PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5057

STEVEN HOLT,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CR-94-320-A)

Argued: December 6, 1995

Decided: March 15, 1996

Before RUSSELL, WILKINS, and HAMILTON, Circuit Judges.

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Affirmed by published opinion. Judge Russell wrote the opinion, in

which Judge Wilkins and Judge Hamilton joined.

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COUNSEL

ARGUED: David Alan Hirsch, MENDELSOHN & ISHEE, P.C.,

Fairfax, Virginia, for Appellant. Kathleen Marie Kahoe, Assistant

United States Attorney, Alexandria, Virginia, for Appellee. ON

BRIEF: Helen F. Fahey, United States Attorney, Alexandria, Virginia, for Appellee.
OPINION

PER CURIAM:

Steven Holt appeals the district court's judgment of conviction

entered upon the jury's verdict finding Holt guilty of being an inmate

in possession of a weapon in violation of 18 U.S.C.§ 13 (assimilating

Va. Code Ann. § 53.1-203(4)).* Holt assigns as error the district

court's refusal to instruct the jury that his possession of a weapon

could be justified by self-defense, and the court's failure to accord

him a downward adjustment for acceptance of responsibility. Rejecting both contentions, we affirm Holt's conviction and sentence.

I

On June 21, 1994, while Lorton Corrections Officer Grenada was

patrolling a walkway between dormitories, he overheard a passing

inmate state that "they" were trying to injure him. Officer Grenada

then saw inmates Willie James and Stephen Holt coming up the walkway. James was holding his waistband as though he was trying to

conceal something. Officer Grenada asked James to submit to a

search, and James and Holt fled down the walkway where James

dropped a knife. Officer Grenada picked up this knife, and when he

caught up with them, Holt was holding a closed pocket knife in his

right hand. As several officers approached, Holt opened up the knife

and held the blade down by his leg. The officers asked Holt several

times to drop the knife, at which point Holt complied by closing the

blade and handing the knife to one of the officers.

Holt conceded at trial that he possessed the knife. Holt testified,

however, that he came into possession of the knife only after three

unknown inmates attacked him in one of the dormitories. According

to Holt, his attackers dropped the knife and fled the dormitory

because corrections officers were approaching. Afraid his attackers

would return, Holt contended he picked up the knife and ran past sev-

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*The Virginia statute makes it a felony for a prisoner to "[m]ake, procure, secrete or have in his possession a knife, instrument, tool or other

thing not authorized by the superintendent or sheriff which is capable of

causing death or bodily injury." Va. Code Ann.§ 53.1-203(4)).

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eral corrections officers until he was intercepted by Officer Grenada

and others. Holt testified he did not immediately stop and report the

attack to the first officer he encountered because he was searching for

a particular officer whom he trusted.

Holt sought an instruction from the court informing the jury that

his conduct in possessing the knife could have been justified if it was

done in self defense. The district court denied this request, reasoning

that no such defense was available to the strict liability offense of

inmate possession of a weapon and, alternatively, that even if such a

defense were available, there was no evidence to justify the instruction. Holt was convicted, and he noted a timely appeal.

II

The question of whether an inmate can argue common law affirmative defenses for violating the strict liability offense of inmate weapons possession is one of first impression in this court. Because of the

potential for uncontrolled violence within a prison, courts considering

the issue consistently refuse to allow the defense to inmates arming

themselves for protection against a future attack. These courts reason

that:

[a] jail in which the prisoners could assert a court approved

"right" to possess deadly weapons for protection would be

impossible to administer humanely and safely. The very

existence of the weapons inevitably invites their use on

other inmates and correctional officers. That is why our statutes prohibiting such possession by prisoners have always

been construed to be absolute, and to permit no defense

based on a claim of protection against future attack.

People v. Velasquez, 158 Cal. App.3d 418, 422 (Cal. Ct. App. 1984);

accord State v. Vandiver, 757 S.W.2d 308, 312 (Mo. Ct. App. 1988);

Carter v. State, 312 So.2d 494 (Fla. Dist. Ct. App. 1975). Nonetheless, some courts recognize that affirmative defenses may be asserted

by inmates charged with weapons possession, but only under very

narrow circumstances. These courts generally allow affirmative

defenses to be raised where an unarmed inmate is attacked by an

armed inmate and the unarmed inmate temporarily uses the other

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inmate's weapon in self-defense. See State v. Vandiver, 757 S.W.2d

at 311-12; People v. Perry, 377 N.W.2d 911, 914-15 (Mich. Ct. App.

