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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-30405
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WARDELL HELMSTETTER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
( June 7, 1995 )
Before POLITZ, Chief Judge, EMILIO M. GARZA and STEWART, Circuit
Judges.
POLITZ, Chief Judge:
Convicted of being a felon in possession of a firearm,1
Wardell Helmstetter appeals his conviction and sentence. Finding
neither error nor abuse of discretion, the conviction and sentence
are affirmed.
118 U.S.C. § 922(g)(1).

Background
Several officers of the New Orleans police force entered the
apartment of Helmstetter, a convicted felon, to execute an arrest
warrant for his suspected role in the shooting of a federal
witness. Helmstetter was handcuffed and placed in a chair in the
living room of the apartment. Two officers remained with
Helmstetter while the others began a protective sweep search of the
apartment.
One of the officers with Helmstetter observed what appeared to
be the magazine of an automatic weapon protruding from under the
chair in which Helmstetter was seated. She immediately seized the
weapon which proved to be a Cobray Mac-11 semiautomatic pistol with
19 rounds in the magazine.
Prior to his trial for being a felon in possession,
Helmstetter moved to suppress the weapon as the tainted product of
a warrantless search. The district court denied the motion. The
jury found Helmstetter guilty. He challenges his conviction solely
on the grounds that the weapon should have been suppressed.
At sentencing Helmstetter sought a downward adjustment in the
offense level calculation for his acceptance of responsibility. He
contends that his counsel adequately admitted his guilt during
closing argument to warrant a finding that he had accepted
responsibility for the offense. The district court rejected this
contention and departed upward from the sentencing guideline range
of 37 to 46 months, sentencing Helmstetter to 60 months
imprisonment, opining that the type of firearm involved and
2

Helmstetter's history of weapon and drug offenses justified the
upward departure. Helmstetter appeals both aspects of the
sentencing procedure.
Analysis
In challenging his conviction, Helmstetter maintains that
because he was "arrested, subdued and handcuffed" he could not have
readily reached the weapon and, thus, the officer's removal of the
weapon from under his chair amounted to a warrantless search and
seizure. This contention lacks merit. In Chimel v. California,
the Supreme Court held that a lawful arrest permits a warrantless
search of the area "within which [the arrestee] might gain
possession of a weapon or destructible evidence."2 The limited
restraint placed on Helmstetter impeded but did not prevent him
from reaching the readily accessible weapon.3 In taking possession
of the weapon the arresting officers did not conduct an illegal
search and the court did not err in declining to suppress the
evidence.
Helmstetter next challenges the district court's refusal to
give him credit for acceptance of responsibility under section
3E1.1 of the sentencing guidelines, notwithstanding his trial
counsel's admission of guilt during closing arguments. Application
Note 2 to section 3E1.1 states that the acceptance of
2395 U.S. 752, 763 (1969).
3United States v. Sanders, 994 F.2d 200 (5th Cir.) (noting
that handcuffs limit, but do not prevent, an arrestee's ability
to reach surrounding objects), cert. denied, 114 S.Ct. 408 & 114
S.Ct. 608 (1993).
3

responsibility adjustment "is not intended to apply to a defendant
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."4 Moreover, we have
upheld a denial of this adjustment when the record contains, as
here, no statement of remorse or contrition by the defendant.5 The
trial court did not err in refusing to grant this offense level
reduction.
Finally, Helmstetter contends that the sentencing judge erred
in failing to assign adequate reasons for the upward departure.
Albeit Spartan, the record contains reasons sufficient to support
the 14-month upward departure. The court reflected upon
Helmstetter's prior record with weapon and drug offenses and then
focused on the specific weapon involved, a semiautomatic pistol
with a large magazine capacity which falls within a class of
weapons appropriately deemed paramilitary in style and operation.6
The possession of this type weapon by a felon with an extensive
criminal history of drug and weapons violations supports the upward
4U.S.S.G. § 3E1.1 cmt. n.2 (1994). See United States v.
Maldonado, 42 F.3d 906 (5th Cir. 1995) (upholding denial of
acceptance of responsibility adjustment when defendant went to
trial to challenge admissibility of evidence, but otherwise
admitted possession of it).
5United States v. Nevarez-Arreola, 885 F.2d 243 (5th Cir.
1989).
6See United States v. Medina-Gutierrez, 980 F.2d 980 (5th
Cir. 1992) (finding semiautomatic handguns to be military-type
weapons).
4

departure herein.7
The conviction and sentence are AFFIRMED.
7See United States v. Robinson, 898 F.2d 1111, 1118 (6th
Cir. 1990) ("We believe that the district court may take into
account the nature of the firearm, whether it is automatic and
intended to be used in the drug trade."); United States v.
Thomas, 914 F.2d 139 (8th Cir. 1990) (upholding upward departure
based on dangerousness of weapon coupled with fact that firearms
were loaded and the assaultive nature of past offense); United
States v. Tyler, 7 F.3d 228, 1993 WL 385135 (4th Cir. 1993)
(unpublished), cert. denied, 114 S.Ct. 980 (1994);
Medina-Gutierrez (noting that semiautomatic handguns are
military-type weapons warranting upward departure under section
2K2.2 cmt. n.2 (now basically section 2K2.1 cmt. n.16)).
5