UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 99-21151 __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAZA HUSAIN,

Defendant-Appellant.

______________________________________________

Appeal from the United States District Court for the Southern District of Texas H-98-CR-105-1 ______________________________________________ December 5, 2000

Before BARKSDALE and BENAVIDES, Circuit Judges.*

BENAVIDES, Circuit Judge:**

Defendant-appellant Raza Husain was convicted of two counts

of possessing machineguns, two counts of transferring machineguns,

one count of tampering with a witness, and one misdemeanor count of

* Judge Vela, District Judge of the Southern District of Texas, was a member of the panel that heard oral arguments but did not participate in the decision. This case is being decided by a quorum,

(d). ** 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. failure to make appropriate entry of records. The district court

sentenced him to a total term of imprisonment of seventy-one

months. He now appeals raising numerous arguments, including:

insufficiency of the evidence; double jeopardy violations;

erroneous admission of prior bad acts; failure to provide a

limiting instruction with respect to the extrinsic evidence; and

various sentencing errors. Concluding that he has not shown that

he is entitled to relief, we AFFIRM.

I. Factual and Procedural History

Appellant Raza Husain (Husain) started his own security

company in 1984. Six years later he became a licensed firearms

dealer. The firearms license allowed Husain to sell firearms in

general, but not machineguns.

In February of 1996, ATF Agent Tinker received information

from another agent indicating that four foreign nationals were

engaged in the business of selling machineguns. One of these

individuals was identified as Abdulhady. The agents initiated

surveillance on Abdulhady.

On February 23, Abdulhady agreed to sell a machinegun to a

confidential informant. At 2 a.m. on February 24, the surveillance

officers at Abdulhady’s apartment observed the arrival of a vehicle

registered to Husain. The driver of the vehicle exited it, opened

the trunk and removed a package. Abdulhady spoke to the individual

and carried the package into his apartment. The driver then re-

entered his car and drove away. Officer Miller of the Houston

2 Police Department (HPD) followed the car until a marked car could

stop it and identify the driver, Husain.

Abdulhady delivered the package to the confidential informant,

who tested the weapon and determined that it was a machinegun. The

confidential informant paid Abdulhady $1200 for the weapon and

left. The weapon was a Norinco SKS rifle bearing serial number

1500449.

On March 6, the surveillance officers observed Abdulhady’s

departure from the apartment and his subsequent return. Husain

then arrived in his car. Once inside the security gate, a package

was removed from Husain’s vehicle and taken into Abdulhady’s

residence. It apparently took both Husain and Abdulhady to carry

the package.

Agent Torres, who was operating undercover, learned that

certain weapons were ready for delivery. The package was then

taken from Abdulhady’s residence and replaced in Husain’s car about

thirty minutes after it had been taken inside the apartment.

Agent Torres and Abdulhady had decided to conduct the

transaction at the Fiesta parking lot located on Bellaire

Boulevard, Houston, Texas. Once Agent Torres was able to confirm

that the package contained machineguns, the arrest signal was

given. Abdulhady was taken into custody and the agents seized five

more weapons, all Norinco SKS rifles bearing the following serial

numbers: 11480481, 204599, 20009321, 12037511, and 11538567.

After Abdulhady’s arrest, Husain became the focus of the

3 investigation. ATF records revealed that no machineguns were

registered to Husain. Based on the previously witnessed deliveries

of machineguns by Husain to Abdulhady, the agents obtained a search

warrant of Husain’s residence and security company. The warrant

was executed on April 11, 1996.

Husain’s firearms acquisition and disposition books were

seized during the search. The agents reviewed the books and

discovered that no information with respect to the weapons Husain

had delivered to Abdulhady on February 24, 1996, and March 6, 1996

had been recorded. Among other things, the agents seized a booklet

explaining how to convert a semi-automatic rifle into an automatic

rifle.

After Abdulhady was convicted, he became a cooperating witness

against Husain. Abdulhady had purchased numerous weapons from

Husain over a four-year period. To purchase weapons, Husain would

meet Abdulhady at a designated location and deliver firearms from

his vehicle. Abdulhady filled out some of the required forms for

Husain; however, he used incorrect names and addresses.

Husain told Abdulhady that he had a friend who knew how to

convert the semi-automatic rifles to automatic weapons. Husain

also instructed Abdulhady regarding how to switch the wood stocks

in the firearms to plastic.

