UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 96-20096

__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DERRICK ANTHONY THOMAS; RONALD HARMON;

ELLUARD J. JACKSON; THADDIUS

CHRISTOPHER GOINS, also known as

Cricket,

Defendants-Appellants.

______________________________________________

Appeals from the United States District Court for the

Southern District of Texas

______________________________________________

August 19, 1997

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

This direct criminal appeal involves four appellants who were

convicted of conspiracy to possess with intent to dis tribute

cocaine base and a substantive count of possession with intent to

distribute cocaine base. The appellants make various challenges to

their convictions, including: alleged violations of the Fourth

Amendment, insufficient evidence to sustain their convictions, and

e videntiary error. Goins and Jackson also challenge their

sentences. We affirm.2

I. PROCEDURAL HISTORY AND BACKGROUND

A gra n d jury charged Thaddius Christopher Goins (Goins),

Derrick Anthony Thomas (Thomas), Ronald Harmon (Harmo n), and

Elluard Jackson (Jackson) with one count of conspiracy to possess

with intent to distribute cocaine base and one count of possession

with the intent to distribute cocaine base. 21 U.S.C. §§

841(a)(1), 841(b) (1)(A), 846 and 18 U.S.C. § 2. Prior to trial,

all four defendants moved to suppress all the eviden ce seized

during a search of apartment #426 at 230 Uvalde in Houston.

Specifically, the police discovered crack cocaine, drug

paraphernalia, and a firearm in the apartment.

The district court held a hearing on the defendants' motions,

and the following evidence was addu ced. Based on a tip from a

confidentia l informant that Goins would be manufacturing crack

cocaine from powder cocaine , Houston police officers set up

surveillance of the apart ment at about 10 p.m. on May 4, 1995.

Approximately an hour and a half later Harmon exited the apartment

and began driving away in a white Cadillac. The officers stopped

him because he was driving without his headlights and failed to

signal. In response to police inquiries, Harmon denied having just

left the a partment. Harmon was arrested, and a search of his

person revealed a loaded firearm in his boot.

At approximately 12:50 a.m., Thomas left the apartment and was

stopped by the police because the vehicle he was driving had

outstanding warrants. The police arrested Thomas based on those

w arrants. Upon questioning, Thomas admitted there was "dope" in1 Jackson testified at the suppression hearing and offered a

different version of the events. Jackson claimed the officers did

not identify themselves and that they just crashed through the door

3 the apartment but would not say how much. Thomas also gave the

officers conflicting response s regarding whether he lived in the

apartment. He told one officer that he had no involvement with the

apartment, and he implied to another officer that it was his

girlfriend's apartment. Further investigation after the search

revealed that Thomas's name was on the apartment lease.

A fter Harmon's and Thomas's departures, Goins walked out of

the apartment several times, glanced at his watch, a nd looked

around the apartment complex, apparently awaiti ng the return of

Harmon and Thomas, both of whom, unbeknownst to Goins, had been

arrested. About 1:30 a.m., Goins walked across the street to use

a pay phone outside a convenience store and was arrested on

outstanding warrants. The police found $4,800 in cash on Goins's

person. Additionally, when an officer asked Goins a question

regarding the amount of "dope" in the apartment, Goins replied

"Man, you already know what's up. Why you asking me? Why do you

think I would know how much it is?"

The officers then decided to approach the apartment and try to

obtain consent to search. Officers DeBlanc and Ong proceeded

through an open gate of a privacy fence surrounding the apartment

and knocked on the front door. Someone inside responded "come in,"

and DeBlanc knocked again and ide ntified himself as a police

officer. Ultimately, the individual who had bid the officers "come

in" opened the door and walked away from the officers. 1 From theirwithout being invited inside.

