NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0406n.06 No. 11-6493 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNITED STAT ES O F AMERICA, ) ) P laintif f-App ellee, )

) ON AP P EAL FR OM THE v. ) UNITED STAT ES DIS TRICT ) COURT F OR THE E ASTERN LEVAR WILLIAMS, ) DISTRICT OF TENNESS EE ) Defendan t-Appellant. ) )

BEFORE: M ERRITT, S UHRHEINRICH and DONALD, Circ uit Jud ges. SUHRHEINRICH, Circuit Judge. Def endant L evar Wil liams was convicted by a jury of conspirac y to distribute at least fifty g rams of cra ck coca ine and possessing with intent to distribute

cra ck coca ine, and sentenc ed to 360 months’ imprisonment. He challeng es both his conviction and
sentenc e. We AF F IRM. I. Background On Dec ember

31, 2008, Cleveland, Te nnessee Police Offic er Ty ler Pride initiated a tr aff

ic stop of a car wi t h a n o n fu n ct ioning rear left brake li g ht. Def endant was the driver. He identified h i m s el f to Pride as Solomon Wil liams. Pride thought Def endant seeme d unusually nervous and asked him to g et out o f t h e ca r. Def endant attempted to flee but stopped afte r being tased. Def endant ha d a bottle containing 3.9 g rams of c rac k.

-1-I n ear ly 2009, Clevel and Nar cotics Detec tive Dea n Be verly rec eived a letter from Anna Smit h conce rning drug deale rs. Be verly contac ted Smit h, who ag ree d to become an informant and
to make controlled purcha ses of cra ck. Smit h told Be verly that she had been addicted to cra ck

coca ine and wa s familiar with individuals who wer e selling the drug

. Smit h boug ht drug s from Def endant on a number of occa sions. Offic ers had a proce dure for controlled drug transac tions. The informant would call the tar g et to se t up the drug deal. Offic ers

rec orded the calls. Offic ers would sear ch t h e informant and his or her vehicle prior to the
transac tion, equip t he informant with an au dio rec ording device and a separ ate audio transmitting device (for

rea l-time monitoring), a

nd g ive the informant cash for the transa ction. Offic ers would follow the informant to the meeting and monitor the transaction. After war ds, the office rs would
meet wi th the informant, retrie ve the narc otics, sear ch the informant ag ain, debrie f and pay the individual. The drug s would then be taken to the evidenc e room at the Cleveland Police Depa rtment for proce ssing. Audio or video re co rding s from the eleve n transac tions betwee n Smit h and Def endant we re a dmitted into evidence a t trial without objection. 1 On Dec ember 23, 2009, office rs applied for and obtained a wireta p order

. DEA Ag ent Fr ank
L edfor d prepa

red the supporting a ffidavit. L edfor d discussed the sourc e of his informa tion: This aff idavit is based primari l y o n my revie w of materia ls provided by ag ents and office rs as well as discussions with CPD office rs and Sammy McNe lley , wh o has been a Task For ce Offic er with the DEA in Chattanoog a, Tenne s s ee . [ ] I have also persona lly participa ted in some phases of the investiga tion, althoug h I was not persona lly prese nt for the majority of drug purcha ses and other activity discussed here in. I rely extensively on analy sis of re p o rt s wr itten by other feder al, s tate, and local law enfor ceme nt office rs and employ ees assig ned to this case ; the revie w of telephone toll re cords a

nd pen reg ister data; revie w of text messag es rec eived f rom

The re cording s themselves we re admitted into evidence and the tra nscripts wer e admitted 1 for identific ation purposes. -2-the execution of a fede ral sear ch war rant for such content; and revie w of debrie fing s of controlled sour ces of

information and other

cooper ating witnesses.
I n a footnote L edfor d explained that one source was Sammy McNe lly , a former ag ent with 2 the 10th J udicial Drug Task For ce, who had been terminated from his employ ment for cau s i ng “dissension” a

