In the

United States Court of Appeals

For the Seventh Circuit

No. 99-2963

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LAWRENCE E. SIMMONS, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 98 CR 30155--William L. Beatty, Judge.

Argued February 18, 2000--Decided JUNE 27,

2000

 Before Posner, Chief Judge and Bauer and

Manion, Circuit Judges.

 Bauer, Circuit Judge. Lawrence E.

Simmons, Jr. ("Simmons") appeals the

sentence he received after pleading

guilty to a series of drug and firearm

offenses. He challenges the quantity of

cocaine used by the District Court in

calculating his base offense level under

the Sentencing Guidelines, the disparity

between his sentence and his coconspirator’s sentence, and the limited

reduction he received for acceptance of

responsibility, claiming he should have

received an additional level. Having

reviewed the sentence and the evidence

and finding no error, we affirm the

District Court.

I. BACKGROUND

 On September 23, 1998, Simmons was

charged in seven counts of an eleven

count indictment. The charges against him

included conspiracy to distribute cocaine

and crack cocaine, possession with intent

to distribute cocaine and crack cocaine,

being a felon in possession of a firearm

and four counts of distributing crack

cocaine. He was indicted along with his
co-conspirator, Sandra Michelle Dixon

("Dixon").

 The charges arose out of the activities

of an "organization" run by Simmons.

Simmons bought quantities of powder

cocaine and later converted it to crack

cocaine for sale when he or one of his

aides received an order. The group

operated out of motels, moving from one

to another whenever they felt the

authorities were "on" to them. Their luck

ran out on August 25, 1998,

appropriately, at the Trails End Motel.

The group was arrested, and drug

paraphernalia, more than $500.00 in cash,

and a .38 caliber pistol were seized.

 Dixon accepted a plea agreement from the

government and pleaded guilty to the

charges against her. In exchange for her

cooperation and testimony, the government

agreed not to seek an enhanced sentence

against Dixon pursuant to 21 U.S.C.

sec.851. She was sentenced to 108 months

imprisonment.

 The government did file an information

charging prior offenses against Simmons,

subjecting him to the enhanced penalty

provisions of 21 U.S.C. sec.841(b). And,

although he made a written statement

implicating himself in the conspiracy

shortly after his arrest, Simmons did not

plead guilty until April 6, 1999, the day

his trial was scheduled to begin, after

five previous continuances were granted

upon defense requests. There was no plea

agreement between Simmons and the

government.

 Detective Clark of the St. Clair County

Sheriff’s Department testified for the

government at Simmons’ sentencing

hearing. The government also submitted 14

written statements from various

individuals, including the defendant,

Dixon and some of their customers. After

considering all of the evidence and the

findings in the Presentence Investigation

Report, the District Court made findings

of relevant conduct, including the

attribution of 72.66 grams of cocaine to

Simmons, and determined his offense level

to be 32. It granted Simmons a two level

reduction (out of a possible three) for

acceptance of responsibility since he had

pleaded guilty, and sentenced him to a

term of 240 months imprisonment on the

drug charges and a concurrent term of 120
months on the firearms charge. Simmons

was also ordered to pay a fine of

$2,450.00 and a special assessment of

$700.00.

 

II. DISCUSSION

 A. Calculation of Drug Amounts for

Sentencing

 On appeal, Simmons challenges the

District Court’s determination that he

was responsible for 72.66 grams of

cocaine. He argues that the District

Court credited "unreliable" evidence when

calculating the quantity of cocaine for

which is he is accountable under the

Sentencing Guidelines. We review the

District Court’s drug quantity

determination for clear error, United

States v. Johnson, 200 F.3d 529, 537 (7th

Cir. 2000); United States v. Branch, 195

F.3d 928, 933 (7th Cir. 1999), and will

affirm the District Court’s decision

unless, after reviewing all of the

evidence, "we are left with the firm

conviction that a mistake has been

committed." Johnson, 200 F.3d at 537.

 Simmons’ principal complaint is that the

District Court erred in relying on the

written statement of Aramy Carter

("Carter") to support the amount of

cocaine attributable to him. Carter’s

statement was used by the court to

attribute 42.52 grams of crack cocaine

(approximately 58% of the total relevant

conduct) to Simmons. He contends

thatCarter’s statement strains

credibility and is unreliable because

Carter did not testify in open court. 

 The government presented only one live

witness at the sentencing hearing. That

witness, Detective Clark of the St. Clair

County Sheriff’s Department, testified to

the investigation into the defendant’s

organization and the controlled buys of

cocaine made between May, 1998 and

August, 1998. He also testified to the

statements taken from the defendant, his

co-conspirator Sandra Dixon, and seven

customers. 

 Aramy Carter was one of the customers

whose statements were presented to the

District Court./1 In his statement,

Carter said that he had seen Simmons

"with ounce 3 to 4 times and each time

[Simmons] would rock it up when we got
ready to smoke it." Converted into grams,

Carter’s statement says that he saw

Simmons with 42.52 grams to 56.7 grams of

cocaine.

 Simmons admits selling cocaine to

Carter. Indeed, his own statement says

that he sold Carter "some 20s rock [$20

worth] of crack cocaine." The government

argues that this admission bolsters the

credibility of Carter’s statement because

it shows a relationship between the two

men and explains how Carter could have

seen Simmons with those amounts of

cocaine on those occasions. Simmons,

however, combines the two statements and

argues that they demonstrate the

unreliability of Carter’s statement. He

posits that if the 42.52 grams are

attributable to him, and a $20.00 piece

of crack cocaine equals 0.2 grams (as the

Presentence Investigation Report tells us

it does), that must mean he sold Carter

crack cocaine 212.6 times, or

approximately two and a half to three and

a half times every day during the two to

three months they had known each other. 

 The argument, presented in this manner

by Simmons, does suggest that Carter’s

statement is implausible and thus

unreliable. But, Simmons’ argument

misreads Carter’s statement: Carter did

not say that Simmons sold him that amount

of cocaine, he merely said that he saw

Simmons with that amount of cocaine.

Simmons’ reading, we think, perverts the

meaning of Carter’s statement and we

decline to read it in the manner he

suggests. 

 We are further persuaded as to the

reliability of Carter’s statement by the

corroboration found in the statements of

the other customers and associates of

Simmons. Carter said that, on occasion

when he was with Simmons, Simmons would

get "beeped" and then leave, carrying his

cocaine in a black bag. This is similar

to the defendant’s own statement wherein

he told of being paged by his customers

and either having them come to him at the

motel or going to them to complete the

drug transaction.

 Similarly, there was a significant

amount of other evidence regarding the

quantity of drugs attributable to the

defendant. Detective Clark testified that

23 grams of cocaine were purchased from
Simmons and his aides during the

controlled buys, 3.5 grams of cocaine

base was seized from Simmons during a

traffic stop on May 29, 1998, and 3.6

grams of cocaine base was sold by Simmons

on June 12, 1998. Phillip Stanley’s

statement said that on 30 occasions he

purchased crack cocaine from Simmons in

$50.00 quantities, totaling approximately

18 grams. Marion Stallings’ statement

admitted that she purchased $50.00

quantities of cocaine three times (1.5

grams) from one of Simmons’ aides. Lizzie

Smith’s statement said she purchased 2

ounces of crack from Simmons on one

occasion and 2 and ounces on other

occasions. Mark Wieter’s statement told

of buying $100.00 of crack cocaine (1

gram) from a Simmons associate. And,

finally, Cheryl Helfritch’s statement

said she bought crack cocaine from

Simmons on 15 occasions, in dollar

amounts of $50.00 and $20.00

(approximately 3 grams).

 The Presentence Investigation Report

attributed 84.5 grams of cocaine to

Simmons. That amount did not even include

the 42.52 grams attributable to Simmons

by Carter’s statement. Thus, even if we

were to discount Carter’s statement,

there is more than ample evidence on

which to affirm the sentence. United

States v. Carmack, 100 F.3d 1271, 1276

(7th Cir. 1996) ("we may affirm a

sentence on any ground found in the

record, regardless of the rationale

employed by the district court."). Since

there are supported findings of more than

50 grams in the record,/2 we affirm the

District Court’s finding.

 As to his claim that Carter’s statement

is unreliable because he did not testify

personally at the sentencing hearing,

there is no requirement that a sentencing

court consider only the testimony of nonhearsay witnesses. See 18 U.S.C.

sec.3661. Indeed, the District Court may

"consider a wide range of information so

long as it has a sufficient indicia of

reliability to support its probable

accuracy." Johnson, 200 F.3d at 537

(internal quotation marks and citations

omitted). Hearsay is admissible at a

sentencing hearing as long as the

evidence is reliable and the defendant

has the opportunity to rebut it. United

States v. Payton, 198 F.3d 980, 983 (7th

Cir. 1999). 
 Simmons presented no evidence to counter

the Presentence Investigation Report. He

merely denied its, and the statement of

Carter’s, accuracy. That is not enough.

