* This order and judgment is not binding precedent, e xcept under the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

### FEB 23 1999 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. THEODORE WILLIS FLOWERS, JR., Defendant-Appellant. No. 97-6044 (D.C. No. 96-CR-108) (W.D. Okla.)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BARRETT and TACHA, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G).-2-

Theodore Willis Flowers, Jr., entered a plea of gui lty to a single-count superceding indictment for maintaining a place for the purpose of distributing cocaine base in violation of 21 U.S.C. 856 (a)(1). He received a sentence of 240 months. On appeal, he objects to the district court’s failure to award him an offense level reduction for acceptance of responsib ility and for a minor role in the drug conspiracy. We affirm. Mr. Flowers was charged in a multi-count drug consp iracy that extended from Los Angeles to Oklahoma City. It is undispute d that Mr. Flowers’ automotive shop served as a center for the conspira cy’s crack transactions for almost two years. He thus facilitated drug sales an d sporadically sold drugs from the auto shop himself. When the prosecutor offered Mr. Flowers a plea agreement, he immediately accepted. In exchange fo r the dismissal of all conspiracy counts against him, Mr. Flowers pled gui lty to maintaining a place to distribute cocaine base. Three and a half months after the plea, Mr. Flowers sent the district court a handwritten letter dated January 9, 1997, discussin g his struggling economic situation, his confused interactions with police re garding the vehicles in his shop, and the circumstances surrounding his crime. In re levant part to the crime to which he pled guilty, Mr. Flowers wrote, “I have be en charge[d] with the following violation 21 U.S.C. § 856 maintaining & dwelling. At this time I-3-

would like to express to you about the innocent [si c] of this crime that I’ve been so accused.” Ct. Exh. 2 at 1. He denied he knew h is shop was used for drug sales. “I never was aware of the type of call thatwas made . . . . And with all the things I had to do I didn’t have time to sale [ sic] any drug[s] . . . . [T]hat[’s] a job within itself.” Id. at 8. Thereafter at sentencing, Mr. Flowers objected to the court’s denial of an offense level reduction for a minor participant and for acceptance of responsibility. The district court rejected Mr. Fl owers’ request to consider him a minor participant. The court made written findings that Mr. Flowers’ role as owner of the automotive shop made him the key indis pensable actor in maintaining a place for the sale of drugs. Aplt. App. at 11. The court also denied Mr. Flowers a reduction for acceptance of re sponsibility after finding that he was not forthcoming, did not offer complete and accurate information in earlier debriefings, and had attempted to exculpate himself by his letter. Id. at 10-11. We review the district court’s determination that M r. Flowers was not a minor participant as a finding of fact under the cl early erroneous standard. We also give due deference to the court's application of the Sentencing Guidelines. See United States v. Ballard , 16 F.3d 1110, 1114 (10th Cir.1994). The burden i s on a defendant to establish that he was a minor participant. Id. Under the1 Mr. Flowers contends the district court erred in m aking this determination

by considering evidence from the trial of his co-de fendants without notice to him. However, it is clear from both the sentencing trans cript, aplt. app. at 16, and the district court’s written order, id. at 11, that the court did not consider Mr. Flowers’ role in the drug conspiracy in denying hima reduction as a minor participant. In this regard, the court said, “It’s important to keep in mind in this respect what is the count . . . ; it’s maintaining the place, not the conspiracy for the distribution of the crack cocaine. And fundame ntally, one either maintains the place or he doesn’t. And with respect to maintaini ng the place, Mr. Flowers is the key and the indispensable person because it is his place of business.” Id. at 16. It was thus unnecessary for the court to consider evid ence from the trial of Mr. Flowers’ co-defendants in determining the nature of Mr. Flowers’ role in the offense. The circumstances surrounding Mr. Flowers ’ guilty plea established sufficient evidence that he was not a minor partici pant in the activity for which he was convicted. -4- Sentencing Guidelines, “[b]ased on the defendant’s role in the offense,” there is a reduction for a minor participant “who is less culp able than most other participants . . .” See U.S.S.G. § 3B1.2 and comment. n.3. As the distric t court noted, Mr. Flowers did not plead to conspiracy. To the contrary, all conspiracy charges were dropped in exchange for his guilty ple a to the charge of maintaining a place for the distribution of crack cocaine. Wit h respect to that offense, the record shows Mr. Flowers was the owner and operatorof the auto shop and occasionally sold crack from the shop himself. As such, he was fully and indispensably culpable for the maintenance of the auto shop as a place to distribute cocaine. The district court did not errin finding that Mr. Flowers was not a minor participant. 1-5-

We review the district court’s denial of a reductio n for acceptance of responsibility under the clearly erroneous standard. See United States v. Robertson , 45 F.3d 1423, 1449 (10th Cir.1995). The districtcourt has “broad discretion to grant or deny the reduction.” Id. ; U.S.S.G. § 31E1.1 comment. n.5. Here, the district court found Mr. Flowers’ letter to be an attempt to exculpate himself. In the letter, Mr. Flowers expressed inno cence and lack of knowledge. That was directly contrary to his plea, in which he conceded he maintained a place for drug distribution and even sold drugs fro m the auto shop himself. Notwithstanding the beseeching sentiments of the le tter, its expression of innocence contradicts Mr. Flowers’ guilty plea and belies an acceptance of responsibility. Consequently, it was well within the district court’s broad discretion to deny a reduction for acceptance of re sponsibility.
We AFFIRM the district court’s denial of offense level reduct ions for Mr. Flowers as a minor participant and for acceptance o f responsibility.
ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge