United States v. Tunstall ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4210
LARRY TUNSTALL,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CR-96-723)
Submitted: April 7, 1998
Decided: June 22, 1998
Before WILKINS, WILLIAMS, and MICHAEL, 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Affirmed by unpublished per curiam opinion.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. Alfred William Walker Bethea, Assis-
tant 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Unpublished opinions are not binding precedent in this circuit.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:
Larry Tunstall pled guilty to a felony information charging him
with knowingly receiving a stolen firearm in violation of 18 U.S.C.
§ 922(j) (1994). Tunstall received a sentence of fifty months' impris-
onment. He appeals his conviction and sentence. Tunstall's attorney
has filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), raising one issue but stating that in his view there are no
meritorious issues for appeal. Tunstall has been informed of his right
to file a pro se supplemental brief, but has not done so. The issue
raised by Tunstall's counsel is without merit. After a full review of
the record, we affirm the judgment.
Tunstall alleges that the district court erred in refusing to decrease
his offense level based upon acceptance of responsibility under U.S.
Sentencing Guidelines Manual § 3E1.1 (1997). We review the district
court's determination regarding acceptance of responsibility for clear
error. See United States v. Curtis, 934 F.2d 553, 557 (4th Cir. 1991)
(citing United States v. Harris, 882 F.2d 902, 905 (4th Cir. 1989)).
In determining whether the defendant is qualified for the reduction,
the district court should consider whether the defendant truthfully
admits the conduct comprising the offenses of conviction. See USSG
§ 3E1.1, comment. (n.1(a)); United States v. Martinez, 901 F.2d 374,
377 (4th Cir. 1990).
The Government put forth the following evidence at the sentencing
hearing. Tunstall was behind Cottingham's Liquor Store with other
individuals. A nine-year-old boy, Calvin Hughes, approached Tunstall
and Tunstall pulled a gun on him. Hughes ran to the police depart-
ment and reported the incident. The police officers arrived at the
scene and found a pistol in Tunstall's waistband. At that time Tunstall
stated that the gun was not his and that he found it. Tunstall and the
officers agree that Tunstall had been drinking.
Tunstall testified at his sentencing hearing. He said that he took the
gun from Hughes as Hughes attempted to rob him. He then told
Hughes to leave and Hughes started running. Tunstall testified that he
planned on taking the gun to the police, but he was too drunk to do
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so. On cross-examination, Tunstall denied telling an officer that he
found the gun.
Law enforcement officials traced the origin of the gun back to a
purchase made by Tunstall's landlord's husband approximately thirty
years ago. Tunstall's landlord had reported the gun as stolen. At the
sentencing hearing, Tunstall put on several witnesses to support his
position that he removed the gun from Hughes. One witness testified
that she was on an adjacent side street and saw Tunstall struggling
with a four-foot tall black boy. Another witness testified that on a sep-
arate occasion Hughes and another boy hit him over the head with a
bottle and stole a small amount of money from him. The proprietor
of the liquor store testified that Hughes had attempted to take a man's
wallet on another occasion. This testimony was corroborated by the
victim. Finally, Tunstall's landlord testified that she had reported the
gun in question as stolen, but that Tunstall was not a "plunderer."
Tunstall pled guilty minutes before his trial was set to commence,
and after a jury had been selected. Tunstall agreed to plead guilty to
the possession of a stolen firearm charge, but contested the facts for
sentencing purposes. Tunstall claims that he pled guilty because he
knew the gun was stolen because he took it from a nine-year-old
child, and because nine-year-olds do not possess guns, he knew the
gun had to be stolen. Tunstall denies that he pulled the gun on
Hughes. The court considered Tunstall's plea to be a plea made in
accordance with North Carolina v. Alford, 400 U.S. 25 (1970). The
district court disbelieved Tunstall's version of the events, largely rely-
ing upon the testimony by police officers that Tunstall first told them
he found the gun at the time of his arrest. Accordingly, the district
court denied the reduction for acceptance of responsibility.
A defendant must admit a guilty intent as well as the acts commit-
ted. See United States v. Castner, 50 F.3d 1267, 1279-80 (4th Cir.
1995). A guilty plea does not automatically entitle a defendant to a
sentence reduction for acceptance of responsibility. See United States
v. Harris, 882 F.2d 902, 905 (4th Cir. 1989). In addition, although an
Alford plea does not preclude receiving the reduction, it is a factor to
consider. See United States v. Harlan, 35 F.3d 176, 181 (5th Cir.
1994); United States v. Burns, 925 F.2d 18, 20-21 (1st Cir. 1991);
United States v. Tucker, 925 F.2d 990, 991 (6th Cir. 1991). The time-
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liness of admission of responsibility is also a factor to consider. See
United States v. Jones, 31 F.3d 1304, 1315 (4th Cir. 1994).
Because Tunstall denied the essential facts of this case, specifi-
cally, how he came into possession of the firearm, he cannot be
deemed to have expressed genuine remorse and accepted responsibil-
ity for his crime. See United States v. Lancaster, 112 F.3d 156, 159
(4th Cir. 1997). In addition, Tunstall's plea came only minutes before
trial and was essentially an Alford plea. We therefore find that the dis-
trict court did not clearly err in refusing to grant the reduction for
acceptance of responsibility.
This court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel's motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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