UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4614

FRANKLIN PAUL HUNT,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 96-4715

FRANKLIN PAUL HUNT,

Defendant-Appellee.

Appeals from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

W. Earl Britt, District Judge.

(CR-96-27-BR)

Submitted: June 18, 1997

Decided: July 10, 1997

Before MURNAGHAN and MICHAEL, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

_________________________________________________________________

No. 96-4614 affirmed and No. 96-4715 vacated in part and remanded

by unpublished per curiam opinion.

_________________________________________________________________
COUNSEL

Gale M. Adams, Assistant Federal Public Defender, Fayetteville,

North Carolina, for Appellant. Janice McKenzie Cole, United States

Attorney, Peter W. Kellen, Assistant United States Attorney, Raleigh,

North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Franklin Paul Hunt appeals his conviction for bank robbery, 18

U.S.C.A. § 2113(a) (West Supp. 1997). He alleges that the district

court did not properly instruct the jury on the element of intimidation.

The Government cross-appeals, alleging that the district court erred

in granting a downward adjustment under United States Sentencing

Commission Guidelines, Guidelines Manual, § 3E1.1 (Nov. 1995).

We affirm Hunt's conviction, vacate his sentence, and remand for

resentencing.

I

On January 8, 1996, Hunt entered the First Citizens Bank and Trust

Company in Fayetteville, North Carolina. He approached Eva Malloy

at her window and said, "Let's be smooth about this." Hunt reached

into his jacket and told her to give him the money. Malloy testified

at trial that she went along with him because she did not know

whether he had a gun or not. Hunt was within inches of Malloy's

face, and told her to give him another stack of money he could see.

Hunt spoke softly, and did not touch Malloy or make specific threats.

At his trial for bank robbery, Hunt did not deny that he had taken

the money. His sole defense to the bank robbery charge was that he

 2
had not used force, violence or intimidation, and therefore was guilty

of bank larceny rather than bank robbery.

Defense counsel asked the district court for an instruction stating

that intimidation must be caused by an act or statement knowingly or

deliberately made in a manner reasonably calculated to produce fear

of bodily harm. The district court refused, using pattern jury instructions that defined intimidation as caused by a deliberate act or statement of defendant done in such a way that it would produce that

reaction in a reasonable person. Thus, the instruction did not require

that the defendant intended his acts or statements to intimidate. Hunt

argues this is reversible error, relying on this court's decision in

United States v. Wagstaff, 865 F.2d 626, 627 (4th Cir. 1989). But our

recent decision in United States v. Woodrup, 86 F.3d 359, 364 (4th

Cir.), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3294 (U.S. Oct. 15,

1996) (No. 96-6025), holds that § 2113(a) does not require the government to prove an intent to intimidate. Therefore, Hunt's argument

is without merit, and we affirm his conviction in No. 96-4614.

II

Following Hunt's conviction, while the probation officer was preparing his presentence report, Hunt submitted a statement that he

accepted responsibility for committing bank larceny. Bank larceny is

a lesser-included offense of bank robbery, which does not include the

element of force, violence or intimidation. Hunt further stated that

what he did was wrong and he was sorry for it.

As one of his objections to the presentence report, Hunt objected

to the probation officer's use of bank robbery, under USSG § 2B3.1,

rather than bank larceny, USSG § 2B1.1, for the guideline calculations. The probation officer declined the objection. Hunt also objected

to the probation officer's denial of an acceptance of responsibility

adjustment. The probation officer decided that, as Hunt was convicted

of bank robbery, his statement denied an essential element of his

guilt, and he did not deserve the acceptance of responsibility reduction.

At sentencing, the district court overruled Hunt's objection to the

use of the bank robbery guideline to calculate his offense level, but

 3
ruled that Hunt was entitled to the acceptance of responsibility adjustment, USSG § 3E1.1. Hunt's total offense level was reduced from 32

to 30, with a resulting reduction in the sentencing range. He was sentenced to 168 months imprisonment, followed by thirty-six months of

supervised release, with restitution of $2563 and a fine of $6269. The

Government appeals the acceptance of responsibility adjustment.

III

Under 18 U.S.C.A. § 3742(e) (West Supp. 1997), we may review

the sentence imposed by the district court, and "shall accept the findings of fact of the district court unless they are clearly erroneous and

shall give due deference to the district court's application of the

guidelines to the facts." Under USSG § 3E1.1, the offense level may

be decreased by two levels if the defendant "clearly demonstrates

acceptance of responsibility for his offense. Truthfully admitting the

conduct comprising the offense of conviction is one consideration in

applying this guideline." Comment. (n.1(a)). The adjustment is not

meant to apply to one who "puts the government to its burden of

proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse." Comment.

(n.2). In rare cases, one who goes to trial may still have demonstrated

acceptance of responsibility--for example, where one goes to trial to

preserve issues unrelated to factual guilt. "In each such instance, however, a determination that a defendant has accepted responsibility will

be based primarily upon pre-trial statements and conduct." (Id.) The

decision of the sentencing judge in this regard is entitled to great deference, comment. (n.5), and we review it only for clear error. United

States v. Holt, 79 F.3d 14, 17 (4th Cir.), cert. denied, ___ U.S. ___,

65 U.S.L.W. 3260 (U.S. Oct. 7, 1996) (No. 95-9448).

We find the Government persuasive on this issue. In United States

v. Gordon, 895 F.2d 932, 936-37 (4th Cir. 1990), Gordon was convicted of intent to distribute cocaine. At sentencing, he admitted his

guilt to simple possession and sought the USSG § 3E1.1 reduction,

arguing that any retrial following appeal would be meaningless if he

had admitted his guilt to the distribution charges. The district court

rejected the argument. On appeal, this Court held, "Indeed, Gordon's

claim that he was entitled to this mitigating factor while at the same

 4
time denying the criminal conduct for which he was convicted by a

jury borders on the frivolous." Id. at 937.

In United States v. Muldoon, 931 F.2d 282, 289 (4th Cir. 1991), the

government cross-appealed the district court's decrease for acceptance of responsibility. Muldoon had attempted to plead guilty to

bribery pursuant to a plea agreement conditioned on his appeal of a

wiretapping issue. The government declined that condition, but

agreed with all other provisions. Muldoon went to trial and was convicted of bribery. His defense at trial was that he was guilty of accepting illegal gratuities, a lesser offense of bribery. At sentencing, the

district court awarded him the acceptance of responsibility adjustment. This Court held that Muldoon's acceptance of responsibility

was one of the rare cases where a defendant who had gone to trial

could still claim the adjustment. Muldoon offered to plead guilty to

the greater offense before trial, with a reservation of an issue unrelated to guilt or innocence. He did not testify at trial or offer any evidence. Counsel argued at trial only that Muldoon was guilty of the

lesser offense rather than the greater. "It is Muldoon's pretrial offer

to plead guilty to the greater offense of bribery that distinguishes his

situation from Gordon's." Id. at 289. See also United States v. Smith,

40 F.3d 933 (8th Cir. 1994) (upholding the district court's ruling that

defendant's admission of the elements of bank larceny does not suffice under USSG § 3E1.1 where the conviction is for bank robbery).

We conclude that the district court was clearly erroneous in allowing Hunt the acceptance of responsibility adjustment under USSG

§ 3E1.1. In No. 96-4614, we affirm his conviction for bank robbery.

As to No. 96-4715, we vacate Hunt's sentence, and remand the case

to the district court for resentencing without the USSG § 3E1.1

adjustment.

No. 96-4614--AFFIRMED

No. 96-4715--VACATED IN PART AND REMANDED

 5