UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4917

DOUGLAS FARREL TINKER,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Robert E. Payne, District Judge.

(CR-96-62)

Submitted: November 25, 1997

Decided: January 28, 1998

Before ERVIN and MICHAEL, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Alan H. Yamamoto, Alexandria, Virginia, for Appellant. Helen F.

Fahey, United States Attorney, Marcus J. Davis, Assistant United

States Attorney, Alexandria, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Douglas Farrel Tinker appeals his convictions for possession of a

firearm by a convicted felon, 18 U.S.C.A. § 922(g)(1) (West Supp.

1997), and aiding and abetting false statements to a licensed firearms

dealer, 18 U.S.C.A. §§ 924(a)(1)(A), (a)(2) (West Supp. 1997). Tinker also appeals his concurrent sentences of thirty-three months. We

affirm.

I

The convictions arise from the straw purchase by Tinker's girlfriend of a semi-automatic pistol. Tinker, a convicted felon, asked his

girlfriend to make the purchase. At first she was reluctant, but she

relented when Tinker threatened to end their relationship if she

refused his request. Tinker telephoned a federally licensed firearms

dealer about purchasing a gun. He informed the dealer that he could

not place the pistol in his own name, and that his girlfriend would buy

the gun. Suspicious, the dealer contacted federal agents, who told him

to proceed with the sale. The dealer then telephoned Tinker to set up

an appointment.

Tinker drove his girlfriend to the store. At his direction, she

ordered a Glock 9 mm. semi-automatic pistol. The purchase price of

the gun was $488.53. Tinker paid $400; his girlfriend contributed the

remainder of the purchase price. Tinker gave the dealer his name and

telephone number so that the dealer could contact him when the gun

arrived. Tinker's girlfriend received a receipt for the purchase in her

name.

The dealer contacted Tinker when the pistol arrived. Tinker and his

girlfriend went to pick the gun up. Tinker's girlfriend executed the

transaction. Tinker drove her to her residence and continued, with the

pistol, to his home. After agents confronted him, he confessed that he

had threatened his girlfriend that he would withhold his affection if

she did not make the purchase for him.

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At trial, the dealer, Tinker's girlfriend, and a police officer who had

participated in the surveillance of Tinker on the day he picked up the

gun testified. Tinker stipulated to a felony conviction in Texas. He

also stipulated that the gun was a firearm as defined in 18 U.S.C.

§ 921(a)(3) (1994) and that it had been shipped or transported in interstate commerce.

Tinker testified in his defense. He admitted to having his girlfriend

make the straw purchase, admitted to felony convictions in Texas and

Illinois, and claimed that he had purchased the gun for use in an anticipated new career as a bodyguard.

II

Tinker acknowledged, in response to his attorney's question on

direct examination, that he was convicted of a felony in Alexandria,

Virginia, after the straw purchase. On cross-examination, the prosecutor informed the court that he wished to pose a question about that

"felony narcotic conviction." The district court did not permit the

prosecutor to ask the question. Tinker contends now that the district

court should have either instructed the jury to disregard the statement

or declared a mistrial. Tinker maintains that the statement implied that

the straw purchase also was drug-related, thereby prejudicing his

chance for a fair trial. Because Tinker did not object, our review is

for plain error. See Fed. R. Civ. P. 52(b); United States v. Lamarr, 75

F.3d 964, 969 (4th Cir.), cert. denied, ___ U.S. ___, 65 U.S.L.W.

3309 (U.S. Oct. 21, 1996) (No. 95-9398).

Tinker opened the door to this interchange when he testified on

direct that he had been convicted of the felony. See United States v.

Boyce, 611 F.2d 530, 530-31 (4th Cir. 1979). In any event, the discussion occupied only a few moments of a trial in which overwhelming,

eyewitness testimony was offered against Tinker. In these circumstances, there was no danger that the remark so infected the trial as

to result in a miscarriage of justice, and there was no plain error. See

Lamarr, 75 F.3d at 969.

III

Prior to trial, persons apparently acting on Tinker's behalf distributed to potential jurors a pamphlet on jury nullification. Tinker asserts

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that the district judge erred when he inquired whether the potential

jurors could put aside what they might have read in the pamphlet and

reach a verdict based on the evidence presented at trial. Again, as Tinker did not object to this inquiry, our review is for plain error. See

United States v. Moore, 11 F.3d 475, 481 (4th Cir. 1993).

The question was entirely appropriate. "Although a jury is entitled

to acquit on any ground, a defendant is not entitled to inform the jury

that it can acquit him on grounds other than facts in evidence, i.e. a

jury has the power of nullification, but defense counsel is not entitled

to urge the jury to exercise that power." United States v. Muse, 83

F.3d 672, 677 (4th Cir.), cert. denied, ___ U.S. ___, 65 U.S.L.W.

3264 (U.S. Oct. 7, 1996) (No. 96-5589). Nor should others acting on

behalf of a defendant be entitled to encourage jury nullification. The

district judge acted properly when he ascertained that the potential

jurors would decide the case on the facts presented at trial and the law

as given by the court.

IV

Tinker raises four challenges to his sentence. He asserts that he was

entitled to a reduction in his base offense level under U.S. Sentencing

Guidelines Manual § 2K2.1(b)(2) (1995) because he allegedly used

the pistol solely for lawful sporting purposes. Tinker represented both

at trial and at sentencing that he intended to use the gun for target

practice until he secured a job as a bodyguard. We review the district

court's factual determination that the firearm was not intended solely

for sporting use for clear error. See United States v. Daughtrey, 874

F.2d 213, 217-18 (4th Cir. 1989). Possessing a gun that one hopes to

use in future employment does not constitute a sport. See United

States v. Gresso, 24 F.3d 879, 880-81 (7th Cir. 1994). The district

court's determination was not clearly erroneous.

Tinker maintains that he was entitled to a reduction in his offense

level for acceptance of responsibility. However, a defendant who puts

the government to its proof at trial is rarely entitled to the reduction.

See USSG § 3E1.1, comment. (n.2). The facts of this case do not warrant a deviation from the general rule, and the district court's refusal

to reduce the offense level was not clearly erroneous. See United

States v. Miller, 77 F.3d 71, 74 (4th Cir. 1996).

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Nor did the district court clearly err in enhancing Tinker's offense

level by two levels upon the determination that he was a leader or

supervisor of the crime. See USSG § 3B1.1(c); United States v.

Melton, 970 F.2d 1328, 1334 (4th Cir. 1992). Tinker readily admitted

that he recruited his girlfriend to make the straw purchase and that he

overcame her initial hesitancy by threatening to withhold his affection.

Finally, Tinker argues that the district court abused its discretion in

refusing to depart downward from his guideline range because his

case lies outside the heartland of typical felon-in-possession cases.

We are without jurisdiction to review the district court's failure to

depart. See United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir.

1990).

V

We accordingly affirm Tinker's convictions and sentence. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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