nd improper c ell phone use. The footnote explains that: Sammy McNe lley had orig inally prepa red an aff idavit for the interce ption of wire a nd elec tronic communications in this case . He wa s rec ently terminated f

rom his employ

ment with the 10th J udicial Drug Task For ce, which disqualified him from further participa tion as a DEA Task For ce Offic er. My understanding is that he was terminated for causing “dissension” within the 10th J udicial Drug Task For ce and for improper use of a Task For ce- issued cell phone. I do not have rea son to believe that McNe lley has been dishonest or committed a crime. At this writing , McNe lley is appea ling the decision to terminate his employ ment. McNe lley was the DEA “ca se ag ent” for th e i n v estig ation discussed here in and I have relied extensively on information provided by h i m fo r t h i s aff idavit. I n my opinion, the integ rity of all aspec ts of the in

v e s ti g a ti o n , in c lu d in g the matters discussed in this aff idavit, is sound.
L edfor d further explained that a wireta p order was neede d to help identify “t h e en t i re org anizati o n o p er ating in Cleveland and Chattanoog a, Tenne ssee, and elsewhe re;” stash houses,

source s of supply , and the specific s of the transporta tion o f co n t ro l l ed substances; and “coconspirator s involv ed in the distribution of controlled substances.” L edfor d detailed why other alterna tive inves t i gat i v e techniques wer e ineffe ctive. For example, L edfor d stated that while “Phy sical Surveillance ” “had been proven useful in verify ing sever al meeting s and corr oborating CI i nformation,” it was “of limit ed value” beca use “[m] uch of the activity continues to take plac e i n neig hborhoods, apar

tment b u i l dings populated by friends and other individuals who WI L L I AMS knows and who could aler t WI L L I AMS of the prese nce of surveillance units if detec ted.” L edfor d

The a ffidavit spells the surna me “Mc Nelley .” 2 -3-stated that “Use of Gr an d J ury Subpoenas” would not be helpful beca use Def endant and others “would resor

t to violence and intimi dation ag ainst persons they know to be cooper ating .” Simi larly , “I nterview s of S ubjects and Associates” “would produce i n s u ff i cient information” because these individuals “would be u n d er no obliga tion to speak with authorities,” and might divert the investiga t i o n wi th untruths. Such interviews could also aler t the members of the investiga tion. “Sear ch war

rants” had been used, but g iven the siz e and scope of the suspected conspirac y , sever al locations wer e likely and the wireta p was nece ssary to help identify these other locations. L edfor d explained that one “Unde rcove r Offic er[]” had been used to purcha se drug s from Def endant, but she had not been able to attain a level of authority in the org anization and so was not able to identify all the m ember s or sources of the drugs. “Cooperating I ndividuals” had been us ed and had provided useful information, “but not in depth to the point whe re the entire scope of the org anization c ould be reve aled to law enfor ceme nt.” L edfor d also discussed the limit ed utilit y of controlled purcha ses, telephone r ecor ds, pole ca mera s, and trash pulls. Some of the rec orded calls wer e betwee n Def endant and codef

endant Demetr ius B y

rd, one of Def endant’ s primary source s of coca i n e. By rd also later cooper ated with the g overnme nt. On J anuar y 22, 2010, per the wireta p conver sation, By

rd planned to t ra v el from Chattanoog a to Cleveland to deliver cra ck to Def endant. He was stopped twice by police on the way , and the second time the office rs found approximately five g rams of cra ck on By rd. As a result, the office rs obtained

a sear ch war

rant for Def

endant’ s re s i dence

. They also g ot an arr est war rant for Def

endant, and

arr ested him a

t codef endant Adr ius Hickey ’s house. At Hickey ’s house, office rs found Def endant in Hickey ’s re stroom with 2.5 gr ams of coc aine ba se.

