1 The Honorable Linda R. Reade, United St ates 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 Kareem Damoe Lee, also known as Boo,* * [UNPUBLISHED] Defendant - Appellant.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 court 1 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 pr eponderance-of-the-evidence standard. We-2- review this constitutional claim de novo. United States v. Wade , 435 F.3d 829, 831 (8th Cir. 2006). Lee's claim, however, is w ithout 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 Fi fth 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 be low 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 maximu m 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 sentenci ng). This issue, raised for the first time on appeal, is reviewed fo r plain error. United States v. Boone , 437 F.3d 829, 840 (8th Cir. 2006). Although Lee is correctin asserting the district court is not permitted to draw "adverse infe rences" 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 s hould have received a downward departure for acceptance of responsibility. We give gr eat deference to the district court's determination of this factua l issue and will only reverse fo r 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)-3- (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 establis h 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 whethe r the defendant show s 'a recognition and affirmative responsibility for the offens e and sincere remorse.'") (quoting United States v. Nguyen , 52 F.3d 192, 194 (8th Cir. 1995)).

Finally, we review Lee's sentence for r easonableness, noting his sentence within the correctly-calculated Guideline range is presumptively reasonable. United States v. Sebastian , 436 F.3d 913, 915 (8th Cir. 2006). Fu rther, we are not persuaded his sentence is unreasonable simply because the district court employed the Congressionally-mandated 100:1 ratio between cocaine ba se and powder cocaine in determining drug quantities. United States v. Cawthorn , 429 F.3d 793, 803 (8th Cir. 2005) (holding "sentencing within the Guid elines 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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