United States v. Westbrook, 986 F.2d 180,

183 (7th Cir. 1993) (defendant

challenging amount of cocaine specified

in presentence investigation report must

present some evidence showing that the

amount specified is incorrect.). See also

United States v. Jones, 209 F.3d 991, 996

(7th Cir. 2000). 

 In the absence of any actual evidence

controverting the Presentence

Investigation Report, the testimony of

Detective Clark, and the statements of

the defendant, his co-conspirator and

their customers, we conclude that

thesentencing judge’s finding that

Simmons’ relevant conduct involved 72.66

grams of cocaine was not clearly

erroneous. Because this amount is well in

excess of the 50 grams required under the

prior offense statute, we affirm the

District Court’s findings of relevant

conduct and sentence.

 B. Sentence Disparity 

 Simmons next complains that the

attribution of the 42.52 grams of cocaine

from Carter’s statement to him but not to

his co-conspirator resulted in an unfair

sentencing disparity. The defendant urges

us to consider this a case of erroneous

factual finding by the District Court in

failing to attribute that amount of

cocaine to Dixon, but he again

misinterprets the issue before us. What

he is really claiming is a sentencing

disparity and we shall treat it as such

and quickly dispose of the argument. 

 Our cases have consistently held that "a

disparity among co-defendants’ sentences

is not a valid basis to challenge a

guideline sentence otherwise correctly

calculated." United States v. Edwards,

945 F.2d 1387, 1397-98 (7th Cir. 1991).

Furthermore, the fact that Dixon was an

assistant and not the leader of the

organization, the fact that Dixon pled

guilty pursuant to a plea agreement and

cooperated with law enforcement

authorities, and the fact that Dixon had

a lesser criminal history are factors

which we have held justify a disparity

between the sentences of co-defendants.
See United States v. Hall, et al., 2000

WL 626721 (7th Cir. May 16, 2000) and

United States v. Meza, 127 F.3d, 545,

549-50 (7th Cir. 1997). 

 Simmons’ sentence was correctly

calculated. His sentence is affirmed.

 C. Acceptance of Responsibility

 Simmons’ final argument is that he

should have received the full three level

reduction for acceptance of

responsibility because he pleaded guilty

to the charges against him. The District

Court only accorded him a two level

reduction. "The district court’s

acceptance of responsibility

determination under U.S.S.G. sec.3E1.1 is

a factual determination, and will be

overturned only if clearly erroneous."

United States v. Francis, 39 F.3d 803,

807 (7th Cir. 1994).

 Here, there is no doubt that the court

did not err in denying Simmons the

additional reduction. Simmons attempted

to recant the written statement he gave

after his arrest. He did not notify the

government that he would enter a plea of

guilty until two weeks before his sixth

trial setting, and then only said he

would plead guilty if his final pre-trial

motion was denied. Because of his

conduct, the government prepared for

trial many times and jurors had to be

summoned and ready for trial on the day

he did finally plead. Hardly the

conservation of judicial resources

contemplated by the Sentencing

Guidelines. And hardly the conduct of a

defendant accepting full responsibility

for his actions. 

 The mere fact that Simmons pleaded

guilty does not entitle him to a

reduction for acceptance of

responsibility. United States v. Branch,

195 F.3d. 928, 937 (7th Cir. 1999). He

must demonstrate that he has accepted

full responsibility for his actions,

United States v. Buckley, 192 F.3d 708,

711 (7th Cir. 1999). We do not think that

Simmons has met this burden. He delayed

pleading guilty until all other options

had been exhausted and attempted to

recant his statement. For those reasons,

we hold that the District Court did not

err in denying him a three level
reduction for responsibility. 

III. CONCLUSION

 For the foregoing reasons, the judgment

and sentence of the District Court are

affirmed.

AFFIRMED. 

/1 Carter was arrested at the Trails End Motel with

Simmons and Dixon.

/2 Since the government filed an information charging a prior offense against Simmons, pursuant to

21 U.S.C. sec.sec. 850 and 851, once a finding of

50 grams is made, Simmons automatically receives

the statutory sentence of 20 years, minimum.