-4-On Mar ch 9 , 2 0 1 0 , a fede ral g rand jury indicted Def endant and others for conspiring to distribute at least fifty g rams of cra ck coca ine betwee n Dec ember 2008 and J an u ar y 2 0 10, in

v i o l at i on of 21 U.S.C. §§ 841(a) (1) & (b)( 1)(A) (Count One)

. Def endant was also char g ed with possessing with intent to distribute cra ck coca ine on Dec ember 31, 2008 (Count Two), and thirteen distributions of crack coca ine between J une 24, 2009, and J anuar y 26, 2010, all in violation of 21 U.S.C. § 841(a)(1) , (b)( 1)(C) ( Counts Three throug h Fifte en).
I nitially , Def

endant a g ree d to plead g uilty to a lesser -included offe nse of Count One (i.e . a drug -traf ficking conspirac y with a lesser quantity ), and the Gove rn m ent ag ree d to dismiss the

rema ining counts. On J uly 15, 2010, Def endant pleade d g uilty pursuant to this written ag ree ment. Howeve r, at the initial sentenc ing hear ing on November 18, 2010, during all ocution, Def endant informed the court that “truthfully I am not this big time drug deale r,” that “I was used as a scape g oat
to save Cleveland city police depar tment,” beca

use he had previously acc used office rs of assaulting him. As a re sult, the district court reje cted De fenda nt’s g uilty

plea a nd set the ca se for

trial. 3 Def endant fil ed a m o t ion to suppress evidenc e obtained pursuant to the court-a uthorized wi reta p, arg uing that the aff

idavit filed in support of the wireta p application failed to m ee t t h e

nece ssity require ments of 18 U.S.C. § 251 8

. De fe n d ant also alleg ed that the wireta p aff idavit improperly relied on information from McNe lly , who lacke d cre dibilit y beca use he had been fired. The mag istrate judge found that the Gover nment had established nece ssity and that t h e af fi d avit contained sufficie nt and reliable evidenc e to authorize the wireta p, and there fore rec ommended that information obtained from the wireta p not be suppressed. The district court ag ree d and denied the motion. The court also found that the aff iant’s relianc e on information provided by the office r who

Def endant r ead a

letter he had pre pare d to show the court his “true char acte r.” 3 -5-had been fired did not undermine the reliability of the aff i d avit, beca

use the former office r’s

cre dibilit y

had not bee n called into question by his termination. After a three-da

y jury trial, Def endant wa s convicted of

Counts One throug h Four teen and acquitted of Count Fifte en. T h e Go v er n ment’s proof included testimony from six teen witnesses, including three co -conspira tors and two individuals who had purcha sed drug s direc tly from Def endant; seventy -three audio rec ording s of Def endant arr ang ing or eng ag ing in drug distributions , four video rec ording s of Def endant distribu t i n g drug s, and thirteen bag g ies of cra ck coca ine purcha sed during controlled buy s or re cover ed fr om Defe ndant when he was a rre sted. Smit h testified at trial that she p u rc hased crac k coca ine from Def endant eleven tim es, and that she was subject to a protocol for eac h transac tion. TBI Ag ent Kim Har mon, working underc over and acc ompanied by a confide ntial informant, purcha sed cra ck coca in e fr o m Defendant during a

rec orded transac tion. Codefenda nt Adrius Hickey testified that he sold food stamps in exchang e for

cra ck coca ine. I n one audio rec ordi n g, De fendant ref used to acc ept food stamps for the cra ck

coca ine, but said he would acc ept them for hy drocodone

. Hickey testified that he introduced Smit h to D efe ndant. Demetr ius B y rd explained the terminolog y he and Def endant used in c onversa tions
caug ht in the wire interce pts to set up drug transac tions and testified that he and De fe ndant met

numerous times to conduct drug transac tions. By rd testified that he was stopped two times by police

on J anuar y 22, 2010, while he was trave ling from Chattanoog a to Cleveland to deliver cra ck coca ine
to Def endant. Detec tive Be verly testified that afte r this incident, office rs obtained a sear ch war rant for Def endant’ s residenc e and also an arr est war rant for Def

endant. They found him at Hickey ’s house, in the restroom with 2.5 g rams of coca ine base. Elli Roberson, another cooper ating witness, testified t hat he sold cra ck to Def endant five or six times in 2008 to ear ly 2009. And chemica l

