* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 26 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, Nos. 98-6421, 98-6422, 98-6423

v. W. D. Oklahoma EDWARD LEE MCFADDEN,

Defendant - Appellant. (D.C. Nos. CR-97-142-L, CR-97-177-L, CR-97-189-L)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Edward Lee McFadden pleaded guilty in the district court to two counts of possession with intent to distribute cocaine, in vi olation of 21 U.S.C. § 841(a)(1),-2-

and one count of conspiracy to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846. He was sentenced to three concurr ent terms of 360 months’ imprisonment, and now appeals his sentence. He arg ues that he was improperly denied a reduction for acceptance of responsibilityand that his sentence was incorrectly enhanced for a leadership role in the o ffenses. For the reasons stated below, we disagree with McFadden and affirm his sentence.

BACKGROUND McFadden was involved in extensive, multistate, ill egal drug distribution operations from at least 1986 until his arrest in O klahoma City on July 16, 1997. Prior to his arrest, McFadden was named in two separate indictments for drug offenses, and after his arrest he was named in a th ird. The first, handed down in the Central District of California on December 3, 1 987, named McFadden in 33 of 48 counts, including charges of conspiracy to distr ibute, distribution, and possession with intent to distribute controlled sub stances, as well as money laundering. The second, returned in the Southern D istrict of Ohio on August 28, 1991, charged him with similar crimes in four count s of a 91-count indictment. The third, issued in the Western District of Oklaho ma on September 3, 1997, named McFadden in 10 of 12 counts, charging (inter alia) conspiracy to distribute-3-

and distribution of cocaine. The Ohio and Californ ia indictments were transferred to Oklahoma under Fed. R. Crim. P. 20. On January 8, 1998, pursuant to a written plea agre ement, McFadden pleaded guilty to three offenses, one from each ind ictment: Count 34 of the California indictment (possession with intent to di stribute cocaine, in violation of 21 U.S.C. § 841(a)(1)); Count One of the Ohio indic tment (conspiracy to distribute cocaine and cocaine base, in violation o f 21 U.S.C. § 846); and Count Twelve of the Oklahoma indictment (possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1)). The govern ment accordingly dropped all other charges in the indictments. The presentence investigation report (PSR) concerne d only the Ohio and Oklahoma cases, because the California case involve d conduct occurring prior to the applicability of the Sentencing Guidelines. Th e PSR, however, used the California conduct as relevant conduct under USSG § 1B1.3. See PSR at 14 ¶ 61. The PSR calculated McFadden’s criminal history cate gory to be I and his offense level to be 42, including a base offense level of 3 8 (for distributing more than 100 kilograms of cocaine and cocaine base), with a 4-po int enhancement under § 3B1.1(a) for a leadership role in the offense. M cFadden filed objections to the PSR regarding the drug quantities, the leadership e nhancement, and the denial of a reduction for acceptance of responsibility. The probation officer filed a detailed1 The Addendum to the PSR at one place lists an offen se level of 40. This is

inconsistent with the calculations in the PSR, and at sentencing, the probation officer confirmed that the Addendum was erroneous and that the recommended offense level was 41. See App. at 81-82. -4- response, rejecting McFadden’s arguments as to drug quantities and acceptance of responsibility, but reducing the leadership enhance ment to 3 points under § 3B1.1(b). This resulted in a recommended offense level of 41. 1 Prior to sentencing, McFadden withdrew his objections to dru g quantities in the PSR. McFadden was sentenced in all three cases on Octobe r 15, 1998. After hearing one government witness and arguments from b oth the government and McFadden, the court overruled McFadden’s remaining objections and adopted the recommendation of the PSR for the Ohio and Oklahomacases. Within the guideline range of 324-405 months’ imprisonment, th e court imposed 360 months for each count, to run concurrently. In the Califo rnia case, within the statutory range of 5 to 40 years, the court imposed a concurr ent sentence of 30 years.

DISCUSSION Because it is undisputed that the California case i s not subject to the Sentencing Guidelines, we consider McFadden’s appea l (which raises only issues related to the Sentencing Guidelines) to be limited to his sentences in the other
two cases.2All USSG references are to the 1997 guidelines, whi ch were used in this

case. See PSR at 14 ¶ 61. -5- A. Aggravating Role McFadden contends that the district court improperl y enhanced his offense level under USSG § 3B1.1, 2which provides as follows: Based on the defendant’s role in the offense, incre ase the offense level as follows: (a) If the defendant was an organizer or leader of a c riminal activity that involved five or more participants orwas otherwise extensive, increase by 4 levels. (b) If the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity invo lved five or more participants or was otherwise extensive, incre ase by 3 levels. (c) If the defendant was an organizer, leader, manager , or supervisor in any criminal activity other than desc ribed in (a) or (b), increase by 2 levels. McFadden’s offense level was increased by 3 levels under § 3B1.1(b). At sentencing he asked for a 2-level enhancement under§ 3B1.1(c), arguing that the government had not shown that the criminal activityinvolved five or more participants. See App. at 67. The court concluded both that five ormore participants were involved and that the criminal ac tivity was “otherwise extensive.” McFadden does not contest this conclus ion on appeal; he argues only3 McFadden made a similar argument in his objections to the PSR. See PSR