After Abdulhady’s arrest, Husain counseled Abdulhady with

respect to what he should tell the investigators. Specifically,

Husain instructed Abdulhady to assert that the weapons were

4 defective.

Ray Morgan was a witness against Husain at trial. Morgan also

was a licensed firearms dealer. Morgan testified that Husain

bought twelve Norinco rifles from him. Morgan recalled that Husain

had literature illustrating the conversion of semi-automatic AK-47s

to machineguns. Morgan testified that he saw Husain in possession

of two machineguns on one occasion and six on another.

Morgan and Husain test-fired weapons on property owned by

Morgan. Morgan fired some of Husain’s machineguns. Some of them

were “slam firing” in that “they would take a round into the

chamber and then continue firing until the clip was empty even

after the operator took his finger off the trigger.”

ATF Agent Cooney testified that all of the weapons seized

during the course of the investigation had been converted to fully

automatic weapons. The firearms had been “modified by removing

metal from the bottom of the hammer and removing the disconnector

part internal to the weapon.” Husain testified in his own behalf.

On the first day of trial, Husain pleaded guilty to the

misdemeanor charge of failure to keep proper firearms records.

Ultimately, the jury convicted Husain of two counts of unlawful

possession of machineguns and two counts of unlawful transfer of

machineguns and one count of tampering with a witness. The

district court sentenced Husain to a total term of 71 months of

imprisonment, all sentences to be served concurrently.

II. Analysis

5 A. SUFFICIENCY OF EVIDENCE, COUNTS 3 & 4

We review challenges to the sufficiency of the evidence to

determine whether a rational trier of fact could have found that

the Government proved the essential elements of the offense charged

beyond a reasonable doubt. United States v. Jimenez,

(5th Cir. 1996). All the evidence admitted at the trial must be

viewed in the light most favorable to the verdict, accepting all

credibility choices and reasonable inferences that tend to support

the verdict.

Title

(b) defines a “machinegun” as “any

weapon which shoots, is designed to shoot, or can be readily

restored to shoot, automatically more than one shot, without manual

reloading, by a single function of the trigger.” (emphasis added).

Husain argues that his convictions on counts 3 and 4 of the

indictment (possession and transfer of five machineguns) were not

supported by the evidence because it was never established that

these guns would fire automatically by a single function of the

trigger.

Relying on the testimony of ATF Agent Cooney, Husain argues

that the guns in question do not fall within the above-quoted

statutory definition of machineguns. Specifically, Husain points

out that Agent Cooney testified that when he test-fired the five

guns in question, they would fire when the bolt was released and

6 went forward, without the trigger having been touched.1

In support of his argument, Husain quotes the following

language from a footnote in Staples v. United States,

, 1795 n.1 (1994): “That is, once its trigger is depressed, the

weapon will automatically continue to fire until its trigger is

released or the ammunition is exhausted. Such weapons are

‘machineguns’ within the meaning of the Act.” The evidence is

insufficient to prove that the guns were machineguns, Husain

argues, because there is no evidence that the guns would fire “by

a single function of the trigger.” Therefore, the evidence is

insufficient to sustain his convictions for the possession and

transfer of five machineguns.

At trial, Agent Cooney testified that the guns “are machine

guns under the federal definition. They shoot automatically more

than one shot without manual loading by a single function of the

trigger.” Agent Cooney further testified that the weapons had been

“intentionally modified” to permit automatic fire.

In our opinion, Husain’s argument, although perhaps clever,

proves too much. Husain essentially argues that his machineguns

fired more automatically than the statute requires. In any event,

as previously set forth, the agent expressly testified that the

machineguns he test-fired would “shoot automatically more than one

1 The witness testified that the gun began firing “before I could get my finger down to the trigger.”

7 shot without manual loading by a single function of the trigger.”

The jury was free to credit Agent Cooney’s testimony as it saw fit.

See United States v. Leahy,

, 634 n.12 (5th Cir. 1996).

A rational trier of fact could have found that the government

proved the essential elements of the offense charged beyond a

reasonable doubt.

B. DOUBLE JEOPARDY

Husain contends that his Fifth Amendment right to be free from

double jeopardy was violated by his convictions for both possessing

and transferring the same machineguns pursuant to

(o). In pertinent part, § 922(o) provides that “it shall be

unlawful for any person to transfer or possess a machinegun.”

Husain argues that the transfer counts “necessarily included

conduct consisting of possession.”

