IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 92-4558

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

PAUL D. BROUSSARD,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Western District of Louisiana

 

(March 17, 1993)

Before Reynaldo G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Paul D. Broussard was convicted by a jury in the Western

District of Louisiana of possession with intent to distribute

marijuana, contrary to 21 U.S.C. § 841 (a)(1),(b)(1)(D), and

knowingly using and carrying firearms during and in relation to a

drug trafficking offense contrary to 18 U.S.C. § 924(c)(1).

Armed with a search warrant issued by a state magistrate,

officers searched Broussard's mobile home in Lafayette, Louisiana.

The search uncovered a small marijuana growing operation and three

guns, a Colt Ar-15 assault rifle, a Mossberg sawed-off 20 gauge

shotgun with a pistol grip, and a Sig Sauer P220 .45 caliber

pistol. After Miranda warnings, Broussard made a number of

incriminating admissions to the arresting officers.
2

At trial, Broussard objected to the court's refusal to

peremptorily strike two females. Broussard accepted the first

woman on the venire but challenged the second. Without objection

from the government, the judge responded that she was a member of

a protected class and counsel must state a reason for his

challenge. After counsel said she was a teacher and he did not

want too many teachers on the jury, the judge demanded a "good

reason . . . a reason why you feel in her responses she could not

be fair and impartial." The court nevertheless allowed the

challenge and excused the juror. Counsel for Broussard accepted

the third woman but then objected to the fourth on the grounds that

she was a teacher and had a relative who was a policeman. The

court denied the challenge. The fifth woman was accepted and

counsel for Broussard objected to the sixth based on her demeanor.

The court again denied the challenge. The final jury consisted of

9 females and 3 males, the court having denied Broussard's attempt

to exercise two peremptory challenges against women.

Broussard argues that his conviction should be reversed for

any of four reasons. First, he urges that the district court erred

in applying Batson v. Kentucky, 106 S.Ct. 1712 (1986), to his

peremptory challenge of two female venirepersons. This argument

has two parts: the doctrine does not apply to gender-based

discrimination, and if it does, the district court erroneously

required that he give sufficient reasons for cause rather than

accepting any rational gender-neutral reason. Second, Broussard

argues the warrant authorizing the search of his mobile home was
3

not supported by an adequate affidavit. Third, the court erred in

refusing his requested jury instruction regarding the required

connection between the drug offense and his gun possession.

Fourth, Broussard asserts error in denying a reduction for

acceptance of responsibility.

We are persuaded that Batson should not be extended to genderbased discrimination and that in any event the court misapplied the

doctrine by insisting on more than gender-neutral explanations for

the peremptory challenges. We reverse the conviction for these two

reasons and remand for a new trial. In doing so, we reject the

government's contention that the harmless error doctrine is

applicable. Because we remand and the remaining contentions are

likely to remain issues at a second trial, we also examine

Broussard's arguments regarding the search, instructional error,

and errors in sentencing. Of course, that the sentencing issue

will not arise if Broussard is acquitted is not a suggestion

regarding the likelihood of conviction, but is rather, an

expression of the probability of encountering the issues should the

case play through conviction, a second time. This is both the

product of our unwillingness to address hypothetical questions and

responsibility for conserving judicial resources, ours and the

district court's.

I.

A. Batson and Gender

The Supreme Court attempted to accommodate the command of

equal protection and the tradition that peremptory challenges were
4

an important element of fair trials, although without independent

constitutional protection, in Swain v. Alabama, 380 U.S. 202, 219

(1965). Swain, a black man, argued a violation of the Equal

Protection Clause based on the prosecution's use of peremptory

challenges to eliminate all blacks from his venire and the fact

that no black had served on a Talledega County petit jury in 15

years. After examining the "very old credentials" of the

peremptory challenge and its importance to the fairness of our

trial system, the Court concluded that purposeful discrimination

was not established from the striking of all minorities from the

venire in a given case. The Court explained that "[i]n light of

the purpose of the peremptory system and the function it serves in

a pluralistic society in connection with the institution of jury

trial, we cannot hold that the Constitution requires an examination

of the prosecutor's reasons for the exercise of his challenges in

any given case." Id. at 222. However, purposeful discrimination

could be proved by trailing peremptory challenges over cases. With

the pattern of strikes across cases, there emerges brightly an

otherwise evanescent line between the intuit of trial counsel

striking for the best jury for her client and indefensible bigotry.

