United States v. Chad Doren Webber, (8th Cir. 2002)

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United States Court of Appeals FOR THE EIGHTH CIRCUIT

No. 01-3646

United States of America, Appellee, v. Chad Doren Webber, Appellant. Appeals from the United States District Court for the District of North Dakota. No. 01-3714 [UNPUBLISHED]

United States of America, Appellant, v. Chad Doren Webber, Appellee.

Submitted: June 13, 2002

Filed: June 20, 2002

Before HANSEN, Chief Judge, FAGG and BOWMAN, Circuit Judges.

PER CURIAM.

After his father§ 922(g). Webber was convicted and sentenced to thirty-six months in prison.

On appeal, Webber first challenges the sufficiency of the evidence. To sustain a conviction under § 922(g), the Government had to prove beyond a reasonable doubt that: (1) Webber had been convicted of a felony; (2) he later possessed a firearm or ammunition; and (3) the firearm or ammunition traveled in or affected interstate commerce. United States v. Anderson, 78 F.3d 420, 422 (8th Cir. 1996). Webber does not challenge the first or last elements, but asserts no reasonable juror could find he was either in actual or constructive possession of the firearm or ammunition. Webber claims he did not know the shotgun was in the residence. He points out the

residence belonged to his father§ 922(g) conviction, and we need not decide whether Webber constructively possessed the shotgun.

Webber also contests the district court§ 5K2.11 (permitting departure for conduct that does not cause or threaten the harm or evil sought to be prevented by the law proscribing the offense). Webber does not argue the district court misconstrued its authority to depart, but contends the court committed error when it refused to do so. A defendant may not appeal a district courtÂ’s refusal to depart downward when the court understood its authority to depart, however, absent an unconstitutional motive. United States v. Lewis, 249 F.3d 793, 795 (8th Cir. 2001); United States v. Reynolds, 215 F.3d 1210, 1214-15 (11th Cir. 2000). Webber does not assert any unconstitutional motive, so we lack authority to review the district courtÂ’s refusal.

In its cross-appeal, the Government asserts the district court committed clear error in reducing Webber§ 3E1.1 for acceptance of responsibility. The district court reasoned Webber had accepted responsibility because although he went to trial, he merely challenged whether he had constructive possession of the shotgun and ammunition. Commentary to § 3E1.1 states the reduction

is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration 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 defendant 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). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.

U.S.S.G. § 3E1.1 n.2. The Government argues the reduction does not apply to Webber because he went to trial and has not yet admitted his guilt or expressed remorse. Webber asserts he merely challenged the applicability of the statute to his conduct, specifically, whether the evidence showed actual or constructive possession of the shotgun. We do not believe Webber falls within the exception for those who do not challenge factual guilt. Before trial, Webber never admitted all of the essential elements of the charged offense. Indeed, Webber continues to challenge the existence of one of the elements. Thus, the district court committed clear error in granting a § 3E1.1 reduction. United States v. Hill, 197 F.3d 436, 446-47 (10th Cir. 1999).

The Government also contends the district court abused its discretion in departing downward from the applicable guidelines range under U.S.S.G. § 4A1.3 (permitting departure when criminal history category significantly overrepresents the seriousness of a defendant§ 4A1.3, the court considers the historical facts of the defendantÂ’s criminal career, including the defendantÂ’s age at the time of the offenses, the proximity in time

between the offenses, and the state§ 4A1.1(d) because Webber was on probation supervision when he violated § 922(g). Webber had a total of nine criminal history points, placing him at the top of criminal history category IV, which corresponds to seven, eight, or nine points. Thus, even if the minor check charge were not counted, Webber would remain in criminal history category IV. Although the possession offenses did not involve large amounts of drugs and the state treated Webber with lenient sentences, Webber was of mature age at the time of the offenses and the drug offenses were close in time to the § 922(g) violation. Because the record is not a model of clarity, we leave this issue open for reconsideration by the district court on remand.

We thus affirm WebberÂ’s conviction, but reverse and remand for resentencing.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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