UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 99-4583

LLOYD ANTHONIE WILLIAMS,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Shelby.

Lacy H. Thornburg, District Judge.

(CR-98-144-4)

Argued: May 9, 2001

Decided: June 14, 2001

Before WILKINS, MICHAEL, and TRAXLER, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

COUNSEL

ARGUED: Mary Elizabeth Euler, CLONINGER, LINDSAY, HENSLEY, SEARSON & ARCURI, P.L.L.C., Asheville, North Carolina,

for Appellant. Douglas Scott Broyles, OFFICE OF THE UNITED

STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON

BRIEF: Stephen P. Lindsay, CLONINGER, LINDSAY, HENSLEY,

SEARSON & ARCURI, P.L.L.C., Asheville, North Carolina, for

Appellant. Mark T. Calloway, United States Attorney, Brian Lee
Whisler, Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Charlotte, North Carolina, for

Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Lloyd Anthonie Williams was convicted of unlawful possession of

a firearm. See 18 U.S.C.A. § 922(g)(1) (West 2000). Williams

appeals, challenging his conviction and sentence. We affirm the conviction, vacate the sentence, and remand for resentencing. 

I.

Deputy Sheriff Ronald Kreech made a routine traffic stop of a car

driven by Williams. As Kreech was informing police dispatch of the

stop, he saw Williams, who was seated in the car with the door open,

lean down, reach under the seat, and then "make a flipping motion."

J.A. 61. Kreech approached the car and saw a small silver pistol on

the floor of the car on the passenger side. After another officer seized

the gun and learned that it was stolen, Kreech arrested Williams. As

he was being handcuffed, Williams volunteered that he bought the

gun from a thirteen-year-old child and that "he should be given a

medal" because the "kid didn’t know how to handle a gun . . . [and]

could have hurt somebody." J.A. 63-64. 

Williams, a convicted felon, went to trial on a single count of

unlawful possession of a firearm. Prior to trial, the government filed

an information stating that Williams had three prior convictions for

violent felonies or serious drug offenses and that the government

would seek an enhanced sentence under 18 U.S.C.A. § 924(e) (West

2 UNITED STATES v. WILLIAMS
2000), the Armed Career Criminals Act. The jury convicted Williams,

and the district court imposed a sentence of life imprisonment. 

II.

In his only challenge to his conviction, Williams contends that the

district court erred by denying his motion to suppress the statement

about the gun that Williams made to Deputy Kreech when he was

arrested. When reviewing the denial of a motion to suppress, we

review the district court’s factual findings for clear error and its legal

conclusions de novo. See United States v. Raymond, 152 F.3d 309,

311 (4th Cir. 1998). 

At trial, Williams sought to suppress his statement on the grounds

that he had not been given Miranda1 warnings before making the

statement. The district court denied the motion, concluding that the

statement was voluntarily made and was not the product of custodial

interrogation. On appeal, Williams argues that because he had been

arrested and placed in handcuffs before he made his statement, the situation was the functional equivalent of a custodial interrogation, and

the absence of the Miranda warnings therefore rendered his statement

inadmissible. We disagree. 

It is well settled that "[a] person subjected to custodial interrogation

is entitled to the procedural safeguards prescribed by Miranda, and

therefore, any statements a suspect makes during custodial interrogation are inadmissible in the prosecution’s case in chief unless prior

Miranda warnings have been given." United States v. Leshuk, 65 F.3d

1105, 1108 (4th Cir. 1995). However, it is also well settled that spontaneous or volunteered statements that are not the product of interrogation or its functional equivalent are not barred by Miranda, even if

the defendant is in custody when the statements are made. See Rhode

Island v. Innis, 446 U.S. 291, 299-301 (1980); United States v.

Wright, 991 F.2d 1182, 1186 (4th Cir. 1993). 

Although Williams was certainly in custody when he made the

statement, there is no evidence showing that the statement was the

1Miranda v. Arizona, 384 U.S. 436 (1966). 

UNITED STATES v. WILLIAMS 3
product of interrogation or its functional equivalent. See Innis, 446

U.S. at 301 (explaining that "interrogation" "refers not only to express

questioning, but also to any words or actions on the part of the police

(other than those normally attendant to arrest and custody) that the

police should know are reasonably likely to elicit an incriminating

response from the suspect" (footnote omitted)). Instead, the record

demonstrates that the statement was spontaneously volunteered by

Williams, perhaps with the misguided hope that it might somehow

exculpate him. Because the record is utterly devoid of any evidence

showing a "measure of compulsion above and beyond that inherent in

custody itself," Innis, 446 U.S. at 300, the district court properly

denied the motion to suppress. 

III.

At sentencing, the district court did not make an acceptance of

responsibility adjustment to Williams’s offense level, and the court

adopted the probation officer’s recommendation that Williams be sentenced as a career offender pursuant to section 4B1.1 of the United

States Sentencing Guidelines Manual (1998). Williams therefore

received a base offense level of 37, which, with his category VI criminal history, resulted in a sentencing range of 360 months to life. As

noted above, the district court sentenced Williams to life imprisonment. 

A.

In the presentence report, the probation officer concluded that Williams had not accepted responsibility for his participation in the

instant offense and recommended that Williams should not receive an

adjustment under U.S.S.G. § 3E1.1. Although Williams argues on

appeal that he was entitled to the reduction, he did not object to that

aspect of the presentence report. The issue, therefore, is reviewed

only for plain error. See United States v. Ford, 88 F.3d 1350, 1355

(4th Cir. 1996) ("A defendant’s failure to object to a sentencing issue

amounts to a waiver of his right to raise that issue on appeal, absent

plain error."). 

Williams contends he is entitled to the acceptance of responsibility

adjustment because he admitted his conduct at the scene of his arrest.

4 UNITED STATES v. WILLIAMS
He argues that he went to trial only to challenge the admissibility of

his statement to Deputy Kreech and that his insistence upon going to

trial should not deprive him of the adjustment. We disagree. 

Generally, the acceptance of responsibility adjustment is not applicable where the defendant has "put[ ] the government to its burden of

proof at trial." U.S.S.G. § 3E1.1, comment. (n.2). That the defendant

insisted on going to trial, however,

does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may

clearly demonstrate an acceptance of responsibility for his

criminal conduct even though he exercises his constitutional

right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not

relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). 

Id.; see also United States v. Holt, 79 F.3d 14, 17 (4th Cir. 1996) (per

curiam). 

Although Williams offered no evidence at trial, the record does not

demonstrate that he acknowledged his factual guilt. In fact, Williams

specifically denied possession of the firearm in his objections to the

presentence report. Therefore, even if we accept Williams’s assertion

that he went to trial only to challenge the admissibility of his statement and we assume that the Miranda issue is unrelated to his factual

guilt, this is not one of the "rare cases" where a defendant who goes

to trial has nonetheless clearly demonstrated an acceptance of responsibility. See, e.g., United States v. Nale, 101 F.3d 1000, 1005 (4th Cir.

1996) (explaining that "to receive a reduction under § 3E1.1 for

acceptance of responsibility, the defendant must prove by a preponderance of the evidence that he has clearly recognized and affirmatively accepted personal responsibility for his criminal conduct").

Accordingly, we cannot conclude that the district court’s refusal to

award the adjustment constitutes error, plain or otherwise. 

B.

Williams also contends that the district court improperly sentenced

him as a career offender under U.S.S.G. § 4B1.1. We agree. 

UNITED STATES v. WILLIAMS 5
A defendant is a "career offender" under the guidelines if he is over

eighteen at the time he committed the instant offense, the instant

offense is a felony crime of violence or controlled substance offense,

and he has at least two prior felony convictions for crimes of violence

or controlled substance offenses. See U.S.S.G. § 4B1.1. The commentary to the guidelines, however, specifically provides that "‘[c]rime of

violence’ does not include the offense of unlawful possession of a

firearm by a felon." U.S.S.G. § 4B1.2, comment. (n.1); see also

United States v. Johnson, 953 F.2d 110, 115 (4th Cir. 1991). 

The probation officer recommended that Williams be sentenced as

a career offender because he had one prior conviction for a violent

felony and two prior felony convictions for controlled substance

offenses and because "the instant offense involves a firearm." J.A.

130. However, given that a violation of 18 U.S.C.A. § 922(g) is not

a crime of violence for purposes of section 4B1.1, it was error to sentence Williams as a career offender. 

Although the government does not dispute that application of the

career offender guideline would be improper in this case, the government contends that Williams was not sentenced as a career offender

but instead was properly sentenced as an armed career criminal pursuant to 18 U.S.C.A. § 924(e). We cannot agree with this characterization of the proceedings. 

Section 924(e) imposes a mandatory minimum sentence of fifteen

years for a violation of section 922(g) if the defendant has three previous convictions "for a violent felony or a serious drug offense." 18

U.S.C.A. § 924(e)(1). The government filed an information indicating

that it would seek an enhanced penalty under section 924(e), and Williams’s presentence report reveals prior convictions that perhaps satisfy the requirements of section 924(e).2

 Nonetheless, even though the

2To qualify as a predicate "serious drug offense" conviction for purposes of section 924(e), the offense must be one that carries a maximum

term of imprisonment of at least ten years. See 18 U.S.C.A.

§ 924(e)(2)(A). While the presentence report identifies two prior convictions for drug sales, the report shows only that Williams was sentenced

to five years imprisonment on each of those convictions; the report does

not indicate the maximum sentences associated with the convictions. 

6 UNITED STATES v. WILLIAMS
presentence report refers to section 924(e), it is clear that the sentence

Williams received resulted from the application of the career offender

guideline. 

Section 4B1.4 of the Sentencing Guidelines governs the sentencing

of defendants who qualify as armed career criminals under 18

U.S.C.A. § 924(e). Section 4B1.4 provides that the offense level for

an armed career criminal is the greatest of: (1) the offense level determined pursuant to Chapters Two and Three of the Sentencing Guidelines; (2) the offense level determined under section 4B1.1, the career

offender guideline, if applicable; or (3) the offense level set forth in

subsection 4B1.4(b)(3). See U.S.S.G. § 4B1.4(b). Subsection

4B1.4(b)(3) establishes an offense level of 34 if the defendant used

or possessed the firearm in connection with a crime of violence or

controlled substance offense or if the firearm involved was one of the

dangerous weapons described in 26 U.S.C.A. § 5845(a), and an

offense level of 33 for all other cases. See U.S.S.G. § 4B1.4(b)(3). 

In this case, the probation officer recommended and the district

court adopted an offense level of 37, a level that was reached by

applying the career offender guideline. But since Williams does not

qualify as a career offender, the career offender guideline is not applicable. Thus, Williams’s offense level if he qualifies as an armed

career criminal could only be 33, given that his offense level calculated under Chapters Two and Three was less than 33 and the charged

offense does not satisfy the requirements of subsection 4B1.4(b)(3).

With an offense level of 33 and a category VI criminal history, Williams faced a sentencing range of 235 to 293 months as an armed

career criminal; the life sentence he received was possible only

through the application of the career offender guideline. 

During sentencing, however, Williams did not argue that the career

offender guideline was inapplicable because his section 922(g) conviction was not a crime of violence. Instead, he argued only that his

prior state court convictions should have been counted as one conviction, see U.S.S.G. § 4A1.2, comment. (n.3), and that he therefore did

not have the prior convictions necessary to trigger application of the

career offender guideline. Because the error in applying the career

offender provisions of the Sentencing Guidelines was plain and

resulted in the imposition of a life sentence that Williams otherwise

UNITED STATES v. WILLIAMS 7
could not have received (absent an upward departure),3

 we believe

this is a proper case to exercise our discretion to notice the error. See,

e.g., United States v. Hastings, 134 F.3d 235, 239 (4th Cir. 1998)

(explaining that under plain error review, the defendant "must show

that an error occurred, that the error was plain, and that the error

affected his substantial rights," and that even if these requirements are

met, the court will notice the error only if "the error seriously affects

the fairness, integrity or public reputation of judicial proceedings"

(alteration and internal quotation marks omitted)). We therefore

vacate Williams’s sentence and remand for resentencing without

application of the career offender guideline. 

IV.

To summarize, we affirm Williams’s conviction. However, because

the district court erred when sentencing Williams, we vacate the sentence and remand for resentencing. On remand, the district court shall

determine whether Williams should be sentenced as an armed career

criminal under 18 U.S.C.A. § 924(e). When making this determination, the district court is free to consider the issue de novo, including

the challenges to sentencing as an armed career criminal made on

appeal by Williams in his pro se materials, challenges about which we

express no opinion. If the district court determines that Williams does

not qualify as an armed career criminal, then the court shall impose

a sentence consistent with Williams’s criminal history category and

offense level.4

3Williams argues in his pro se materials that an upward departure upon

resentencing would be improper. This issue is not yet ripe and we do not

consider it. 

4When calculating Williams’s base offense level, the district court

imposed a four-level enhancement based on its determination that Williams used or possessed a firearm in connection with another felony

offense. See U.S.S.G. § 2K2.1(b)(5). Although Williams challenges that

enhancement on appeal, we decline to consider the issue at this juncture.

The enhancement will be material only if the district court concludes on

remand that Williams cannot be sentenced as an armed career criminal

under section 924(e). If the district court so concludes, it is free to consider de novo the propriety of the 2K2.1(b)(5) enhancement. As to the

issue raised by counsel for Williams based on Apprendi v. New Jersey,

530 U.S. 466 (2000), and all other issues raised by Williams in his pro

se submissions that are not specifically mentioned in this opinion, we

have considered the issues and find them to be without merit. 

8 UNITED STATES v. WILLIAMS
Accordingly, for the foregoing reasons, we affirm Williams’s conviction, but we vacate the sentence and remand for resentencing in

accordance with this opinion.

AFFIRMED IN PART, VACATED IN PART,

AND REMANDED WITH INSTRUCTIONS

UNITED STATES v. WILLIAMS 9