PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 11-4442

CHARLES LEE SMOOT,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Alexander Williams, Jr., District Judge.

(8:09-cr-00070-AW-1)

Argued: March 21, 2012

Decided: August 13, 2012

Before TRAXLER, Chief Judge, and KING and WYNN,

Circuit Judges.

Affirmed by published opinion. Judge King wrote the opinion, in which Chief Judge Traxler and Judge Wynn joined.

COUNSEL

ARGUED: Christopher Bowmar Mead, LONDON &

MEAD, Washington, D.C., for Appellant. Anthony William

Vitarelli, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellee. ON BRIEF: Rod J. Rosen-
stein, United States Attorney, Baltimore, Maryland, Stacy

Belf, Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Greenbelt, Maryland;

Lanny A. Breuer, Assistant Attorney General, Greg D.

Andres, Acting Deputy Assistant Attorney General, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C.,

for Appellee. 

OPINION

KING, Circuit Judge:

Following a jury trial in the District of Maryland, Charles

Lee Smoot was convicted and sentenced to prison for being

a felon in possession of a firearm. Smoot contends on appeal

that his possession of the firearm was legally justified, or, in

the alternative, that he is entitled to a new trial on the ground

that the jury was misinstructed on an essential element of the

offense. We reject Smoot’s challenges to his conviction, and

another to his sentence, and we affirm.

I.

On October 3, 2008, the police department of Hyattsville,

Maryland, received a call from a citizen advising that there

was an outstanding warrant for the arrest of Charles Smoot,

and that he was located in a house at 4404 Oliver Street.1 That

address was known to the authorities as a place where narcotics activity frequently occurred. After confirming the existence of the warrant with the Prince George’s County Sheriff,

1The facts set forth herein are derived from the record on appeal, including an ATF agent’s November 26, 2008 affidavit supporting Smoot’s federal arrest warrant, and the evidence presented at Smoot’s trial. We recite

the latter in the light most favorable to the government, as the prevailing

party at trial. See United States v. Singh, 518 F.3d 236, 241 n.2 (4th Cir.

2008). 

2 UNITED STATES v. SMOOT
the Hyattsville police dispatched several officers to execute it.

Upon arriving at the Oliver Street residence, the officers

divided into three teams and began a search for Smoot. Two

officers approaching the property from a rear alley encountered a man matching Smoot’s description in the backyard of

the residence. They ordered the man to the ground, and one

of the officers recognized him from previous encounters as

Smoot. During the ensuing patdown, an officer seized a

loaded .38 caliber Smith and Wesson revolver from the left

side of Smoot’s waistband. 

Smoot was charged on November 26, 2008, and then

indicted on February 11, 2009, for having possessed a firearm

as a felon, in violation of 18 U.S.C. § 922(g)(1).2 Prior to trial,

on October 4, 2010, Smoot filed objections to the government’s proposed jury instructions, wherein he indicated that

the Supreme Court’s decision in District of Columbia v.

Heller, 128 S. Ct. 2783 (2008), had constitutionally authorized him to possess a firearm in his home. Smoot posited that

Heller had effectively created an additional element of a

§ 922(g)(1) offense requiring the government, as part of its

2The indictment alleged the § 922(g)(1) offense in the following terms:

On or about October 3, 2008, in the District of Maryland, the

defendant, 

CHARLES LEE SMOOT,

having been convicted of a crime punishable by imprisonment for

a term exceeding one year, did knowingly and unlawfully possess

a firearm, to wit: a Smith and Wesson .38 caliber revolver bearing serial number D817726, in or affecting commerce. 

J.A. 10. To establish a § 922(g)(1) offense, the government is obliged to

prove: (1) the defendant was a convicted felon; (2) who knowingly possessed a firearm; and (3) the firearm had travelled in interstate commerce.

See United States v. Gallimore, 247 F.3d 134, 136 (4th Cir. 2001). The

indictment also sought the forfeiture of the Smith and Wesson revolver

that had been seized from Smoot. The forfeiture allegation, however, is

not relevant to this appeal. (Citations herein to "J.A. ___" refer to the contents of the Joint Appendix filed by the parties to this appeal.)

