UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 96-4547

JAMMIE DARNELL LAWRENCE,

Defendant-Appellee.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4548

JAMMIE DARNELL LAWRENCE,

Defendant-Appellant.

Appeals from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Leonie M. Brinkema, District Judge.

(CR-95-506-A)

Argued: June 6, 1997

Decided: August 27, 1997

Before HALL and NIEMEYER, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed in part, reversed in part, and remanded by unpublished opinion. Senior Judge Phillips wrote the opinion, in which Judge Hall and

Judge Niemeyer joined.

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COUNSEL

ARGUED: Thomas More Hollenhorst, Assistant United States Attorney, Alexandria, Virginia, for Appellant. James Clyde Clark, Alexandria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United

States Attorney, Alexandria, Virginia, for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PHILLIPS, Senior Circuit Judge:

Jammie Darnell Lawrence was convicted, after a bench trial, of

various drug-related offenses. At sentencing, the district court granted

a two-level reduction in sentence for acceptance of responsibility,

rejected the government's request for a two-level enhancement for

possession of a dangerous weapon, but granted its request, over Lawrence's objection, for an enhanced sentence based on Lawrence's possession of more than 150 kilograms of cocaine. Both the government

and Lawrence appealed. We affirm in part, reverse in part, and

remand for resentencing.

I

Defendant Jammie Darnell Lawrence was a mid-level distributor

selling powder cocaine in an illicit drug organization headed by Aslan

Paulino. Paulino obtained kilogram quantities of cocaine from Puerto

Rico that were transported to "stash houses," whence they were distributed to Lawrence and other distributors in the following manner:

Paulino employed a number of workers who would receive coded

telephone messages directing their distribution of specified quantities

from the stash houses to the mid-level distributors such as Lawrence.

Lawrence was arrested and released on bond on November 17,

1995, then charged in a ten-count indictment on December 13, 1995.

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Count I charged him with conspiracy to possess with intent to distribute and distribution of five or more kilograms of cocaine and distribution of 50 or more grams of cocaine base in violation of 21 U.S.C.

§§ 841(a)(1) and 846. Counts II through IX charged him with a variety of money laundering offenses, and Count X sought the forfeiture

of drug-related assets. Lawrence waived his right to a jury trial and

was tried in a bench trial in February 1996.

At the bench trial, the court heard evidence from several members

of the organization. Juan Morban, one of the "stash house" couriers,

testified that he delivered cocaine to Lawrence on four to six occasions with deliveries of two to five kilograms, and picked up money

from him seven or eight times. Morban testified that he carried a gun

when he visited Lawrence. Joselito Ramos testified that he delivered

one to three kilograms of cocaine to Lawrence five or six times, and

picked up money from him on two to four occasions. Fernando Mercedes testified that he delivered one to six kilograms to Lawrence

"twice a week" beginning in December 1994, and collected money

from Lawrence two to four times.

Paulino, the undisputed kingpin of the operation, testified for the

government at Lawrence's trial. He claimed that he supplied Lawrence with two to four kilograms of cocaine once a week beginning

in 1992 or 1993 and continued to do so until his arrest in March 1995,

using his insulated method. Paulino also testified that Lawrence had

told him that he kept weapons in his car. Kermitt Oliver, one of Lawrence's primary customers, testified that Lawrence supplied him with

two to three kilograms of cocaine, two or three times a week, for three

years.

When Paulino, Morban, and Mercedes were arrested in March

1995, police officers seized from Paulino's residence a bullet-proof

vest given to him by Lawrence, and a gun-cleaning kit. Officers also

seized various guns and drug paraphernalia from one of the stash

houses. When Lawrence was arrested, the police seized from a car

linked to him by photographs and court summons various incriminating items: a machine gun magazine, a bullet-proof vest, a guncleaning kit, and a handgun magazine.

Following Lawrence's conviction on eight of the ten counts, the

probation officer's Pre-Sentence Investigative Report (PSR) recom-

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mended that he be sentenced at an offense level of 40, Criminal History Category I, with a base level of 38 under U.S. Sentencing

Guidelines Manual §§ 2D1.1(a)(3) and (c)(1) (1995), including a twolevel enhancement for possessing more than 150 kilograms of

cocaine. The PSR also recommended a two-level enhancement for

possession of a dangerous weapon under § 2D1.1(b)(1). Finally, the

PSR recommended rejection of Lawrence's request for a two-level

reduction in sentence for acceptance of responsibility.

At sentencing, the district court found that Lawrence had possessed

more than 150 kilograms of cocaine. Lawrence maintained that he

had received only 20 kilograms of cocaine from Paulino, but the court

found that the testimony of Paulino, Morban and Oliver was "more

than sufficient to support the probation officer's use of the higher

quantity of 150 or more kilograms of cocaine." JA 290. Pursuant to

§ 2D1.1(c)(1) of the Guidelines, this resulted in a base offense level

of 38. The district court, however, granted Lawrence's motion for a

two-level reduction in his sentence level for his acceptance of responsibility, noting that Lawrence had waived his right to a jury trial and

stood for a bench trial instead. The district court also refused the government's request to increase Lawrence's sentence for possession of

a dangerous weapon under § 2D1.1(b)(1), concluding the government

had not established that Lawrence ever possessed a firearm.

