United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-1781
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa
Michael Bernard Morris, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 5, 1998
Filed: February 25, 1998
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Before McMILLIAN, LOKEN, and MURPHY, Circuit Judges.
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PER CURIAM.
Michael Bernard Morris entered an Alford1 plea to one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922 (g)(1) and 924(a)(2). The
District Court2 for the Northern District of Iowa sentenced Morris to ninety-six months
imprisonment and three years supervised release. For reversal, Morris challenges the
computation of his base offense level and the denial of an acceptance-of-responsibility
1
North Carolina v. Alford, 400 U.S. 25 (1970).
2
The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
reduction. For the reasons discussed below, we affirm the judgment of the district court.
Morris first argues that the district court erred in assessing a base offense level of
20 under U.S.S.G. § 2K2.1(a)(4)(A) (1997), which applies when the defendant has “one
prior felony conviction of either a crime of violence or a controlled substance offense.”
In concluding that Morris had the requisite felony conviction, the district court relied on
his prior state conviction for assault with intent to commit serious injury, for which he
had been sentenced to imprisonment not to exceed two years.
We agree with the district court that Morris&s assault conviction constitutes a prior
felony conviction for a crime of violence for purposes of U.S.S.G. § 2K2.1(a)(4)(A).
Commentary to the section provides that “crime of violence” and “prior felony
conviction” are defined in U.S.S.G. § 4B1.2 (1997), the definitions section for the career
offender Guideline. See U.S.S.G. § 2K2.1, comment. (n.5) (1997). “Crime of violence”
is defined in relevant part as “any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that . . . has as an element the use,
attempted use, or threatened use of physical force against the person of another.” Id.
“Prior felony conviction” is defined as “a prior adult federal or state conviction for an
offense punishable by death or imprisonment for a term exceeding one year, regardless
of whether such offense is specifically designated as a felony and regardless of the actual
sentence imposed.” Id., comment. (n.1).
Morris nonetheless insists, as he did below, that he did not have the requisite
felony offense warranting a base offense level of 20 under U.S.S.G. § 2K2.1, because
his assault offense was classified under applicable state law as an aggravated
misdemeanor punishable by imprisonment of two years or less, and 18 U.S.C.
§ 921(a)(20)(B) excludes from the definition of “crime punishable by imprisonment for
a term exceeding one year” any offense classified by state law “as a misdemeanor and
punishable by a term of imprisonment of two years or less.” We agree with the district
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court that 18 U.S.C. § 921(a)(20) is controlling for purposes of defining the felon-in-
possession offense, while U.S.S.G. § 2K2.1 is controlling for purposes of determining
the resulting Guideline sentence absent a statutory conflict, which we do not see. Cf.
United States v. LaBonte, 117 S. Ct. 1673, 1677-79 (1997) (concluding Guidelines
commentary was at odds with plain language of 28 U.S.C. § 994(h)).
Morris next contends the district court erroneously denied him an acceptance-of-
responsibility reduction under U.S.S.G. § 3E1.1 (1997). The district court&s factual
determination on this issue is entitled to great deference and should be reversed only “if
it is so clearly erroneous as to be without foundation.” See United States v. Nam Xuan
Ngo, 132 F.3d 1231, 1233 (8th Cir. 1997). Although Morris relies heavily on his guilty
plea in arguing entitlement to the reduction, “[a] defendant who enters a guilty plea is
not entitled to an adjustment under [U.S.S.G. § 3E1.1] as a matter of right.” U.S.S.G.
§ 3E1.1, comment. (n.3) (1997). Given that the district court had the opportunity to
observe Morris&s demeanor both at the plea hearing and at sentencing, we cannot say the
district court clearly erred in concluding that he had not accepted responsibility for his
offense. See Nam Xuan Ngo, 132 F.3d at 1233.
We also reject Morris&s suggestion that the district court&s consideration of the
nature of his guilty plea--an Alford plea--violated his rights under the Fifth Amendment.
The district court was careful to clarify that the Alford plea was only a factor in the
decision whether to grant the reduction, not a disqualifier. See United States v. Harlan,
35 F.3d 176, 181 (5th Cir. 1994) (holding that district court may consider whether
defendant has entered Alford plea as relevant factor when deciding whether to grant
acceptance-of-responsibility reduction; citing decisions from First, Seventh, and Eleventh
Circuits); cf. United States v. Knight, 96 F.3d 307, 310 (8th Cir. 1996) (affirming refusal
to grant acceptance-of-responsibility reduction to defendant who pleaded guilty but later
denied involvement in offense; defendant was not penalized for refusing to volunteer
self-incriminating information but instead was not given benefit extended to those
defendants who accept responsibility), cert. denied, 117 S. Ct. 1458
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(1997); United States v. McQuay, 7 F.3d 800, 802-03 (8th Cir. 1993) (§ 3E1.1 does not
violate Fifth Amendment right to remain silent).
Finally, Morris challenges the district court&s decision to deny the government&s
motion for a downward departure under U.S.S.G. § 5K1.1, p.s. (1997). We conclude
that the decision is not reviewable because the district court did not consider any illegal
factors and clearly acknowledged its discretion to grant or deny the motion. See United
States v. Field, 110 F.3d 587, 591 (8th Cir. 1997) (discretionary decision not to depart
from Guidelines is unreviewable on appeal absent unconstitutional motive); see also
U.S.S.G. § 1B1.4 (1997) (in determining sentence to impose within Guideline range, or
whether departure from Guidelines is warranted, court may consider any information
concerning background, character, and conduct of defendant unless otherwise prohibited
by law).
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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