In Batson, the Court reexamined this balance. After 20 years

of experience under Swain, the Court relaxed the burden of proving

purposeful racial discrimination by allowing its proof in a given

case by requiring counsel to articulate race-neutral reasons for a

challenged peremptory of a black venireperson. The court was

careful that its rule not "undermine the contribution the challenge
 

1The Supreme Court's post-Batson cases have all dealt with

the use of peremptory strikes to remove black or racially

identified venirepersons, and all have described Batson as

fashioning a rule aimed at preventing purposeful discrimination

against a cognizable racial group. See Georgia v. McCullum, 112

S. Ct. 2348 (1992) (blacks); Hernandez v. New York, 111 S. Ct

1859 (1991) (Latinos); Edmonson v. Leesville Concrete Co., 111 S.

Ct. 2077 (1991) (blacks); Powers v. Ohio, 111 S. Ct. 1364, 1367-

68 (1991) (blacks); Ford v. Georgia, 111 S. Ct. 850, 854 (1991)

(blacks); Holland v. Illinois, 110 S. Ct. 803, 805 (1990)

(blacks); Griffin v. Kentucky, 479 U.S. 314, 316 (1987) (blacks);

Allen v. Hardy, 478 U.S. 255, 259 (1986) (blacks and Hispanics).

5

generally makes to the administration of justice." 106 S. Ct. at

1724. 

Batson does not say, yet, its found impetus was undeniably

more than analogical reasoning and more than a felt moral

imperative independent of constitutional command. Batson's move

from Swain rested on a recognition that race lies at the core of

the commands of the Fourteenth Amendment. 106 S. Ct at 1716.1

This sense that race is different from other classifications has

long generated difficulties in the treatment of other groups

clamoring for identical protection. For the most part, they have

not been successful. More to the point, gender as a classifier

failed to achieve the protection of a suspect class with its high

level of scrutiny. Rather, the Court has found that gender classes

trigger only an intermediate level of scrutiny, a protected class

but with lesser protection than race. Mississippi University for

Women v. Hogan, 458 U.S. 718, 724 (1982); Craig v. Boren, 429 U.S.

190, 197 (1976).

At one level, our question is the balance between the command

of equality and fair trial. See McCullum, 112 S. Ct. at 2357-58
6

(balancing the interests served by Batson with the criminal

defendant's right to a fair trial). Narrowed to the case at hand,

our focus is on peremptory challenges in a specific case and not

across cases, so our specific issue is whether we ought with gender

to step-up from Swain to Batson.

Two circuits have given opposite conclusions. Compare United

States v. DeGross, 960 F.2d 1433 (9th Cir. 1992) (en banc)

(extending Batson to gender) with United States v. Hamilton, 850

F.2d 1038 (4th Cir. 1988) (declining to do so); see also United

States v. Nichols, 937 F.2d 1257, 1262 (7th Cir. 1991) (arguably

deciding that Batson does not apply to gender). The state courts

are divided two against one for the position that Batson should not

be extended to gender. Compare State v. Culver, 444 N.W.2d 662

(Neb. 1989) and State v. Oliviera, 534 A.2d 867 (R.I. 1987)

(refusing to apply Batson to gender) with People v. Irizarry, 560

N.Y. S.2d 279 (N.Y. App. Div. 1990) (extending Batson to gender).

The Ninth Circuit in DeGross saw the issue in terms

antithetical to the idea that litigant choice enhances the

perceived fairness of a petit jury to the public good. In that

court's view "full community participation in the administration of

the criminal justice system, whether measured by race or gender, is

critical to public confidence in the system's fairness." 960 F.2d

at 1439. We see this view as begging the essential question of

"full" participation, a question answerable only by consideration

of the interests in fair trial served by the system of peremptory

challenges.
 