Generally, counts of an indictment are multiplicitous if a

single offense is charged under more than one count of an

indictment. United States v. Lankford,

(5th Cir.

1999). ”Multiplicity of an indictment must be raised as a defense

pursuant to Fed.R.Crim.P. 12(b) to be preserved for appeal.”

United States v. Stovall,

(5th Cir. 1987)

(citations omitted).

In the body of his brief, Husain initially states that a

double jeopardy claim raised for the first time on appeal is

reviewed for plain error. In a footnote, however, he provides that

8 he objected to the possession and transfer counts in the indictment

as duplicitous and multiplicitous. As such, he states that such an

objection was arguably sufficient to apprise the district court of

his double jeopardy claim.

In his motion to dismiss the indictment, Husain asserted that

“[t]he allegations of possession in Count one and transferring in

Count two are duplicious and multiplicious with respect to the

allegations of possession in Count three and transferring in Count

four of the indictment.” That is the entire argument, i.e., the

possession and transfer counts of February 1996 are duplicitous and

multiplicitous with respect to the possession and transfer counts

of March 1996. This objection clearly is without merit because (1)

the February possession count related to a separate machinegun from

the five machineguns alleged to be possessed in March; and

likewise, the February transfer count related to a machinegun

separate from those alleged to have been transferred in March. We

do not read Husain’s objection before the district court to state

the same argument he now makes (that the possession counts are

duplicitous or multiplicitous with respect to the transfer counts).

We believe his objection failed to sufficiently apprise the

district court of the specific argument Husain makes before us.

Having failed to properly preserve this issue (or show cause for

failing to do so), he may not now challenge his convictions as

multiplicitous. See United States v. Soape,

, 266 &

9 n.3 (5th Cir. 1999) (recognizing that this Court has consistently

declined to review this argument for plain error).

Husain also argues that his sentences for both the transfer

and the possession counts constitute multiple punishments in

violation of the double jeopardy clause. To determine whether

Congress intended to allow multiple punishments for possessing and

transferring the same machineguns in violation of § 922(o), we

apply the test announced in Blockburger v. United States,

,

(1932). “[D]ouble jeopardy is not implicated if

each offense at issue involves proof of at least one element not

required of the other.” United States v. Palella,

(5th Cir. 1988).

Although Husain did not make this particular objection in the

district court, a complaint with respect to the multiplicity of

sentences may be raised for the first time on appeal. See

Lankford,

. Thus, unlike his multiplicity challenge

to the counts of conviction, we may review his claim of multiple

sentences for plain error. Id.2

To establish plain error, a defendant must show the following:

2 Although the district court ordered all Husain’s sentences to be served concurrently, the record indicates (and the government does not dispute) that the court imposed monetary assessments on each of the separate counts of conviction. Under those circumstances, we have held that a defendant is not precluded from raising the claim of multiplicity of sentences for the first time on appeal. See United States v. Galvan,

(5th Cir. 1991).

10 “(1) an error; (2) that is clear or plain; (3) that affects the

defendant’s substantial rights; and (4) that seriously affects the

fairness, integrity or public reputation of judicial proceedings.”

United States v. Meshack,

(5th Cir. 2000)

(citation and internal quotation marks omitted).

Husain argues that his sentences for both transferring and

possessing the same machineguns under § 922(o) violate the double

jeopardy clause because the term “transfer” necessarily includes

“possession.” For purposes of the firearms chapter, Congress

defined “transfer” as including “selling, assigning, pledging,

leasing, loaning, giving away, or otherwise disposing of.”

(j). In the context of illegal possession of

firearms, we have recognized that possession may be either actual

or constructive. United States v. Smith,

(5th

Cir. 1991). “‘Constructive possession’” has been defined as

ownership, dominion, or control over the contraband itself, or

dominion or control over the premises in which the contraband is

concealed.”

(emphasis in opinion).3

Although it is clear that transfer of a machinegun involves

proof of an element not required for the offense of possession of

a machinegun, it is certainly arguable that the converse is not

3 In the context of a drug offense, we have looked to the following dictionary definition of “possess”–-“‘to instate as an owner . . . to have and hold as property.’” United States v. Morgan,

, 857 n.7(5th Cir. 1997) (quoting Webster’s Ninth New Collegiate Dictionary 718 (1984)).

