UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 97-4873

DEMETRIUS MCLEAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-97-163)

Submitted: April 14, 1998

Decided: May 4, 1998

Before NIEMEYER, HAMILTON, and LUTTIG, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Gregory Bruce English, ENGLISH & SMITH, Alexandria, Virginia,
for Appellant. Helen F. Fahey, United States Attorney, Jeffrey L.
Berhold, Special Assistant United States Attorney, Alexandria, Vir-
ginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Demetrius McLean was convicted by a jury of assault by striking,
beating, or wounding in violation of 18 U.S.C. § 113(a)(4) (1994),
assault on a correctional officer in violation of D.C. Code Ann. § 22-
505(a) (Supp. 1997), and possession of a shank capable of causing
death and bodily injury in violation of 18 U.S.C.A.§ 13 (West Supp.
1998), assimilating Va. Code Ann. § 53.1-203(4) (Michie 1994).* He
was sentenced to imprisonment for a term of thirty-three months plus
two years' supervised release to be served consecutively to the prison
term McLean was serving at the time of the offense. McLean timely
noted an appeal from the judgment of conviction.

McLean and inmate Nathan Cook got into a fistfight in the day
room at the Lorton Reformatory. A guard testified that during the
scuffle, he saw McLean pull a metal shank from his pants and stab
Cook several times in the head, face, and back. Guards separated the
two men and ordered McLean to drop the shank. McLean refused and
threatened the guards that if they did not back off, he would "give
[them] some of this." McLean also moved frantically between and
toward the guards, jabbing the shank in their direction. The guards
finally subdued McLean by throwing chairs at him and then spraying
him with pepper spray, whereupon McLean dropped the shank and
was restrained.

At trial, McLean's counsel called Cook to the stand, but asked him
only two questions. Counsel first asked Cook whether he attacked
McLean. Cook invoked his Fifth Amendment right against self
incrimination. Counsel then asked whether Cook would answer any
of his questions and Cook refused to respond. Counsel stated he had
no other questions. Over the objection of McLean's counsel, the dis-
trict court judge instructed the jury to disregard Cook's testimony.
_________________________________________________________________
*McLean was charged by a superseding indictment with assault with
intent to murder in violation of 18 U.S.C. § 113(a)(1); however, the jury
convicted him of the lesser included offense of assault by striking, beat-
ing, or wounding.

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McLean testified that Cook, who had a reputation as a bully, had
threatened him days before the stabbing. McLean also testified that
Cook had attacked him with the shank. McLean stated that during the
struggle, he managed to get the shank away from Cook and then he
used it in self-defense as Cook continued to attack him.

The jury convicted McLean. Before sentencing, McLean presented
the court with a written statement accepting responsibility for his
crimes. In the statement, McLean admitted stabbing Cook with the
shank, although he maintained that he did so in self-defense. McLean
also admitted that he refused to drop the shank when ordered to do
so by the guards, but stated that he was worried that Cook's friends
might attack him if he dropped the shank before there were enough
guards in the day room to adequately protect him. Finally, he stated
that he went to trial because he felt that he was not guilty of the
charge of assault with the intent to commit murder.

Based on McLean's statement, the probation officer recommended
that McLean receive a two-point reduction for acceptance of responsi-
bility. The Government objected, and the district court chose not to
award McLean the two-point reduction.

On appeal, McLean contends that the district court erred by
instructing the jury to disregard the fact that Cook refused to testify.
Because none of the officers actually witnessed the start of the fight
between McLean and Cook, and because McLean's theory of defense
was that he stabbed Cook in self-defense, McLean contends that Cook
was the only person who could contradict McLean's version of
events. Thus, McLean contends that it was significant that Cook
refused to answer when asked whether he attacked McLean. McLean
contends that under the unique circumstances in this case, the district
court should not have instructed the jury to disregard Cook's invoca-
tion of his Fifth Amendment rights.