4

vantage point at the front door, the officers could see into the

kitchen. Officer DeBlanc observed cocaine on the counter, a

beaker, microwave ovens, and boxes of baking soda. At that point,

Officer DeBlanc knew he had witnessed a drug offense. Upon

entering the apartment Officer Ong conducted a protective sweep to

ascertain whether there were armed individuals presen t. The

officers saw Jackson seated in a chair in the living room,

apparently feigning sleep.

The officers spok e with the man who had opened the door and

discerned that he was mentally impaired and thus, could not give

consent to search. Sometime after the search, it was learned that

this man was Thomas's uncle. The officers then spoke to Jackson to

try to obtain consent to search. Jackson told the officers he was

left there to take care of the mentally impaired man. To avoid the

appearance of coercion from the influx of police officers, the

officers requested th at Jackson continue the conversation in the

bedroom. Jackson did not sign the consent to search form but did

give oral consent to search. Jackson admitted that he said "Yeah,

y ou already in, you might as well search." At the time, Jackson

was unaware that the police taped part of the conversation. During

this conversation, Officer DeBlanc observed an open duffel bag on

the bed that contained crack cookies.

After Jackson orally consented, the offi cers searched the

apartment. Aside from the cocaine and paraphernalia previously

observed, the following items were seized: a semi-automatic pistol;5

cocaine from a closet; crack cookies inside a jacket; and a plate

in a bedroom with a razor blade. It was later determined that the

bag in the bedroom contained nearly 3 kilograms of crack cocaine

cookies.

After hearing the evidence, the district co urt made the

following findings: there was an adequate basis to arrest Harmon

based on the officer's testimony; neither Harmon nor Goins had

standing to challenge the search of the apartment but Jackson and

Thomas did have standing; the officers reasonab ly believed that

Jackson, as a caretaker, had the limited authority to consent to a

search of the common areas of the apartment but not to a search of

the closets or underneath mattresses; the officers reasonably

believed that the front door of the apartment was accessible to the

public and that the uncle had consented fo r them to enter the

apartment; and the officers could see the contraband on the counter

top from the door. Based on these findings, the district court

suppressed the evidence, including the semi-automatic pistol,

discovered outside the common areas of the apartment and allowed

the remaining evidence.

At trial, the Government introduced evidence that earlier on

the day of the search, several officers set up surveillance of an

auto detailing shop and observed an exchange between Goins, who had

a white Cadillac, and another individual, who was driving a maroon

Oldsmobile. Upon leaving in his Oldsmobile, the individual was

stopped, and a little over $20,000 in cash and a semi-automatic

pistol were recovered from hidden compartments in the vehicle.6

The Gover nment also introduced the evidence from the

suppression hearing regarding the events that occurred during the

o fficers' surveillance and subsequent search of the apartment on

the night of May 4, 1995. The evidence seized from the apartment

was introduced before the jury. Among other things, a scale, a

metal pot, sixteen beakers, and the microwave ovens all contained

small or trace am ounts of crack cocaine. One beaker contained a

cookie consisting of 24.6 grams of crack cocaine. The cookies

found in the bag in the b edroom contained 2.9 kilograms of crack

cocaine.

Officer DeBlanc testified that crack cocaine is made by mixing

baking soda and water with the powder cocaine and heating the

mixture on the stove or in the microwave. The cocaine then settles

to the bottom of the container and the adulterants or diluents rise

to the top. While still wet, the cookies are taken out of the

beaker to dry. After an hour or so, they become extremely hard.

It takes from 35 minutes to 1 hour to convert 1 kilogram of powder

cocaine into crack. Officer DeBlanc also testified that a kilogram

of cocaine costs between $17,000 and $2 1,000 wholesale. Street

value of a kilogram of cocaine would be in excess of $100,000. He

further testified that 2.9 kilograms of crack cocaine was an

"incredibl[y] large amount of crack cocaine" and that it would take

several individuals to cook that much cocaine because "[i]t's like

an assembly type operation." In his opinion, the cookies found in

the duffel bag had been freshly cooked.

A jury found all defendants guilty as charged, and the7

district court imposed the following sentences: Goins, 380 months;

Thomas, 292 months; Harmon, 292 months; and Jackson, 235 months.