1985); Mungin v. State, 458 So.2d 293, 297 (Fla. Dist. Ct. App.

1984). An affirmative defense is available for the moment when the

inmate is attacked and he fears imminent threat of death or serious

bodily injury.

In an analogous context, we have considered the applicability of

common law affirmative defenses to defendants charged with the

strict liability offense of being a felon in possession of a handgun. In

United States v. Crittendon, 883 F.2d 326, 330 (4th Cir. 1989), we

indicated that a defendant might be able to assert justification as a

defense to such a charge. The defendant in Crittendon was a felon

who possessed a revolver for protection because he had been shot one

evening as he returned home from work, and he feared his attackers

might return. He was arrested and charged with felon in possession

of a handgun. Without specifically deciding whether the defense of

justification was available for that offense, this court held that the

defendant could not receive such an instruction because the evidence

did not reveal an imminent fear of death or bodily injury at the time

of the possession. Id.

Similarly, although a case may exist in which a defendant could

raise self defense as a justification for possessing a weapon in prison,

we need not decide the issue here. Like the defendant in Crittendon,

Holt has failed to produce any evidence that he was under imminent

threat of death or bodily injury when he possessed the knife. True, if

Holt's account of events is believed, a reasonable juror could conclude that Holt was indeed under threat of death or bodily injury at

the moment he actually procured the knife. But, even under Holt's

account, the procurement of the knife was, both spatially and temporally, far removed from the point at which he was charged with possession. In other words, by the time corrections officers confronted

Holt as he clutched the knife at his side, he was no longer under an

imminent threat of death or bodily injury so as to justify his possession of the knife. Holt testified that he picked up the knife as his

attackers fled the scene, and that he continued possessing the knife

only because he was afraid they would return. Like the defendant's

proffered justification in Crittendon, however, Holt's generalized fear

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of a repeat attack cannot qualify as an imminent threat of death or

injury.

If that testimony was not enough to defeat his assignment of error,

Holt also conceded that he had earlier opportunities to report the incident and turn the knife over to correctional officers. Although Holt's

stated reason for not doing so was because he was looking for a particular officer whom he trusted, we think it reasonable to require of

defendants seeking a self-defense instruction that they first proffer

evidence demonstrating a lack of reasonable legal alternatives to committing the crime. See Crittendon, 883 F.2d at 330. Holt clearly had

reasonable legal alternatives to possessing the knife, and he gave no

reason why these alternatives were ineffectual. See United States v.

Harper, 802 F.2d 115, 118 (5th Cir. 1986) (holding that to establish

a lack of legal alternatives, the defendant must show that he actually

tried the alternatives or had no time to try them, or that a history of

futile attempts revealed the illusory benefits of the alternatives).

Accordingly, without deciding whether a defendant can ever argue

a common law affirmative defense to an inmate weapons possession

charge, we find that Holt was not entitled to such an instruction under

the facts of this case.

III

Holt also contends the district court erred in failing to accord him

a downward adjustment in his offense level for acceptance of responsibility under United States Sentencing Commission, Guidelines

Manual, § 3E1.1 (Nov. 1994). We review the factual findings supporting the district court's refusal to grant a downward adjustment for

clear error. United States v. Reavis, 48 F.3d 763, 768 n.1 (4th Cir.),

cert. denied, 63 U.S.L.W. 3890 (U.S. 1995).

The district court understood that Holt could obtain a downward

adjustment for acceptance of responsibility even after putting the government through its burden of proving its case at trial, as long as Holt

went to trial to preserve issues unrelated to factual guilt. See U.S.S.G.

§ 3E1.1, comment. (n.2). The court did not believe, however, that

Holt had gone to trial to preserve issues unrelated to factual guilt.

Instead, the court believed Holt's affirmative defense was meritless

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and that his attempt to minimize his culpability was not an acceptance

of responsibility. We find no clear error in this regard. See United

States v. Beal, 960 F.2d 629, 636 (7th Cir.) (holding that district court

did not clearly err in considering inmate's justification for carrying

contraband as conduct inconsistent with an affirmative acceptance of

responsibility), cert. denied, 506 U.S. 880 (1992).

For the foregoing reasons, Holt's conviction and sentence are

AFFIRMED.

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