UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-40412

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JUNIOUS LOUIS VITAL,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

(October 19, 1995)

Before GARWOOD, DUHÉ, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Convicted on a guilty plea of possession with intent to

distribute 27.7 grams of cocaine and sentenced to 78 months

imprisonment, Junious Louis Vital appeals his sentence. Finding no

error, we affirm.

FACTS

On January 30, 1991, an undercover police officer negotiated

with Junious Louis Vital (“Vital”) for the sale of one ounce of

cocaine. Vital instructed the officer to meet him at an apartment

in Beaumont, Texas. While at the apartment, Vital showed the2

officer five individual plastic bags containing cocaine. The

police officer purchased one of the bags, containing 27.7 grams of

cocaine, for $1200.

On February 7, 1991, the undercover officer agai n contacted

Vital and set up another transaction for the following day. On

February 8, 1991, the officer purchased 28 grams of cocaine from

Vital, again for $1200.

On February 22, 1991, in a transaction wholly unrelated to the

investigation of Vital, police arrested Joseph Anthony August

(“August”) for aggrav ated possession of a controlled substance.

While being questioned, August admitted to law enforcement officers

that he transported cocaine for Vital. August also admitted that

he had been working for Vital since January 1991. August told the

officers that during the time he had worked for Vital he had

traveled to Houston two or three times a week to purchase two to

four ounces of cocain e for Vital. He also informed the officers

that the money to purchase the cocaine was provided by Vital and

that Vital made all the arrangements for each transaction.

On June 5, 1992, law enforcement officers received information

from a confidential informant that Vi tal was trafficking cocaine

and living at a residence in Beaumont, Texas. Based upon this

information, the of ficers obtained a search warrant for the

residence and executed it the same day. Vital was not present when

the search was conducted. The search of the residence revealed

65.25 grams of cocaine and six firearms. Vital was apprehended

later that day after attempting to flee from t he police. While1 See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C).

3 attempting to flee, he discarded a small purse which the officers

later recovered. Inside the purse were 2.97 grams of cocaine base.

V ital was subsequently interviewed by FBI agents and admitted to

trafficking cocaine for approximately three years.

PROCEEDINGS BELOW

Vital was the sole defendant named in a three-count indictment

filed in the Eastern District of Texas. Count I of the indictment

charged Vital with possession with the intent to distribute cocaine

on January 30, 1991. 1 Counts II and III also charged Vital with

possession with the i ntent to distribute cocaine on February 8,

1991, and June 5, 1992, respectively.

On January 24, 1994, Vital appeared with counsel in district

court, and pursuant to a written plea agreement, pleaded guilty to

Count I of the three-count indictment. Counts II and III were

subsequently dismissed.

A presentence investigation report ("PSR") was prepared, and

Vital filed written objections to some of its factual allegations.

Fi rst, Vital challenged a firearms enhancement under U.S.S.G. §

2D1.1 (b)(1) on the grounds that there was no evidence that Vital

owned or possessed the firearms discovered during the search of his

residence. Second, Vital objected to the determination of the

quantity of cocaine attributed to him. And finally, Vital objected

to the conclusion that he was not entitled to a c r edit for

acceptance of responsibility under U.S.S.G. § 3E1.1.

At Vital's sentencing he aring, the district judge overruled2 See U.S.S.G. § 2D1.1(c)(11).

3 See U.S.S.G. § 2D1.1(b)(1).

4 See U.S.S.G. Chapter 5, Part A.

4 all objec tions and adopted the PSR. By adopting the

recommendations in the PSR, the court found that Vital was

responsible for 405.45 grams of cocaine and 2.97 grams of cocaine

base, resulting in a base offense level of 26. 2 A two point

enhanceme nt was assessed for possession of firearms. 3 The total

base offense level for Vital was 28, with a criminal history

category of I, resulting in a sentencing range from 78-97 months. 4

The court found that Vital was not eligible for a decrease in the

offense level for acceptance of responsibility and sentenced him to

78 months imprisonment, three years supervised release, and waived

the $50.00 special assessment. Vital appeals the imposition of

this sentence. Vital argues that the district court erred in its

application of the sentencing guide lines and that the district

court’s factual determinations for sentencing purposes were clearly

erroneous. We address each of these points below.