II. ANALYSIS

A. SUFFICIENCY OF THE EVIDENCE

Goins, Harmon, and Jackson contend that the evidence was

insufficient to s ustain their convictions. When reviewing the

sufficiency of the evidence, we view all evidence, whether

circumstantia l or direct, in the light most favorable to the

Government with all reasonable inferences to be made in support of

the jury's verdict. U nited States v. Salazar

, 958 F.2d 1285, 1290-

91 (5th Cir.), cert. denied

, 506 U.S. 863, 113 S.Ct. 185 (1992).

The evidence is sufficient to support a conviction if a rational

trier of fact could have found the essential elements of the crime

beyond a re asonable doubt. I d. The evidence need not exclude

every reasonable hypothesis of innocen ce or be completely

inconsistent with every conclusion except guilt, so long as a

reasonable trier of fact could find that the evidence established

guilt beyond a reasonable doubt. U nited States v. Faulkner

, 17

F.3d 745, 768 (5th Cir.), cert. denied

, 513 U.S. 870, 115 S.Ct. 193

(1994).

To establish a conspiracy offense under 21 U.S.C. § 846, the

Government must establish: "1) th e existence of an agreement

between two or more persons; 2) the defendant's knowledge of the

agreement; and 3) the defendant's voluntary participa tion in the

conspiracy." U nited States v. Brown

, 29 F.3d 953, 958 (5th Cir.),

cert. denied , 513 U.S. 1021, 115 S.Ct. 587 (1994). To sustain a8

conviction for the poss ession of crack cocaine with intent to

distribute, the Government must establish "the 1) knowing; 2)

possession of a controlled substance; 3) with the intent to

distribute it." Id

.

Goins, Harmon, and Jackson argue that the evidence

demonstrated only their "mere presence" at the apartment, and thus,

t he evidence was insufficient to establish their knowing

participation in either the conspiracy or the substantive offense.

We begin with exa mining the evidence implicating Goins. On

the day of the instant offense, several officers set up

surveillance of an auto detailing shop and observed an exchange

between Goins and another individual. Upon leaving, the individual

was stopped, and approximately $20,000 in cash and a semi-automatic

pistol were recovered from hidden compartments in the vehicle.

Later that night, the officers began surveillance of Thomas's

apartment. After Harmon's and Thomas's departure, Goins walked out

of the apartment several times and would glance at his watch and

th en look around the apartment complex, apparently awaiting the

return of Harmon and Thomas, both of whom, unbeknownst to Goins,

had been arrested. Goins subsequently walked to a pay phone near

the apartment and was arrested on outstanding warrants. The police

found $4,800 in cash on Goins's person. Additionally, when an

officer made inquiries regarding drugs in the apartment, Goins made

an incriminating statement to the effect that because the police

already knew of the drug activity, they need not ask him.

The above evidence, when examined in light of the cocaine and2 The Government introduced evidence that one kilogram of

cocaine costs $20,000.

9 drug paraphernalia found in the apartment, would allow the jury to

conclude that Goins purchased one kilogram of cocaine from the

unidentified individual at the detail sh op 2 and brought it to

Thomas's apartment to "cook" it. The evidence of Goins's actions

after Harmon's and Thomas's departure would also allow the jury to

conclude that Goins anxiously awaited their return. We are

confident that the evidence of Goins's behavior, his incriminating

statement to the police, and the evidence found on Goins's person

and in the apartment demonstrate more than Goins's mere presence at

the crime scene. The evidence is sufficient to prove beyond a

reasonable doubt that Goins was a knowing member of the drug

conspiracy and that he possessed with intent to distribute the

cocaine found in the apartment.

As for Harmon, the evidence demonstrated that he was already

in the apartment at the time the police began surveillance at 10:00

p.m., and he left about an hour and a half later. Harmon was then

arrested, and a search of his person revealed a loaded handgun.

