In the

United States Court of Appeals

For the Seventh Circuit

No. 01-2415

United States of America,

Plaintiff-Appellee,

v.

Stanley Mayberry,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:99CR30022-015--David R. Herndon, Judge.

Argued November 13, 2001--Decided November 30, 2001

 Before Flaum, Chief Judge, and Bauer and

Evans, Circuit Judges.

 Flaum, Chief Judge. Stanley Mayberry

pleaded guilty to conspiracy to

distribute cocaine base in violation of

21 U.S.C. sec.sec. 846 and 841(a)(1). He

was sentenced to 194 months’

imprisonment, 5 years’ supervised

release, a $1,750 fine, and a $100

special assessment. Mayberry appeals,

claiming that the district court erred:

first, when it adjusted upward for

obstruction of justice pursuant to

U.S.S.G. sec. 3C1.1; and second, when it

refused to adjust downward for acceptance

of responsibility pursuant to U.S.S.G.

sec. 3E1.1. We affirm.

I. Background

 In January 1997, local and federal law

enforcement agencies began investigating

crack cocaine distribution in Centralia,

Illinois. During the continuing

investigation, authorities discovered

that Mayberry and others had been selling

crack cocaine from the time the

investigation started until March 1999.

Subsequently, Mayberry was arrested and

charged with conspiracy to distribute and

conspiracy to possess with intent to

distribute more than fifty grams of

cocaine base. After Mayberry’s arrest,

one of his co-defendants, Donyell
Coleman, told federal agents that

Mayberry had sold narcotics. After being

informed of Coleman’s statement, Mayberry

admitted his involvement in the

conspiracy.

 In February 2001, Mayberry agreed to

plead guilty in exchange for the

government’s promise to recommend a

three-level sentence reduction for

acceptance of responsibility. Despite the

plea agreement, however, the government

argued against the reduction at the

sentencing hearing because it contended

that Mayberry had obstructed justice by

physically attacking co-defendant

Coleman. Special Agent Stonecipher

testified that Coleman told him that

Mayberry had punched him in the face and

threatened to "send somebody down from

Chicago to take care of [his] brother and

his cousin." In response, Mayberry’s

attorney proffered that Mayberry would

deny the attack, but would admit that "he

did get into some argument with Mr.

Coleman . . . revolv[ing] around the fact

that Mr. Coleman was trying to place

blame or . . . allegations against [him],

and [he] was mad about it."

 The district court concluded that the

evidence of the attack was "credible and

reasonable" and that "the defendant did

willfully obstruct and impede, or attempt

to impede, the administration of

justice." Accordingly, the district court

adjusted Mayberry’s base offense level

upward two levels for obstruction of

justice. The district court then held

that Mayberry was not entitled to a

reduction for acceptance of

responsibility because "when you go after

a snitch either because . . . you’re mad

at him because he’s given information, or

you’re trying to make sure he learns a

lesson so he won’t give any further

information, . . . it flies in the face

of an acceptance of responsibility."

II. Discussion

A. Standard of Review

 We review de novo whether the district

court properly interpreted the sentencing

guidelines, United States v. Johnson, 227

F.3d 807, 812 (7th Cir. 2000), cert.

denied, 121 S. Ct. 1967 (2001), but

review the district court’s underlying

factual findings for clear error. United
States v. McGiffen, 267 F.3d 581, 591

(7th Cir. 2001). Under the clear error

standard, the reviewing court will

reverse only when it "is left with the

definite and firm conviction that a

mistake has been committed." United

States v. United States Gypsum Co., 333

U.S. 364, 395 (1948); United States v.

Ewing, 129 F.3d 430, 433-34 (7th Cir.

1997). The district court’s

determinations regarding obstruction of

justice under U.S.S.G. sec. 3C1.1 and

acceptance of responsibility under

U.S.S.G. sec. 3E1.1 are factual

determinations reviewed for clear error.

United States v. Stokes, 211 F.3d 1039,

1044 (7th Cir. 2000); United States v.

Simmons, 218 F.3d 692, 696 (7th Cir.

2000), cert. denied, 531 U.S. 1097

(2001).

B. Obstruction of Justice

 The sentencing guidelines require a

court to adjust upward two levels the

defendant’s base offense level if the

"defendant willfully obstructed or

impeded . . . the administration of

justice during the course of the

investigation, prosecution, or

sentencing." U.S. Sentencing Guidelines

Manual sec. 3C1.1; see also Ewing, 129

F.3d at 434. Such an adjustment applies

when the defendant "threaten[s],

intimidat[es], or otherwise unlawfully

influenc[es] a co-defendant." U.S.

Sentencing Guidelines Manual sec. 3C1.1,

cmt. n.4; see also Johnson, 227 F.3d at

815. To receive the two-level adjustment,

the defendant need not have been

successful in his attempt to obstruct

justice; the attempt itself is

sufficient. Ewing, 129 F.3d at 435. 