-6-analy sts from TBI testified that they conducte d a number of differ ent tests on the substances derive d

from the investig ation, all without objection from Def endant. Def endant objected to his prese ntence repor t beca use he did not rec eive a two-leve l reduc tion for a cce ptance of re sponsibili ty . At sentenc ing, the district court denie d the objection, stating : [F]rom the defe ndant’s rema rks [at his orig inal sent encing hear ing] the defe ndant impressed the Court as someone wh o wa s minimi zing their involvement and was sug g esting that he had been fra med by other people involving things for rea sons that he ar ticulated. The commentar

y say s that this adjustment should be provided to a defe ndant who demonstrates that they have truthfully admitted the conduct comprising the offe nse and truthfully admitted or not falsely denied additional rele vant conduct for which the defe ndant is acc ountable. Ba sed upon the defe ndant’s actions befor e this Court during his sentenc ing, the Court conclude s that h e has not acc epted responsibility for his actions and the defe ndant’s conduct from that time until today does not clea

rly demonstrate a cce ptance of re sponsibili ty

. The co u rt sentenc ed Def endant to an ag g reg ate sentenc e of 360 months’ imprisonment, within and at the bottom of the Guidelines rang e applicable to him as a car eer offe nder, based on two prior fe lony

drug convictions. Def en d ant appea ls. First, he challeng es the court’s denial of his motion to suppress the evidenc e obtained pur suant to the court- authorized wireta p. He also claims that the evidenc e wa s
not sufficie nt to support his convic t i ons. L astly , he objects to the court’s failure to g rant him a reduc tion for ac cepta

nce of responsibility

.

II. Analysi s A. Wiret ap The wiretap st atute, 18 U.S.C. § 2518(1)( c), provides that “[e]ach application for an order authorizing or approving the i nterc ept i o n o f a wi re . . . communication” must include “a full and

-7-complete statement as to whether or not other investiga tive proce dures have been tried and failed or

why they rea sonably

appea r to be unlikely

to succe ed if tried or

to be too dang erous.” Def endant challeng e s th e wireta p order on two g rounds. First, he arg ues that the Gover nment failed to prove nece ssity

. Second, he claims that the aff idavit in support of the interce pt order was based on insuff

icient or unre liable evidenc e and tha t the order should not have issued. The “nec essity ” require ment is desig ned “to assure that wireta pping is n o t re sorted to in situations wher e traditional investiga tive techniques would suffice to expose the crime” and to
preve nt wi re t ap ping from being “routinely employ ed as the i nitial step in criminal i nvestig ation.” United States v. Landmesse r , 553 F.2d 17, 19–20 (6th Cir.1977) (quoted cases omi tted). “All that is require d is that the investiga tors g ive serious consideration to the non-wire tap techniques prior to
ap ply ing for wireta

p authority and that the court be informed of the rea sons for the invest i gat o rs ’ belief that s u ch n o n -wire tap techniques have been or will likely be inadequa te.” United States v. Alfano , 838 F.2d 158, 163-64 (6th Cir.1988) (interna l quota tion mar ks and citation omitted ). See also United States v. Corrado , 227 F.3d 528, 539 (6th Cir. 2000). This court has explained that “the
purpose of the nece ssity require ment ‘is not t o fore close elec tronic surveillance until ever y other imag inable method of investiga tion has bee n unsucce ssfully attempted, but simply to inform the issuing judge of the difficulties involved in the use of conventional techniques

. ’” Id

. (quoting Landmesser , 553 F.2d a t 20). We r eview the district c ourt’s ruling on a motion to suppress a wire tap for c lear err or as to the fac tual finding s and de novo as to the questions of law. United States v. Stewart , 306 F.3d 295, 304 (6th Cir. 2002). The “issuing judge ’s” deter mination is entitled to “g rea t defe renc e.” Corrado , 227 F.3d a t 539.