UNITED STATES v. SMOOT 3
case-in-chief, to affirmatively rebut a presumption that his

possession of the revolver was for legitimate self-defense purposes.

Having been alerted that Smoot likely intended to mount a

constitutional challenge to § 922(g)(1), the government took

the preemptive step of moving in limine to bar Smoot’s argument from being presented to the jury and to exclude any evidence that might be offered in support. Smoot objected to the

motion and also contested the government’s proposed instruction on the third element of § 922(g)(1), i.e., that the revolver

had travelled in interstate commerce. Smoot argued that the

instruction was an incomplete statement of law — and thus

incorrect — on the theory that a firearm could surrender its

nexus to interstate commerce if enough time had passed since

its manufacture in one state and shipment to another. Smoot

contended that the government’s instruction, as proposed,

directed a jury finding against him on the interstate commerce

nexus element.3

Smoot’s trial began in Greenbelt on October 12, 2010. That

morning, prior to jury selection, the district court heard argument on the government’s motion in limine. In granting the

3Smoot’s proposed instruction on the third element of § 922(g)(1),

rejected by the district court, would have required the government to prove

his possession of the firearm had an ongoing effect on interstate commerce. The rejected instruction agreed in substance with that offered by

the government insofar as it acknowledged that previous interstate travel

could satisfy the element, but Smoot proposed to further instruct the jury

that: 

You may also consider whether the firearm had lost its interstate

character or stopped its interstate movement at the time of the

alleged offense. However, if you find that the government has not

proved that the defendant’s continuing possession of the firearm

had an ongoing effect on interstate commerce, even if slight, then

you must acquit the defendant. 

United States v. Smoot, 8:09-cr-00070, Docket No. 17 (D. Md. Oct. 4,

2010). 

4 UNITED STATES v. SMOOT
motion, the court relieved the government from having to

prove that Smoot had not possessed the revolver in his home

for self-defense, observing along the way that nothing in the

record supported Smoot’s contention that he was, at any relevant time, actually in his home. Indeed, after hearing from the

parties, the court related that, "even the proffer that [defense

counsel has] made is just a generic, general proffer about

someone at another one’s home, in a yard walking around

with a gun." J.A. 73. The ruling also barred Smoot from arguing to the jury, by reference to the government’s evidence,

that the revolver had lost its nexus to interstate commerce by

having been manufactured and sold across state lines a full

thirty-five years previously.

The government presented its case to the jury later that

same day, introducing into evidence Smoot’s .38 revolver and

its ammunition, and calling two of the arresting officers as

witnesses. The officers testified that Smoot was carrying the

loaded revolver in his waistband when he was arrested. One

of the officers, Danielle Gray, saw Smoot outside the residence, in its backyard, but never saw him exit the house. The

other officer, Sergeant Bergling, first saw Smoot after he had

been subdued in the backyard, whereupon he seized the

loaded revolver from Smoot’s waistband. The government

also called an official of Smith and Wesson, who confirmed

that the revolver seized from Smoot had been manufactured

in Massachusetts in 1975 and shipped to Maryland that same

year.

Smoot neither testified nor presented any evidence at trial.

His lawyer informed the jury during argument, however, that

Smoot did not contest having possessed the .38 Smith and

Wesson revolver as alleged, or that the weapon had been

shipped from Massachusetts to Maryland in 1975. Notably,

the parties stipulated before the jury that the revolver satisfied

the statutory definition of a firearm, and that Smoot had been

previously convicted of a crime punishable by imprisonment

for a term exceeding one year.

UNITED STATES v. SMOOT 5
At the close of the evidence, the court instructed the jury

on the elements of a § 922(g)(1) offense. That is, the jury was

advised that the government was obliged to prove beyond a

reasonable doubt "that the defendant was convicted in any

court of a crime punishable by imprisonment for a term

exceeding one year as charged; two, that the defendant knowingly possessed the firearm as charged; and, three, that the

possession charged was in or affecting commerce." J.A. 185.

Prior to the instructions being given, Smoot recited several

objections to their substance, mirroring those he had argued

in connection with the motion in limine. Thereafter, on the

afternoon of October 12, 2010, the jury returned its guilty verdict.