 On appeal, Mayberry asserts that he had

no reason to attack Coleman after already

confessing his role in the conspiracy and

also argues that the district court

should not have relied on Special Agent

Stonecipher’s hearsay testimony regarding

the alleged attack. Whether Mayberry

attacked Coleman is an issue of

credibility, and we give special

deference to the district court’s

credibility determinations. United States

v. White, 240 F.3d 656, 661 (7th Cir.

2001). The Federal Rules of Evidence do

not apply to sentencing hearings;

therefore, the district court was

entitled to rely on Stonecipher’s
testimony, despite it being hearsay.

Johnson, 227 F.3d at 813; United States

v. McClellan, 165 F.3d 535, 552 (7th Cir.

1999). A sentencing court may consider

hearsay evidence so long as it is

reliable and the defendant has the

opportunity to rebut it. United States v.

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

1999). Stonecipher’s hearsay testimony

had the indicia of reliability because it

was corroborated by Mayberry’s admission

that he had an argument with Coleman

about Coleman’s proffer that Mayberry had

sold crack cocaine. Further, Mayberry

offered no evidence to rebut

Stonecipher’s testimony, despite having

the opportunity to do so. His attorney’s

denial of the attack does not constitute

evidence. See United States v. Purchess,

107 F.3d 1261, 1267 (7th Cir. 1997). It

follows, then, that the district court

did not clearly err by crediting

Stonecipher’s testimony.

 Mayberry next argues that even if he did

attack Coleman, he did not obstruct

justice because the attack occurred after

he had admitted his involvement in the

conspiracy. Thus, he contends, he could

not have interfered with "the

investigation, prosecution, or

sentencing." See U.S. Sentencing

Guidelines Manual sec. 3C1.1. This

argument, however, is unavailing because

Mayberry attacked Coleman before pleading

guilty. All that is required for

obstruction of justice is that the act

"could affect, to some reasonable

probability, the outcome of the judicial

process; the [act] does not have to

succeed in affecting the outcome." United

States v. Duncan, 230 F.3d 980, 988 (7th

Cir. 2000). It is possible that the

attack on Coleman could have influenced

Coleman to retract his statement, and

perhaps embolden Mayberry to go to trial

or to dispute relevant conduct.

Therefore, the district court did not

clearly err by concluding that Mayberry

had obstructed justice.

C. Acceptance of Responsibility

 Mayberry further argues that the

district court erred in refusing to

adjust his sentence downward for

acceptance of responsibility. Typically,

a defendant who accepts responsibility

for his actions is entitled to a

reduction in his sentence, U.S.
Sentencing Guidelines Manual sec. 3E1.1;

Johnson, 227 F.3d at 815, but "[a]

defendant who has obstructed justice is

presumed not to have accepted

responsibility," United States v.

Buckley, 192 F.3d 708, 711 (7th Cir.

1999); U.S. Sentencing Guidelines Manuel

sec. 3E1.1, cmt. n.4 ("[Obstructing

justice] ordinarily indicates that the

defendant has not accepted responsibility

for his criminal conduct.").

Nevertheless, a defendant can rebut the

presumption in extraordinary cases. See

U.S. Sentencing Guidelines Manual sec.

3E1.1, cmt. n.4; Buckley, 192 F.3d at 711

(suggesting that reduction would be

appropriate if the defendant denied

possessing BB gun, but then "fessed up"

the next day); United States v.

Lallemand, 989 F.2d 936, 938 (7th Cir.

1993) (finding reduction appropriate when

the act constituting obstruction occurred

before arrest and the defendant

cooperated with the government after

arrest).

 Mayberry does not contend that this is

an extraordinary case in which a court

should apply adjustments for both

obstruction of justice and acceptance of

responsibility. Instead, he argues that,

because the district court erred in

concluding that he obstructed justice,

the court also erred in not granting him

a reduction for acceptance of

responsibility. But that argument lacks

support because the district court did

not err when it found that Mayberry

obstructed justice. See United States v.

Anderson, 259 F.3d 853, 862 (7th Cir.

2001) (affirming the denial of a

reduction for acceptance of

responsibility when the defendant did not

argue that his case was extraordinary and

when the district court properly applied

an obstruction of justice adjustment). In

any event, Mayberry is not entitled to a

reduction for acceptance of

responsibility because his attack on

Coleman "belied any sense of remorse that

should be attendant to an acceptance of

responsibility." Johnson, 227 F.3d at 816

(denying acceptance points because

defendant threatened witness after

pleading guilty); United States v.

Keeter, 130 F.3d 297, 299 (7th Cir. 1997)

(denying acceptance points because

defendant threatened to kill witness).

III. Conclusion
 For the reasons stated above, we AFFIRM

the decision of the district court.