The Honorable D. Brook Bartlett, United States District Judge 1

for the Western District of Missouri.

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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. *

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 Submitted: March 11, 1996

 Filed: June 27, 1996

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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 his guilty plea to one count of conspiracy to possess

with intent to distribute cocaine in violation of 21 U.S.C. § 846. Campos

appeals his sentence. Because we find no error in the district court's

application of the sentencing guidelines, we affirm.

I. BACKGROUND

In October 1993, Campos was arrested in New York City for his role

in the distribution of cocaine in Kansas City, Missouri. A federal grand

jury returned a single-count indictment charging Campos with conspiracy to

possess with intent to 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, three

issues were in dispute: 1) the amount of cocaine for which Campos would

be held responsible; 2) Campos' entitlement to credit for acceptance of

responsibility for the offense; and 3) Campos' eligibility for an upward

adjustment for an aggravating role in the offense. 

The government called four witnesses to describe the complex Kansas

City cocaine trafficking operation and to identify Campos as its major

source of supply in New York City. Three of these witnesses, Andrew Miguel

Melo, Thomas Hedges, and Michael Kern, were directly involved in the drug

distribution scheme. The fourth witness, FBI Agent Dennis Conway, had

headed the investigation of the trafficking ring and had interviewed

several of Campos' co-conspirators concerning the drug operation.

According to these witnesses, Campos' cocaine trafficking activities in

Kansas City began in 1987. At that time, Melo moved from New York City to

Kansas City to be near his girlfriend. There, Melo met Hedges, and the two

became partners in the trafficking of small amounts of cocaine. However,

due to the demands of Kern, a regular customer, Melo and Hedges soon

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 cocaine

delivery to Kansas City in 1987. Melo, Hedges and Kern testified that

after that delivery they obtained additional amounts from Campos in various

ways. On some occasions, Melo and Hedges, and sometimes Kern, would travel

to New York where they would obtain cocaine from Campos or from couriers

naming Campos as their source of supply. On others, Campos would send

couriers to Kansas City to deliver cocaine. The government contended that

Campos had a hand in the distribution of approximately forty kilograms of

cocaine in Kansas City prior to his arrest. 
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Campos presented a very different version of his involvement in

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 testified, however, that he supplied Hedges and Melo only four more

times in New York City, and that he had sent only two additional kilograms

to Kansas City through couriers. Campos insisted that he had distributed

no more than eight pounds (approximately 3.5 kilograms) of cocaine during

his association with Hedges and Melo. In support of his testimony, Campos

submitted the results of a polygraph examination he had taken and the

testimony of Bruce Howell, a polygraph examiner. Howell testified that the

results of the polygraph examination indicated Campos' admissions regarding

drug quantity were truthful.

At the conclusion of the sentencing hearing, the district court found

that Campos was responsible for the distribution of between fifteen and

fifty kilograms of cocaine. The court also concluded that Campos was not

entitled to a reduction in offense level for acceptance of responsibility.

Finally, the court determined that the facts did not warrant an offenselevel increase for an aggravating role in the crime. These findings

yielded an offense level of thirty-four, a criminal history category of I,

and a sentencing range 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 quantity

determination is clearly erroneous. Campos further argues that the

district court violated his right to due process by relying on hearsay

statements in making its sentencing determinations. Finally, Campos argues

that the district court erred in failing to grant him a two-level reduction

for acceptance of responsibility.
 Campos argues that the district court concluded 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 drug

quantity has an extreme impact on the length of his sentence, due

process requires that the amount of cocaine be proved by clear and

convincing evidence. That argument is without merit. First, a

careful reading of the district court's opinion shows the court

recognized that drug quantity need only be proved by a

preponderance of the evidence (although it found clear and

convincing evidence supporting its quantity determination).

Second, although we have indicated there may be cases where a

sentencing factor has such a disproportionate 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. 

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II. DISCUSSION

A. Drug Quantity

Campos first argues that the district court erred in determining the

drug quantity involved in the offense. At sentencing, 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 will

not reverse the sentencing court's drug quantity determination unless the

defendant proves that determination is clearly erroneous. Wiley, 997 F.2d

at 385. Campos has failed to do so here.