2Bear in mind that we are rejecting only the procedural

requirements of Batson. The ultimate constraints of equal

protection remain in place. We are not willing to extend the

essentially symbolic process of Batson to the strike of every

venireperson.

 

3In DeGross, the Ninth Circuit did not pause in its

treatment of gender-based discrimination with the fact that the

excluded venirepersons were men. Presumably then under DeGross,

counsel must offer gender-neutral reasons for every strike

a fortiori for race. So that with every preemptory challenge of

7

The unique history of racial discrimination aside, full

community participation in the justice system is not disserved by

the centuries old system of strikes. The entire process of jury

selection is studiously random--random in the math sense. Full

participation can only mean random selection because all cannot

serve. Peremptory challenges in the absence of ties across cases

is part of that process of randomness.2 In equal protection terms,

the contributions to a perception of fairness in the petit jury of

peremptory challenges is an important governmental interest. See

Batson, 106 S. Ct. at 1724 (recognizing "that the peremptory

challenge occupies an important position in our trial procedures").

That interest would be frustrated by extending Batson to gender

because it would require, on demand of counsel, an explanation for

every strike. It is true that the explanation would need to be

only a non-gender rooted reason. In the real world of trials,

facing an explanation for every challenge is a practical

frustration of peremptories. See Holland, 110 S. Ct. at 809

(rejecting application of Sixth Amendment fair-cross section

principles to petit jury to avoid the effective "elimination of

peremptory challenges").3
white, black, male and female, non-racial and non-gender based

reasons must be offered. The frustration of peremptory

challenges, however, would not necessarily stop here.

8

It has been said that peremptory challenges cannot lie with

equal protection principles. In an important sense this is not so.

All venirepersons are subject to the arbitrary dismissal of counsel

for both sides. As Swain recognized, the inequality surfaces when

the choices are across cases. 380 U.S. 223-24. When race controls

peremptory challenges across cases, blacks are no longer equally

subject to the randomness of peremptory challenges. Rather, blacks

were singled out because of their race. This view of peremptory

challenges, as a subset of a larger and random process, as not

presenting equal protection issues at all in a discrete case was

rejected in Batson, at least for race. This especial condemnation

of racial criteria is in part reflective of its high level of

protection enjoyed under the two-tiered construct of equal

protection, or even under Justice Marshall's preferred sliding

scale. Simply put, gender discrimination and racial discrimination

are different in relevant ways.

More to the point, apart from race, there is no case for the

step-up from Swain to Batson. Women are not a numerical minority

and therefore do not face similar barriers to full jury

participation. That women are not numerical minorities looms large

because the focus of Batson is upon selecting a petit jury from a

randomly chosen venire. This means that striking women, or men,

for the sole reason of their sex is nigh pointless because it

cannot succeed except in isolated cases. This case illustrates the
9

point. The district judge's intervention to protect this

"protected class" of female venirepersons added two females, at

best, to the seven females that otherwise would have served. Nine

of the twelve jurors who decided this case were women. If the bias

is sex alone, its implementation is chilled by the numbers, by the

reality that not only will women nonetheless be on the jury, albeit

perhaps in lesser number, so also will there be jurors not wanted

for other reasons left on the jury because the strikes were spent

in a sexist way. Suffering the other unwanted jurors might be a

payable price if determined counsel could either eliminate all

women or cut their number to one or two. It is a foolish price for

the bigot when the result, as in this case, would be a jury that

nonetheless had a substantial number of female jurors.

We are persuaded that Swain is a sound accommodation of the

interests of fair trial and interests in selection free of gender

bias. Experience has not taught us that Swain is inadequate for

gender. This is critical because it was experience and functional

necessity--not analogical reasoning that decided Batson and in our

view ought to decide this case.

With all deference to our sister court, the assertion in

DeGross of historical exclusion of women from jury service misses

the mark. We will not here rehearse the differences between race

and gender reflected in their differing levels of scrutiny under

the equal protection clause. We must, however, decry general

invocations of historical discrimination against women; they are

not fully responsive to the assertion that no case for extending
10

Batson to gender has been made. For example, the string citation

to Taylor v. Louisiana, 419 U.S. 522 (1975), ignores the political

reality that the Supreme Court did not strike down the offending

provision of the Louisiana code. It was repealed--hardly an

example of political powerlessness. It is true that women were

excluded from jury service under the English common law and were

disqualified by state laws until the end of the 19th Century. It

is also the case, however, as Justice White observed in 1974 that

". . . [t]oday, women are qualified as jurors in all the states"

id. at 533. Relatedly, it was the Congress that in 1957 assured

that women could not be excluded from federal jury service. Civil

Rights Act of 1957, 71 Stat. 638, 28 U.S.C. § 1861 (1964 ed.).

Batson is a prophylactic device reached for in response to

demonstrated need. Experience has not demonstrated a similar and

sufficient need for its use with gender. The evidence is not there

and is virtually certain not to be, so long as the venire is

randomly chosen.

B.

Assuming Batson is applied to gender based peremptory

challenges, the district court nevertheless misapplied the doctrine

by insisting on more than gender-neutral explanations for the

defendant's challenges. See also Georgia v. McCullum, 112 S. Ct.

2348 (1992) (applying Batson to a criminal defendant's use of

peremptory challenges).
 

4We express no opinion on whether defendant's peremptory

challenges supported a prima facie case. See United States v.

Forbes, 816 F.2d 1006, 1010 (5th Cir. 1987) ("appellate review

should not become bogged down on the question of whether the

defendant made a prima facie showing in cases where the district

court has required an explanation"). 

11

Once a prima facie case of discrimination is shown,4 Batson

requires counsel to justify each challenge with a race-neutral

explanation. 106 S. Ct. at 1723; Hernandez v. New York, 111 S. Ct.

1859, 1866 (1991). Thus, if Batson were extended to this case, we

would insist on a gender-neutral reason. From the trial

transcript, it is clear that the district judge placed a more

difficult burden on counsel for Broussard. The judge insisted on

a good reason for believing the challenged juror could not be

impartial. This is the standard required to exercise a challenge

for cause. See Batson, 106 S. Ct. at 1723 ("we emphasize that

[counsel's] explanation need not rise to the level justifying

exercise of a challenge for cause").

C.

The government agrees that Batson should not apply to gender

and, assuming we were to extend the doctrine, concedes error in the

district court's application. However, the government urges us to

affirm under the doctrine of harmless error. We can not accept

this invitation. The denial or impairment of the right to exercise

peremptory challenges is reversible error without a showing of

prejudice. Swain v. Alabama, 380 U.S. 202, 219 (1965); Knox v.

Collins, 928 F.2d 657, 661 (5th Cir. 1991). Ross v. Oklahoma, 108

S. Ct. 2273 (1988), does not support the application of harmless
12

error. In that case, the trial court erroneously refused to excuse

a juror for cause and state law required the defendant to exercise

a peremptory challenge against that juror to preserve the issue for

appeal. The combination of the trial court's error and state law

effectively denied the defendant the use of one peremptory

challenge. The Court, however, found no violation of the

defendant's right to an impartial jury under the Sixth and

Fourteenth Amendments, because the juror who should have been

dismissed for cause did not sit and there was no showing that the

jurors who actually sat were partial. The Court also stated that

"the 'right' to peremptory challenges is 'denied or impaired' only

if the defendant does not receive that which state law provides."

Id. at 2279. In United States v. Prati, 861 F.2d 82, 87 (5th Cir.

1988), we characterized Ross as setting forth the standard for

assessing the effect of an increase or decrease in the number of

peremptory challenges caused by a trial court's erroneous ruling on

a challenge for cause. Here, we are not dealing with the impact of

an erroneous ruling on a challenge for cause on peremptories, but

an erroneous ruling with regard to peremptory challenges

themselves. Applying the doctrine in this context would eviscerate

the right to exercise peremptory challenges, because it would be

virtually impossible to determine that these rulings, injurious to

the perceived fairness of the petit jury, were harmless.

II.

Broussard argues that the district court should have granted

his motion to suppress the evidence found in his mobile home,
13

because the warrant authorizing the search was not supported by an

adequate affidavit. In other words, the warrant affidavit did not

detail probable cause.

We recently discussed the minimum requirements for a warrant

affidavit in United States v. Satterwhite, 980 F.2d 317, 320-21

(5th Cir. 1992). Under the good faith exception to the

exclusionary rule, evidence obtained by law enforcement officials

acting in objectively reasonable good-faith reliance upon a search

warrant is admissible. United States v. Leon, 468 U.S. 897, 922-23

(1984). However, an official can not claim objective good faith

where the warrant is "based on an affidavit 'so lacking in indicia

of probable cause as to render official belief in its existence

entirely unreasonable.'" Leon, 468 U.S. at 923 (quoting Brown v.

Illinois, 422 U.S. 590, 610-11 (1975) (Powell, J., concurring in

part)); see also United States v. Craig, 861 U.S. 818, 821 (5th

Cir. 1988) (referring to this type of affidavit as a "bare bones"

affidavit). We have said that "bare bones" affidavits "contain

wholly conclusory statements, which lack the facts and

circumstances from which a magistrate can independently determine

probable cause." Satterwhite, 980 F.2d at 320-21. We must examine

the "totality of the circumstances." Illinois v. Gates, 103 U.S.

2317, 2333 (1983). This includes all of the facts in the

affidavit, including the informant's veracity, reliability, and

basis of knowledge. United States v. Jackson, 818 F.2d 345, 348,

350 n.7 (5th Cir. 1987).
14

The affidavit supporting the warrant in this case relies on an

unnamed cooperating individual in the first paragraph:

During the past several days a cooperating individual who is

known by affiant to be familiar with marijuana cultivation

techniques told the affiant that marijuana was being

cultivated in the above described trailer which belongs to

Paul D. Broussard, W/M, DOB 11/09/52. Cooperating individual

further advised affiant marijuana and cultivation equipment

had been seen at the location within the past two months. The

CI said that Paul D. Broussard had been cultivating marijuana

since 1989 Hydroponically.

In addition to this information from the CI, the affidavit includes

other corroborating facts: Broussard's electricity usage doubled

in June 1991, and he did not inquire with the electric company.

June is the height of the marijuana growing season, and it takes

large amounts of electricity to use indoor growing equipment.

Broussard did not have a job. All of the windows in Broussard's

trailer were blacked out. Broussard seldom left his trailer.

Occupants of Broussard's residence purchased Hydroponic gardening

equipment in 1989. A "Thermal Imaging" device, although not

conclusive, indicated more intense heat being emitted from

Broussard's mobile home than others in the area.

As the government acknowledges, this affidavit says very

little about the informant's veracity, reliability, and basis of

knowledge. It does say that the CI "is known by affiant to be

familiar with marijuana cultivation techniques," which goes to the

informant's reliability. The basis for the informant's knowledge,

however, is not given. The affidavit simply says "marijuana and

cultivation equipment had been seen" at Broussard's house. We do
 

5Section 924(c)(1) provides:

Whoever, during and in relation to any crime of violence or

drug trafficking crime . . ., uses or carries a firearm, shall,

in addition to the punishment provided for such crime of violence

or drug trafficking crime, be sentenced to imprisonment for five

years . . . 

15

not know whether the CI had first hand knowledge or whether he was

relying on a third person. 

Significantly, the affidavit does not rely completely on the

information from the CI. These other corroborating facts--

electricity, blackened windows, thermal imaging,--considered with

the information from the CI provide sufficient evidence of probable

cause. There is more here than in the "bare bones" affidavits

involved in Jackson and United States v. Barrington, 806 F.2d 529

(5th Cir. 1986). In Jackson, the informant was himself involved in

the crime and his reliability was not established by corroboration.

818 F.2d at 348. In Barrington, the affidavit simply said the

officer "received information from a confidential informant" who is

"known to [the officer] and has provided information in the past

that has led to arrest and convictions." 806 F.2d at 531. We

conclude that Broussard's motion to suppress was properly denied.

III.

In his third assignment of error, Broussard argues that the

district court erred in refusing his requested jury instruction for

the offense of using or carrying a firearm during and in relation

to a drug trafficking crime, 18 U.S.C. § 924(c)(1).5 He does not

challenge the sufficiency of the evidence to support this

conviction. Of course, that argument may be available on appeal if
 

6The district court gave the following instruction:

Title 18 of the United States Code Section 924(c)(1) makes

it a crime for anyone to use or carry a firearm during and in

relation to a drug trafficking crime. For you to find the

defendant guilty of this crime, you must be convinced that the

government has proved each of the following beyond a reasonable

doubt: First, that the defendant committed the crime alleged in

Count 1. I instruct you that possession of marijuana with intent

to distribute is a drug trafficking crime. Second, that if the

defendant knowingly used or carried a firearm during and in

relation to the defendant's commission of the crime alleged in

Count 1. It is not necessary that the government prove that the

defendant had actual possession of a firearm or used it in any

affirmative manner, but the evidence must show beyond a

reasonable doubt that the firearm was available to provide

protection to the defendant. Therefore, even if the defendant

contends that he did no know that his co-conspirator possessed a

pistol, for instance, the jury may convict him if his coconspirator possessed the pistol.

The government is not required to prove that the defendant

actually fired the weapon or brandished it at someone in order to

prove use as that term is used in this instrument. However, you

must be convinced beyond a reasonable doubt that the firearm

played a role in or facilitated the commission of a drug

trafficking offense. In other words, you must find that the

firearm was a part of the drug offense charged.

The term firearm means any weapon which will or is designed

to or may readily be converted to expel a projectile by the

action of an explosion. The term firearm also includes the frame

or receiver of any such weapon or any firearm muffled or firearm

silencer or destructive device. If a firearm plays a role in a

drug trafficking crime, if it facilitates or has a potential to

facilitate the crime in any way, it is being used or carried in

relation to the drug trafficking crime. To facilitate means to

make easier to commit. Moreover, the firearm's role can be a

passive one such as being possessed for security or for possible

contingencies, for example, embolding the committer of a drug

trafficking crime by affording him the opportunity to display or

discharge the weapon to protect himself or intimidate others

whether or not such display or discharge actually took place. 

The fact that a firearm is unloaded or inoperable does not

insulate the offender from the reach of this criminal statute. 

16

Broussard is convicted on remand. Here, Broussard argues that the

trial court's instruction, which was based on the Fifth Circuit

Pattern Jury Instructions § 2.45, impaired his ability to argue his

defense to the jury.6 His defense focused on the "during and in
The display of a gun instills fear in the average citizen as a

consequence and creates an immediate danger that a violent

response will ensue.

 

7Broussard requested the following language:

Affirmative proof beyond a reasonable doubt of the

relationship between the firearm and the drug trafficking

offense is an essential element of the crime.

for example, the requirement that a firearms use or

possession be "in relation to" the crime would preclude its

application where its presence played no part in the crime,

such as a gun carried in a person's pocket and never

displayed and referred to in the course of the barroom

fight.

There is not sufficient evidence to sustain a conviction if

the government merely proves that a loaded gun was found in

the same room as drug paraphernalia during the course of a

search by the police.

17

relation to" language of the statute. That is, Broussard admitted

possession but contested the fact that he used or carried the guns

during and in relation to the drug offense. 

When a district court refuses to include a requested

instruction, the party requesting the instruction must show that

the rejected instruction: "1) was substantially correct; 2) was not

substantially covered in the charge delivered to the jury; and 3)

concerned an important issue so that the failure to give it

seriously impaired the defendant's ability to present a given

defense." United States v. Duncan, 919 F.2d 981, 990 (5th Cir.

1990); United States v. Terrazas-Carrasco, 861 F.2d 93, 95 (5th

Cir. 1988).

The language Broussard requested was substantially covered in

the charge given.7 Moreover, the instruction on § 924(c)(1)

included this sentence: "However, you must be convinced beyond a
18

reasonable doubt that the firearm played a role in or facilitated

the commission of a drug trafficking crime." This passage belies

Broussard's claim that he was precluded from arguing his defense to

the jury. The district court's failure to include Broussard's

language did not seriously impair his ability to present his

defense. 

Broussard also claims that the language he requested was

necessary to clear up any confusion that may have resulted from the

court's instruction on "possession" in the context of the

possession with intent to distribute offense, which the court read

just before the charge on § 924(c)(1). Broussard says the court's

instruction may have lead the jury to believe that mere possession

of a firearm was sufficient to convict under § 924(c)(1). We see

no possibility for confusion. The court's explanation of

possession came at the beginning of the instructions, before the

§ 924(c)(1) charge. It was also clear that § 924(c)(1) is a

separate offense.

During oral argument, Broussard raised the fact that the

district court omitted the word "integral" from the Fifth Circuit

pattern jury instructions which provide that the jury "must find

that the firearm was an integral part of the drug offense charged."

See Fifth Circuit Pattern Jury Instructions § 2.45. The court's

instruction was adequate. See United States v. Caldwell, No. 92-

4813, slip op. at 2824 (Feb. 25, 1993) (noting that a firearm need

not play an "integral role" to violate § 924(c)).

IV.
19

Finally, Broussard asserts error in his sentencing. He argues

that the district court erred in denying him a reduction for

acceptance of responsibility. Broussard offered to plead guilty to

both counts if he could preserve his right to appeal the motion to

suppress, but the government refused. The trial court refused to

award acceptance of responsibility, apparently agreeing with the

government's objection that Broussard had not accepted

responsibility for the conduct alleged in Count 2, the § 924(c)(1)

offense, citing United States v. Mourning, 914 F.2d 699, 705 (5th

Cir. 1990). 

U.S.S.G. § 3E1.1(b) provides that a defendant may receive the

reduction whether he pleads guilty or goes to trial. Application

Note 2 states "[t]his 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 and expresses remorse." Note 2 also

provides that conviction by trial does not automatically preclude

the reduction. In rare circumstances, a defendant may accept

responsibility even though he goes to trial. According to Note 2,

these circumstances may exist where a defendant goes to trial to

assert and preserve issues that do not relate to factual guilt,

such as a constitutional challenge to a statute or to the

applicability of the statute to his conduct.

We agree with Broussard that as to the § 924(c)(1) offense, he

accepted responsibility. He admitted ownership of the guns found

in his home and their location. He went to trial to contend that
20

§ 924(c)(1) did not apply to these uncontested facts. This issue

does not relate to factual guilt as that phrase in used in

Application Note 2. See Isabel v. United States, 980 F.2d 60, 65

(1st Cir. 1992) (acknowledging that one of these "rare"

circumstances may be present where defendant admits his conduct and

denies only that it constitutes money laundering under the relevant

statute); cf. United States v. Peery, 977 F.2d 1230, 1234 (8th Cir.

1992) (affirming denial of acceptance of responsibility deduction

because trial focused on factual guilt as well as applicability of

the statute).

Mourning does not support the court's denial of the reduction.

There, the defendant was charged with numerous possession with

intent to distribute offenses but pleaded guilty to money

laundering. 914 F.2d at 702. He argued that the district court

could not consider his conduct pertaining to the charged offenses

in assessing his acceptance of responsibility. Rather, the court

could only consider his conduct relevant to money laundering. We

disagreed and held that a defendant must accept responsibility for

all relevant conduct. Id. at 705. This situation is not presented

here.

In its brief, the government offers an alternative ground on

which to deny acceptance of responsibility, pointing to Item 11 in

the presentence report which says that Broussard refused to

identify his customers. See U.S. v. Fabregat, 902 F.2d 331, 334-35

(5th Cir. 1990) (lack of cooperation supports refusal to grant

acceptance of responsibility). However, the district court made no
21

finding of lack of cooperation and therefore we express no view on

this issue. We leave it to the district court to determine anew

whether Broussard has accepted responsibility, should that issue be

reached.

REVERSED AND REMANDED.