11 true. Cf. Ball v. United States,

,

(1985) (holding that although the government may obtain

an indictment based on a single act that charges a felon with both

receiving and possessing the same weapon, a defendant could not

suffer two convictions or sentences for those offenses). Indeed,

the government admits that “it is necessary for Husain to possess

the firearms in order to transfer them,” which arguably constitutes

a concession that the offenses do not pass the Blockburger test.

Nonetheless, we are mindful that Husain must show that the error

was “plain or obvious.” United States v. Rios-Quintero,

(5th Cir. 2000). After much research, we have been unable

to find any definitive authority addressing whether transferring

and possessing under § 922(o) constitute separate offenses under

Blockburger.4 We cannot conclude that the error was plain.

Assuming arguendo that the error was plain, as set forth

previously, such error must also affect the defendant’s substantial

4 We have recognized that the Blockburger test is a rule of statutory construction and is not controlling if Congress has indicated a contrary intent--the intent to impose cumulative punishments. See United States v. York,

(5th Cir. 1989). Of course, Husain’s convictions for possessing and transferring are violations of the same subsection of a statute. As set forth previously, § 922(o) provides that “it shall be unlawful for any person to transfer or possess a machinegun.” The structure of § 922(o) does not indicate to us that Congress intended to separately or cumulatively punish both transferring and possessing the same machineguns. Additionally, the punishment for transferring or possessing under § 922(o) is identical. See § 924(a)(2) (providing that anyone who knowingly violates § 922(o) “shall be fined as provided in this title, imprisoned not more than 10 years, or both”).

12 rights. In Meshack, we stated that the third prong of the plain

error test generally requires a defendant to show prejudice.

. Prejudice may be shown in the context of a sentencing

challenge if the error resulted in a longer sentence.

In that

case, we opined that Meshack arguably could not show a violation of

his substantial rights because he had a lengthier, concurrent

sentence that was not challenged. See

We further opined that

even assuming his substantial rights were violated, we we would

not exercise our discretion to correct the error because it did not

seriously affect the fairness, integrity, or public reputation of

judicial proceedings. See

More specifically, we concluded

that the fourth prong of the plain error test was not met because

the defendant could “show no meaningful benefit he would receive

from vacating this sentence.”

Similarly, in the instant case, again assuming Husain has

shown plain error, it does not appear that he has shown that his

substantial rights were violated in light of the fact that the

district court sentenced him to a term of seventy-one months on

each of the five separate felony convictions–all to run

concurrently.5 Moreover, assuming Husain has shown that his

substantial rights were violated, as in Meshack, we decline to

exercise our discretion because he has failed to show that vacating

5 The district court also sentenced Husain to a concurrent twelve-month sentence with respect to his misdemeanor conviction for failure to keep proper firearms records.

13 two of his five, concurrent 71-month sentences would result in a

meaningful benefit to him. As such, we conclude that this claim

entitles Husain to no relief.

C. SUFFICIENCY OF EVIDENCE–WITNESS TAMPERING

Husain argues that the evidence is insufficient to sustain his

conviction for witness tampering in violation of

(b)(3), which provides that:

(b) Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to--

(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, parole, or release pending judicial proceedings;

shall be fined under this title or imprisoned not more than ten years, or both.

(emphasis added).6

6 The district court instructed the jury as follows:

For you to find the defendant guilty of this crime, you must be convinced that the Government has proved each of the following beyond a reasonable doubt:

First: That the defendant corruptly persuaded or attempted to corruptly persuade the person named in the indictment as a witness;

Second: That the defendant acted with the intent to prevent the communication to a law enforcement

14 Husain argues that there is no evidence that Morgan was a

witness in this case at the time of the offense of witness

tampering. This argument offers Husain no succor. As set forth

above, the statute prohibits, among other things, “corruptly

persuad[ing] another person”-–it does not use the term “witness.”

§ 1512(b) (emphasis added). Also, the statute provides that “an

official proceeding need not be pending or about to be instituted

at the time of the offense.”

(e)(1). In light of

the fact that a proceeding need not be instituted at the time of

the offense, it would be illogical to infer a requirement that

there be evidence that the person was a witness at the time of the

offense.

Husain next contends that the “evidence merely revealed that

[he] contacted Ray Morgan and asked him not to say anything to the

ATF about his involvement with machineguns.” There was no proof of

threats, force, bribery, extortion or other means of corrupt

persuasion evidencing his intent to obstruct or interfere with the

administration of justice.