-8-1. Nec essity

Def endant claims that law enfor ceme nt officia ls failed to establish nece ssity for the wireta p beca use they alre ady had overw helming proof ag ainst him and his coconspirators. We disag ree , for the re asons ar

ticulated by

the district court: Her e, the 63-pag e aff

idavit plainly and plausibly descr ibed p roper investiga tory ends which could not be re as o nably further ed simply throug h the traditional investiga tory techniques employ ed to d a te.

. . . [T] he aff

idavit emphasized that a wire tap was the only mecha nism with a re asonable likelihood of identify ing Def endant’ s ent i r e d

rug traffi cking organization. Whil e controlled purcha ses had implicated Def

en d ant as a distributor, and traditional surveillance had identified sever al po s sible supplies, the aff idavit stated office rs wer e unsure of many of the specific s of the traff

icking network, such as wh er e stash houses wer e located and prec isely who supplied Def endant. The aff

idavit further reve aled that office rs did not aim simply at prosec uting Def endant, but at making prosec ut ab l e ca ses ag ainst Def endant, his co-c onspirators, and his suppliers, some of whom the g overnme nt had n o t been able to positively identify throug h traditional means. I n short, whi l e traditional technique s, such as the use of confide ntial informants, surveillanc e, and interviews with associate s, wer e able to uncover much o f the street- level criminal activity of the conspirac y , they wer e not able to peer into the highe r-or der opera tional interac tions betwee n Def

endant and his co-c onspirators and suppliers. Def endant’ s objectio n i gn ores this rea lity insofar as it stresses law enfor ceme nt officia ls could have arr ested and prosec uted Def endant well befor e seeking the wireta p. [Footnote omitted] As Def endant’ s arg ument implicitl y acknowl ed ges, the office rs used sever al traditional investiga tive techniques and contemplated others befor e seeking the wireta p order

. T h e aff

idavit

car efully informed the issuing judge why non-wire tap techniques had been inadequa te. See Landmesser , 553 F.3d at 20; Corrado , 227 F.3d at 528; Alfano , 838 F.2d at 163. Cf. United States

v. Rice , 478 F.3d 704, 707-09 (6th Cir. 2007) (upholdin g t h e d i s trict court’s g rant of a motion to
suppress a wireta

p o rd er beca

use the aff

iant included a rec kless, misleading statement about the
g ener al ineffe ctiveness of phy sical surveillance and offe red no evidenc e that any other investiga tive technique was used or even seriously considere d). Cf. United States v. W olcott , 483 F. App’x 980, (6th Cir. 2012) (obser

ving that while “[s] uspicions of a conspirac y th at ex t en d s bey ond a few

-9-identifiable individuals will not alway s war rant the authorization of wireta p authorit y , ” t h e g overnme nt had ade quately shown nec essity

for wir etaps on the defe ndant’s cellphones wher e the confide ntial informant wa s a buy er a nd codef endants did not offe r informa tion or leade rship roles in the conspirac y

).
I n light of the “g rea t defe renc e ” owed the issuing judge and the aff idavit’s detailed discussion of ot h er i nvestig ative techniques, the district court did not err in finding that the nece ssity require ment was satisfied. 2. Reliance on Mc Nelly Def endant alleg es that the aff idavit in support of the wireta p order prepa

red by L edfor d was i n s u fficient or unreliable beca use L edfor d relied on Ag ent McNe lly

. Def endant arg ues that
L edfor d’s failure to proper ly investiga te the rea son for McNe lly ’s firing was rec kless, and that as a result L edfor d’s af

fidavit lacke d probable cause . This arg ument must be reje cted. First, L edfor d did not make a false statement; he disclosed that some of the information he rec eived came from an office r who had been fired. Second, L edfor d pointed out that he rec eived other independe nt information that established probable cause . As this
court explained in Alfano , “[t] he basic standards for a wireta p are simil ar to tho s e fo r a s ea rc h

