IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-41179
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID EDWARD POSIVAL,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-00-CR-182-1
April 27, 2001
Before GARWOOD, HIGGINBOTHAM, and PARKER, Circuit Judges.
PER CURIAM:*
A jury found David Posival guilty of being a convicted felon
in possession, from on or about November 29, 1998, to on or about
May 14, 1999, of a firearm and ammunition in violation of 18 U.S.C.
§§ 922(g)(1) and 942(a)(2). The charge arose as a result of a May
14, 1999, robbery at Posival’s home immediately after which he
returned fire upon his assailants, killing one, and pursued them in
*
Pursuant to 5TH CIR. R. 47.5 the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
his car while, according to the government’s evidence, armed with
a second firearm. Posival argues four errors on appeal: (1) that
the guilty verdict was not supported by the evidence; (2) that the
district court erred in refusing to give an offense level reduction
pursuant to U.S.S.G. § 3E1.1(a) and (b) for acceptance of
responsibility; (3) that the district court erred in refusing to
depart downward from the Sentencing Guidelines pursuant to U.S.S.G.
§ 5K2.0, p.s., in light of Posival’s use of the firearm in self-
defense; and (4) that the district court erred in finding that he
possessed a stolen firearm pursuant to U.S.S.G. § 2K2.1(b)(4).
Posival’s insufficiency-of-the-evidence claim is meritless.
The jury was free to disregard Posival’s wife’s testimony to the
extent it indicated he possessed neither shotgun. That Posival
“possessed” the ammunition found in plain view throughout his home,
as well as the shotguns kept at his home which he referred to as
“my shotgun” and “my other shotgun” in his pretrial statement, is
also amply supported by the evidence.
Posival’s argument that he deserved an acceptance-of-
responsibility reduction is also with out merit. Challenges to the
denial of a U.S.S.G. § 3E1.1 acceptance-of-responsibility reduction
are reviewed even more deferential[ly] than under a pure “clearly
erroneous” standard, United States v. Gonzales, 19 F.3d 982, 983
(5th Cir. 1994), and the defendant has the burden of proof, United
States v. Tremelling, 43 F.3d 148, 152 (5th Cir. 1995). The
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district court found that Posival had not accepted responsibility
within the meaning of U.S.S.G. § 3E1.1 because at trial he
contested the factual issue of whether he carried a gun or a bat in
pursuit of his assailants. He still contests that finding on
appeal. Under our deferential standard of review, we cannot say
that the district court erred in denying Posival a reduction.
We cannot review the district court’s decision not to depart
downward from the Sentencing Guidelines. We can review a district
court’s refusal to depart from the Guidelines only if its decision
was based on the erroneous belief that it did not have the
authority to depart. United States v. Davis, 226 F.3d 346, 359
(5th Cir. 2000), cert. denied, 121 S.Ct. 1161 (2001). A review of
the record evinces that the district court was aware of its ability
to depart downward but chose not to depart.
Posival’s final assignment of error, that the district court
erred in finding he possessed a stolen firearm, also fails. The
evidence amply supported a finding that Posival possessed a firearm
which had been stolen. The fact that he did not know it was stolen
is irrelevant under U.S.S.G. § 2K2.1(b)(4). See U.S.S.G. § 2K2.1,
comment.(n.19) (“The enhancement . . . applies whether or not the
defendant knew or had reason to believe that the firearm was
stolen. . .”).
AFFIRMED
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