The district court sentenced Smoot on April 13, 2011. At

the sentencing hearing, the court denied Smoot a decrease in

his offense level for acceptance of responsibility. Smoot, the

court reasoned, had gone to trial on the § 922(g)(1) charge,

where he had contested the essential element of whether his

possession of the .38 revolver was in or affecting commerce.

The court opined that Smoot’s challenge was inconsistent

with a finding that he had accepted responsibility for the

offense conduct, and not among those "rare situations" referenced in the Sentencing Guidelines where a defendant’s election to stand trial can be overlooked. See USSG § 3E1.1(a)

cmt. n.2 (2010) (illustrating by example "rare situations" permitting defendant to insist upon trial but nevertheless receive

credit for acceptance of responsibility). Relatedly, the court

found that Smoot could have preserved his challenges for

appeal without requiring the government and the court to

endure a jury trial.

Smoot was determined to be an armed career criminal

under 18 U.S.C. § 924(e). His criminal history level of VI,

combined with an offense level of 33, resulted in an advisory

Guidelines range of 235 to 293 months in prison. The district

court, by its judgment of conviction dated April 14, 2011,

opted to impose the 235-month minimum. By notice filed

6 UNITED STATES v. SMOOT
April 21, 2011, Smoot appeals his conviction and sentence.

We possess jurisdiction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a). 

II.

We review de novo a defendant’s constitutional challenge

to a criminal statute. See United States v. Moore, 666 F.3d

313, 316 (4th Cir. 2012). We review for abuse of discretion

a defendant’s claim that a trial court erroneously admitted or

excluded evidence, or misinstructed the jury. See United

States v. Hornsby, 666 F.3d 296, 307, 310 (4th Cir. 2012).

Finally, a court’s refusal to grant a sentencing reduction will

not be disturbed absent clear error. See United States v. Jeffery, 631 F.3d 669, 678 (4th Cir. 2011).

III.

On appeal, Smoot presses his as-applied challenge to

§ 922(g)(1) by reiterating that, even as a convicted felon, he

was entitled under the Second Amendment to possess a firearm in his home for self-defense purposes.4

 Next, he asserts

that the district court erred in instructing the jury on the interstate commerce nexus element of the § 922(g)(1) offense, and

in not permitting him to argue at trial consistently with his

own proposed instruction. Finally, Smoot maintains that he

was erroneously denied a sentencing reduction for acceptance

of responsibility. We assess these contentions in turn.

A.

In District of Columbia v. Heller, the Supreme Court identified an individual right to keep and bear arms embodied in

4We are satisfied to summarily reject the proposition that, under Heller,

the government was required to assume the burden and prove, as an additional element of the § 922(g)(1) offense, that Smoot did not possess the

.38 revolver in his home for self-defense purposes. 

UNITED STATES v. SMOOT 7
the Second Amendment, without any connection to militia

service. See 128 S. Ct. 2783, 2786 (2008).5 The Court nevertheless acknowledged that "[l]ike most rights, the right

secured by the Second Amendment is not unlimited." Id. at

2816. The Heller Court recited certain familiar limitations on

the arms that may be possessed by citizens, observing that

"presumptively lawful regulatory measures" may be used by

the government to enforce those and similar limitations. Id. at

2814, 2816-17.6 As the Court explained, such "presumptively

lawful measures" include prohibitions on the possession of

firearms by felons and the mentally ill, regulations for possessing firearms in "sensitive places such as schools and government buildings," and regulations governing the sale of

firearms. Id. at 2816-17.

The record reveals several factual obstacles that hinder

Smoot from presenting his Second Amendment challenge in

the light he would prefer. Smoot contends that he was arrested

5The Second Amendment provides that "[a] well regulated Militia,

being necessary to the security of a free State, the right of the people to

keep and bear Arms, shall not be infringed." U.S. Const. amend. II. 

