* District Judge of the Eastern District of Texas, sitting by designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 01-41171

__________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SANTIAGO MEDINA-ANICACIO,

Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court

For the Southern District of Texas

___________________________________________________

March 24, 2003

Before EMILIO M. GARZA and CLEMENT, Circuit Judges, and DAVIS, * District Judge.

EDITH BROWN CLEMENT, Circuit Judge:

Medina-Anic acio appeals his enhanced sentence pursuant to his violation of 8 U.S.C. §

13 26(a)-(b)(2), illegal reentry subsequent to an aggravated felony conviction, arguing that: (1)

possession of a deadly weapon is not an aggravated felony under the federal sentencing guidelines;

and (2) his sentence should have been reduced for acceptance of responsibility. We affirm in part,

and reverse and remand in part.2 I. FACTS AND PROCEEDINGS

On April 4, 2001, United States Border Patrol agents apprehended Santiago Medina-Anicacio

(“Medina”) as he was walking west of the Border Patrol checkpoint near Freer, Texas. Medina

admitted to agents that he was a Mexican citizen, that he did not have documents allowing him to

enter and remai n in t he United States, and that he had entered the United States by crossing

International Bridge No. 2 in Laredo, Texas, with a group of tourists. An investigation revealed that

Medina had previously been ordered removed from the United States on February 3, 1998, following

the revocation of his probation and the imposition of a 16-month sentence in the Superior Court of

California , Lo s Angeles County, for the felony offense of possession of a deadly weapon. The

weapon was an adjustable dagger that was found during a pat down of Medina’s person.

The government charged Medina by a three-count indictment with, inter alia

, being illegally

present in the United States after deportati on subsequent to an aggravated felony conviction. Medina

entered a plea of guilty. After his guilty plea, the U.S. Probation Office prepared a pre-sent ence

investigation report (“PSR”), which calculated Medina’s base offense level at eight. Because of

Medina’s California felony conviction for possession of a deadly weapon, which the Probation Office

determined to be an aggravated felony, the Probation Office added sixteen points to his offense level

pursuant to United States Sentencing Guidelines (“U.S.S.G.”) § 2L1.2(b)(A). The Probation Office

declined to adjust Medina’s offense level downward under U.S.S.G. § 3E1.1, because Medina had

not accepted responsibility for the offense to the probation officer.

Medina filed a written objection to the PSR on the ground that possession of a deadly weapon

was not an aggravated felony. Medina also objected on the ground that the court should sentence

him under the proposed version of the sentencing guidelines that was to go into effect on November3

1, 2001. He argued that under the 2001 version, only an eight-level increase was appropriate for his

prior conviction. Medina only raised the “proposed guidelines” argument at the sentencing hearing.

The district court overruled the objection and sentenced him to 100 months in prison and a three-year

term of supervised release. Medina filed a timely notice of appeal, and argues that: (1) possession

of a deadly weapon is not an aggravated felony under the federal sentencing guidelines; and (2) his

sentence should have been reduced for acceptance of responsibility.

II. DISCUSSION

A. Preservation of the Aggravated Felony Issue for Appeal

As an initial matter, we must determine whether Medina preserved for appeal his claim that

the district court erred in finding that his prior conviction for the California concealed dagger offense

is a conviction for a “crime of violence” qualifying as an “aggravated felony” under § 2L1.2 of the

2000 sentencing guidelines. Medina’s written objection to the PSR stated:

The defen dant objects to paragraph 12 of the Pre-Sentence Report (PSR). The

defendant believes the offenses [sic] listed in Paragraphs 12 [the concealed dagger

offense] is not an ‘aggravated felony’ and therefore he should not be given a sixteen

level upward adjustmen t pursuant to Section 2L1.2(b)(1)(A) of the proposed

amendme nt to the Sentencing Guidelines . The proposed amendment to Part L,

Offenses Involving Immigration, Naturalization and Passports employs a graduated

scale increasing a defendant’s base offense level depending on the classification of the

offense. In the instant case, paragraph 25 Possessio n o f a Deadly Weapon, t he

offense used to increase the defendant’s base offense level 16 points

, [the concealed

dagger offense,] would under the proposed amendments only be a 8 level increase

in the base offense level

.

(emphasis added). At sentencing, Medina’s counsel renewed his objections:

Your Honor, I filed some objections. It’s the same as the previous case, to see if the

Court would go by the proposed guidelines. I think it’s scored differently under the

pro posed guidelines. And also we ask the Court—or we believe that this is once

again an over-representation of his criminal history.1 While the district court did not address Medina’s “aggravated felony” argument at the

hearing, it accepted the PSR’s finding that the California felony conviction qualified as an

aggravated felony.

2 Medina does not pursue the eight-level enhancement argument on appeal. Unless the

proscription on ex post facto laws is implicated, a defendant is to be sentenced under the version

of the sentencing guidelines in effect at the time of sentencing. See United States v. Mills , 9 F.3d

1132, 1136 n.5 (5th Cir. 1993). Thus, the district court correctly applied the 2000 version of the

guidelines.