war rant, but there also must be strict compliance with Title I I I .” Alfano , 838 F.2d at 161. Although Title I I I “wa s enac ted for the purpose of reg ularizing and co n t ro l l ing the issuance of war rants for wireta ps,” there is no specific formula that must be met for a war rant.” Id. Rather, the evidenc e
must be judge d on the totality of the circ umstances, i.e., “whe ther there is probable cause to believe that evidenc e of a

crime w ill be uncover ed.” Id. at 161-62. L edfor d’s aff

idavit met this standard. As the Gover nment points out, Def

en d an t h imself acknow ledg es the numerous controlled purcha ses and other investiga tive activity offe red in support
-10-of the Gover nment’s application for authorization to interce pt wire and elec tronic communications

o v e r his telephone. The controlled purcha ses, along with surveillance conducte d prior to the wireta p, and pen reg ister data detailed in the aff idavit, which wer e all independe nt of McNe lly ’s information, provided probable cause . And L edfor d stated that he ref ere nced numerous source s of information, including his own participa tion in the investiga tion, his revie w of audio rec ordings o f co n t rolled buy s, and re view of de briefing s of conf idential informants and c oopera ting witnesse s. Def endant failed to prese nt any information establishing that McNe lly provided inacc urate information to L edfor d. As the district court held, to conclude that “McN elly ’s termination for cell 4
p h o n e ab use and g ener al contentiousness meant it was unrea sonable for SA L edfor d to rely o n McNe lly to provide acc urate information “would be an exercise of pure specula tion.” Thus, having failed to show

any fac tual defic iencies w ith the affida vit, his arg ument reg arding lack of nece ssity is reje cted. Cf. United States v. Rice , 478 F.3d 704, 707-11 (6th Cir. 2007) (holding that the district
court did not err in suppressing the fruits of the wireta p wher e it deter

mined that cer

tain statements about phy sical surveillance in the aff idavit wer e misleading and rec klessly made, and without them, the af fidavit failed to mee t the nece ssity require ment).

I n his brief, Def

endant claims that had L ed fo rd spoken with McNe lly ’s superiors or 4 persona lly revie wed his f ile, he would have lear

ned of sever al dece itful pr actice s by McNe lly , and cites “Ex hibit to Memorandum in Support of Motion To Suppress R. No. 331, PAGE I D # 943.” Recor d E n t ry 331 is Def

endant’ s memorandum in support of hi s motion to suppress. There is no exhibi t attache d to the me mo r a n d u m. The memorandum states mere ly that “[w]hi le the United States disclosed its understanding of M r. M cNe lley ’s situation on Dec ember 23, 2009, subsequent investiga tio n o r events may have shown aff iant’s understanding to be mistaken

. . . cer tainly , subsequent investiga tions might have re v ea l ed evidenc e of dishonesty and/or criminal behavior , including the falsifica tion of evidenc e re lated to this case.” -11-B. Su ff iciency of Evid ence Def endant arg ues th at t h e Go vernme nt did not prove bey ond a rea sonable doubt that he conspired to distribute 50 g rams or more of cra ck coca ine an d t h at he distributed cra ck coca ine twelve times, as f

ound by the jury

. We must deter

mine “whe ther, afte r viewing the evidenc e in the lig ht most favorable to the
prosec ution, any rational trier of fa ct could have found the e ssential elements of the crime be y ond

a rea sonable doubt.” Jack son v. Virginia , 443 U.S. 307, 319 (1979). To establish a drug conspirac y , under § 846, the g overnme nt must prove, bey ond a rea sonable doubt, “(1) a n ag ree ment to violate drug laws, (2) knowledg e and intent to join the conspirac y , and (3) participa tion in the conspirac y .” United States v. Gibbs , 182 F.3d 408, 420 (6th Cir. 1999) (interna l quotation marks and citation omitted). “To establish a v i o l at i o n o f § 841(a) (1), the g overnme nt must prove the following elements: “(1) knowing (2) possession of a controlled substance (3) with intent to distribute.” United States v. Mack

