UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 97-4998

MACEE ANTHONY PASSEE,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Charlottesville.

Samuel G. Wilson, Chief District Judge.

(CR-97-42)

Submitted: January 12, 1999

Decided: February 8, 1999

Before NIEMEYER and WILLIAMS, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Michael T. Hemenway, Charlottesville, Virginia, for Appellant. Robert P. Crouch, Jr., United States Attorney, Ray B. Fitzgerald, Jr.,

Assistant United States Attorney, Charlottesville, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Macee Anthony Passee appeals his conviction and sentence for

conspiring to distribute cocaine base, in violation of 21 U.S.C. § 846

(1994), and possessing with the intent to distribute cocaine base, in

violation of 21 U.S.C. § 841(a)(1) (1994). For the following reasons,

we affirm.

Passee was named in both counts of a two-count indictment. Count

one charged that Passee and Latrese Taylor conspired to posses with

intent to distribute cocaine base and count two charged that Passee

and Taylor did unlawfully possess with intent to distribute cocaine

base or did aid and abet one another to distribute cocaine base.

On the day set for both defendants' trial, Taylor pled guilty to both

counts of the indictment pursuant to the terms of a written plea agreement. On the same day, Passee proceeded to trial. Prior to his trial,

Passee requested information from the Government as to whether

Taylor would be testifying and, if so, whether she would testify under

any agreement with the Government. The Government answered that

although Taylor would be testifying, she would not be testifying pursuant to any agreement with the Government.

During Passee's trial, Taylor testified as a Government witness and

directly implicated Passee. Upon cross-examination, Taylor denied

that any promise had been made to her in exchange for her testimony.

The jury found Passee guilty on both counts and the matter was set

for sentencing.

Approximately three months later, before Passee's scheduled sentencing hearing, Taylor's counsel informed Passee's counsel that Taylor had testified under an agreement with the Government and that the

Government would make a downward departure motion at Taylor's

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sentencing in exchange for her testimony. At Passee's and Taylor's

joint sentencing hearing, Passee moved for a mistrial alleging that

Taylor testified pursuant to an agreement with the Government, which

had not been disclosed to Passee prior to or during his trial, and that

the nondisclosure severely prejudiced him. The district court denied

the motion.

After the presentation of Passee's presentence report, the district

court imposed a sentence of 200 months imprisonment. Passee subsequently moved for a new trial based on newly discovered evidence

and submitted, as an exhibit in support of his motion, Taylor's Motion

To Compel Specific Performance. Taylor's motion was signed by her

counsel and alleged that the Government had agreed to make a downward departure motion from her guideline range depending on her testimony at Passee's trial. At the joint sentencing hearing, the district

court denied Taylor's Motion for Specific Performance after finding

that the only valid agreement between Taylor and the Government

was the one she entered into on the date she pled guilty, which did

not include a promise of a downward departure motion from the Government.

The district court denied Passee's motion for a new trial without

holding a hearing. The court found that it had heard Taylor state

under oath on two occasions her understanding of her plea agreement

and that her understanding contradicted Passee's claim. The court further found that, when it heard Passee's prior motion for a mistrial,

Passee offered no evidence to support his allegation and reasoned that

Passee could have called Taylor as a witness in support of his prior

motion. The court also noted that Passee could have filed an affidavit

in connection with his motion for a new trial or suggested why he

could not file an affidavit. The court concluded that Passee's contradicted and unsupported allegations merited no additional inquiry and

denied his motion for a new trial.

On appeal, Passee claims that the district court erred in denying his

motion for a new trial based on newly discovered evidence without

holding an evidentiary hearing. Passee also claims that the district

court erred in imposing a two-level enhancement of his offense level

for his role in the offense as a leader or organizer pursuant to U. S.

Sentencing Guidelines Manual § 3B1.1(c) (1997), and by denying a

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two-level reduction of his offense level for acceptance of responsibility under U.S.S.G. § 3E1.1(a).

A district court's denial of a motion for a new trial will not be set

aside absent an abuse of discretion. See United States v. Campbell,

977 F.2d 854, 860 (4th Cir. 1992). An abuse of discretion occurs

when a judge fails completely to exercise discretion, fails to use judicially recognized factors that apply in the context of the case, or exercises his discretion based upon erroneous factual or legal premises.

See James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993). The district

court may grant a new trial for newly discovered evidence only when

the following criteria are met: (i) the evidence must in fact be newly

discovered since the trial; (ii) facts must be alleged from which the

court may infer diligence on the movant's part; (iii) the evidence on

which the court relies must not be merely cumulative or impeaching;

(iv) the evidence must be material to the issues involved; and (v) the

evidence must be such that, on a new trial, it would probably produce

an acquittal. See United States v. Chavis, 880 F.2d 788, 793 (4th Cir.

1989). If all the criteria are not met, the motion for a new trial must

be denied. See id.

Passee fails to satisfy the first requirement for a new trial, because

he offered no new evidence. Rather, he only offered allegations that

Taylor had an undisclosed agreement with the Government whereby

the Government promised to make a downward departure motion at

her sentencing in exchange for her testimony at Passee's trial.

Although Passee submitted Taylor's Motion to Compel Specific Performance as an exhibit in support of his motion for a new trial, it contained nothing more than Taylor's unsupported allegations regarding

her alleged agreement with the Government and the district court

denied Taylor's motion. As the district court noted, Passee could have

filed an affidavit in connection with his motion for a new trial or

explained why he could not file one. Because Passee does not satisfy

the first requirement of the Chavis factors, it is unnecessary to review

the remaining factors. See id.

Passee next claims that the district court erred in imposing a two

level enhancement of his offense level for his role in the offense. The

Government was required to prove Passee's role in the offense by a

preponderance of the evidence. See McMillan v. Pennsylvania, 477

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U.S. 79, 91 (1986). Furthermore, the sentencing court's determination

that Passee is an organizer or leader is subject to the clearly erroneous

standard of review. See United States v. Smith , 914 F.2d 565, 569 (4th

Cir. 1990).

Taylor testified that she had been recruited in New York by Passee

to carry crack cocaine to West Virginia in exchange for a fee. Her testimony was consistent with her statement to the police at the time of

her arrest. To the extent that Passee challenges Taylor's credibility on

appeal, we cannot review the district court's credibility determination.

See United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). Her

testimony was sufficient to establish Passee's leadership role. Therefore, we find that the district court did not clearly err in finding that

the Government proved by a preponderance of the evidence that Passee was a leader or organizer of the conspiracy.

Lastly, Passee contends that the court erred by denying a two-level

reduction of his offense level for acceptance of responsibility. See

U.S.S.G. § 3E1.1(a). Again, we review the court's factual determination regarding whether to apply § 3E1.1 under the clearly erroneous

standard. See United States v. Myers, 66 F.3d 1364, 1372 (4th Cir.

1995). The district court found that, based upon Taylor's testimony

and the corroborating evidence, Passee had not accepted the full

extent of his responsibility for his participation in the offense. Further,

the district court's finding was made in light of Passee's continued

denial of his leadership role. Therefore, we find that the district court

did not clearly err in finding that Passee failed to accept responsibility

for his offense.

Accordingly, we affirm Passee's conviction and sentence. We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED

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