### The Honorable D. Brook Bartlett, United S tates District Judge 1 

### for the Western District of Missouri. ___________ No. 95-2113

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Cesar Campos, * * Appellant. *

___________ Submitted: March 11, 1996 Filed: June 27, 1996

___________ Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.

___________ BEAM, Circuit Judge.

The district court sentenced Cesar Campos to 168 months (14 years) 1 in prison following h is guilty plea to one count of conspiracy to possess with intent to distribute cocaine in violation o f 21 U.S.C. § 846. Campos appeals h is sentence. Because we find no error in the district court' s application of the sentencing guidelines, we affirm.

I. BACKGROUND

In Oct ober 1993, Campos was arrested in New York City for his rol e in the distribution o f cocaine in Kansas City, Missouri. A federal grand jury returned a single-count indictment charging Campos with conspiracy to possess with intent t o distribute cocaine. Campos pleaded guilty to that charge on March 8, 1994,

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and his case proceeded to sentencing. At the sentencing hearing, thre e issues were in dispute: 1) the amount of cocaine for which Campos would be held responsible; 2) Campos' entitlement to credit for acceptance o f responsibilityfor the offense; and 3) Campos' eligibility for an upward adjustment for an aggravating role in the offense.

The gover nment called four witnesses to describe the complex Kansas Citycocaine trafficking operation and to identify Campos as its majo r
source of supply in New York City. Three of these witnesses, Andrew Migue l Melo, Thomas Hedges, and Michael Kern, were directly involved in the drug distribution scheme. The fourth witness, FBI Agent Dennis Conway, ha d headed the investigation of the trafficking ring and had interviewe d
severa l of Campos' co-conspirators concerning the drug operation

. According to these witnesses, Campos' cocaine trafficking activities i n Kansas City began in 1987. At that time, Melo m oved from New York City to Kansas City to be near his girlfriend. There, Melo met Hedges, and the tw o became partners in th e trafficking of small amounts of cocaine. However, due to the demands of Kern, a regular customer, Melo and Hedges soo n required a supplier who could provide cocaine in kilogram amounts. Campos , a New York City resident, became this supplier.

Campos, accompanied by two couriers, personally made one cocain e deliveryto Kansas City in 1987. Melo, Hedges and Kern testified tha t after that delivery they obtained additional amounts from Campos in variou s ways. On some occasions, Melo and Hedges, and sometimes Kern, would trave l to New York where they would obtain cocaine from Campos or from couriers naming Campos as their source of supply. On others, Campos would sen d couriers to Kansas City to deliver cocaine. The government contended tha t Campos had a hand in the distribution of approximately forty kilograms of cocaine in Kansas City prior to his arrest.

### -3- Campos presented a very different version of his involvement i n Kansas City drug trafficking. Taking the stand in his own defense, Campos acknowledged that he had made one trip to Kansas City to deliver cocaine. He te stified, however, that he supplied Hedges and Melo only four mor e times in New York City, and that he had sent onl y two additional kilograms to Kansas City throug h couriers. Campos insisted that he had distributed no more than eight po unds (approximately 3.5 kilograms) of cocaine during his association with Hedges and Melo. In suppor t of his testimony, Campos submitted the results of a polygraph examination he had taken and th e testimony of Bruce Howell, a polygraph examiner. Howell testified that th e results of the polygraph examination indicated Campos' admissions regardin g drug quantity were truthful.
At the conclusion of the sentencing hearing, the district court found tha t Campos was responsible for the distribution of between fifteen an d fifty kilograms of co caine. The court also concluded that Campos was not entitled to a reduction in offense level for acc eptance of responsibility. Finally, the court determined that the facts did not warrant an offenseleve l increase for an aggravating role in the crime. These finding s yielded an offense level of thirty-four, a crimi nal history category of I, and a sentencing rang e of 151-188 months under the sentencing guidelines. The court sentenced Campos to 168 months in prison.

On appeal, Campos argues that the district court's drug quantit y determ ination is clearly erroneous. Campos further argues that th e distr ict court violated his right to due process by relying on hearsa y statements in making its sentencing determinations. Finally, Campos argue s that the district court erred in failing to grant him a two-level reductio n for acceptance of responsibility.

### Campos argues that the district court con cluded drug quantity 2 

### should be proved by clear and convincing evidence, and urges us to adopt that same standard. Relying on United States v. Kikumura , 918 F.2d 1084 (3d Cir. 1990), Campos contends that because dru g quantity has an extreme impact on the length of his sentence, due process requires that the amou nt of cocaine be proved by clear and convincing evidence. That argument is without merit. First, a carefu l reading of the district court's opinion shows the cour t recogn ized that drug quantity need only be proved by a pr eponderance of the evidence (although it found clear an d convincing evidence supporting its quantity determination)

. Second, although we have indicated there may be cases where a sentencing factor has such a d isproportionate effect on a sentence that due process would require a higher burden of proof, see United States v. Townley , 929 F.2d 365, 369 (8th Cir. 1991), this is not such a case.
-4- II. DISCUSSION

A. Drug Quantity

Campos first argues that the distric t court erred in determining the drug quantity involved in the offense. At sente ncing, the government must prove drug quantity by a preponderance of the evidence. See , e.g. , United 2 States v. Pugh , 25 F.3d 669, 676 (8th Cir. 1994) ; United States v. Wiley , 997 F.2d 378, 385 (8th Cir.), cert. denied , 114 S. Ct. 600 (1993). We wil l not reverse the sente ncing court's drug quantity determination unless the defendant proves that determination is clearly e rroneous. Wiley , 997 F.2d at 385. Campos has failed to do so here.