The trial court's evidentiary rulings are reviewed for an abuse of
discretion. See United States v. Hassan El, 5 F.3d 726, 731 (4th Cir.
1993). When a witness invokes his Fifth Amendment privilege not to
testify and incriminate himself, a jury may not draw any inferences
from that decision. See Johnson v. United States , 318 U.S. 189, 196-
97 (1943); United States v. Nunez, 668 F.2d 1116, 1123 (10th Cir.

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1981); United States v. Lacouture, 495 F.2d 1237, 1240 (5th Cir.
1974). However, the trial court must ensure that the witness's invoca-
tion of the privilege was legitimate and must determine the scope of
the waiver. See Gaskins v. McKellar, 916 F.2d 941, 950 (4th Cir.
1990). The legitimacy and scope of the privilege may be determined
by evaluating whether it is "evident from the implications of the ques-
tion, in the setting in which it is asked, that a responsive answer to
the question or an explanation of why it cannot be answered might be
dangerous because injurious disclosure could result." Hoffman v.
United States, 341 U.S. 479, 486-87 (1951).

The district court did not specifically inquire into the legitimacy
and scope of Cook's assertion of his Fifth Amendment privilege.
However, Cook was a participant in the fight with McLean. Thus, it
is evident from the implications of counsel's question that any infor-
mation pertaining to the fight and any explanation for Cook's refusal
to answer "might be dangerous because injurious disclosure could
result." Id. Thus, we find that Cook's invocation of the Fifth Amend-
ment was legitimate. Accordingly, because the jury is not entitled to
draw any inferences from Cook's invocation of his Fifth Amendment
rights, we find that the district court did not abuse its discretion by
instructing the jury to disregard Cook's testimony. See id.

McLean also challenges the district court's decision not to award
a two-point reduction in his offense level for acceptance of responsi-
bility. The adjustment for acceptance of responsibility is not intended
to apply to a defendant unless he "clearly demonstrates acceptance of
responsibility for his offense." U.S. Sentencing Guidelines Manual
§ 3E1.1(a) (1997). The burden is on the defendant to establish by a
preponderance of the evidence that he is entitled to the adjustment.
See United States v. Urrego-Linares, 879 F.2d 1234, 1239 (4th Cir.
1989). Moreover, the adjustment for acceptance of responsibility is
not intended to apply to a defendant who contests his factual guilt at
trial. See USSG § 3E1.1, comment. (n.2); United States v. Muldoon,
931 F.2d 282, 289 (4th Cir. 1991) (noting that absent rare circum-
stances, USSG § 3E1.1 precludes a downward adjustment for accep-
tance of responsibility where a defendant exercises his constitutional
right to a trial).

Whether the reduction is warranted "is primarily a factual question,
[and] due deference for the sentencing court requires an appellate

                    4
court to accept its findings unless they are clearly erroneous." United
States v. Cusack, 901 F.2d 29, 31 (4th Cir. 1990). The district court
denied McLean's request on the grounds that he had not clearly
accepted responsibility and that his purported acceptance occurred
after trial and just prior to sentencing. Because timeliness of the
admission of responsibility is a factor which the district court may
consider, United States v. Jones, 31 F.3d 1304, 1315 (4th Cir. 1994),
and because McLean did not unambiguously acknowledge his crimi-
nal conduct, United States v. Castner, 50 F.3d 1267, 1280 (4th Cir.
1995), the district court did not clearly err in denying him the adjust-
ment.

Finally, McLean proposes that he should be awarded a one-point
downward departure for "imperfect" acceptance of responsibility
under USSG § 5K2.0. However, the district court identified no aggra-
vating or mitigating circumstances warranting a departure from the
sentence imposed. Furthermore, McLean never requested a departure
under § 5K2.0 during sentencing. Accordingly, because we find no
plain error in McLean's sentence, review of this issue is waived. See
United States v. Grubb, 11 F.3d 426, 440 (4th Cir. 1993).

We affirm McLean's conviction 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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