Recognizing tha t for drug dealers, firearms are "tools of the

trade," this Court has explained that possession of a gun is

"highly probative in proving criminal intent." U nited States v.

Martinez

, 808 F.2d 1050, 1057 (5th Cir.), cert. denied

, 481 U.S.

1032, 107 S.Ct. 1962 (1987). Also, when questioned by the officer,

Harmon denied having just left the apartment; instead, he claimed

that "he was just in the area riding around." This patently false10

statement is circumstantial evidence of Harmon's guilty knowledge.

United States v. Richardson

, 848 F.2d 509, 513 (5th Cir. 1988).

Also, the evidence of Goins's behavior in awaiting Harmon's return

implicates Harmon in the conspiracy. Viewed in the light most

favorable to the Government, this evidence, together with the

evidence regarding the amount of time and number of people involved

in the cooking process, is sufficient to sustain Harmon's

convictions.

Finally, we examine the evidence implicating Jackson. At the

time the police entered t he apartment Jackson was the only

remaining responsible adult, and the water was "on" in the kitchen.

The officers also noticed the "pungent" odor of the recently cooked

cocaine and the cocaine and drug paraphernalia that was visible as

soon as one entered the apartment. Additionally, Jackson never

left the apartment during the time that the jury could infer the

nearly three kilograms of crack cookies were being cooked. This

evidence shows Jackson's knowledge of the crack laboratory and also

indicates that the cooking process, which required several

participants, was ongoing. As the Government points out, Jackson's

codefendants left him alone in the apartment with a small fortune

in cocaine. Although Jackson argues that he was merely present in

the apartment, we have e xplained that "[t]he implicit rationale

behind the `mere presence' argument is the theory that there may

often be innocent parties who on oc casion unwittingly associate

with guilty parties at the scene of their cr iminal activity."

United States v. Martinez-Moncivais

, 14 F.3d 1030, 1034 (5th Cir.),11

cert. denied , 513 U.S. 816, 115 S.Ct. 72 (1994). Here, the crime

scene does not support Jackson's defense of unwitting association

with his codefendants. Certainly, the jury was entitled to reject

such a defense. The evidence was sufficient to sustain Jackson's

convictions.

B. STANDING

Goins argues that the district court erred in finding that he

did not have standing to challenge the warrantless search of the

apartment. Goins has the burden of demonstrating that he has

standing. U nited States v. Wilson

, 36 F.3d 1298, 1302 (5th C ir.

1994). He must show (1) an actual, subjective expectation of

privacy with respect to the place searched or things seized, and

(2) that the expectation is such that society would recognize it as

reasonable. Id . at 1302-03.

To make this showing, Goins relies on his presence in the

apartment prior to his arrest and information from a confidential

informant indicating that he had control over the apartment. The

evidence established that Goins was present at the apartment prior

to his arrest; however, contrary to Goins's assertion, the district

court did not find that Goins had control over the apartment.

Instead, the district court found that "the only information [from

the confidential informant] that Officer Campbell had was that Mr.

Goins was believed to be the custodian of the cocaine who was being

allowed to use the apartment to pro cess the cocaine." As such,

Goins failed to make the requisite showing. The district court

properly concluded that Goins lac ked standing to challenge the12

search of the apartment.

C. CURTILAGE OF THE APARTMENT

Thomas and Jackson both argue that their Fourth Amendment

rights were violated when the officers, without a warrant, entered

through t he gate of the privacy fence surrounding the apartment.

We disagree.

The Fourth Amendment extends to protect the “curtilage” of a

home from unconstitutional searches. U nited States v . Dunn , 480

U.S. 294, 300, 107 S.Ct. 1134, 1139 (1987). The “curtilage”

constitutes the area within which a person “reasonably may expect

that the area in question should be treated as the home itself.”

