*Pursuant to 5TH CIR. R. 47.5 the Court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-41179 

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID EDWARD POSIVAL,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Southern District of Texas

USDC No. C-00-CR-182-1

 

April 27, 2001

Before GARWOOD, HIGGINBOTHAM, and PARKER, Circuit Judges.

PER CURIAM:*

A jury found David Posival guilty of being a convicted felon

in possession, from on or about November 29, 1998, to on or about

May 14, 1999, of a firearm and ammunition in violation of 18 U.S.C.

§§ 922(g)(1) and 942(a)(2). The charge arose as a result of a May

14, 1999, robbery at Posival’s home immediately after which he

returned fire upon his assailants, killing one, and pursued them in
2

his car while, according to the government’s evidence, armed with

a second firearm. Posival argues four errors on appeal: (1) that

the guilty verdict was not supported by the evidence; (2) that the

district court erred in refusing to give an offense level reduction

pursuant to U.S.S.G. § 3E1.1(a) and (b) for acceptance of

responsibility; (3) that the district court erred in refusing to

depart downward from the Sentencing Guidelines pursuant to U.S.S.G.

§ 5K2.0, p.s., in light of Posival’s use of the firearm in selfdefense; and (4) that the district court erred in finding that he

possessed a stolen firearm pursuant to U.S.S.G. § 2K2.1(b)(4).

Posival’s insufficiency-of-the-evidence claim is meritless.

The jury was free to disregard Posival’s wife’s testimony to the

extent it indicated he possessed neither shotgun. That Posival

“possessed” the ammunition found in plain view throughout his home,

as well as the shotguns kept at his home which he referred to as

“my shotgun” and “my other shotgun” in his pretrial statement, is

also amply supported by the evidence.

Posival’s argument that he deserved an acceptance-ofresponsibility reduction is also with out merit. Challenges to the

denial of a U.S.S.G. § 3E1.1 acceptance-of-responsibility reduction

are reviewed even more deferential[ly] than under a pure “clearly

erroneous” standard, United States v. Gonzales, 19 F.3d 982, 983

(5th Cir. 1994), and the defendant has the burden of proof, United

States v. Tremelling, 43 F.3d 148, 152 (5th Cir. 1995). The
3

district court found that Posival had not accepted responsibility

within the meaning of U.S.S.G. § 3E1.1 because at trial he

contested the factual issue of whether he carried a gun or a bat in

pursuit of his assailants. He still contests that finding on

appeal. Under our deferential standard of review, we cannot say

that the district court erred in denying Posival a reduction.

We cannot review the district court’s decision not to depart

downward from the Sentencing Guidelines. We can review a district

court’s refusal to depart from the Guidelines only if its decision

was based on the erroneous belief that it did not have the

authority to depart. United States v. Davis, 226 F.3d 346, 359

(5th Cir. 2000), cert. denied, 121 S.Ct. 1161 (2001). A review of

the record evinces that the district court was aware of its ability

to depart downward but chose not to depart.

Posival’s final assignment of error, that the district court

erred in finding he possessed a stolen firearm, also fails. The

evidence amply supported a finding that Posival possessed a firearm

which had been stolen. The fact that he did not know it was stolen

is irrelevant under U.S.S.G. § 2K2.1(b)(4). See U.S.S.G. § 2K2.1,

comment.(n.19) (“The enhancement . . . applies whether or not the

defendant knew or had reason to believe that the firearm was

stolen. . .”).

AFFIRMED