Unpublished Disposition, 914 F.2d 263 (9th Cir. 1990)

MEMORANDUM^** 

Michael J. Brenner pleaded guilty to possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g) (1), 924(a) (2). The district court applied the Sentencing Guidelines and sentenced Brenner to 27 months in prison and three years of supervised release. The district court refused to give Brenner a two point reduction for acceptance of responsibility under Sec. 3E1.1 of the Guidelines, or a four point reduction for use of the firearm solely for sport or recreation under Sec. 2K2.1(b) (2) of the Guidelines. Brenner appeals the sentence. We affirm.

Brenner argues first that the district court used inappropriate factors in denying him the two point reduction for acceptance of responsibility under Sec. 3E1.1 of the Guidelines. Brenner claims that the district court relied on his possible future criminal conduct, his past criminal record, and the fact that he may have lied about the ownership of the pistols in denying the adjustment. Brenner misunderstands the district court's ruling.

Whether or not a defendant has accepted responsibility is a factual determination, left largely to the discretion of the district court. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990). A district court may not weigh improper factors in this analysis. Incapacity for rehabilitation and refusal to accept responsibility for crimes not charged may be improper factors, as other circuits have held. See United States v. Braxton, 903 F.2d 292, 296 (4th Cir. 1990) (rehabilitation not a proper factor); United States v. Perez-Franco, 873 F.2d 455 (1st Cir. 1989) (adjustment cannot be denied for failure to admit crimes not charged because of fifth amendment concerns). We are not faced with these issues here. The district court simply made a credibility determination and decided that Brenner had not "demonstrated sincere remorse." Sentencing Guidelines, Sec. 3E1.1, Background Notes. Credibility determinations are central to the district court's decision as to whether the acceptance of responsibility adjustment should be made. See United States v. Grimes, 899 F.2d 731, 732 (8th Cir. 1990); United States v. Harris, 882 F.2d 902, 905 (4th Cir. 1989); United States v. Thomas, 870 F.2d 174, 176 (5th Cir. 1989). In making this determination the district court need not disregard a defendant's criminal history. Nor must the court disregard its determination that the defendant was not truly remorseful and might well commit the same crime again. These are the kinds of decisions that district court judges must make every day. As to the district court's findings regarding Brenner's statement to the probation officer, the court simply held that the statement alone did not merit a two-point reduction. The district court did not make any improper credibility determinations. The district court did not err in denying Brenner the two point adjustment for acceptance of responsibility.

Brenner also argues that the district court erred by refusing to adjust the sentence to account for use of the pistols for sport or recreation, pursuant to section 2K2.1(b) (2) of the Guidelines.¹  Brenner claims that he is entitled to this adjustment because he was shooting into a road-side embankment and was not charged with any crime in relation to the use of the weapons. The district court held that shooting pistols from the inside of a car that is pulled over on the side of a public highway on a crowded Memorial Day weekend is not use for sport or recreation as contemplated by the Sentencing Commission. We agree. Brenner's conduct was reckless and dangerous. The fact that he was not charged with any crime besides possession of the pistols does not make his conduct sporting or recreational. Brenner has not met his burden of proving his entitlement to this reduction in offense level. United States v. Howard, 894 F.2d 1085, 1089-90 (9th Cir. 1990).

AFFIRMED.