Ultimately, Lawrence was sentenced to 188 months confinement

on four of the counts, along with a concurrent sentence of 120 months

as to the other four, at an offense level of 36, Criminal History Category I. The government appeals the district court's refusal to grant the

enhancement and its decision to grant the reduction. Lawrence crossappeals, contending that his offense level should have been 34

because there was insufficient evidence to support the two level

enhancement for possession of more than 150 kilograms of cocaine.

II

In reviewing the district court's application of the sentencing

guidelines, we review factual determinations for clear error, while

legal determinations are subject to de novo review. United States v.

Blake, 81 F.3d 498, 503 (4th Cir. 1996). The cross-appeals raise three

issues: (1) whether the district erred in determining that Lawrence

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possessed more than 150 kilograms of cocaine; (2) whether the district court erred in granting Lawrence's request for a two-level reduction in sentence for acceptance of responsibility; and (3) whether the

district court erred in concluding that Lawrence did not possess a dangerous weapon under § 2D1.1(b)(1) of the Guidelines. We take these

in turn.

A.

Lawrence's only claim is that the district court clearly erred in

determining that he possessed more than 150 kilograms of cocaine.

He contends that the evidence upon which the court relied was internally inconsistent and unreliable. We disagree. The government

needed only to establish the amount possessed by a preponderance of

evidence. See United States v. Engleman, 916 F.2d 182, 184 (4th Cir.

1990) (citing United States v. Powell, 886 F.2d 81, 85 (4th Cir.

1989)). In finding the 150 kilogram amount, the court relied on the

testimony of several of Lawrence's coconspirators which, taken

together, indicated that Lawrence had bought and sold well over 150

kilograms of cocaine over the two years that Lawrence was part of the

drug ring. We briefly recapitulate that testimony. Aslan Paulino, Lawrence's supplier, testified that he supplied two to four kilograms per

week to Lawrence for at least two years, which minimally would

amount to more than 200 kilograms. Kermitt Oliver testified that he

had purchased two to three kilograms of cocaine from Lawrence in

a typical transaction, and that he bought cocaine from Lawrence two

to three times per week for three years. Against this testimony, Lawrence only points out that Paulino also testified inconsistently that he

had only sold a total of 30 kilograms to Lawrence throughout the conspiracy, and that Oliver said that he purchased anywhere from 400 to

2200 kilograms of cocaine from Lawrence, ultimately admitting that

he did not know the total amount he had purchased.

These inconsistencies go only to the weight to be ascribed to the

testimony of these two witnesses, hence to their credibility as to those

portions unfavorable to Lawrence. We of course owe special deference to such credibility determinations. See 18 U.S.C. § 3742(e)

(1994); accord United States v. Daughtrey, 874 F.2d 213, 217 (4th

Cir. 1989). We cannot find clear error here in the district court's find-

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ing, despite the inconsistencies in the witnesses' testimony, that more

than 150 kilograms were possessed.

B.

Section 3E1.1 of the Sentencing Guidelines provide for a two level

reduction if the defendant accepts responsibility for his criminal conduct. In its commentary the Sentencing Guidelines Commission

observed that a court could grant this reduction when a defendant

truthfully admitted the conduct comprising the offense of conviction,

but "a defendant who falsely denies, or frivolously contests, relevant

conduct that the court determines to be true has acted in a manner

inconsistent with acceptance of responsibility." U.S. Sentencing

Guidelines Manual § 3E1.1 commentary n. 1(a) (1995). We have previously held that in order for § 3E1.1 to apply, "a defendant must first

accept responsibility for all of his criminal conduct." United States v.

Gordon, 895 F.2d 932, 936 (4th Cir. 1990) (emphasis added).

The district court concluded that Lawrence had sufficiently demonstrated his acceptance of responsibility for his criminal conduct, stating,

I remember I tried this case. It was a bench trial, and I do

recall that in effect the defendant in what he said to the probation officer effectively admits the offense, and it was a

relatively straightforward and simple trial, not a whole lot of

issues in contest; and it was a bench trial, so that there were

costs saved. Most defendants don't waive a jury, and this

defendant did. I think he therefore deserves some credit for

that. And he actually has agreed to and accepted all the elements of the offense.

 It is simply the quantity of drugs with which he disputes

the government's position. And for those reasons, I think it

is appropriate to give him a two credit for acceptance of

responsibility.

JA 289.

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Lawrence has correctly pointed out that standing trial is not necessarily inconsistent with an acceptance of responsibility. The Commission has acknowledged that a defendant may exercise his right to a

trial to make a constitutional challenge to a statute, for example, yet

still be entitled to an acceptance of responsibility reduction. See U.S.