at 24 (“Counsel [for McFadden] asserts the governme nt failed to show by a preponderance of the evidence that the defendant wa s a[] . . . manager or supervisor of any criminal activity.”). -6- that at sentencing there was no sufficiently reliab le evidence that he exercised direct control over any other person, and that ther efore he was not shown to be a manager or supervisor. 3 In other words, on appeal, McFadden is arguing th at § 3B1.1 does not apply at all. The terms “manager” and “supervisor” apply only to those defendants who “exercised some degree of control over others invol ved in the commission of the offense” of conviction, or were “responsible for or ganizing others for the purpose of carrying out the crime.” United States v. Roberts , 14 F.3d 502, 523 (10th Cir. 1993). The government need show only that a defend ant exercised leadership control over at least one other person. See United States v. Cruz Camacho , 137 F.3d 1220, 1224 (10th Cir. 1998). At sentencing th e government presented testimony from Adrian Satchell that he delivered co caine and collected money for McFadden, shuttling between Oklahoma and Chicago, D etroit, and Minneapolis. Satchell testified that McFadden told him exact amo unts of money to collect, how to handle partial payments, what phone numbers to c all, what highways to use, a time of day to leave, and a time of day to return, and that McFadden reprimanded him on the occasions that he did not follow these o rders in every particular.-7-

Satchell testified that McFadden also supervised nu merous other persons, some of which he named but others he did not. McFadden’s argues that Satchell was not a sufficiently reliable witness to carry the government’s burden of proof. He points out that Satchell completely avoided criminal charges by testifying, and that Satchell’s testimony contained various inconsistencies. However, the court was pr esumably well aware of these facts, and it nevertheless found Satchell to be “an extremely credible witness.” App. at 9. “Witness credibility at sentencing is aquestion for the district court, and we find no reason to second-guess the court’s c redibility assessments in this case.” United States v. Browning , 61 F.3d 752, 754-55 (10th Cir. 1995) (citation and footnote omitted). Especially given the fact t hat McFadden was given the opportunity to cross-examine Satchell (which he did ) and to present evidence of his own (which he did not), we find no error in the district court’s reliance on Satchell’s testimony. Even uncorroborated hearsay may be considered, so long as a defendant has had an opportunity to rebut or explain the evidence, see United States v. Beaulieu , 893 F.2d 1177, 1179 (10th Cir. 1990), and this li ve testimony was far from hearsay. Furthermore, although Satche ll’s testimony may have contained minor inconsistencies, it appears from th e record to have been both detailed and thorough. We therefore uphold the lea dership enhancement.-8-

B. Acceptance of Responsibility McFadden also argues that the district court erred in refusing an offense level reduction under USSG § 3E1.1 for acceptance o f responsibility. We review the district court’s decision only for clear error. See United States v. Janusz , 135 F.3d 1319, 1325 (10th Cir. 1998). The district cou rt’s decision “is entitled to great deference” because “[t]he sentencing judge is in a unique position to evaluate a defendant’s acceptance of responsibility .” USSG § 3E1.1, comment. (n.5). The district court determined that although McFadde n pleaded guilty to the offenses for which he was sentenced, he “has contin ued to act inconsistent with the acceptance of responsibility from the first ind ictment forward.” App. at 77-78. While the court indicated that McFadden’s g uilty pleas were “a major consideration,” id. at 78, it concluded that several factors outweighe d the pleas. These factors included (1) McFadden’s continuing cr iminal activity until his arrest, despite outstanding indictments; (2) his un founded and extensive objections to drug quantities in the PSR, which “we re withdrawn only after the Defendant and Counsel realized it may affect their acceptance of responsibility,” id. at 77; and (3) his unsupported, “continual objecti on” to his “role in the offense,” id.-9-

We find no clear error in the district court’s deci sion to deny the reduction. A guilty plea alone does not entitle a defendant to a § 3E1.1 adjustment, see USSG § 3E1.1, comment. (n.3), and the three countervailing factors relied on by the court were legally appropriate and were support ed by the record. On appeal, McFadden does not dispute that he continued his ill egal activities right up to the time he was arrested; this factor is referenced in the commentary to § 3E1.1. See id. , comment. (nn.1(b), 1(d)) (listing as “appropriate considerations” both “voluntary termination or withdrawal from criminal conduct” and “voluntary surrender to authorities promptly after commission of the offense” ). Furthermore, the court was free to conclude, in vie w of the extensive support in the PSR for the drug quantity calculatio ns, that McFadden’s objections to those drug quantities (although eventually withd rawn) constituted a false denial of or frivolous contest to relevant conduct, “incon sistent with acceptance of responsibility.” Id. , comment. (n.1(a)). McFadden contends that withdr awing these objections indicated acceptance of responsibi lity. He argues that he was improperly punished for this action, because the di strict court concluded from the fact of withdrawal and from the specific timing of the withdrawal that the objections were not legitimate. However, even assu ming that McFadden is correct and that the withdrawal of the objections i ndicated some acceptance of responsibility for those drug quantities, timelines s is a relevant factor under-10-

§ 3E1.1. See id. , comment. (n.1(h)). McFadden withdrew his objecti ons only after the probation officer had already filed a det ailed response to the objections. And, as the district court noted, McFadden’s object ions had already raised the possibility of “almost having a trial, a separate t rial on relevant conduct.” App. at
77. Finally, the court was justified in concluding thatMcFadden had falsely minimized his role in the offense. At sentencing, McFadden challenged the factual basis for the leadership enhancement (i.e., the number of people involved in the criminal activity), not simply a legal chara cterization of uncontested facts. The record adequately supports the court’s determin ation that McFadden’s arguments under USSG § 3B1.1(b) lacked factual basi s. Accordingly, we find no clear error in the districtcourt’s denial of a reduction for acceptance of responsibility. AFFIRMED. ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge