*Local Rule 47.5 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 93-3518

(Summary Calendar)

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

TRAVIS WILHIKE, 

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Louisiana

(CR 92-562 "L" (2))

(March 7, 1994)

Before JOLLY, WIENER and EMILIO M. GARZA, Circuit Judges. 

PER CURIAM:* 

Defendant-Appellant Travis Wilhike was convicted by a jury of

distributing cocaine, conspiring to distribute cocaine, and

carrying a firearm in relation to a drug trafficking crime, in

violation of 21 U.S.C. §§ 841(a)(1) and 924(C)(1), and 18 U.S.C.

§ 2. On appeal, Wilhike challenges the sufficiency of the evidence
2

to support the firearms charge, and disputes the sentencing court's

denial of a reduction in his base offense level for acceptance of

responsibility. Finding no reversible error on either claim, we

affirm. 

I

FACTS AND PROCEEDINGS

In 1992 DEA Agent Mark Lusco received information from a

confidential informant that Wilhike was involved in cocaine

trafficking. The informant put Agent Lusco in contact with

Wilhike. Cocaine was purchased from Wilhike on four separate

occasions. The government introduced extensive evidence of audio

and visual surveillance of each purchase. 

The last purchase occurred in a motel room. During that

purchase, Agent Lusco was accompanied by another DEA agent, and a

third agent was stationed outside the motel room. Wilhike arrived

at the motel with two other individuals, Malikid Leggins and

Christopher Banks (both of whom eventually pleaded guilty to the

drug-trafficking offenses). While Wilhike entered the motel room

Leggins and Banks waited outside in a parked car. When Wilhike was

ready for the transaction to take place, he called Leggins on a

walkie-talkie. Leggins gave the walkie-talkie to Banks and brought

the cocaine inside. Banks later got out of the car, leaving a

handgun on the seat. The three men were arrested after the sale

was completed, and the gun was recovered from the car seat by the

agents. 
 

1 Although Wilhike moved for a judgment of acquittal at the

close of the government's evidence, it is not clear that Wilhike

renewed his motion at the close of all of the evidence. If a

defendant fails to move for a judgment of acquittal at the close of

the evidence, we may set aside the conviction only if affirmance

would result in a manifest miscarriage of justice. United States

v. El-Zoubi, 993 F.2d 442, 445 (5th Cir. 1993). As the record is

unclear and as the government does not argue that the stricter

standard of review applies, we here apply the more lenient

standard. 

3

II

ANALYSIS

A. Conviction: Insufficiency of the Evidence

Wilhike argues that the evidence was insufficient to support

his conviction for using or carrying a firearm in connection with

a drug-trafficking offense. In reviewing the evidence for

sufficiency, we seek to determine whether, viewing the evidence and

the inferences that may be drawn from it in the light most

favorable to the verdict, a rational jury could have found the

essential elements of the offense beyond a reasonable doubt.

United States v. Sparks, 2 F.3d 574, 579 (5th Cir. 1993), cert.

denied, 114 S.Ct. 720 (1994) and 62 U.S.L.W. 3472 (U.S. Jan. 18,

1994) (No. 93-7055). The evidence need not exclude every rational

hypothesis of innocence, and we accept all credibility judgments

supporting the verdict.1 Id. 

To sustain a firearms conviction under 18 U.S.C. § 924(c)(1),

the government must prove that Wilhike committed a drug-trafficking

offense, and that he knowingly used or carried a gun during and in

relation to that crime. United States v. Willis, 6 F.3d 257, 264

(5th Cir. 1993). Conviction under § 924(c)(1) does not depend on
4

proof that the defendant had actual possession of the gun or used

it in any active manner, only that it was available to provide

protection to the defendant in connection with his engagement in

drug trafficking. Id. The government may also meet this burden

by proving that the gun had the potential of facilitating the drugtrafficking operation and that the presence of the gun was

connected with the drug trafficking. United States v. Featherson,

949 F.2d 770, 776 (5th Cir. 1991), cert. denied, 112 S.Ct. 1698,

1771 and 113 S.Ct. 361 (1992). 

Wilhike argues that, inasmuch as the firearm was in a car in

the motel's parking lot during the drug transaction inside the

motel room, the gun was not readily accessible; therefore, it could

not have been used or carried during the commission of a drugtrafficking offense. We have not, however, found it necessary that

the gun be immediately accessible in order to convict a defendant

under § 924(c)(1). A conviction is supportable if the government

shows that the gun was an "integral part" of the transaction.

United States v. Molinar-Apodaca, 889 F.2d 1417, 1424 (5th Cir.

1989) (marijuana found in outside shed, firearms found inside

home); see also United States v. Capote-Capote, 946 F.2d 1100, 1104

(5th Cir. 1991) (fact that defendant arrested at a place different

from place where firearm found is legally insignificant), cert.

denied, 112 S.Ct. 2278 (1992). Further, although here the firearm

was not in close physical proximity to Wilhike, he was in walkietalkie contact with the person who actually possessed the gun

during the transaction. Thus, Wilhike could have obtained the gun
5

readily. 

Wilhike also argues that he did not plan the presence of the

firearm at the drug sale; therefore, there was no connection

between the presence of the firearm and the likelihood of success

of the transaction. Even assuming that Wilhike did not foresee the

presence of the gun prior to the drug sale, and acknowledging that

he did not have the gun in hand or on his person, the evidence

nevertheless demonstrates that he "used" the gun for protection and

to facilitate the drug transaction. Wilhike informed Agent Lusco

that "we strapped, [carrying a weapon] too. We got a 

pistol." He also whispered to Agent Lusco that they brought the

gun and that if he (Wilhike) lost the cocaine, the person who gave

him the cocaine to sell was going to kill him. 

Wilhike's statements to the agents confirm the fact that the

gun was used in connection with the drug-trafficking activities.

Viewing the evidence and the inferences that may be drawn from it

in the light most favorable to the verdict, a rational jury could

have found the essential elements of § 924(c)(1) beyond a

reasonable doubt. 

B. Sentence: Acceptance of Responsibility 

Wilhike complains that the district court erred in denying him

a reduction in his base offense level for acceptance of

responsibility. He insists that he never denied his role in the

distribution of cocaine and that he was ready to plead guilty to

the four distributing counts of the indictment; that he refused to

plead only because the government would not accept his plea unless
 

2 In determining that Wilhike was not entitled to a reduction

in offense level for acceptance of responsibility, the PSR stated

that Wilhike was found guilty at trial and that, pursuant to

U.S.S.G. § 3E1.1, Application Note 2, the adjustment for acceptance

of responsibility is not intended to apply to a defendant who puts

the government to its burden of proof at trial, is convicted, and

only then admits guilt and expresses remorse. 

6

he pleaded guilty to the firearm charge as well. 

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

two-level decrease in offense level if he "clearly demonstrates

acceptance of responsibility for his offense[.]" We review a

district court's finding on acceptance of responsibility for clear

error, but under a standard of review even more deferential than a

pure "clearly erroneous" standard. United States v. Tello, 9 F.3d

1119, 1122 (5th Cir. 1993) (internal citations and quotations

omitted). 

According to the PSR, Wilhike: 

admitted to his involvement in selling cocaine. He went

to trial in this case because he did not want to plead

guilty to the gun charge, which carries a five year

consecutive sentence. Wilhike initially believed he was

not guilty of the gun charge because he did not arrange

for Banks to be present at the drug deal with the gun.

However, Wilhike now realizes that his knowledge of the

gun constitutes conspiracy to commit the firearms charge.

The PSR contained a recommendation that Wilhike be denied the

adjustment for acceptance of responsibility.2 Wilhike objected to

the PSR, arguing that the facts of the case did not support a

conviction under § 924(c)(1) because the gun was not within his

reach during the drug sale. Wilhike also argued that he did not

know of the gun's presence until the parties arrived at the motel;

therefore, he did not use the gun to protect the drugs or
7

facilitate the transaction. The district court denied the

reduction, stating that "[o]bviously the jury believed that the

defendant knew of the firearm; he believed the gun was in reach of

a co-defendant . . . and the gun increased the likelihood of

success of the cocaine deal." 

Under unusual circumstances a defendant may receive the

reduction under § 3E1.1(b) even though he stands trial. United

States v. Broussard, 987 F.2d 215, 224 (5th Cir. 1993); § 3E1.1(b),

comment. (n.2). Such rare circumstances exist when 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 application of the statute to his conduct. Id. In

Broussard, the defendant challenged the applicability of

§ 924(c)(1) to his conduct. Id. Broussard acknowledged that the

guns which were the basis for the charge were in his home and also

acknowledged their specific location, but contested the fact that

he used or carried the guns during and in relation to the drug

offense. Id. at 223-24. Finding that Broussard's challenge did

not relate to factual guilt, we reversed the district court's

denial of the reduction. Id. 

In the present case, Wilhike's challenge to the application of

§ 924(c)(1) was both legal and factual. Unlike Broussard, Wilhike

sought to deny or at least to minimize his connection with the

firearm. He testified that it was "just happenstance" that Banks

was at the transaction. He also testified that he was unaware that

Banks was in possession of the walkie-talkie. Under these
8

circumstances, the district court did not abuse its discretion in

denying Wilhike the adjustment for acceptance of responsibility. 

AFFIRMED.