UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 96-4614

FRANKLIN PAUL HUNT,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                  No. 96-4715

FRANKLIN PAUL HUNT,
Defendant-Appellee.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, District Judge.
(CR-96-27-BR)

Submitted: June 18, 1997

Decided: July 10, 1997

Before MURNAGHAN and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

No. 96-4614 affirmed and No. 96-4715 vacated in part and remanded
by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Gale M. Adams, Assistant Federal Public Defender, Fayetteville,
North Carolina, for Appellant. Janice McKenzie Cole, United States
Attorney, Peter W. Kellen, Assistant United States Attorney, Raleigh,
North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Franklin Paul Hunt appeals his conviction for bank robbery, 18
U.S.C.A. § 2113(a) (West Supp. 1997). He alleges that the district
court did not properly instruct the jury on the element of intimidation.
The Government cross-appeals, alleging that the district court erred
in granting a downward adjustment under United States Sentencing
Commission Guidelines, Guidelines Manual, § 3E1.1 (Nov. 1995).
We affirm Hunt's conviction, vacate his sentence, and remand for
resentencing.

I

On January 8, 1996, Hunt entered the First Citizens Bank and Trust
Company in Fayetteville, North Carolina. He approached Eva Malloy
at her window and said, "Let's be smooth about this." Hunt reached
into his jacket and told her to give him the money. Malloy testified
at trial that she went along with him because she did not know
whether he had a gun or not. Hunt was within inches of Malloy's
face, and told her to give him another stack of money he could see.
Hunt spoke softly, and did not touch Malloy or make specific threats.

At his trial for bank robbery, Hunt did not deny that he had taken
the money. His sole defense to the bank robbery charge was that he

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had not used force, violence or intimidation, and therefore was guilty
of bank larceny rather than bank robbery.

Defense counsel asked the district court for an instruction stating
that intimidation must be caused by an act or statement knowingly or
deliberately made in a manner reasonably calculated to produce fear
of bodily harm. The district court refused, using pattern jury instruc-
tions that defined intimidation as caused by a deliberate act or state-
ment of defendant done in such a way that it would produce that
reaction in a reasonable person. Thus, the instruction did not require
that the defendant intended his acts or statements to intimidate. Hunt
argues this is reversible error, relying on this court's decision in
United States v. Wagstaff, 865 F.2d 626, 627 (4th Cir. 1989). But our
recent decision in United States v. Woodrup, 86 F.3d 359, 364 (4th
Cir.), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3294 (U.S. Oct. 15,
1996) (No. 96-6025), holds that § 2113(a) does not require the gov-
ernment to prove an intent to intimidate. Therefore, Hunt's argument
is without merit, and we affirm his conviction in No. 96-4614.

II

Following Hunt's conviction, while the probation officer was pre-
paring his presentence report, Hunt submitted a statement that he
accepted responsibility for committing bank larceny. Bank larceny is
a lesser-included offense of bank robbery, which does not include the
element of force, violence or intimidation. Hunt further stated that
what he did was wrong and he was sorry for it.

As one of his objections to the presentence report, Hunt objected
to the probation officer's use of bank robbery, under USSG § 2B3.1,
rather than bank larceny, USSG § 2B1.1, for the guideline calcula-
tions. The probation officer declined the objection. Hunt also objected
to the probation officer's denial of an acceptance of responsibility
adjustment. The probation officer decided that, as Hunt was convicted
of bank robbery, his statement denied an essential element of his
guilt, and he did not deserve the acceptance of responsibility reduc-
tion.

At sentencing, the district court overruled Hunt's objection to the
use of the bank robbery guideline to calculate his offense level, but

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ruled that Hunt was entitled to the acceptance of responsibility adjust-
ment, USSG § 3E1.1. Hunt's total offense level was reduced from 32
to 30, with a resulting reduction in the sentencing range. He was sen-
tenced to 168 months imprisonment, followed by thirty-six months of
supervised release, with restitution of $2563 and a fine of $6269. The
Government appeals the acceptance of responsibility adjustment.