Id

. In determining whether an area outside the home is curtilage,

we mus t consider four factors: the proximity of the area to the

home, whether it is within an enclosure surrounding the home, the

nature of the uses to which the area is put, and the steps taken by

the resident to protect the area from outside observation. I d

. at

301, 107 S.Ct. at 1139. The Supreme Court explained that these

factors are not to be "mechanically applied;" instead they are

h elpful to the extent they shed light on the ultimate inquiry of

“whether the area in question is so intimately tied to the home

itself that it should be placed under the home’s ‘umbrella’ of

Fourth Amendment protection.” Id . at 301, 107 S.Ct. at 1140.

In the instant case, after hearing the evidence on the motion

to suppress, the district court found that the gate was open when

the officers entered the area. The court further found there was

no indication "that [the gate] was meant to be used by any person13

approaching that dwelling as . . . a place to which permission to

enter had to be given. It was -- the gate was hanging open.

There's no door bell there. There is no knocker there." "From the

photographs and the testimony, it appears that there was

-- it was

certainly reasonable for the officers to believe the front door was

readily accessible to the general public; and it was the principal

means of access to the dwelling."

In regard to the first two factors, the proximity to the home

and whether the area was within an enclosure surrounding the home,

there was testimony that a fence surrounded the apartment and that

it was approximately three feet away from the door of the

apartment. Those two factors weigh in favor of the appellants.

The next two factors, the nature of the uses to which the area is

put and the s teps taken by the resident to protect the area from

outside observation, strong ly indicate that the area is not

curtilage. As found by the district court, the gate was left

hanging open, and the resident had not taken any steps to indicate

th at the gate was an entry to a place that permission had to be

given to enter. Because there is evidence to support those

findings, they are not clearly erroneous.

Based on those findings, the district court properly concluded

that the officers could reasonably believe that the gate provided

the principal means of access to the apartment, through which they

could approach the front door. S ee United States v. James

, 40 F.3d

850, 862 (7th Cir. 1994), modified on other grounds , 79 F.3d 553

(7th Cir. 1996). Under these circumstances, the police did not14

violate the Fourth Amendment by approaching the front door.

D. CONSENT TO SEARCH

Thomas and Jackson challenge the validity of the consent

obtained to enter and search the apartment. They first argue that

because the officers failed to identify themselves as police, they

could not have reasonably believed that anyone opening the door was

consenting to the police entering the apartment. Contrary to the

appellants ' position, the district court credited the following

testimony of Officer DeBl anc, who testified that he did announce

"police" and that "after the first two knocks, each time a voice

from the inside of the apartment told them to come in." The court

also credited Officer DeBlanc's testimony that, after the third

knock, a person opened the door from the inside and immediately

walked away, which provided the officers with a view of the

contraband prior to entering the apartment. Upon entering the

apartment and speaking to the man who opened the door, the officers

realized the man was not cap able of giving proper consent for a

search. They then approached Jackson to request his consent to

search the apartment.

The district court's deci sion to credit Officer DeBlanc's

testimony over Jackson's was not clearly erroneous. U nited States

v. Bass

, 10 F.3d 256 (5th Cir 1993). Under the circumstances

outlined above, we conclude that the officers reasonably believed

that they had received consent to enter the apartment.

Thomas and Jackson next contend that Jackson did not have the

authority to consent to a search of the apartment. The district3 In the court below, after the suppression hearing, the

Government conceded that Thomas was arrested based on a nonexistent

traffic warrant. The appellants contend that although the police

knew that Thomas lived in the apartment, instead of asking for his

consent to search, they obtained consent from the remaining persons

in the apartment. Thomas and Jackson thus argue the officers could

not have reasonably beli eved that the remaining occupants could

validly consent to search.

Initially, it should be note d that the officers had

conflicting info r mation regarding whether Thomas lived in the

apartment. One officer testified that Thomas denied any knowledge

of the apartment when he was arrested. In any event, it is well

established that valid consent may be obtained from a third party

with joint access to and control of the property. U nited States v.