6

In Heller, the Supreme Court referred to "longstanding prohibitions on

the possession of firearms by felons," such as § 922(g)(1), as presumptively lawful regulatory measures. 128 S. Ct. at 2816-17. Several of our

sister circuits have rejected constitutional challenges to § 922(g)(1), and

those decisions have usually been "based at least in part on the ‘presumptively lawful’ language from Heller." United States v. Moore, 666 F.3d

313, 317 (4th Cir. 2012)(citing United States v. Torres-Rosario, 658 F.3d

110, 113 & n.1 (1st Cir. 2011); United States v. Barton, 633 F.3d 168,

170–75 (3d Cir. 2011); United States v. Rozier, 598 F.3d 768, 770–71

(11th Cir.), cert. denied, 130 S. Ct. 3399 (2010); United States v. Williams,

616 F.3d 685, 691–94 (7th Cir.), cert. denied, 131 S. Ct. 805 (2010);

United States v. Vongxay, 594 F.3d 1111, 1114–15 (9th Cir.), cert. denied,

131 S. Ct. 294 (2010); United States v. Khami, 362 F. App’x. 501, 507-08

(6th Cir.), cert. denied, 130 S. Ct. 3345 (2010); United States v. McCane,

573 F.3d 1037, 1047 (10th Cir. 2009), cert. denied, 130 S. Ct. 1686

(2010); United States v. Anderson, 559 F.3d 348, 352 n.6 (5th Cir.), cert.

denied, 129 S. Ct. 2814 (2009); United States v. Stuckey, 317 F. App’x.

48, 50 (2d Cir. 2009); United States v. Joos, 638 F.3d 581, 586 (8th Cir.

2011)). 

8 UNITED STATES v. SMOOT
inside of his home in possession of the loaded .38 Smith and

Wesson revolver. There is no evidentiary support, however,

for the proposition that Smoot ever lived at 4404 Oliver

Street, but merely conflicting representations made by the

lawyers at the pretrial hearing on the government’s motion in

limine. The government asserted, for example, that the residence on Oliver Street was actually a "flop house" or "crack

house" for drug use, pointing out that Smoot gave a different

address as his residence when arrested. The defense countered

that Smoot had actually lived at the Oliver Street house, as

indicated by some of his personal property being found inside.

See J.A. 75-76.7

Moreover, the trial record persuasively indicates, through

the uncontroverted testimony of two police officers, that

Smoot was arrested in the backyard of 4404 Oliver Street, i.e.,

within what could be considered the curtilage of the residence. Smoot appears to assume for purposes of his Heller

argument, without having recognized or argued the point, that

a home’s curtilage is equivalent to the home itself. In any

event, we need not resolve here whether Smoot was ever

inside the residence, whether it was in fact his residence, or

whether the Second Amendment applies to a curtilage in the

context of an attempted defense to a § 922(g)(1) prosecution.

Even if we grant Smoot the benefit of the doubt on all those

points, his as-applied challenge to his conviction fails.

As we recently recognized in United States v. Moore, 666

F.3d 313 (4th Cir. 2012), the vast majority of our sister circuits have rejected similar challenges to § 922(g)(1). See id.

at 316-17; supra note 6. Our friend Judge Agee acknowledged

in Moore, however, the possibility that presumptively lawful

measures could yet be unconstitutional if confronted with a

proper as-applied challenge. See Moore, 666 F.3d at 319;

United States v. Chester, 628 F.3d 673, 679 (4th Cir. 2010).

7At trial, neither party presented any evidence of where Smoot lived.

Indeed, there was no issue raised at trial concerning where he lived. 

UNITED STATES v. SMOOT 9
That situation does not exist here; Chester and Moore are

dispositive of the issue in Smoot’s case. Chester established

a two-prong test for assessing a Second Amendment challenge. The first prong, reflecting Heller’s observation that the

Second Amendment embodies rights existing at its ratification, requires our historical review to evaluate whether those

rights, as understood in 1791, are "burdened or regulated" by

the statute in question. Chester, 628 F.3d at 680. If so, under

the second prong, the statute must pass constitutional muster

in accordance with the appropriate level of judicial scrutiny.

Id. Moore refined and crystallized our approach, however,

explaining that "the Chester analysis is more streamlined

when a presumptively lawful regulatory measure is under

review." Moore, 666 F.3d at 318. 

In order for Smoot to rebut the presumption of lawfulness

regarding § 922(g)(1) as applied to him, he "must show that

his factual circumstances remove his challenge from the realm

of ordinary challenges." Moore, 666 F.3d at 319. In Moore,

the defendant’s criminal history placed him outside the scope

of Second Amendment protections for "law-abiding responsible citizens to use arms in defense of hearth and home." Id.