III

Under 18 U.S.C.A. § 3742(e) (West Supp. 1997), we may review
the sentence imposed by the district court, and "shall accept the find-
ings of fact of the district court unless they are clearly erroneous and
shall give due deference to the district court's application of the
guidelines to the facts." Under USSG § 3E1.1, the offense level may
be decreased by two levels if the defendant "clearly demonstrates
acceptance of responsibility for his offense. Truthfully admitting the
conduct comprising the offense of conviction is one consideration in
applying this guideline." Comment. (n.1(a)). The adjustment is not
meant to apply to one who "puts the government to its burden of
proof at trial by denying the essential factual elements of guilt, is con-
victed, and only then admits guilt and expresses remorse." Comment.
(n.2). In rare cases, one who goes to trial may still have demonstrated
acceptance of responsibility--for example, where one goes to trial to
preserve issues unrelated to factual guilt. "In each such instance, how-
ever, a determination that a defendant has accepted responsibility will
be based primarily upon pre-trial statements and conduct." (Id.) The
decision of the sentencing judge in this regard is entitled to great def-
erence, comment. (n.5), and we review it only for clear error. United
States v. Holt, 79 F.3d 14, 17 (4th Cir.), cert. denied, ___ U.S. ___,
65 U.S.L.W. 3260 (U.S. Oct. 7, 1996) (No. 95-9448).

We find the Government persuasive on this issue. In United States
v. Gordon, 895 F.2d 932, 936-37 (4th Cir. 1990), Gordon was con-
victed of intent to distribute cocaine. At sentencing, he admitted his
guilt to simple possession and sought the USSG § 3E1.1 reduction,
arguing that any retrial following appeal would be meaningless if he
had admitted his guilt to the distribution charges. The district court
rejected the argument. On appeal, this Court held, "Indeed, Gordon's
claim that he was entitled to this mitigating factor while at the same

                     4
time denying the criminal conduct for which he was convicted by a
jury borders on the frivolous." Id. at 937.

In United States v. Muldoon, 931 F.2d 282, 289 (4th Cir. 1991), the
government cross-appealed the district court's decrease for accep-
tance of responsibility. Muldoon had attempted to plead guilty to
bribery pursuant to a plea agreement conditioned on his appeal of a
wiretapping issue. The government declined that condition, but
agreed with all other provisions. Muldoon went to trial and was con-
victed of bribery. His defense at trial was that he was guilty of accept-
ing illegal gratuities, a lesser offense of bribery. At sentencing, the
district court awarded him the acceptance of responsibility adjust-
ment. This Court held that Muldoon's acceptance of responsibility
was one of the rare cases where a defendant who had gone to trial
could still claim the adjustment. Muldoon offered to plead guilty to
the greater offense before trial, with a reservation of an issue unre-
lated to guilt or innocence. He did not testify at trial or offer any evi-
dence. Counsel argued at trial only that Muldoon was guilty of the
lesser offense rather than the greater. "It is Muldoon's pretrial offer
to plead guilty to the greater offense of bribery that distinguishes his
situation from Gordon's." Id. at 289. See also United States v. Smith,
40 F.3d 933 (8th Cir. 1994) (upholding the district court's ruling that
defendant's admission of the elements of bank larceny does not suf-
fice under USSG § 3E1.1 where the conviction is for bank robbery).

We conclude that the district court was clearly erroneous in allow-
ing Hunt the acceptance of responsibility adjustment under USSG
§ 3E1.1. In No. 96-4614, we affirm his conviction for bank robbery.
As to No. 96-4715, we vacate Hunt's sentence, and remand the case
to the district court for resentencing without the USSG § 3E1.1
adjustment.

No. 96-4614--AFFIRMED

No. 96-4715--VACATED IN PART AND REMANDED

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