career criminal, the guideline sentence was life imprisonment.

Singletary conceded at sentencing that his conduct fell within the
felony murder provisions of § 1111 but objected to the probation offi-
cer's findings that the killing was intentional. The court found that
government proved relevant conduct--the intentional killing of the
store clerk--under either the preponderance of the evidence or clear
and convincing standard. The court based its conclusion on the testi-
mony that the second, fatal shot was a probable contact wound, that
Singletary never told anyone the shooting was accidental, and that he
described the killing to his co-defendants. The court could reasonably
credit the corroborated testimony of these witnesses. The district
court's finding that the shooting was intentional was not clearly erro-
neous. See Crump, 120 F.3d at 468.

III.

Singletary asserts that the district court erred in failing to grant a
downward adjustment for acceptance of responsibility. Because "[t]he
sentencing judge is in a unique position to evaluate a defendant's
acceptance of responsibility," the guidelines provide that "the deter-
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*Section 1111 provides that

          [m]urder is the unlawful killing of a human being with malice
          aforethought. Every murder perpetrated by . . . willful, deliber-
          ate, malicious, and premeditated killing; or committed in the per-
          petration of . . . any . . . robbery; or perpetrated from a
          premeditated design unlawfully and maliciously to effect the
          death of any human being other than him who is killed, is mur-
          der in the first degree.

18 U.S.C.A. § 1111.

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mination of the sentencing judge is entitled to great deference on
review." USSG § 3E1.1, comment. (n.5); see United States v.
Castner, 50 F.3d 1267, 1279 (4th Cir. 1995) (stating that sentencing
court's decision on whether to grant reduction for acceptance of
responsibility "is a factual determination that we will not disturb on
appeal unless it is clearly erroneous"). In addition, "a defendant who
falsely denies, or frivolously contests, relevant conduct that the court
determines to be true has acted in a manner inconsistent with accep-
tance of responsibility." USSG § 3E1.1, comment. (n.1(a)). Because
the district court found that Singletary intentionally killed the clerk,
the court's finding that Singletary falsely denied or frivolously con-
tested relevant conduct was not clearly erroneous. See Castner, 50
F.3d at 1279.

IV.

Accordingly, we affirm Singletary's sentence. 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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