(quoting Heller, 128 S. Ct. 2783). Smoot’s criminal history is

likewise remarkably egregious, and he can hardly be considered a "law-abiding responsible citizen." Smoot therefore cannot avail himself of whatever succor Heller may offer.8

Smoot seeks to otherwise distinguish his situation from the

normal application of § 922(g)(1), emphasizing that the anonymous tip leading to his arrest advised that "other people were

8Smoot’s presentence report reveals he has been arrested thirty-two

times and convicted sixteen times over the course of twenty-one years. See

J.A. 236. He has accrued a wide range of convictions –– including assault

on a police officer, possession of various controlled substances, possession

of cocaine with intent to distribute, firearms offenses, and destruction of

property –– which in the aggregate demonstrate a pattern of criminality

placing his character well outside any definition of "law-abiding." J.A.

235-36. 

10 UNITED STATES v. SMOOT
looking for him." J.A. 127. The meaning of that cryptic language, however, was the subject of dispute. The government,

in the pretrial proceedings, characterized the tip as acknowledging that other members of law enforcement were seeking

to arrest Smoot, while the defense countered that it reflected

a threat on Smoot’s life. Even taking the defense’s view, there

is no indication in the record that Smoot himself knew of a

possible threat, or that there could be dire consequences if the

threat were credible. Like the threat in Moore –– the potential

for being robbed in a bad neighborhood –– any threat to

Smoot was "far too vague and unsubstantiated to remove his

case from the typical felon in possession case." Moore, 666

F.3d at 320. In any event, had there been a credible threat

against Smoot, his appropriate response would have been to

seek the aid of law enforcement, rather than arm himself.

The Third Circuit’s decision in United States v. Barton, 633

F.3d 168 (3rd Cir. 2011), illustrates the typical felon-inpossession case. The Barton court recognized that a felon

maintains an interest in securing the "defense of hearth and

home," but ruled that a felony conviction nonetheless excises

the felon’s right to possess arms for that purpose. Barton, 633

F.3d at 175.9 As the court explained, § 922(g)(1), like other

disabilities, "does not depend on how or for what reason the

right is exercised." Id.

Assuming, as we did in Moore, that a criminal defendant

may demonstrate, in an appropriate case, that § 922(g)(1) is

being applied to him inconsistently with the Second Amendment, Smoot’s situation falls far short of any such hypothetical. Put simply, the circumstances surrounding Smoot’s

possession of the loaded .38 Smith and Wesson revolver in

his waistband in the backyard on Oliver Street do not distin9The court of appeals in Barton identified disabilities accompanying a

felony conviction that the Supreme Court has already found constitutional,

including disenfranchisement and restrictions on the right to travel. See

Barton, 633 F.3d at 175 (citations omitted). 

UNITED STATES v. SMOOT 11
guish his challenge from the typical application of

§ 922(g)(1). We are therefore satisfied that Smoot has failed

to rebut the presumptively lawful status of the statute under

which he was prosecuted.

B.

Smoot’s objections relating to the interstate commerce

nexus element of his conviction are twofold. Smoot first contends that the district court erred as a matter of law in rejecting his proposed jury instruction, see supra note 3, and

denying him the opportunity to make arguments and present

trial evidence contesting the legal sufficiency of the government’s proof. Secondly, Smoot maintains that the instruction

actually given the jury resulted in a directed finding on that

element, contrary to United States v. Gaudin, 515 U.S. 506

(1995). 

On the interstate commerce nexus element of § 922(g)(1),

the court instructed the jury, in pertinent part:

[T]he third element that the government must

prove beyond a reasonable doubt is that the firearm

the defendant is charged with possessing was in or

affecting interstate or foreign commerce. This means

that the government must prove that at some point

prior to the defendant’s possession, the firearm had

traveled in interstate commerce.

It is sufficient for the government to satisfy this

element by proving that at any time prior to the date

charged in the indictment, the firearm crossed a state

line or the United States border. 