4 The court overruled Medina’s objections, but di d not specifically address whether Medina’s concealed

dagger offense qualifies as an “aggravated felony” under § 2L1.2 of the 2000 sentencing guidelines. 1

The Government now argues that Medina effectively waived his “aggravated felony” claim

of error by arguing in the district court that he should receive only an eight-level increase 2 under the

proposed amendm

ent s to the sentencing guidelines (that were to go into effect on November 1,

2001), rather t han t he 2000 edition of the sentencing guidelines, which applied at the time of

Medina’s sentencing.

Preliminari ly, we must decide whether Medina’s counsel stated his objection to the PSR

clearly enough to allow the district court an opportuni ty to rule on his objection that the California

concealed dagger o ffense is not an “aggravated felony”. Medina’s written objection to the PSR

claimed t hat Medina’s concealed dagger offense was “not an aggravated felony,” and Medina’s

counsel renewed, although clumsily, this claim of error at sentencing by stating that “we believe this

[sentence] is once again an over-representation of [Medina’s] criminal history.” Even if Medina’s

counsel had not renewed the objection at the sentencing hearing, once a party raises an objection in

writing, if he subsequently fails to lodge an oral on-the-record objection, t h e error is nevertheless

preserved for appeal. B e nder v. Brumley , 1 F.3d 271, 277 (5th Cir. 1993). Consequently, we

conclude that Medina’s objection was clear enough to provide the district court with opportuni ty to3 Under the 2001 guidelines, only an eight-level upward enhancement applies to crimes that

are considered aggravated felonies. See U.S.S.G. § 2L1.2(b)(1)(C) (2001). The Government

further notes that the definitions of “aggravated felony” under the 2000 guidelines and the 2001

guidelines were identical.

5 rule on it.

The Government contends that Medina conceded that his prior felony conviction constituted

an aggravated felony by arguing that the proposed 2001 version of the sentencing guidelines should

have applied. Although Medina contended that possession of a deadly weapon was not an aggravated

felony, he requested that the eight-level increase from the 2001 version of the sentencing guidelines

apply to his sentence, which is the upward enhancement applied for aggravated felonies. U.S.S.G.

§ 2L1.2(b)(1)(A). The Government contends that Medina’s insistence that the eight-level 2001

sentencing guideline apply was a concession that the California weapon possession charge was, in

fact, an aggravated felony. 3 Thus, the Government maintains that this Court should review the

question of whether the weapon possession charge is an aggravated felony under plain error review

because the district court never had the opportunity to rule on Medina’s claim.

Generally, this Court reviews the district court’s application of the Sentencing Guidelines de

novo and its findings of fact for clear error. U nited States v. Landeros-Arreola

, 260 F.3d 407, 410

(5th Cir. 2001); United States v. Salter , 241 F.3d 392, 394 (5th Cir. 2001)

. Arguments raised for

the first time on appeal

are subject to the plain error standard. S alter

, 241 F.3d at 394. When a

defendant objects to his sentence on grounds different from those raised on appeal, we revi e w the

new arguments raised on appeal for plain error only. S ee United States v. Cabral-Castillo

, 35 F.3d

182, 188-89 (5th Cir. 1994).

Here, Medina’s written objection to the PSR clearly stated his position t hat his concealed6

dagger offense was “not an ‘aggravated felony’” under the proposed 2001 version of the sentencing

guidelines. Because the 2000 and 2001 versions of the guidelines both incorporate § 1101(a)(43)’s

definition of “aggravated felony”, Medina has raised the issue of whether his concealed dagger

offense is an “aggravated felony” within the meaning of 8 U.S .C. § 1101(a)(43). Moreover, the

addendum to the PSR specifically addressed Medina’s objection, stating that “Possession of a Deadly

Weapon is an aggravated felony by definition,” and that “Possession of a Deadly Weapon meets the

definition of ‘crime of violence’ since possessing the weapo n creates a substantial risk of physical

force against the person or property of another.” The district court, therefore, considered whether

Medina’s concealed dagger offense constituted an “aggravated felony” under 8 U.S.C. § 1101(a)(43).

Medina’s request for an eight-level increase is more properly construed as an argument in the

alternative: if the court were to find that the prior California conviction was an aggravated felony,

then Medina argued that it should only result in an eight-level increase under the 2001 sentenci ng

guidelines instead of a 16-level increase under t he 2000 sentencing guidelines. Accordingly, we

review the district court’s resolution of the “aggravated felony” issue de novo

.

B. Possession of a Deadly Weapon as an Aggravated Felony

On appeal, Medina contends that the district court erred in concluding that his conviction for

possession of a deadly weapon was an aggravated felony.