In its charge, the district court provided the following

definition: “To act `corruptly,’ as that word has been used in

these instructions, means that the government must prove that the

officer or judge of the United States; and

Third: That such information related to the commission or possible commission of a federal offense.

15 defendant’s attempts to persuade were motivated by an improper

purpose. It also means to act deliberately for the purpose of

improperly influencing, or obstructing, or interfering with the

administration of justice.” Husain does not take issue with this

instruction on appeal.

At Husain’s trial, Ray Morgan testified that in September of

1998, ATF Agent Kirk Tinker interviewed him regarding firearms and

his relationship with Husain. Later that same day, Husain placed

a telephone call to Morgan. Prior to this phone call, it had been

approximately a year since he had contact with Husain. During this

phone conversation, it became apparent that Husain was under the

impression that the ATF had no evidence against him. Husain

instructed Morgan “not to say anything about his involvement” with

machineguns. Husain also informed Morgan that he had told the ATF

that the firearms in question were defective. After Morgan

informed Husain that he would not discuss the matter with him,

Morgan hung up the phone. Husain called again and reurged Morgan

“not to say anything.” Morgan terminated the call and paged Agent

Tinker. Husain called yet a third time but Morgan’s wife told

Husain that Morgan was not at home.

As the government asserts, the jury had before it evidence

that Morgan knew of Husain’s possession of machineguns and that

Husain knew of an investigation as early as April 11, 1996, when

his home was searched and firearms records were seized. The only

topic Husain broached during the phone call with Morgan in 1998 was

16 his possession and handling of machineguns. The evidence proves

that Husain instructed Morgan not to relate information with

respect to his offense conduct to ATF Agent Tinker. Moreover,

Husain informed Morgan that he had told the ATF that the firearms

were defective when he received them. When viewed in the light

most favorable to the government, a reasonable jury could believe

that Husain was attempting to corruptly persuade Morgan to

corroborate his story that the guns were defective. Although the

evidence is not overwhelming, we believe it is sufficient to show

that Husain attempted to corruptly persuade Morgan within the

definition given by the district court (i.e., to act deliberately

for the purpose of improperly influencing, or obstructing, or

interfering with the administration of justice). Cf. United States

v. Pofahl,

(5th Cir. 1993) (in the context

of determining whether a wife’s letter to her husband urging him

not to continue to cooperate with authorities constituted

obstruction of justice under U.S.S.G. § 3C1.1, this Court opined

that the wife’s letter appeared to be prohibited by § 1512(b)).7

D. ADMISSION OF EVIDENCE OF PRIOR BAD ACTS

Husain next argues that the district court erred in allowing

evidence that he had sold firearms to Abdulhady on prior occasions

7 The commentary to U.S.S.G. § 3C1.1 provides as an example of conduct which warrants an enhancement for obstruction of justice “conduct prohibited by

.” U.S.S.G. § 3C1.1, comment. (n.3(I)).

17 and that Ray Morgan previously had observed him in possession of

machineguns. We review this evidentiary ruling for abuse of

discretion. See United States v. Richards,

(5th Cir. 2000).

The government responds that the evidence was relevant in that

it demonstrated Husain’s knowledge and his intent to transfer

machineguns as well as his reasons for failing to maintain proper

records. Even assuming for purposes of this appeal that the

admission of the evidence was error, we are convinced that any

error was harmless because (1) the evidence of guilt is

overwhelming with respect to the convictions for possessing and

transferring the machineguns, and (2) the district court did charge

the jury that Husain was not on trial for any act, conduct, or

offense not charged in the indictment. See Richards,

(explaining that the erroneous admission of evidence requires

reversal only if the evidence had a substantial impact on the

verdict). Husain is not entitled to relief on this claim.

E. FAILURE TO INSTRUCT

Husain contends that the district court erred in failing to

instruct the jury regarding their consideration of Husain’s prior

bad acts. He concedes that he made no objection; therefore, this

issue is raised for the first time on appeal and will be reviewed

for plain error under Fed.R.Crim.P. 52(b).

Husain asserts that in United States v. Diaz, this Court held

18 that a district court committed plain error when it failed to give

a similar acts limiting instruction.

(5th Cir. 1978).

Husain’s reliance on Diaz is misplaced. In that case, we

determined that the failure of the trial court to sua sponte

provide a limiting instruction regarding the defendant’s

convictions constituted plain error. Here, the complained of

evidence consists of prior unadjudicated acts. Diaz therefore is

not controlling.