Ample evidence supported the district court's quantity findings.

Three witnesses testified regarding their personal contacts with Campos and

his couriers. All three witnesses identified Campos as the primary source

of the cocaine they received. All three also testified that Campos

provided the operation quantities of cocaine which were well within the

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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their corresponding roles in the drug operation. This testimony was

corroborated by information obtained from pen registers the FBI used to

monitor the telephones of Melo's girlfriend and Hedges. As Agent Conway

noted, these pen registers documented several contacts between Melo and

Campos and between Hedges and Campos.

To discredit this evidence, Campos points to inconsistencies in the

testimony of Melo, Hedges, and Kern. Campos also argues that because the

three witnesses were testifying pursuant to cooperation agreements with the

government, their testimony was inherently unreliable. He further contends

that the district court should have given more weight to his own testimony

and to the results of the polygraph examination. These arguments amount

to little more than an attack on the credibility determinations of the

district court--determinations which the district judge is in the best

position 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 Cir. 1992); see also United

States v. Eberspacher, 936 F.2d 387, 389 (8th Cir. 1991). Here, the

district court carefully considered all of the evidence presented,

including the inconsistencies which had been highlighted by Campos' counsel

on cross-examination, and made specific credibility findings concerning

each of the witnesses. The court then approximated a quantity of drugs

attributable to Campos. After reviewing the record, we cannot find that

the district court's determination of drug quantity was clearly erroneous.

Therefore, we affirm the district court's finding that Campos was

responsible for distributing between fifteen and fifty kilograms of

cocaine.

B. Hearsay Evidence

Campos next argues that the district court erred in relying on

hearsay evidence 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 witnesses

were materially untrue 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 of

`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 its

admissibility at trial, provided that it has "sufficient indicia of

reliability to support its probable accuracy." U.S.S.G. § 6A1.3(a). We

have held that this standard satisfies the demands of due process. Wise,

976 F.2d at 402. 

Whether hearsay is sufficiently reliable for sentencing purposes

"depends upon the particular circumstances of each case." Id. at 403.

Under the circumstances of this case, the district court did not err in

considering hearsay statements regarding the source of cocaine supplied to

the government's cooperating witnesses. Initially, we note that the

hearsay declarants were drug couriers who Campos himself confirmed had

assisted him in distributing cocaine to Melo and Hedges. As such, if the

federal rules of evidence were to apply at sentencing, these couriers would

be deemed coconspirators and their statements would 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

misrepresent the source of the drugs when making deliveries to Melo,

Hedges, and Kern. Finally, to the extent that Campos challenges the

reliability of the witnesses repeating the hearsay, we note that this

argument is simply a restatement of Campos' earlier unsuccessful objections

to the district court's credibility determinations. We observe, however,

that the testimony of these witnesses was internally consistent with

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 conclude

that the district court did not err in considering any of the evidence

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-level decrease in the offense

level "[i]f the defendant clearly demonstrates acceptance of responsibility

for his offense." U.S.S.G. §3E1.1(a). Determining whether a defendant

qualifies for this reduction "is a question of fact which depends largely

on the district court's credibility assessments." United States v. Evans,

51 F.3d 764, 766 (8th Cir. 1995). "On appeal, the district court's

decision to grant or deny the reduction is afforded great deference and

will not be disturbed unless it is clearly erroneous." Id.

Campos argues that he took responsibility for his actions by pleading

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 the

defendant to a reduction as a matter of right." Id. Furthermore, our

cases demonstrate that acceptance of responsibility credit can properly be

denied where a defendant minimizes his role in drug activities. See United

States v. Abanatha, 999 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

finding which is amply supported by the record. Where, as here, the

district court reasonably determines that the defendant accepted

responsibility for less than all of his criminal conduct, it is not clearly

erroneous to deny a reduction in offense level. See id. We therefore

affirm the district court's decision to deny a two-level reduction for

acceptance of responsibility.
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III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the district

court.

A true copy.

Attest:

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