Section 2L1.2 of t he 2000 sentencing guidelines incorporates 8 U.S.C. § 1101(a)(43)’s

definition of “aggravated felony.” Section 1101(a)(43) lists multiple acts that constitute “aggravated

felonies,” including “a crime of violence (as defined in section 16 of Title 18, but not including a

purely political offense) for which the term of imprisonment at [si c] least one y ear.” 8 U.S.C. §

1101(a)(43)(F). Section 16 states that a “crime of violence” is:7

(a) an offense that has as an element the use, attempted us e, or threatened use of

physical force against the person or property of another; or (b) any other offense that

is a felony and that, by its nature involves a substantial risk that physical force against

the person or property of another may be used in t he course of com m i tti ng the

offense.

18 U.S.C. § 16. The district court accepted the PSR’s conclusion that Medina’s conviction for the

concealed dagger offense qualifies as a prior conviction for a crime of violence.

Medina argues that to be an aggravated felony, possession of a deadly weapon would have

to constitute a crime of violence under 8 U.S.C. § 1101(a)(43). S ee U.S.S.G. § 2L1.2, comment n.1.

Because California law only requires that the offender knowingly possess and conceal the weapon,

Medina argues that possession of a deadly weapon is: (1) not a crime of violence because it does not

have as an element the use, attempted use or threatened use of physical force against the person or

property of another; and (2) the crime, by its nature, does not present a substantial risk that the

perpetrator will intentionally use force against the person or p roperty of another i n the course of

perpetrating the offense. See 18 U.S.C. § 16.

We agree with Medina that the California concealed dagger offense is not a crime of violence

under § 16(a), because it does not have as an element the “use, attempted use, or threatened use of

physical force against the person or prope rty of another.” S ee 18 U.S.C. § 16(a). Whether the

California co n cealed dagger offense qualifies as a crime of violence under § 16(b), however, is a

closer question.

While a state’s treatment of a felony conviction does not constrain this Court when examining

federal sentence enhancements, state law has been found to aid this Court’s analysis of the effect of

a st at e co urt’s conviction on a defendant’s federal sentence. L anderos-Arreola

, 260 F.3d at 410.

Both parties agree that Medina was convicted under Calif o rnia Penal Code § 12020(a). The PSR4 In Rubalcava , the court also noted that the California Legislature made the offense of

carrying a concealed dirk or dagger a “‘ general intent crime ’ and expressly stated that ‘ [n]o

intent for unlaw

ful use would be required for violations of the prohibition on the concealed

possession upon the person of an otherwise lawful dirk or dagger.’” 1 P.3d at 58 (emphasis in

original).

8 doe s no t specify the date upon which Medina committed his offense, but it indicates that the

California court sentenced him on November 12, 1996. At that time, California law provided that

“[a]ny person in this state who

. . . carries concealed upon his or her person any dirk or dagger i s

punishable by imprisonment in a co unt y jail not exceeding one year or in the state prison.” C A L

.

P ENAL C ODE § 12 0 20(a) (West 1995). Under California law, a “defendant’s intended use of the

instrument is neither an element of the offense nor a defense.” People v. Rubalcava

, 1 P.3d 52, 60

(Cal. 2000) (holding that the intent to use a dagger as a stabbing weapon is not an express element

of California Penal Code § 12020(a)). 4 As the Government points out, however, in defining a “dirk”

or “dagger”, the California legislature described it as a “knife or other instrument

. . . that is capable

of ready use as a stabbing weapon that may inflict great bodily injury or death.” People v. Sisneros

,

67 Cal. Rptr. 2d 782, 783 (Cal. Ct. App. 1997) (citing C AL

. P ENAL C ODE § 12020(c)(24)) (emphasis

in original).

In United States v. Chapa-Garza

, 243 F.3d 921, 924-27 (5th Cir. 2001), a case upon which

Medina heavily relies, this Court held that a Texas conviction for driving while intoxicated (“DWI”)

did not constitute a crime of violence under 18 U.S.C. § 16(b), and therefore a court could not

consider it as an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(A). Because § 16(b) contains

the language “by its nature” to modify “felony”, this Court held that it was required to apply a

categorical approach in determining whether an offense is a crime of violence. Chapa-Garza , 243

F.3d at 924. Thus, this Court examines “whether a particular defined offense, in the abstract, is a5 U.S.S.G. § 4B1.2(a) reads:

(a) The term “crime of violence” means any offense under federal or state law, punishable

by imprisonment for a term exceeding one year, that –

(1) has as an element the use, attempted use, or threatened use of physical force against

the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise

involves conduct that presents a serious potential risk of physical injury to another

.

(emphasis added).

9 crime of violence,” regardless of the act ual underlying facts of the case. I d. Accordingly, to be a

crime of violence, § 16(b) requires “recklessness as regards the substantial likelihood that the offender

will intentionally employ force against the person or property of another in order to effectuate the

c ommission of the offense .” I d. at 927 (emphasis added). The C hapa-Garza court noted that,

bec ause t he o ffender commits the Texas crime of felony DWI when he begins operating a vehicle

while intoxicated after two prior DWI convictions, intentional force against the person or property

of another is virtually never used to commit the offense. I d. Consequently, this Court held that felony

DWI is not a crime of violence as contemplated by § 16(b).

Chapa-Garza relied on United States v. Velazquez-Overa

, 100 F.3d 418 (5th Cir. 1996), for

the proposition that § 16(b)’s “in the course of committing the offense” clause means that physical

force may be used to carry out the offense, rather than the broader interpretation under U.S.S.G. §

4B1.2(a) 5 that there is a risk that physical injury could be a result of the offense. In V elazquez-Overa

,

this Court held that the crime of indecency wit h a child involving sexual contact was a crime of

violence as defined in § 16(b) because, in the course of committing the offense, it was likely that it

would be necessary

t o use physical force to “ensure the child’s compliance” and “perpetrate the

crime.” Chapa-Garza

, 243 F.3d at 927 (citing Velazquez-Overa , 100 F.3d at 422). Possession of6 The dissent’s attempt to distinguish Hernandez-Neave from this case is not convincing.

In Hernandez-Neave , the Texas statute at issue provides that “if a person intentionally,

knowingly, or recklessly carries on or about his person a handgun on any premises licensed or

issued a permit by the state of Texas for the sale of alcoholic beverages, he has committed a third

degree felony.” 291 F.3d at 298 (citing T EX. P ENAL C ODE § 46.02(c)). Thus, the intent element

goes to the carrying of a handgun—a non-violent act. Similarly, the general intent element of §

12020(c)(24) relates to the act of carrying a concealed dagger—a non-violent act. Rubalcava , 1

P.3d at 58 (noting that the “dirk or dagger portion of section 12020 criminalizes ‘traditionally

lawful conduct,’” and thus construed § 12020 to contain a knowledge element). As such, it is not

clear that the cases can be distinguished on the basis that the intent element in this case applies to

conduct that is “violent by nature”.

10 a concealed dagger is not analogous to such an offense. Because an offender perpetrates the crime

once he takes possession of and conceals the dirk or dagger, it is unlik ely t hat any physical force

would be used in the process.

In United States v. Hernandez-Neave

, 291 F.3d 296 (5th Cir. 2001), a case similar to the case

at hand, this Court employed de novo review to hold that the Texas felony crime of unlawfully

carrying a firearm in an establishment licensed to sell alcoholic beverages, was not a crime of violence

under § 16(b). This Court noted that one perpetrates the Texas possession offense once one steps

over the threshold of an establishment licensed to sell liquor while carrying a firearm . Likewise,

Medina perpetrated the California possession offense once he took possession and concealed the

dagger. As such, it is clear that there canno t be a substantial risk of violence i n the course of

committing the offense, and therefore, § 16(b) does not apply. 6

In applying Chapa-Garza ’s abstract, categorical approach, this Court has further observed

that “we do not look to either possible physical violence nor to any particular conduct by a defendant,

violent or otherwise.” H ernandez-Neave

, 2 91 F.3d at 299. Accordingly, although violence may

eventually result once the necessary elements are present for the offender to have perpetrated the

weapon possession offense, that eventuality is outside the scope of our Chapa-Garza analysis. The7 Hernandez-Neave is instructive here as well. In that case, this Court noted that “the

Texas legislature passed this law to limit the risk of mixing guns and alcohol,” likely because of

the high probability that violence could result. 291 F.3d at 299. Yet, as the Court recognized,

“unlawfully carrying a firearm or other weapon identified in Tex. Penal Code § 46.02 into a place

licensed or permitted to sell alcoholic beverages is not a ‘crime of violence’ even though a

subsequent shooting would leave the shooter open to other felony charges which would be in the

crime of violence category.” Id. at 300.

8 While it is plausible to view the offense of possessing a concealed dirk or dagger as a

“course of conduct”, it is not relevant to our analysis. In Chapa-Garza , this Court stated without

citing any authority that an offender commits felony DWI once he begins driving. 243 F.3d at

927. Yet, one may view DWI as a continuum: once the individual begins to drive the vehicle, he

is guilty of the offense, but the offense continues as long as he continues to drive. United States

v. Chapa-Garza , 262 F.3d 479, 483-84 (5th Cir. 2001) (Barksdale, J., dissenting from denial of

rehearing en banc). In Hernandez-Neave , this Court similarly stated without citing any authority

that an offender commits the felony crime of unlawfully carrying a firearm onto a premises

licensed to sell alcoholic beverages when he carries a firearm onto a premises licensed to sell

alcoholic beverages. 291 F.3d at 299. In both cases, this Court did not find it relevant that one

could consider both offenses as continuing courses of conduct. Because the continuum argument

was irrelevant in Chapa-Garza and Hernandez-Neave , it is no more relevant here.

11 dissent disregards this point by creating hypotheticals to illust rate its version of the law. The

possibility that a “gang member” may be “emboldened to start a fight, knowing that the concealed

dagger in his possession will enable him to overpower his unsuspecting victim,” is a scenario that lies

far afield from the categorical approach that Chapa-Garza dictates. 7

It is also important to note that the Court in Chapa-Garza construed § 16(b)’s phrase “in the

course of committing the offense” to refer to the force necessary to effectuate the offense. 243 F.3d

at 927. The Court did n ot construe thi s phrase to encom pass force used w hile effectuating the

offense. Consequent ly, even if this Court views possession of a concealed dagger as a “course of

conduct”, as the dissent suggests, 8 possession of a concealed dirk or dagger would still not be a crime

of violence under Chapa-Garza

. In any event, it is difficult to imagine how o ne would use force

“against the person or property of another,” 18 U.S.C. § 16(b), with the dirk or dagger if it is still9 The dissent makes much of the fact that Chapa-Garza involved a non-violent instrument.

It is clear, however, that a car in the hands of a drunk driver can be a violent instrument.

Moreover, Hernandez-Neave , which applies the Chapa-Garza framework, involved a firearm.

The Court did not regard the fact that the Texas possession offense involved a potentially violent

instrument as a dispositive factor in its analysis of whether it was a crime of violence, nor do we

here.

12 “concealed upon his or her person,” C AL . P ENAL C ODE § 12020(a). 9

Furthermore, the dissent’s suggestion that we look at the “continuing risk” of violence under

§ 16(b) ignores the careful distinction between the “crime of violence” definition in § 16(b), which

is limit ed to the risk of violence “in the course of committing the offense” and the broader definition

set forth in U.S.S.G. § 4B1.2(a)(2), which does not contain tha t limitation. C ompare 18 U.S.C. §

16(b) (“.

. . substantial risk that physical force against the person or property of another may be used

in the course of committing the offense. ”) (emphasis added) with U.S.S.G. § 4B1.2(a)(2) (“.

.

.otherwise involves conduct that presents a serious potential risk of physical injury to another.”). This

Court has “made clear that § 16 and § 4B1.2(a) are different, and that what qualifies as a crime of

violence under one does not necessarily qualify under the other.” United States v. Charles

, 301 F.3d

309 , 312 (5th Cir. 2002) (en banc) (footnote omitted). The dissent’s analysis would conflate an

important distinction between the two definitions, effectively reading the “in the course of” clause out

of § 16(b).

Thus, because there is no substantial risk that an offender may use violence to perpetrate the

weapon possession offense, Medina’s California conviction does not constitute a crime of violence

under § 16(b), and therefore is not an aggravated felony under § 1101(a)(43).

C. Reduction of Sentence for Acceptance of Responsibility

Medina also argues, for the first time on appeal, that the district court erred in failing to award10 The PSR declined to recommend a reduction in the offense level for acceptance of

responsibility because Medina “ha[d] not accepted responsibility for the offense to the probation

officer.”

13 an adjustment for his acceptance of responsibility. Whether a defendant has sufficiently demonstrated

an acceptance of responsibility is a question of fact. United States v. Spires

, 79 F.3d 464, 467 (5th

Cir. 1996). “The defendant bears the burden of demonstrating that he is entitled to the reduction, and

[we] review[] the sentencing court’s determination with even more deference than the pure ‘clearly

erroneous’ standard.” U

nited States v. Flucas

, 99 F.3d 177, 180 (5th Cir. 1996) (citation omitted).

Nevertheless, we review the sentencing court’s judgment for plain error because Medin a failed to

object to the PSR’s recommendation against a reductio n in t he offense level for acceptance of

responsibility. 10 Salter , 241 F.3d at 394; Cabral-Castillo , 35 F.3d at 188-89.

Under the plain error analysis, this Court may only reverse based on a forfeited error when

there is: (1) an error; (2) that is clear or obvious; and (3) that affects the appellant’s substantial rights.

United States v. Calverly

, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing United States v.

Olano

, 507 U.S. 725, 732, 734 (1993)). If the appellant establishes these factors, t his Court may

exe rcise it s discretion to correct the error if it seriously affects the fairness, integrity, or public

reputation of judicial proceedings. Olano , 507 U.S. at 732.

Medina contends that he is entitled to the two-level adjustment under U.S.S.G. § 3E.1.1(a)

because he admitted the facts of his offe nse and his relevant conduct at the time of his arrest and

entered a t imely plea of guilty. He further maintains that he is entitled to an additional one-point

reduction under § 3E1.1(b).

Section 3E1.1 of the sentencing guidelines directs the sentencing court to reduce a

defendant’s offense level “[i]f the defendant clearly demonstrates acceptance of responsibility for his14

offense[.]” U.S.S.G. § 3E1.1(a). “The entry of a guilty plea does not entitle a defendant to a

reduction as a matter of right.” F lucas

, 99 F.3d at 180; see § 3E1.1, comment n.3. If a defendant

enters a guilty plea prior to trial, truthfully admits the conduct comprising the offense, and admits,

or at least do es not falsely deny, any additional relevant conduct for which he is accountable, the

court may find significant evidence of the defendant’s acceptance of responsibility. U nited States v.

Salinas , 122 F.3d 5, 7 (5th Cir. 1997).

The PSR indicates that, at the time of his arrest, Medina admitted that he illegally entered the

United States. Medina also admitted the facts of his offense at his guilty-plea hearing. Yet, according

t o the PSR, Medina “declined to provide a statement for acceptance of responsibility” w hen his

attorney was pres ent . Because Medina had not “accepted responsibility for the offense to the

probation officer,” the PSR declined to recommend a reduction in the offense level.

“A reduction in sentence for ac cept ance of responsibility requires a showing of sincere

contrition on the defendant’s behalf.” United States v. Nguyen , 190 F.3d 656, 658 (5th Cir. 1999)

(internal quotation and citation omitted). A court evaluating the sincerity of a defendant’s claim of

responsibility may consider a defendant’s refusal to elaborate on the circumstances surrounding his

offense to the probation officer. U nited States v. Nevarez-Arreola

, 885 F.2d 243, 244, 246 (5th Cir.

1989) (affirming, under the “clearly erroneous” standard, the district court’s denial of an acceptance

of responsibility reduction where the defendant “failed to elaborate on the circumstances surrounding

the offense to the probation officer” and did not exercise his right of allocution, and where there was

no statement of record “expressing remorse or contrition”).

At the sentencing hearing, when given an opportuni ty for allocution, Medina stated: “coming

in illegally

. . . has become a very serious crime, but my intentions were not to come into this country15

and to remain here to work, but I was only passing through. Because my main goal was t o go to

Canada because I wanted to study some French.” Medina claimed that he had some childhood friends

living in Cuvet, Canada, but he could not explain how it would have been possible for him to legally

enter Canadian territory.

Medina’s statements at the sentencing hearing are more in the nature of an attempt to mitigate

his conduct tha n a sincere expression of remorse, and certainly fall short of showing “sincere

contrition” for his offense. Nguyen , 190 F.3d at 658. A review of the record has not revealed any

other statement indicating remorse or contrition. Moreover, Medina’s refusal to talk with the

probation officer calls his sincerity into q uestion. S ee Nevarez-Arreola

, 885 F.2d at 246.

Consequently, we hold that the district court did not plainly err in declinin g to award Medi na a

downward adjustment in his sentence for acceptance of responsibility.

III. CONCLUSION

Because we conclude that the district court erred in ruling that Medina’s California conviction

for possession of a concealed dagger was an aggravated felony, we REVERSE and REMAND with

regard to this part of the sentence. However, the district court did not plainly err in declining to

award Medina a reduction in his sentence for his acceptance of responsibility. Therefore, we

AFFIRM with respect to that part of his sentence.EMILIO M. GARZA, Circuit Judge, dissenting:

By focusing on the trees, the majority opinion has lost sight of the fore st. The m aj ori ty

opinion focuses so narrowly on one aspect of the panel opinion in United States v. Chapa-Garza

, 243

F.3d 921 (5th Cir. 2001), that it loses sight of the text of 18 U.S.C. § 16(b) as well as the message

in the California statute under which Medina was previously convicted. The purpose of that state

statue is, simply, to outlaw carrying a deadly instrument of violence: a concealed dagger “capable of

ready use as a stabbing weapon that may inflict great bodily injury or death.” C AL

. P ENAL C ODE §§

12020(a), (c)(24). The only purpose of possessing a concealed dagger is the application of “physical

force

. . . against the person of another” when the need arises. S ee 18 U.S.C. § 16(b) (defining “crime

of violence” as an offense that, “by its nature, involves a substantial risk that physical force against

the person or property of another may be used in t he co urse o f committing the offense”). Thus,

contr ary t o the majority opinion’s conclusion, Medina’s prior conviction for unlawfully carrying a

concealed dagger (“the concealed dagger offense”) qualifies as a crime of violence under § 16(b).

I agree wit h t he majority opinion that we are guided in our interpretation of § 16(b) by

Chapa-Garza . But a careful application of Chapa-Garza ’s logic demonstrates that the possession

of a concealed dagger qualifies as a crime of violence. C hapa-Garza held that, to constitute a crime

of violence under § 1 6(b), t he crime must involve “reckless disregard for the probability that

int entional force may be employed.” 243 F.3d at 924 (interpreting § 16(b)’s “substantial risk that

physical force

. . . may be used” language). My conclusion (that the possession of a concealed dagger

is a crime of violence) accords with this central holding. In fact, the concealed dagger offense

involves more than simple recklessness: it requires that the offender “knowingly and intentionally”

carry the concealed dagger. People v. Rubalcava , 1 P.3d 52, 57 (Cal. 2000).11 The majority opinion goes even one step further by concluding that the concealed

dagger offense does not qualify as a crime of violence “because it is difficult to imagine how one

would use force against the person or property of another with the dirk or dagger still concealed

upon his or her person.” (citations and internal quotation marks omitted). I fear that this assertion

trumps reality. One could easily envision a scenario where a gang member is emboldened to start

a fight, knowing that the concealed dagger in his possession will enable him to overpower his

unsuspecting victim. See infra note 5.

-17- The majority opinion sidesteps the clear import of Chapa-Garza by focusing too narrowly on

a single section of the opinion. As the majority opinion observes, C hapa-Garza suggested that the

phrase “in the course of committing t he o ffense” in § 16(b) implies “force that may be used to

perpetrate the offense.” Chapa-Garza

, 243 F.3d at 927. The majority opinion mechanically applies

this alleged gloss on the meaning of § 16(b) to conclude that the concealed dagger offense is not a

crime of violen ce. According to the majority opinion, C hapa-Garza dictates that the concealed

dagger offense does no t qualify as a crime of violence under § 16(b) because the offender

“perpetrates the crime once he takes possession of and conceals t he dirk or dagger,” making it

“unlikely that any physical force would be used in the process.” 11

The majority opinion errs in concluding that a criminal completes the offense as soon as he

conceal s t he dagger. The unlawful possession of a dangerous weapon is an ongoing course of

conduct. S ee United States v. Walker , 27 F.3d 417, 419-20 (9th Cir. 1994) (holding that the

defendant’s offense of illegal possession of a firearm “would not have been completed until the date

set forth in the indictme nt o r unt il he relinquished possession of the machine gun and silencer”);

United States v. Horodoner , 993 F.2d 191, 193 (9th Cir. 1993) (reasoning that gun possession is a

“course of conduct,” not an act); see also United States v. Fleis c hli

, 305 F.3d 643, 658 (7th Cir.

2002) (“Possession of a

firearm is a continuing offense which ceases only when the possession

stops.”); United States v. Finley

, 245 F.3d 199, 207 (2d Cir. 2001) (holding that posses s ion of12 This reasoning has support in our case law. We have held that the unlawful possession

of certain instruments of violence, such as an unregistered sawed-off shotgun or pipe bomb,

creates a substantial risk of violence during the course of possession. See United States v. RivasPalacios , 244 F.3d 396, 397-98 (5th Cir. 2001) (holding that the Texas crime of possession of an

unregistered firearm (a sawed-off shotgun) is a crime of violence as defined in § 16(b), and

reasoning that “the unlawful possession of any unregistered firearm, a sawed-off shotgun in this

case, ‘involves a substantial risk that physical force against the person or property of another’ will

occur”); United States v. Jennings , 195 F.3d 795, 798-99 (5th Cir. 1999) (holding that possession

of an unregistered pipe bomb was a crime of violence that could serve as a predicate act for the

offense of carrying a firearm during and in relation to a crime of violence, in violation of 18

U.S.C. § 924(c), and reasoning that “possession of an unregistered pipe bomb, by its very nature,

creates a substantial risk of violence”). Although Rivas-Palacios did not apply the (then daysold) Chapa-Garza framework for interpreting § 16(b), see United States v. Hernandez-Neave

, 291 F.3d 296, 300 (5th Cir. 2001), and Jennings was decided before Chapa-Garza and did not

apply § 16(b), the reasoning in these two cases helps us assess whether possession of an

instrument of violence, such as a concealed dagger, creates a “substantial risk” of violence.

-18- shotgun is a continuing offense); United States v. Maxim

, 55 F.3d 394, 397-98 (8th Cir. 1 995)

(holding that criminal statutes prohibiting felons from possessing firearms and prohibiting possession

of machine guns are both continuing offenses that, by their nature, do not terminate until the date of

the indictment or the voluntary termination of the illegal activity). Thus, an individual continues to

commit the offense as long as he holds onto the weapon. And, as the California legislature

recognized, the entire time the individual possesses the conc e aled dagger, there is a substantial,

continuing risk that the offender will stab an unsuspecting victim. 12

This continuing risk of physical violence distinguishes the concealed dagger offense from the

offense of unlawfully carrying a firearm into an establishment licensed to sell liquor, the offense that

was the subject of our decision in United States v. Hernandez-Neave

, 291 F.3d 296 (5th Cir. 2001).

In Hernandez-Neave

, we applied Chapa-Garza and reasoned that the Te x as felony offense of

unlawfully carrying a firearm into an establishment licensed to sell alcoholic beve r ages was not a

crime of violence under § 16(b). The court reasoned that physical force is not needed to “complete”3 There is another significant difference between Hernandez-Neave and the present case.