This Court has explained that “failure to give limiting

instructions is generally held not to be plain error.” United

States v. Parziale,

(5th Cir. 1991) (footnote and

internal quotation marks omitted). In Parziale, a case involving

the admission of prior bad acts, we concluded that there was no

plain error because the trial court had instructed the jury on the

burden of proof, explained the essential elements of each count,

and had emphasized that the “defendant is not on trial for any act

or conduct or offense not alleged in the indictment.”

Likewise, in the instant case, the district court provided

Husain’s jury with instructions very similar to those in Parziale.8

Husain therefore has not demonstrated that the district court

8 The district court charged Husain’s jury with respect to the burden of proof and the elements of the counts. The court also expressly instructed the jury as follows: “You are here to decide whether the Government has proved beyond a reasonable doubt that the defendant is guilty of the crimes charged. The defendant is not on trial for any act, conduct, or offense not alleged in the Indictment.”

19 committed plain error in failing to provide a limiting instruction

with respect to his prior bad acts.

F. NUMBER OF FIREARMS

Husain next contends that, at sentencing, the district court

erred in determining that his conduct involved a total of 27

firearms. The sentencing guidelines provide that if the offense

involves anywhere from 25 to 49 firearms, increase the offense

level by 5. U.S.S.G. § 2K2.1(b)(1)(E). We review a sentencing

judge’s application of the guidelines de novo and accept findings

of fact unless they are clearly erroneous. United States v. Rome,

(5th Cir. 2000).

The district court arrived at the figure of 27 based on the

following evidence at trial:

* in 1993, Ray Morgan allegedly observed Husain with 3 fully automatic firearms

* in 1994, Husain delivered 6 automatic firearms to Ray Morgan

* 12 firearms were seized from Husain in connection with his failure to maintain proper records

* 6 automatic firearms were seized from codefendant Abdulhady as a result of the investigation

Husain objected to this determination in the presentence

report (PSR). Citing the record, he makes the following arguments

challenging the factual finding:

Even if Ray Morgan is believed, there is no evidence that the six firearms, which are the subject of this prosecution, are different

20 from those that were exhibited to Morgan some five years earlier. In fact, it may well be that they were the very same guns that he sold to Husain. Nor is it evident that the three firearms possessed in 1993 were different from those allegedly brought to Morgan’s house in 1994. Moreover, Morgan testified that he test-fired only one of the six guns that Husain brought to him, so there is no evidence that the other eight were fully automatic (i.e., machineguns).

If a district court has relied on information in a PSR, the

defendant bears the burden of demonstrating that the information is

unreliable or untrue. Rome,

. If a defendant

proffers no rebuttal evidence, the facts contained in the PSR may

be adopted without further inquiry so long as there is an adequate

evidentiary basis.

Here, the district court relied on evidence from the trial and

the PSR, e.g., testimony of codefendant Abdulhady and witness Ray

Morgan. Such testimony constitutes an adequate evidentiary basis

for the district court’s determination. Thus, Husain had the

burden of rebutting such evidence.

The transcript of the sentencing hearing provides that Husain

made the same challenges to the finding of 27 firearms that are

quoted above. When Husain objected that the government had not

carried its burden of showing that there were actually 27 different

firearms, the district court inquired as follows: “Tell me what you

have, that [shows] they are different.” In response, counsel

stated that it was the government’s burden to adduce evidence that

21 distinguishes the weapons.

The court overruled Husain’s objections, ruling as follows:

And with respect to speculation about whether or not the firearms that were shown later were duplicates of firearms that were part of the offense conduct related to the crime in this case, the Court finds that a preponderance of the evidence supports the idea that these were separate weapons, given the amount of time between each of the events listed in separately identified paragraphs, and these separately identified events in terms of the weapons that were delivered and were shown to persons who testified in this case, in that the total number of 27 accurately reflects the number of weapons that were involved in this case and that were supported by the preponderance of the evidence in this case.

Husain argued before the district court (and now) that the

government had the burden of showing that there were 27 firearms.

He is correct to the extent that the government had the initial

burden of making such a showing. However, as set forth previously,

once the district court made a finding based on an adequate

evidentiary basis, it became Husain’s burden to come forth and

rebut it. The sentencing transcript indicates he failed to do so

because he relied on his mistaken belief that the government had

failed to shoulder its burden. Husain has not shown that the

district court clearly erred in crediting the testimony and

concluding that there were 27 firearms.