ey , 265 F.3d 457, 460 (6th Cir. 2001) (interna l quotations marks and citations omitted). First, De fe n d an t co m p l ai n s t h at S m i t h , wh o wa s the primary witness for most of the distribution counts, l acke d cre dibilit y beca use she wa s a paid infor

mant and admitted that she ha d b ee n using cra ck herse lf while acting as a confide ntial informant. I n addition, she was n ev er proper ly sear ched befor e or afte r the contro l l ed b u y s beca use no fema le office r was prese nt to conduct a proper

sear ch. De fenda

nt’s criticisms are unavailing

. To beg in with, “it must be noted that ‘attac ks on witness cre dibilit y are simply challeng es to the quality of the g overnme nt's evidenc e and not to the sufficienc y of the e vidence .’” Martin v. Mitche ll , 280 F.3d 594, 618 (6th Cir. 2002) (quoting United States v. Adamo , 742 F.2d 927, 935 (6th Cir.1984)). And, “it is well-settled that on appea l, there ‘is no place

. . . for arg uments reg arding a g overnme nt witness' s lack of cre dibilit y .’”
-12-United St ates v. T alley , 164 F.3d 989, 996 (6th Cir.1999) (quoting Adamo , 742 F.2d 927, 934–35 (6th Cir.1984)). Def endant has a simil ar complaint about By rd, who “interpr eted” the meaning s of rec orded

conver sations betwee n he and Def endant. Def

endant cl ai m s By

rd had a motive to lie beca use he hoped to obtain a lower sentence. Ye t , “[ a] ppellate courts, unlike trial courts, do not have an opportunity to observe witness d em ea n o r and there fore are even less qualified to judge witness

cre dibilit y .” Adamo , 742 F.2d a t 935. Nonethele ss, independe nt evidenc e corr oborate d both Smit h and By rd’s testimony

. Wiretap interce pts corr oborate d By rd’s testimony reg arding his drug transac tions with Defen d an t

. By rd authentica ted his in

te r c e p te d c o n v e r s a

ti o n s . These rec ording s and controlled purcha ses corr oborate d Smit h’s testimony

. Detec tive Be verly also confir med Smit h’s testimony

. He repe atedly observe d Smit h set up drug tran s ac t i o n s with Def endant, observe d and listened to her eng ag e in eac h
transac tion. Eac h time she di d not have any cra ck co ca i ne prior to the m eeting and she had crac k

co ca i n e after eac h meeting

. Fur thermore , coconspirator Roberson testified that he sold drug s t o 5 Def endant five or six times, in five or six g ram amounts, and that when he didn’t have any drug s to sell, he would ref

er Defe ndant t o By

rd and others. Coconspirator Hickey testified that Def endant sold him cra ck coca ine, which Hickey paid for with food stamps. Hi ck ey i n t ro duced Smit h to Def endant so that she c ould purcha se coc aine f rom him. The trial evidenc e included twelve controlled purcha ses of crack coca ine, all rec orded; testimony from an underc over ag ent, three coco n s p i rators, numerous wire interce pts and TBI lab
repor ts confirming that the sub s t an ce sold by Def endant was cra ck coca ine. Ba sed on the

Roberson is an unindicted c oconspirator

. 5 -13-voluminous evidenc e i n t h i s case , a rea sonable juror could easily have found that Def endant participa ted i n a conspiracy to distribute drugs an d t h at h e dis tributed cra ck cocaine to Smit h and Ag ent Har

mon. Moreove r, Def

endant was ab l e t o cross-e x amine the witnesses and expose their motivations t o the jury