Sentencing Guidelines Manual § 3E1.1 commentary n. 2. Such a situation is "rare," however, and § 3E1.1 was "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." Id. Though Lawrence

waived his right to a jury trial, he nevertheless put the government to

its burden of putting him to trial on disputed facts which the Government had the burden to prove.

By continuing to maintain through trial that he only possessed 20

kilograms of cocaine through the life of the conspiracy, Lawrence has

not admitted to all relevant conduct for the offense of conviction and

therefore is ineligible for the two-level reduction. See United States

v. Taylor, 72 F.3d 533, 551 (7th Cir. 1995) (holding that a defendant's

"false denial" of relevant conduct as found by the sentencing court

precludes a claim of acceptance of responsibility). Cf. United States

v. Campos, 87 F.3d 261, 265 (8th Cir. 1996) ("Where . . . the district

court reasonably determines that the defendant accepted responsibility

for less than all of his criminal conduct, it is not clearly erroneous to

deny a reduction in offense level."); United States v. Falesbork, 5

F.3d 715, 721-22 (4th Cir. 1993) (affirming denial of reduction when

defendant lied to probation officer about relevant conduct).

The Guidelines and our precedent make clear that a defendant must

admit all relevant conduct to be eligible for a reduction, and Lawrence

simply has not done so. Accordingly we hold that the district court

clearly erred in granting Lawrence a two-level reduction in sentence

for acceptance of responsibility.

C.

At sentencing the government alleged that Lawrence had possessed

a dangerous weapon in furtherance of the drug conspiracy, and therefore requested a two-level increase in Lawrence's sentencing level

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pursuant to § 2D1.1(b)(1) of the Guidelines. The district court refused

to grant the enhancement, stating,

 In terms of the gun issue, I am also troubled that I don't

think there is enough evidence there for sentencing purposes

to give this defendant a two point enhancement for having

a firearm. No firearm was found on him. The testimony was

diminimous (sic) that somebody had once seen him with the

firearms in these transactions.

 The fact that bullets or something may have been found,

I don't think is sufficient. The government didn't charge

him with that type of offense, and I am not going to start

imposing effectively new convictions in the context of sentencing. So, I am not giving him the enhancement of those

two points.

JA 289-90. The government contends the district court failed to consider its argument that even if Lawrence did not himself possess a

dangerous weapon, he met the requirements of § 2D1.1(b)(1) because

he reasonably could have foreseen that other coconspirators possessed

dangerous weapons in furtherance of the conspiracy.

We have held that a defendant should receive this enhancement

when it is reasonably foreseeable to him that his coconspirators possessed dangerous weapons that are connected with the conspiracy. See

United States v. Hunter, 19 F.3d 895, 896 (4th Cir. 1994); United

States v. Nelson, 6 F.3d 1049, 1056 (4th Cir. 1993); United States v.

White, 875 F.2d 427, 433 (4th Cir. 1989). Accordingly, weapons possessed by Lawrence's coconspirators are attributable to Lawrence for

sentencing purposes, so long as Lawrence could reasonably foresee

that his coconspirators possessed the weapons, "unless it is clearly

improbable that the weapon was connected with the offense." U.S.

Sentencing Guidelines Manual § 2D1.1 commentary n. 3 (1995).

The government presented a strong circumstantial case to support

its claim that Lawrence thus "possessed" firearms to further the conspiracy. The police seized a pistol grip shotgun, a handgun, and

ammunition from one of Paulino's stash houses, and a bullet-proof

vest and a gun cleaning kit from Paulino's home. Paulino testified that

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Lawrence had given him the vest, and that Lawrence had told Paulino

that he kept guns in his car. Paulino also testified that he had observed

firearms in Lawrence's apartment. Four other handguns were seized

from conspiracy members' vehicles. Morban and Oliver testified that

they were armed during transactions with the defendant, and Oliver

testified that he had seen weapons in Lawrence's vehicles. Finally,

authorities seized a bullet-proof vest, a gun carrying bag, a gun cleaning kit and ammunition from a car that also contained personal items

attributable to Lawrence, including photos of Lawrence and a summons for Lawrence under one of his aliases.

While Lawrence responds that the government could not make a

direct link between Lawrence and the weapons, at a minimum the

government made a showing sufficient to prove that Lawrence reasonably should have foreseen that his coconspirators regularly used

dangerous weapons. Relying exclusively on the somewhat less conclusive evidence of Lawrence's own possession of weapons, the district court clearly erred in determining that Lawrence should not

receive a two-level increase in his sentence.

III

While the district court correctly concluded that Lawrence possessed more than 150 kilograms of cocaine, it clearly erred in providing a two-level reduction in sentence for acceptance of responsibility

and in failing to order a two-level increase in Lawrence's sentence

level for possession of a dangerous weapon. Accordingly, we affirm

in part, reverse in part and remand for resentencing consistent with

this opinion.

AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED FOR RESENTENCING

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