* * *

In this regard, there has been evidence that the

firearm in question was manufactured in a different

12 UNITED STATES v. SMOOT
state than the state where the defendant is charged

with possessing it. You are permitted to infer from

this fact that the firearm traveled in interstate commerce. However you are not required to do so.

J.A. 187-88 (emphasis added).

Smoot acknowledges that our decision in United States v.

Gallimore, 247 F.3d 134 (4th Cir. 2001), explains that the

interstate commerce nexus may be established at trial simply

by showing that a firearm was manufactured somewhere other

than the state in which it was discovered. See id. at 138.

There, we explicitly rejected the defendant’s argument that

the government was required to "prove the firearm possessed

in violation of §922(g) was involved in interstate commerce

beyond mere transportation across state lines." Id. In that

sense, then, Smoot seeks futilely to simply reargue the wisdom of our binding precedent. See Dickerson v. United States,

530 U.S. 428, 443 (2000) ("While stare decisis is not an inexorable command, . . . the doctrine carries such persuasive

force that we have always required a departure from precedent to be supported by some special justification.") (internal

citations and quotation marks omitted).

In the highly unlikely circumstance that we were disposed

to entertain such an argument, the Supreme Court’s decision

in Scarborough v. United States, 431 U.S. 563 (1997), would

make short shrift of it. The Scarborough Court perceived "no

indication that Congress intended to require any more than the

minimal nexus that the firearm [was], at some time, in interstate commerce." Id. at 575.

It is elementary that a jury instruction is not flawed if it is

a fair and accurate statement of law. See United States v. Rahman, 83 F.3d 89, 92 (4th Cir. 1996). The converse is undoubtedly true of statements of law that are not fair or accurate. The

instruction given by the district court on the interstate commerce nexus element fairly and accurately reflected Supreme

UNITED STATES v. SMOOT 13
Court and circuit precedent. By contrast, Smoot’s proposed

instruction, requiring the government to show that his continuing possession of the firearm had an impact on interstate

commerce, was clearly contrary to Scarborough and Gallimore, and thus an incorrect statement of law.10

Though the district court’s instruction correctly stated the

applicable law, it would yet be impermissible insofar as it prevented the jury from deciding an element of the charged

offense. Smoot suggests that the first paragraph of the court’s

instruction "did not leave the jury free to acquit if it believed

that shipping the firearm across state lines 35 years ago was

not sufficient to establish that Defendant Smoot’s possession

was ‘in or affecting commerce.’" Appellant’s Reply Br. 16.

Smoot’s contention is undermined by the remainder of the

instruction, however, which unambiguously instructs the jury

to decide for itself whether the interstate nexus element had

been proven. Because the question was left to the jury, the

challenged instruction was not defective. 

The Second Circuit’s decision in United States v. Parkes,

497 F.3d 220 (2d Cir. 2007), on which Smoot additionally

relies, is readily distinguishable. In Parkes, a Hobbs Act prosecution, the government asked the district court to instruct

that if the robbery’s object was "to obtain illegal drugs or

money earned from the sale of drugs, the requirement of an

effect on interstate commerce is satisfied." 497 F.3d at 230.

Inasmuch as that language could have described any gardenvariety drug robbery, the instruction assumed that the inter10From the outset of the proceedings, Smoot indicated that he planned

to adduce evidence to counter the government’s anticipated proof as to the

interstate commerce nexus element. Smoot’s plan was properly derailed

by the district court. The trial court can limit evidence that may confuse

the jury. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Evidence and arguments that contradict established law present a palpable

risk of confusing the jury as to the legal standard it must apply. Smoot’s

plan of attack being clearly contrary to established precedent, the district

court’s curtailing of Smoot’s presentation was well within its discretion.

14 UNITED STATES v. SMOOT
state commerce nexus had been met, rather than reserving the

question for the jury.

The court of appeals in Parkes concluded that the trial court

had properly rejected the instruction as invading the province

of the jury: "[t]hat instruction would have impermissibly violated Parkes’s ‘right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with

which he is charged.’" Id. at 230 (quoting Gaudin, 515 U.S.

at 522-23.). The established precedent supporting the instruction in Smoot’s case, together with the explicit language properly reserving the jury’s province, defy any similarity to

Parkes. We therefore reject as meritless Smoot’s arguments

on appeal concerning the interstate commerce nexus element.