The intent element of the offense in Hernandez-Neave , like the intent element of the offense in

Chapa-Garza , relates only to the offender’s non-violent act. See Hernandez-Neave , 291 F.3d at

299 (reasoning that the “ intent portion of the crime” relates only to the offender’s intent to enter

the establishment while carrying a firearm, a non-violent act). In this case, by contrast, the intent

requirement relates to an act that is violent by nature: carrying a concealed dagger. One would

“knowingly and intentionally” carry a concealed dagger only to hide his willingness to use that

dagger to inflict “great bodily injury or death” if and when the opportunity presents itself. See

C AL

. P ENAL C ODE § 12020(c)(24). Thus, it is clear that one who commits the concealed dagger

offense by “knowingly and intentionally” carrying a concealed dagger is being more than reckless

regarding the probability that he will intentionally use physical force in the course of his

possession of the dagger. See Chapa-Garza , 243 F.3d at 924.

4 A dagger is a close-in fighting weapon. An offender would need to get within arm’s

length of his victim before the dagger could be effectively used. Concealment is essential to lull

an unsuspecting victim into a false sense of security.

-19- this crime, since “the crime is completed by simply stepping over a threshold while carrying such a

weapon.” I

d. at 299. There is no “threshold” requirement for “completing” the concealed dagger

offense, as there is for the offense of unlawfully carrying a firearm into an establishment licensed to

sell liquor. S ee id

. Thus, contrary to the assertion of the majority opinion, our holding in HernandezNeave does not dictate a particular outcome in this case. 3

The majority opinion’s rigid reliance on a few sentences in Chapa-Garza indicates that the

majority opinion overlooks the substantial differences between the offenses at issue in Chapa-Garza

and the present case. C

hapa-Garza involved a non-violent instrument—a vehicle; this case involves

a violent instrument—a concealed dagger. 4 It is easy to see that carrying a concealed dagger gives

rise to a greater risk of intentional physical force than operating a vehicle while intoxicated. A

vehicle’s main purpose, even if driven by one who is intoxicated, is transportation, not violence. S ee

Chapa-Garza

, 243 F.3d at 927 (“While the victim of a drunk driver may sustain physical injury from

physical force being applied to his body as a r esult o f co llision with the drunk driver’s errant5 The majority opinion notes that the concealed dagger was “adjustable.” In fact, the PSR

explains that the dagger was “sharpened on both sides and was adjustable to be able to fit into a

fist or to be straightened out in a locked position.” Clearly, this type of weapon is intended for

gang violence.

-20- automobile, it is clear that such force has not been intentionally ‘used’ against the other person by the

drunk driver at all, much less in order to perpetrate any crime, including the crime of felony DWI.”).

A concealed dagger, however, is fundamentally an instrument of violence. Its primary purpose under

the California statute is to inflict “great bodily injury or death.” C A L

. P ENAL C ODE § 12020(c)(24).

Indeed, the carrying of a concealed dagger is closely associated with gang violence: the California

le gislature broadly defined “dirk or dagger” because of its concern that gang members who carry

lethal knives hidden beneath their clothing would be immune from arrest and prosecution under any

other definition. S ee Rubalcava

, 1 P.3d at 57 (citing Sen. Rules Com., 3d reading analysis of Assem.

Bill No. 1222 (1995-1996 Re g. Sess.), as am ended May 31, 1995, p. 4). 5 Thus, the concealed

dagger offense, by its nature, involves a substantial risk of physical force.

If the majority opinion is correct that Chapa-Garza ’s interpretation of § 16(b) compels the

concl usio n that the concealed dagger offense is not a crime of violence, then the logic of ChapaGarza is inconsistent with the plain language of § 16(b). Section 16(b) defines a crime of violence

as an offense “that, by its nature, involves a substantial risk that physical force against the person or

property of another may be used in the course of committing the offense.” It is unrealistic to

conclude, as the majority opinion does, that carrying a dagger does not “involve[] a substantial risk

that physical force

. . . may be used” when the entire purpose of the California statute is to punish

those who would use such a dagger to “cause great bodily injury or death.” B y its very nature

, the

act of unlawfully carrying a concealed dagger creates a substantial risk that physical violence “may6 Common sense tells us that a confrontation is more likely to escalate to violence when

one of the participants is carrying a concealed weapon. When a person is carrying a concealed

dagger, that may well embolden the person to instigate a violent confrontation. The individual

may use physical force ( i.e ., by striking an adversary) without ever drawing the weapon. In this

additional respect, carrying a concealed dagger creates a “substantial risk that physical force” will

be used while the individual is committing the offense.

-21- be used in the course of” the offense. 6 Therefore, Medina’s prior California conviction for unlawfully

carrying a concealed dagger qualifies as a crime of violence under § 16(b).

For the foregoing reasons, I cannot agree w it h t he majority opinion that C hapa-Garza

compels the conclusion that carrying a concealed dagger is not a crime of violence under 18 U.S.C.

§ 16(b). If, however, t he majority opinion is correct that C hapa-Garza dictates this result, then I

believe that en banc reconsideration is necessary t o bring o ur jurisprudence in line with the plain

language of § 16(b). I, therefore, respectfully dissent from the majority’s decision to overturn the

district court’s sound judgment that Medina’s concealed dagger offense qualifies as an aggravated

felony under 8 U.S.C. § 1101(a)(43).