                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 07-4934



UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.


RANDALL SMITH,

                  Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:06-cr-00416-FDW)


Submitted:     May 12, 2008                 Decided:   June 13, 2008


Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Claire J. Rauscher, Executive Director, Ross Richardson, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Adam Morris, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Randall Smith appeals his convictions and sentence after

a jury found him guilty of one count of bank robbery by force or

violence, in violation of 18 U.S.C. § 2113(a), (d) (2000), one

count of bank larceny, in violation of 18 U.S.C. § 2113(b) (2000),

and one count of possession of a firearm in furtherance of a crime

of violence, in violation of 18 U.S.C. § 924(c) (2000).                 The

district court sentenced Smith to concurrent terms of seventy-one

months of imprisonment on the bank robbery counts and a consecutive

eighty-four months on the firearm count, for a total of 155 months

of imprisonment.    We affirm.

           Smith first argues that the district court erred by

denying his motion to suppress his post-arrest statement, because

the officers conducting the interview ignored his request for an

attorney and violated his right to counsel.           The district court

denied Smith’s motion based, in part, on its finding that he did

not unequivocally invoke his right to counsel and signed the waiver

form   after   commenting   about   a   lawyer.    The   factual   findings

underlying a motion to suppress are reviewed for clear error, while

the legal determinations are reviewed de novo.             See Ornelas v.

United States, 517 U.S. 690, 691 (1996); United States v. Rusher,

966 F.2d 868, 873 (4th Cir. 1992).          When a suppression motion has

been denied, this court reviews the evidence in the light most




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favorable to the government.       See United States v. Seidman, 156

F.3d 542, 547 (4th Cir. 1998).

          In order to invoke his right to counsel and prevent

further interrogation, a defendant “must unambiguously request [the

assistance of] counsel.” Davis v. United States, 512 U.S. 452, 459

(1994); United States v. Cardwell, 433 F.3d 378, 389 (4th Cir.

2005); Burket v. Angelone, 208 F.3d 172, 197-98 (4th Cir. 2000)

(holding that statement during interrogation, “I think I need a

lawyer,” did not amount to unequivocal request for counsel).

Merely mentioning the word “attorney” is not sufficient to invoke

the right to counsel and prevent further interrogation.         Poyner v.

Murray, 964 F.2d 1404, 1410-12 (4th Cir. 1992). If a suspect

equivocates   in   his   request   for   counsel,   police   officers   may

continue to question the suspect.        See Davis, 512 U.S. at 458-62.

In this case, Smith remarked “I think I might need to talk to a

lawyer,” and signed the waiver of his rights after he made this

statement.    We conclude that the district court correctly found

that Smith did not clearly and unambiguously invoke his right to

counsel, and the officers did not violate that right by continuing

to advise him of his rights and questioning him after he signed a

written waiver of those rights.            The motion to suppress was

properly denied.

          Smith next argues that the district court erred in

admitting a photograph of him that was taken approximately six


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weeks after the bank robbery because it was unfairly prejudicial.

Under Fed. R. Evid. 403, relevant evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by

considerations      of   undue   delay,   waste   of   time,    or    needless

presentation of cumulative evidence.        Review of a district court’s

determination of the admissibility of evidence is for abuse of

discretion.      See United States v. Brooks, 111 F.3d 365, 371 (4th

Cir. 1997).      This court has noted that “[p]rejudice, as used in

Rule 403, refers to evidence that has an undue tendency to suggest

decision on an improper basis, commonly, though not necessarily, an

emotional one.”      United States v. Queen, 132 F.3d 991, 994 (4th

Cir. 1997) (internal quotation marks omitted).             Our review of the

record convinces us that the district court did not abuse its

discretion in admitting the photograph.

              Smith’s final assertion is that the district court erred

in denying his request for a two point reduction in his offense

level   for    acceptance   of   responsibility.       A   district    court’s

determination as to the defendant’s acceptance of responsibility is

a factual question reviewed for clear error.               United States v.

Ruhe, 191 F.3d 376, 388 (4th Cir. 1999).          To receive an adjustment

for acceptance of responsibility, a defendant must “prove by a

preponderance of the evidence that he has clearly recognized and

affirmatively accepted personal responsibility for his criminal


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conduct.”    United States v. May, 359 F.3d 683, 693 (4th Cir. 2004)

(citing United States v. Nale, 101 F.3d 1000, 1005 (4th Cir.

1996)).      The commentary to the Guideline provision governing

acceptance    of   responsibility    provides   that   the   adjustment   is

generally not available to a defendant who pleads not guilty and

proceeds to a contested trial.       The adjustment may be applicable,

however, in limited circumstances to a defendant who pleads not

guilty and “goes to trial to assert and preserve issues that do not

relate to factual guilt (e.g., to make a constitutional challenge

to a statute or a challenge to the applicability of a statute to

his conduct).”      U.S. Sentencing Guidelines Manual § 3E1.1, cmt.

(n.2) (2006). We agree with the district court’s finding that this

was not one of the rare cases in which a defendant may proceed to

trial but receive an adjustment for acceptance of responsibility.

            Accordingly, we affirm Smith’s convictions and 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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