C.

Smoot’s final contention is that his offense level under the

Guidelines should have been decreased by 2 levels for acceptance of responsibility. Although Smoot’s presentence report

recommended that he be awarded the decrease, the district

court declined at hearing to adopt the probation officer’s recommendation. Smoot was found to have a criminal history

level of VI and an offense level of 33, resulting in an advisory

sentencing range of 235 to 293 months. With a 2-level

decrease, Smoot’s offense level would have been 31 and the

advisory range 188 to 235 months. Smoot characterizes his

position on acceptance of responsibility as consistent with

Application Note 2 of Guidelines § 3E1.1(a), which advises:

This adjustment 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 . . . .

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

UNITED STATES v. SMOOT 15
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).

USSG § 3E1.1(a) cmt. n.2 (2010).

Smoot advances two grounds supporting his assertion that

the district court erroneously denied the offense level decrease

for acceptance of responsibility. First, Smoot reiterates that he

was not allowed to affirmatively present evidence or argument supporting his interpretation of the interstate commerce

nexus element; thus, he could not have actually contested his

factual guilt. Second, Smoot disagrees with the court’s finding

that a trial was unnecessary to preserve his constitutional

challenges. 

As we have emphasized, Smoot did not dispute the government’s evidence. Indeed, the parties stipulated that Smoot was

a felon in possession of a firearm that had travelled in interstate commerce thirty-five years earlier. See J.A. 108-09, 191-

92. Smoot reaffirmed the stipulation at closing argument, stating to the jury: 

We do not dispute the only evidence that the government has offered with respect to in or affecting commerce. The only evidence of in or affecting

commerce that the government offered is that 35

years ago this firearm was shipped into the state of

Maryland and that’s it.

Id. at 192 (emphasis added). 

The court acknowledged Smoot’s concession on the factual

evidence supporting the interstate commerce nexus element,

but stressed his refusal to agree to the legal conclusion that

the firearm was "in or affecting commerce." Id. at 230. The

court thus understood Smoot’s defense to have implicitly

16 UNITED STATES v. SMOOT
raised the argument that the evidence on that element was

insufficient to convict. See id. at 162, 226-27 (reflecting the

court’s observations that defense contested the interstate commerce nexus at trial and sentencing).

Smoot nevertheless contends that he cannot be considered

to have contested "the essential factual elements of guilt," as

contemplated by Application Note 2, because he was not

allowed to squarely and pointedly argue that the government’s

proof of the revolver’s nexus to interstate commerce was too

remote in time to the charged possession. See Appellant’s Br.

31-32. It is plain, however, that regardless of Smoot’s assertion that his case was handicapped, the interstate commerce

nexus element was presented to the jury as a point in controversy that it was required to decide. Defense counsel’s closing

argument hammering the "only evidence" of an interstate

commerce nexus invited the jury to conclude that the government had not proved each and every element of its case.

We agree with the government that Smoot’s situation is

reminiscent of the one in United States v. Dickerson, 114 F.3d

464 (4th Cir. 1997). In Dickerson, a perjury prosecution, the

defendant did not contest the facts presented, i.e., that he had

made certain false statements before the grand jury, but

insisted that the statements lacked materiality, an essential

element of the offense. We nonetheless concluded that the

defendant’s argument amounted to "[a] [challenge] [to] his

‘factual guilt.’" Id. at 470. Because Smoot likewise attacked

the legal sufficiency of an essential element of his offense, he

contested his guilt in fact. Thus, the district court appropriately denied him an offense level decrease for acceptance of

responsibility.

Finally, Smoot maintains that there was no alternative to a

trial that would have allowed him to maintain his appellate

rights. The district court rejected that proposition, however,

finding that Smoot could have, for example, agreed to a comprehensive stipulation of facts, which would have preserved

UNITED STATES v. SMOOT 17
his grounds for appeal without putting the government to its

burden of proof. We defer to the court’s finding as not clearly

erroneous, and we will therefore not disturb its sentencing calculus.

IV.

Pursuant to the foregoing, we affirm the judgment of the

district court. 

AFFIRMED

18 UNITED STATES v. SMOOT