UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4873

DEMETRIUS MCLEAN,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CR-97-163)

Submitted: April 14, 1998

Decided: May 4, 1998

Before NIEMEYER, HAMILTON, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Gregory Bruce English, ENGLISH & SMITH, Alexandria, Virginia,

for Appellant. Helen F. Fahey, United States Attorney, Jeffrey L.

Berhold, Special Assistant United States Attorney, Alexandria, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Demetrius McLean was convicted by a jury of assault by striking,

beating, or wounding in violation of 18 U.S.C. § 113(a)(4) (1994),

assault on a correctional officer in violation of D.C. Code Ann. § 22-

505(a) (Supp. 1997), and possession of a shank capable of causing

death and bodily injury in violation of 18 U.S.C.A.§ 13 (West Supp.

1998), assimilating Va. Code Ann. § 53.1-203(4) (Michie 1994).* He

was sentenced to imprisonment for a term of thirty-three months plus

two years' supervised release to be served consecutively to the prison

term McLean was serving at the time of the offense. McLean timely

noted an appeal from the judgment of conviction.

McLean and inmate Nathan Cook got into a fistfight in the day

room at the Lorton Reformatory. A guard testified that during the

scuffle, he saw McLean pull a metal shank from his pants and stab

Cook several times in the head, face, and back. Guards separated the

two men and ordered McLean to drop the shank. McLean refused and

threatened the guards that if they did not back off, he would "give

[them] some of this." McLean also moved frantically between and

toward the guards, jabbing the shank in their direction. The guards

finally subdued McLean by throwing chairs at him and then spraying

him with pepper spray, whereupon McLean dropped the shank and

was restrained.

At trial, McLean's counsel called Cook to the stand, but asked him

only two questions. Counsel first asked Cook whether he attacked

McLean. Cook invoked his Fifth Amendment right against self

incrimination. Counsel then asked whether Cook would answer any

of his questions and Cook refused to respond. Counsel stated he had

no other questions. Over the objection of McLean's counsel, the district court judge instructed the jury to disregard Cook's testimony.

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*McLean was charged by a superseding indictment with assault with

intent to murder in violation of 18 U.S.C. § 113(a)(1); however, the jury

convicted him of the lesser included offense of assault by striking, beating, or wounding.

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McLean testified that Cook, who had a reputation as a bully, had

threatened him days before the stabbing. McLean also testified that

Cook had attacked him with the shank. McLean stated that during the

struggle, he managed to get the shank away from Cook and then he

used it in self-defense as Cook continued to attack him.

The jury convicted McLean. Before sentencing, McLean presented

the court with a written statement accepting responsibility for his

crimes. In the statement, McLean admitted stabbing Cook with the

shank, although he maintained that he did so in self-defense. McLean

also admitted that he refused to drop the shank when ordered to do

so by the guards, but stated that he was worried that Cook's friends

might attack him if he dropped the shank before there were enough

guards in the day room to adequately protect him. Finally, he stated

that he went to trial because he felt that he was not guilty of the

charge of assault with the intent to commit murder.

Based on McLean's statement, the probation officer recommended

that McLean receive a two-point reduction for acceptance of responsibility. The Government objected, and the district court chose not to

award McLean the two-point reduction.

On appeal, McLean contends that the district court erred by

instructing the jury to disregard the fact that Cook refused to testify.

Because none of the officers actually witnessed the start of the fight

between McLean and Cook, and because McLean's theory of defense

was that he stabbed Cook in self-defense, McLean contends that Cook

was the only person who could contradict McLean's version of

events. Thus, McLean contends that it was significant that Cook

refused to answer when asked whether he attacked McLean. McLean

contends that under the unique circumstances in this case, the district

court should not have instructed the jury to disregard Cook's invocation of his Fifth Amendment rights.

The trial court's evidentiary rulings are reviewed for an abuse of

discretion. See United States v. Hassan El, 5 F.3d 726, 731 (4th Cir.

1993). When a witness invokes his Fifth Amendment privilege not to

testify and incriminate himself, a jury may not draw any inferences

from that decision. See Johnson v. United States , 318 U.S. 189, 196-

97 (1943); United States v. Nunez, 668 F.2d 1116, 1123 (10th Cir.

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1981); United States v. Lacouture, 495 F.2d 1237, 1240 (5th Cir.

1974). However, the trial court must ensure that the witness's invocation of the privilege was legitimate and must determine the scope of

the waiver. See Gaskins v. McKellar, 916 F.2d 941, 950 (4th Cir.

1990). The legitimacy and scope of the privilege may be determined

by evaluating whether it is "evident from the implications of the question, in the setting in which it is asked, that a responsive answer to

the question or an explanation of why it cannot be answered might be

dangerous because injurious disclosure could result." Hoffman v.

United States, 341 U.S. 479, 486-87 (1951).

The district court did not specifically inquire into the legitimacy

and scope of Cook's assertion of his Fifth Amendment privilege.

However, Cook was a participant in the fight with McLean. Thus, it

is evident from the implications of counsel's question that any information pertaining to the fight and any explanation for Cook's refusal

to answer "might be dangerous because injurious disclosure could

result." Id. Thus, we find that Cook's invocation of the Fifth Amendment was legitimate. Accordingly, because the jury is not entitled to

draw any inferences from Cook's invocation of his Fifth Amendment

rights, we find that the district court did not abuse its discretion by

instructing the jury to disregard Cook's testimony. See id.

McLean also challenges the district court's decision not to award

a two-point reduction in his offense level for acceptance of responsibility. The adjustment for acceptance of responsibility is not intended

to apply to a defendant unless he "clearly demonstrates acceptance of

responsibility for his offense." U.S. Sentencing Guidelines Manual

§ 3E1.1(a) (1997). The burden is on the defendant to establish by a

preponderance of the evidence that he is entitled to the adjustment.

See United States v. Urrego-Linares, 879 F.2d 1234, 1239 (4th Cir.

1989). Moreover, the adjustment for acceptance of responsibility is

not intended to apply to a defendant who contests his factual guilt at

trial. See USSG § 3E1.1, comment. (n.2); United States v. Muldoon,

931 F.2d 282, 289 (4th Cir. 1991) (noting that absent rare circumstances, USSG § 3E1.1 precludes a downward adjustment for acceptance of responsibility where a defendant exercises his constitutional

right to a trial).

Whether the reduction is warranted "is primarily a factual question,

[and] due deference for the sentencing court requires an appellate

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court to accept its findings unless they are clearly erroneous." United

States v. Cusack, 901 F.2d 29, 31 (4th Cir. 1990). The district court

denied McLean's request on the grounds that he had not clearly

accepted responsibility and that his purported acceptance occurred

after trial and just prior to sentencing. Because timeliness of the

admission of responsibility is a factor which the district court may

consider, United States v. Jones, 31 F.3d 1304, 1315 (4th Cir. 1994),

and because McLean did not unambiguously acknowledge his criminal conduct, United States v. Castner, 50 F.3d 1267, 1280 (4th Cir.

1995), the district court did not clearly err in denying him the adjustment.

Finally, McLean proposes that he should be awarded a one-point

downward departure for "imperfect" acceptance of responsibility

under USSG § 5K2.0. However, the district court identified no aggravating or mitigating circumstances warranting a departure from the

sentence imposed. Furthermore, McLean never requested a departure

under § 5K2.0 during sentencing. Accordingly, because we find no

plain error in McLean's sentence, review of this issue is waived. See

United States v. Grubb, 11 F.3d 426, 440 (4th Cir. 1993).

We affirm McLean's conviction 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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