Am ple evidence supported the district court's quantity findings

. Three witnesses testified regarding their personal contacts with Campos an d his couriers. All three witnesses identified Ca mpos as the primary source of the co caine they received. All three also testified that Campo s pro vided the operation quantities of cocaine which were well within th e range of the district court's findings. Finally , these witnesses all gave similar accounts of the various participants in the conspiracy and

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thei r corresponding roles in the drug operation. This testimony wa s
cor roborated by information obtained from pen registers the FBI used t o monitor the telephones of Melo's girlfriend and Hedges. As Agent Conway noted, these pen registers documented several contacts between Melo an d Campos and between Hedges and Campos.

To discre dit this evidence, Campos points to inconsistencies in the testimony of Melo, He dges, and Kern. Campos also argues that because the three witnesses were testifying pursuant to cooperation agreements with th e government, their testimony was inherently unreliable. He further contend s that the district court should have given more w eight to his own testimony and to the results of the polygraph examination. These arguments amount to li ttle more than an attack on the credibility determinations of th e distri ct court--determinations which the district judge is in the bes t positi on to make and which are "`virtually unreviewable on appeal.' " United States v. Adipietro , 983 F.2d 1468, 1479 (8th Cir. 1993) (quoting United States v. Candie , 974 F.2d 61, 64 (8th Ci r. 1992); see also United States v. Eberspacher , 936 F.2d 387, 389 (8th Cir. 1991). Here, th e district court carefully considered all of the evidence presented , including the inconsistencies which had been highlighted by Campos' counse l
on cr oss-examination, and made specific credibility findings concernin g each of t he witnesses. The court then approximated a quantity of drug s attributable to Campo s. After reviewing the record, we cannot find that the district court's determination of drug quant ity was clearly erroneous. Theref ore, we affirm the district court's finding that Campos wa s respo nsible for distributing between fifteen and fifty kilograms o f cocaine.

B. Hearsay Evidence

Campos next argues that the district court erred in relying o n hearsayevidence in making its sentencing determinations. Campos argues that hearsay statements attributed to accomplices of Campos

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and admitted during the course of testimony from the government's witnesse s were materially untru e and therefore cannot, consistent with due process, form a valid basis for his sentence.

We agree that a defendant "may not be sentenced on the basis o f `misinformation of constitutional magnitude.'" United States v. Wise , 976 F.2d 393, 402 (8th Cir. 1992) (quoting United States v. Tucker , 404 U.S. 443, 447 (1972)), cert. denied , 507 U.S. 989 (1993). During sentencing, however, the guidelines permit the use of hearsay without regard to it s admiss ibilityat trial, provided that it has "sufficient indicia o f reliabilityto support its probable accuracy." U.S.S.G. § 6A1.3(a). We have held that this s tandard satisfies the demands of due process. Wise , 976 F.2d at 402.

Wh ether hearsay is sufficiently reliable for sentencing purpose s "depe nds upon the particular circumstances of each case." Id. at 403

. Under the circumstances of this case, the district court did not err i n considering hearsay statements regarding the sou rce of cocaine supplied to the go vernment's cooperating witnesses. Initially, we note that th e hearsa y declarants were drug couriers who Campos himself confirmed ha d assisted him in distr ibuting cocaine to Melo and Hedges. As such, if the federal rules of evidence were to apply at sentencing, these couriers woul d be deemed coconspirators and their statements wo uld fit under an exception to the rule against hearsay. See Fed. R. Evid. 801(d)(2)(E). Furthermore , nothing in the record indicates that these accomplices had any reason to misr epresent the source of the drugs when making deliveries to Melo , Hedg es, and Kern. Finally, to the extent that Campos challenges th e reliabi lity of the witnesses repeating the hearsay, we note that thi s argument is simply a restatement of Campos' earlier unsuccessful objection s to the district court 's credibility determinations. We observe, however, that t he testimony of these witnesses was internally consistent wit h respect to the major participants in and general

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operating procedures of the enterprise. This internal consistency lends substantial indicia of reliability to the testimony. We therefore conclud e that the district court did not err in considering any of the evidenc e presented by the government.

C. Acceptance of Responsibility

Finally, Campos argues that the district court erred in refusing to grant him credit for acceptance of responsibility. Under the Sentencing Guidelines, a defendant is entitled to a two-lev el decrease in the offense level "[i]f the defendant clearly demonstrates acceptance of responsibilit y for his offense." U.S.S.G. §3E1.1(a). Determining whether a defendan t qualifies for this re duction "is a question of fact which depends largely on the district court's credibility assessments. " United States v. Evans , 51 F.3d 7 64, 766 (8th Cir. 1995). "On appeal, the district court' s decision to grant or deny the reduction is afforded great deference an d will not be disturbed unless it is clearly erroneous." Id.
Campos argues that he took responsibility for his actions by pl eading guilty and by admitting to the distribution of 3.5 kilograms of cocaine. It is well settled, however, that a guilty plea "does not entitle th e defendan t to a reduction as a matter of right." Id. Furthermore, ou r cases demonstrate that acceptance of responsibil ity credit can properly be denied where a defendant minimizes his role in d rug activities. See United States v. Abanatha , 9 99 F.2d 1246, 1251-52 (8th Cir. 1993), cert. denied , 114 S. Ct. 1549 (1994 ). The district court found that Campos distributed far more than the 3.5 kilograms of cocaine he admitted to distributing--a findin g which is amply supported by the record. Where, as here, th e distr ict court reasonably determines that the defendant accepte d responsibility for less than all of his criminal conduct, it is not clearl y
erroneou s to deny a reduction in offense level. See id. We therefor e affirmthe district court's decision to deny a two-level reduction fo r acceptance of responsibility.

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III. CONCLUSION

For t he foregoing reasons, we affirm the judgment of the distric t court.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.