1

The Honorable Linda R. Reade, United States District Court for the Northern

District of Iowa. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 05-3810

___________

United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Kareem Damoe Lee, also known as Boo,*

* [UNPUBLISHED]

Defendant - Appellant. *

___________

Submitted: April 20, 2006

Filed: April 28, 2006

___________

Before LOKEN, Chief Judge, BOWMAN, and BYE, Circuit Judges.

___________

PER CURIAM.

Kareem Damoe Lee pleaded guilty to one count of conspiracy to distribute

more than fifty grams of cocaine base and more than 500 grams of cocaine salt

between June 2003 and August 2004. The district court1

 sentenced him to 360 months

of imprisonment, followed by five years of supervised release. We affirm.

On appeal, Lee claims his constitutional rights were violated when the district

court engaged in fact-finding using the preponderance-of-the-evidence standard. We
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review this constitutional claim de novo. United States v. Wade, 435 F.3d 829, 831

(8th Cir. 2006). Lee's claim, however, is without merit because we have held judicial

fact-finding alone does not constitute a violation of a defendant's Sixth or Fifth

Amendment rights. United States v. Pirani, 406 F.3d 543, 551 n.4 (8th Cir. 2005) (en

banc) (finding no Sixth Amendment violation); United States v. Garcia-Gonon, 433

F.3d 587, 593 (8th Cir. 2006) (holding no Fifth Amendment error occurs when the

district court engages in judicial fact-finding). Additionally, no Fifth Amendment

violation occurred because Lee was aware of the maximum penalty under the statute,

and he was sentenced below the maximum. See United States v. Oates, 427 F.3d

1086, 1090 (8th Cir. 2005) (noting the Fifth Amendment requires a defendant to be

aware of the statutory maximum for the charged offenses). 

Additionally, Lee claims the district court violated his Fifth Amendment rights

by sentencing him severely after invoking his Fifth Amendment right not to testify at

sentencing. See Mitchell v. United States, 526 U.S. 314, 326 (1999) (holding

defendants may assert the right to remain silent at sentencing). This issue, raised for

the first time on appeal, is reviewed for plain error. United States v. Boone, 437 F.3d

829, 840 (8th Cir. 2006). Although Lee is correct in asserting the district court is not

permitted to draw "adverse inferences" from the exercise of his right to remain silent,

United States v. Rodriguez, 116 F.3d 1225, 1226 (8th Cir. 1997), his bald assertions

the district court "developed an antagonistic attitude" following his refusal to testify

are insufficient to meet his burden of proving plain error. 

We also reject Lee's contention he should have received a downward departure

for acceptance of responsibility. We give great deference to the district court's

determination of this factual issue and will only reverse for clear error. United States

v. Londondio, 420 F.3d 777, 789-80 (8th Cir. 2005). Although Lee's plea of guilty

"constitutes significant evidence of acceptance of responsibility, this evidence still

may be outweighed by conduct of the defendant that is inconsistent with such

acceptance." United States v. Long Soldier, 431 F.3d 1120, 1123 (8th Cir. 2005)
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(citing U.S.S.G. § 3E1.1 cmt. n.3). Despite pleading guilty, Lee vehemently denied

possessing any drug quantities above the minimums listed in the indictment, and he

denied possessing a firearm. As a result, the government was required to present

witnesses and other evidence to establish drug quantity and the presence of the

firearm. Further, the denials show Lee did not adequately accept responsibility for his

actions or express remorse for committing the crime, and the district court did not err

in refusing to apply the departure. See United States v. Card, 390 F.3d 592, 595 (8th

Cir. 2004) ("The pivotal issue is whether the defendant shows 'a recognition and

affirmative responsibility for the offense and sincere remorse.'") (quoting United

States v. Nguyen, 52 F.3d 192, 194 (8th Cir. 1995)). 

Finally, we review Lee's sentence for reasonableness, noting his sentence within

the correctly-calculated Guideline range is presumptively reasonable. United States

v. Sebastian, 436 F.3d 913, 915 (8th Cir. 2006). Further, we are not persuaded his

sentence is unreasonable simply because the district court employed the

Congressionally-mandated 100:1 ratio between cocaine base and powder cocaine in

determining drug quantities. United States v. Cawthorn, 429 F.3d 793, 803 (8th Cir.

2005) (holding "sentencing within the Guidelines based on the crack-powder disparity

is not inherently unreasonable"). Because his sentence satisfies the factors found in

18 U.S.C. § 3553(a), we find it reasonable and affirm the district court.

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