Rizk

, 842 F.2d 111, 112 (5th Cir.), cert. denied

, 488 U.S. 832, 109

S.Ct. 90 (1988). Thus, Thomas and Jackson have not shown that the

15 court concluded that Jackson had apparent authority to consent to

a search of the common areas of the apartment and found that:

Mr. Jackson's tes timony and the testimony of the

officers is that he was simply there as a babysitter. As

a babysitter, he would have a right of access to and of

mutual use of the common areas, which wou ld include,

given his description of what he was charged with doing,

the bedrooms, the bathrooms; but I don't see any basis

that would enable me to say that he had the authority to

consent to the insides of closets, underneath mattresses,

or areas that would be beyond those areas in which an

individual who is there as a babysitter would have a right of access.

[I]t is the Court's conclusion that Mr. Jackson's

ability to give conse nt -- apparent consent that the

officers would have reasonably be lieved he had the

autho rity to give would be an authority limited to the

common areas and the bedroom areas of the apartment, the

areas in which he testified he was permitted to use and

was given free access to as a babysitter. I do not

believe that it extends t o a reasonable appearance of

authority to search inside closets or underneath

mattresses.

We agree that the officers reasonably relied on Jackson's

apparent authority to consent to their search of the common areas

of the apartment. See United States v. Jenkins , 46 F.3d 447, 458

(5th Cir. 1995). 3district court erred in concluding that the officers reasonably

believed the remaining occupants could consent to search.

4 He denied that he had just left the apartment.

16 Finally, after considering the relevant portion of the record,

briefs and arguments of counsel, we find the remaining challenges

to the search of the apartment to be without merit.

E. SEARCH OF HARMON INCIDENT TO ARREST

Harmon challenges the district court's denial of his motion to

suppress the evidence obtained as a result of a search incident to

his arrest. Specifically, he moved to suppress a statement he made

to the police 4 and a pistol found in his boot.

The thrust of Harmon's argument is that the initial stop was

illegal because driving in a private parking lot without headlights

did not violate any Texas law. Citing Texas statutes that provide

the d efinition of the terms "highway" and "roadway," he contends

that "[t]here was no justifying of a custodial arrest

. . . for

driving in the apartment parking lot with his parking lights on."

This argument ignores that the district court found the testimony

given by Officer Campbell to be credible. Officer Campbell

testified that he "saw [Harmon] go into the roadway without his

lights on." Officer Campbell further testified that Harmon failed

to signal and was not wearing a seat belt. The factual premise of

Harmon's argu ment is incorrect. Harmon therefore has failed to

show that the stop was illegal. W hren v. United States

,

__ U.S.

__, 116 S.Ct. 1769 (1996) (traffic stop reasonable where probable

cause to believe traffic code violated). Further, a peace officer5 Harmon asserts that he "was arrested on the pistol." Officer

DeBlanc testified that Harmon was arrested because "[h]e drove

without his lights and there was some traffic violations and he was

found in possession of a handgun." The district court credited

Officer DeBlanc’s account of the arrest, and this decision is not

clearly erroneous. Accordingly, we assume that Harmon was arrested

prior to the search that disclosed the weapon on his person.

17 may arrest without a warrant if the officer observes the individual

commit a traffic violation. Tex. Rev. Civ. Stat. Ann. art. 6701d,

§ 153 (Vernon 1977) (current version codified at Tex. Transp. Code

Ann. § 543.001 (Vernon 1995)). 5 Once an officer makes such a valid

arrest, the officer is entitled to conduct a search of the

arrestee's person. Gustafson v. Florida

, 414 U.S. 260, 266, 94

S.Ct. 488, 492 (1973).

Finally, Harmon argues that the arrest was pretextual. That

argument is entirely without merit. U nited States v. Robinson

, 414

U.S. 218, 94 S.Ct. 467 (1973) (explaining that arrest for traffic

violation not rendered invalid because it was a pretext for a

narcotics search). The district court properly denied Harmon's

motion to suppress.