H. ACCEPTANCE OF RESPONSIBILITY

Husain argues that the district court erred in denying him a

reduction in his offense level for acceptance of responsibility.

22 We have reviewed a district court’s refusal to credit acceptance of

responsibility under three different (at least semantically)

standards: clear error, without foundation, and with great

deference. See United States v. Siebe,

(5th Cir.

1995). There appears to be no practical difference among them,

however.

In any event, the sentencing guidelines provide that

the “sentencing judge is in a unique position to evaluate a

defendant’s acceptance of responsibility.” Id.; U.S.S.G. § 3E1.1

(commentary).

Husain points to the fact that at the conclusion of the first

day of trial, he pleaded guilty to count five, which alleged

failure to keep proper records with respect to the firearms. Of

course, this ignores the fact that he put the government to its

burden of proof on the remaining counts of the indictment.

Although the “fact that a defendant may exercise his right to a

trial by jury is not a reason for denying the two points, . . . the

fact that a defendant has never admitted to violating the law is

sufficient reason.” Siebe,

. In his brief before

this Court, he argues that there was insufficient evidence to

sustain his convictions for possessing and transferring

machineguns. Such an argument indicates that he has not accepted

responsibility for the offense conduct. See United States v.

Becerra,

(5th Cir. 1998)(indicating that

defendant was not entitled to reduction for acceptance of

23 responsibility, despite whatever assistance he may have provided to

government pre- and post-trial, inasmuch as defendant's counsel

contended in closing argument that defendant was innocent and

defendant challenged sufficiency of evidence on direct appeal).

The probation officer noted in the addendum to the PSR that

Husain had yet to accept responsibility for the charged offenses,

and the district court adopted the factual findings in the PSR.

Moreover, the district court expressly found that Husain committed

obstruction of justice. Husain has not shown that this is one of

those "extraordinary cases" in which adjustments for both

obstruction of justice under U.S.S.G. § 3C1.1 and acceptance of

responsibility under U.S.S.G. § 3E1.1 would be appropriate. See

United States v. Rodriguez,

(5th Cir. 1991).

Under these circumstances, Husain, who had the burden of

establishing that he was entitled to the reduction, has not

demonstrated that the district court erred in denying him a

reduction for acceptance of responsibility.

G. Whether Additional Firearms Affected Offense Level

Finally, Husain asserts that the district court erroneously

sustained the following objection by the government at sentencing:

“The United States objects to the failure of the report to reflect

the additional machine guns that were testified about as having

been exchanged between the defendant and [codefendant Abdulhady].”

The Court then responded that it:

24 believe[d] that the United States is right on that issue in that those additional firearms should have been included in the count, but even adding 18 to that 27, that still brings it to a total of [45], which doesn’t change the number of points that would be attributable to that number of firearms under [the guideline], since he was already above 25 and Subsection E is 25 to 49, which adds five points to the offense level, he’s still within that same range, so it doesn’t have any ultimate impact on the offense level, but it is information that I believe should have been properly included within the report.

As set forth previously, the guideline in question provides

that if the offense involved between 25 and 49 firearms, increase

the offense level by 5. See U.S.S.G. § 2K2.1(b)(1)(E). The PSR

provided that there were 27 firearms involved and the government

objected, arguing that the evidence demonstrated that an additional

18 firearms were involved. As quoted above, Judge Gilmore

sustained the objection, but noted that adding 18 firearms would

bring the amount to 45, which does not affect the offense level.

As previously determined, Husain has not shown the district

court clearly erred in finding that 27 firearms were involved.

Accordingly, because 18 additional firearms makes no difference in

his offense level, any error would be harmless. See United States

v. Ramos,

, 1158 n.27 (5th Cir. 1995) (explaining that

any error with respect to increase in offense level for possession

of firearms would be harmless because the guideline range remained

25 the same).9

For the above reasons, the district court’s judgment is

AFFIRMED.

9 We also reject Husain’s argument that the district court erred in denying his motion for new trial without a hearing. We conclude that the district court did not abuse her considerable discretion for the following reasons: (1) the “newly discovered evidence” of a memo was not material; (2) an apparent lack of due diligence with respect to obtaining C.E. Anderson’s report; and (3) the impeachment evidence probably would not have produced an acquittal. See United States v. Sullivan,

(5th Cir. 1997) (discussing standard for review of motion for new trial).

26