UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4667

CALVIN D. LITTON,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

Charles H. Haden II, Chief District Judge.

(CR-96-32)

Submitted: March 27, 1997

Decided: April 8, 1997

Before RUSSELL, LUTTIG, and MICHAEL,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Hunt L. Charach, Federal Public Defender, Charleston, West Virginia, for Appellant. Rebecca A. Betts, United States Attorney, Philip

J. Combs, Assistant United States Attorney, Charleston, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Calvin D. Litton appeals the thirty-month sentence imposed upon

his guilty plea to possession of an unregistered sawed-off shotgun, 26

U.S.C. § 5861(d) (1994). Litton contends that the district court clearly

erred when it refused to grant him an adjustment for acceptance of

responsibility, USSG § 3E1.1.*

Litton entered a bar in Charleston, West Virginia with a sawed-off

shotgun. Witnesses stated that Litton removed the gun from beneath

his jacket and laid it on the bar. The bar's manager placed the gun in

the office, advising Litton that guns were not permitted in the bar. Litton then offered to trade the gun to the manager. When the manager

refused, Litton threatened to open fire in the bar. The manager called

police and refused to return the gun to Litton.

During the presentence investigation, Litton told the probation officer that he was intoxicated at the time of the offense. Litton claimed

that he found the shotgun and jacket outside the bar. He said he

entered the bar and asked someone if he knew who might have lost

the gun.

At sentencing, the district court refused to give Litton an adjustment for acceptance of responsibility. The court based its refusal on

the discrepancy between eyewitness accounts of events and Litton's

version of what happened. The court found that Litton was not truthful with the probation officer in describing his participation in the

offense. Given the discrepancy between the two accounts, the district

court's refusal to give Litton the adjustment was not clearly erroneous.

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*United States Sentencing Commission, Guidelines Manual (Nov.

1995). Litton was sentenced on August 20, 1996.

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Litton also contends that the district court should have given him

advance notice that it did not intend to make the adjustment. While

the guidelines provide that the court should notify the parties in

advance of sentencing of its tentative findings regarding the presentence report, USSG § 6A1.3, p.s., tentative findings are not necessary

in all cases. United States v. Walker, 901 F.2d 21, 22 (4th Cir. 1990).

If the defendant has the opportunity at sentencing to present evidence

and to be heard on objections to the presentence report, the district

court's failure to provide the defendant with tentative findings is not

reversible error. Id.; see also United States v. Francisco, 35 F.3d 116,

120-21 (4th Cir. 1994).

Litton's counsel received the presentence report prior to sentencing

and was alerted to the discrepancy between what eyewitnesses had

told the probation officer and Litton's version of events. At sentencing, counsel argued extensively in favor of the adjustment, claiming

that any discrepancy between the eyewitnesses' and Litton's version

of events was due to Litton's intoxication at the time of the offense.

Under Francisco and Walker, there was no reversible error.

We therefore affirm the 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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