F. ADMISSION OF EVIDENCE UNDER RULE 403

Goins argues that the district court erred in overruling his

objection to the admission of evidence relating to the seizure of

$20,000 in cash and a semi-automatic pistol from the maroon

Oldsmobile that was stopped on the afternoon of May 4, 1995, after

the driver was observed making an exchange with Goins. We are not

per suaded that the probative value of this evidence was

"substantially outweighed" by the risk of undue prejudice. Fed. R.

Evid. 403. The district court therefore did not abuse its6 By adoption, Jackson attempts to raise these two claims.

However, because it was Jackson's counsel who made the challenged

comments during cross-examination, he is not entitled to raise that

particular issue. He is entitled to adopt the challenge to the

Government’s closing argument. This latter claim is rejected for

the same reason that we reject Goins’ challenge.

18 discretion in allowing this evidence. U nited States v. Morris

, 79

F.3d 409, 411-12 (5th Cir. 1996).

G. IMPROPER COMMENTS

In his final challenge to his convictions, Goins argues that

the district court erred in failing to gr ant his request for a

mistrial on two separate occasions. He contends that both a

comment made by defense counsel d uring cross-examination and

certain improper remarks made b y the Government during closing

argument warranted the granting of a mistrial. 6 Goins promptly

objected to both the prosecutor's and defense counsel's challenged

remarks, and the district court i nstructed the jury to disregard

same. We are satisfied that the instruction to disregard cured any

error occasioned by the comments. The district court did not abuse

its discretion in denying Goins' motions for a mistrial. S ee

United States v. Limones

, 8 F.3d 1004, 1007-08 (5th Cir. 1993),

cert. denied , 511 U.S. 1033, 114 S.Ct. 1543 (1994).

F. POSSESSION OF A DANGEROUS WEAPON UNDER § 2D1.1(b)(1)

Goins and Jackson argue that the dist rict court erred in

assessing them two points for possessing a dangerous weapon under

§ 2D1.1(b)(1). This assessment should be given if the weapon was

present, unless it is clearly improbable that the wea pon was

connected to the offense. U nited States v. Sparks

, 2 F.3d 574, 58719

(5th Cir. 1993) (citing § 2D1.1, comment. (n.3)), cert. denied

, 510

U.S. 1056, 114 S.Ct. 720 (1994).

Both appellants argue that there is no evidence that they had

knowledge of their codefendants' possession of weapons.

"[S]entencing courts may hold a defendant accountable for a codefendant's reasonably foreseeable possession of a firearm during

the commission of a narcotics trafficking offense, purs uant to

section 2D1.1(b)(1)." United States v. Aguilera-Zapata , 901 F.2d

1209, 1215 (5th Cir. 1990). If the Government establishes that

another codefendant knowingly possessed a gun at the time "he and

the defen dant committed the offense by jointly engaging in

concerted criminal activi t y involving a quantity of narcotics

sufficient to support an inference of intent to distribute," then

a sentencing court may infer that a defendant should have foreseen

a codefendant's possession of a dangerous weapon. Id

.

Here, the Government met its burden of demonstrating that, on

May 4-5, 1995, the defendants were jointly engaged in the crime of

possession with intent to distribute a very large amount of cocaine

at the apartment. Jackson and Goins do not dispute that Harmon had

possession of one weapon and another was found at the apartment.

Thus, the sentencing court did not err in finding that it was

reasonably foreseeable to Jackson and Goins that their codefendants

would have possession of a dangerous weapon.

G. AGGRAVATED ROLE IN THE OFFENSE UNDER § 3B1.1(c)

Goins argues that the district court erred in finding that he

had an aggravated role in the offense under § 3B1.1(c). "If the7 After Harmon and Thomas left the apartment (and unbeknownst to

Goins) were arrested, Goins walked out of the ap artment several

times and looked anxiously towards the entrance of the complex,

apparently awaiting the return of Harmon and Thomas. Using his

cellular phone, Goins at tempted to locate Harmon by calling

Harmon's beeper. Also, at the time the officers arrested Goins, he

had walked across the street to use a pay phone near the apartment.