. Def endant also complains that sever al of the TBI lab repor ts do not specify that the substance analy zed was “cr ack coca ine” or “coc aine base.” Howeve r, at trial TBI ag ent David Holloway 6 explained that he was “c er t ai n ” the contents wer e coca ine base and that the failure to make that distinc t i o n o n his repor

t was “strictly an oversig ht.” As Def endant’ s own brief ref

lects, the TBI
ag ents who testified confirme d that the seized substances wer e coca ine base. TBI Ag ent Carl Smit h, stated that he perf

ormed differ ent confirma tory tests to identify whether the substance was coca ine base. Sometimes he would conduct an additional test to confirm the substance was coca ine. Other times he was able to deter

mine throug h phy sical examination that the substances wer e coca ine base. Def endant did not object to the a dmission of any of these r eports. Fur thermore , three coconspira tors testified that Def

endant distributed cra ck coca ine. The

rec ording s and interce pted conver sations reve aled that Def endant distributed cra ck coca ine. Def endant was caug ht with cra ck cocai n e. So even if some of the lab repor ts did not specify the
exact form of the coca ine distribute d b y De fenda nt, the jury had abundant evidenc e to find that Def endant tra fficke d in cra ck coc aine a nd was g uilty of Counts One throug h Four teen.

TBI Analy st Carl S mith testifi ed t hat, although s ome of the reports said “coc aine,” rathe r 6 than “cocaine base,” this did not signify that the s ubstance was not coca ine base, since Tennessee law did not differ entiate be tween the two forms of the dr ug . -14-C. Acc eptance of Responsib ility

Def endant arg

ues that the district court err ed in fai l i n g t o g rant him a reduc tion for

acc eptanc e of responsibility pursuant to U.S.S.G. § 3E1.1 beca use he attempted to plead g uilty and

n ev er cl ai med that he was innocent. The district court’s decision to deny an acc eptanc e of responsibility red u ct i o n is entitled to “g rea t defe renc e” by this court. We revie w for clea r err or. Unites States v. Gensc how , 645 F.3d 803, 813 (6 t h C i r. 2011). The defe ndant must “cle arly demonstrate[] acc eptanc e of responsibility .” United St ates v. Crousore , 1 F.3d 382, 386 (6th Cir. 1993); United States v. Robe rts , 243 F.3d 235, 241 ( 6th Cir. 2001). Def endant was initially g iven the benef it of a plea barg ain. When g iven the opportunity to addre ss the court at his initial sentenc ing hear ing, Def endant denied persona l responsibility , stating “[s] urely by no w we s ee an d u n derstand how ever y body painted the picture on me. When I say ‘eve ry body ,’ I mean the FB I , DEA, detec tives, and street informants who was and are doing the same

mess they arr ested me for.” Def endant claimed he was mere ly a petty hustler, a scape g oat, and never

a “big time” deale r. This admission was clea rly inconsistent with the char g es in the indictment and the plea ag ree ment. As the district court observe d, the g uideline require s the defe ndant to “truthfully admit[ ]t he conduct comprising the offe nse o f co nviction.” U.S.S.G. § 3E1.1 cmt.n.1. Although section 3E1.1 does not automatically prec lude a reduc tion if the defe ndant g oes to tr ial, Def endant has consistently downplay ed his fac tual g uilt. Thus, he is not entitled to a reduc tion. Cf. U.S.S.G. § 3E1.1 cmt. n.2 (“In rar e situations a defe ndant may cl ea rl y d em onstrate an acc eptanc e of responsibility for his criminal conduct even though he exercises his constitutional rig ht to a trial. This may occur , for example, wher e a defe ndant g oes to trial to asser t and prese rve issues that do not rela te to fac tual g uilt (e.g ., to make a constituti o n al ch al l en g e to a statute or a challeng e to the applicability

of a statute to his conduc t).”)
-15-He pe rsists on appeal, c laiming that he “did not de ny his c onduct alleg ed in the I ndictment

. . . or set forth in his plea ag ree ment,” and that he “wa s simply using his rig ht of allocution to advise the Court of what he perc eived to be unfairne ss in the methods used by , and m o t i v at ion of, law enfor ceme nt in his case .” I n short, Def endant has y et to admit fac tual g uilt. There is no clea r err or and the district cour

t’s deter mination is entit led to defe renc e.

III. Conclusi on For the fore g oing r easons, the judg ment of the district cour t is AF F IRMED.

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