20 defendant was an organizer, leader, manager, or supervisor in any

criminal activity" involving less than f ive participants, a two

level increase is warranted. U.S.S.G. § 3B1.1(c). We review such

a factual finding for clear error. United States v. Giraldo , 111

F.3d 21 (5th Cir. 1997).

In view of t he evidence before the district court regarding

Goins's purchase of a large amount of cocaine in exchange for

approximately $20,000 in cash, his behavior during th e officers'

surveillance of the apartment, and his attempt to contact Harmon by

beeper after Harmon left the apartment 7 we are satisfied that the

district court's finding that Goins was a manager or leader is not

clearly erroneous.

H. ACCEPTANCE OF RESPONSIBILITY

Goins contends that the district court erroneously denied him

a two-point reduction in his sentence for acceptance of

responsibility. U.S.S.G. § 3E1.1(a). If a defendant "clearly

demonstrates acceptance of r esponsibility for his offense," the

sentencing guidelines instruct the district court to decrease the

defendant's offense level by two points. U.S.S.G. § 3E1.1(a).

Because of the district court's unique position to evaluate whether

the defendant has demonstrated acceptance of respo nsibility, we8 Of course, as the Government points out, Goins does not

challenge on appeal the admission of his statement to the police.

21 review such a determination under a standard of review more

deferential than that of clea r error. U nited States v. Diaz

, 39

F.3d 568, 571 (5th Cir. 1994). The defendant bears the burden of

proving that he is entitled to a downward adjustment. U nited

States v. Kinder

, 946 F.2d 362, 367 (5th Cir. 1991), cert. denied

,

503 U.S. 987, 112 S.Ct. 1677 & 2290 (1992).

To shoulder this burden, Goins relies on the inculpatory

statement he made to the police upon his arrest. Although Goins's

statement to the effect that he did not know the quantity of drugs

in the apartment was incriminating, it is hardly a statement of

contrition. Goins also contends that he should not be denied this

reduction in sentence because he exercised his right to trial in

order to preserve, among other things, the issue regarding the

admissibility of his statement to the police. 8 Goins correctly

contends that he should not be denied the reduction simply because

he exercised his right to a trial by jury. U nited States v Siebe

,

58 F.3d 161, 163 (5th Cir. 1995). The record reveals that that is

no t what happened. At sentencing, the district court expressly

recognized the commentary to § 3E1.1 that provides that a defendant

who goes to trial may be accorded a reduction for his acceptance of

responsibility. § 3E1.1, comment. (n.2). Reading from that

commentary, the district court further recognized that "in each

such instance , however, a determination that a defendant has

accep t ed responsibility will be based primarily upon pretrial9 Although Goins does not refer to it on appeal, he apparently

wrote the court a letter in an attempt to demonstrate his

acceptance of responsibility after he had been convicted.

22 statements and conduct." The district court then found that there

had been no pretri al statements of acceptance of responsibility. 9

See Uni ted States v. Diaz , 39 F.3d 568, 572 (5th Cir. 1994)

(timeliness is pro p erly taken into consideration to determine

whether d efendant accepted responsibility). Goins has not shown

that the district court's conclusion that Goi ns had not accepted

responsibility was clearly erroneous.

I. REFUSAL TO DEPARTURE DOWNWARD

Goins argues that the district court erred in failing to grant

a downward departure under § 5K2.0, based on the fact that the

Sentencing Commission did not take into consideration the racially

discriminatory effect of the application of the sentencing

guidelines regarding cocaine base or "crack." Because this Court

recently rejected this argument, Goins is precluded from prevailing

on this claim. U nited States v. Fonts

, 95 F.3d 372, 374 (5th Cir.

1996).

For the above reasons, the convictions and sentenc es of the

four appellants are AFFIRMED.