ANALYSIS

This court will uphold a sentence imposed under the sentencing

gu idelines unless such sentence is imposed in violation of law,

results from an incorrect application of the guidelines, or is an

unreasonable departure from the applicable guideline range. U nited

States v. Buenrostro

, 868 F.2d 135, 139 (5th Cir. 1989), cert.

denied , 495 U.S. 923 (1990).5 Based upon the information provided by August, the district

court, relying upon the PSR, determined that Vital was responsible

for two deliveries per week of two ounces per transaction for three

weeks, which equals 340.2 grams of cocaine powder.

5 “RELEVANT CONDUCT” AND U.S.S.G § 1B1.3

It is well established that a defendant’s base offense level

f or the offense of conviction must be determined on the basis of

all “relevant conduct” as defined in U.S.S.G. § 1B1.3. U nited

States v. Wittie

, 25 F.3d 250, 260 (5th Cir. 1994), aff’d

, --- U.S.

---, 115 S. Ct. 2199, 132 L. Ed. 2d 351 (1995). We must determine

whether conduct occurring after the offense of conviction was

properly considered as “relevant conduct” for purposes of

calculating Vital’s sentence.

In calculating Vital’s base offense level for the offense of

conviction under Count I of the indictment, the district court

considered as relevant conduct: (1) Vital’s sale of 27.7 grams of

cocaine to an undercover officer on January 30, 1991 (Count I); (2)

Vital’s sale of 28 grams of cocaine powder to the same undercover

officer on February 8, 1991 (Count II); (3) the purchases of 340.2

grams 5 of cocaine powder made by August on Vital’s behalf; and (4)

Vital’s possession

-- on his person and in his home

-- of 65.25

grams of cocaine powder, 2.97 grams of cocaine base and six

firearms on June 5, 1992 (Count III).

In United States v. Byrd , 898 F.2d 450 (5th Cir. 1990), the

defendant-appellant argued that conduct charged in dismissed counts

of an indictment should not be considered as relevant conduct for

sentencing purposes. In that case, the appellant was charged with6

distribution of cocaine base on August 5, 1988, and with the sale

of cocaine base on August 30, 1988. Although the appellant in that

case was convicted only of the August 5th distribution, the

presentence report included the A ugust 30th sale as relevant

conduct and the base offense level was ca lculated accordingly.

This court clarified that, in drug distribution cases, quantities

of drugs not specified in the count of conviction are to be

included in computing the base offense level "if they were part of

the same course of conduc t or part of a common scheme or plan as

the count of conviction." Id. at 452.

The decision in B yrd comported with this court's prior

determination that counts to whi ch the defendant does not plead

guilty may be considered as relevant conduct in sentencing. S ee

United States v. Taplette

, 872 F.2d 101, 106 (5th Cir.) (counts to

which defendant did not plead were relevant since the sales

occurred within a three week period and were all made to the same

government informant), cert. denied

, 493 U.S. 841, 110 S. Ct. 128,

107 L. Ed. 2d 88 (1989); United States v. Young

, 981 F.2d 180, 189

(5th Cir. 1992)(quantity of methamphetamine for which co-defendant

was charged was attributable as relevant conduct to defendant

charged with separate offense of possession of amphetamine as part

of the same course of conduct, common scheme or plan), cert.

denied

, --- U.S. ---, 113 S. Ct. 2454, 124 L. Ed. 2d 670 (1993).

This court has made it clear that there is no separate statute of

limitations beyond which relevant conduct becomes irrelevant.

United States v. Moore

, 927 F.2d 825, 828 (5th Cir.), cert. denied

,7

502 U.S. 871, 112 S. Ct. 205, 116 L. Ed. 2d 164 (1991).

It is clear that district courts are permitted to consider

unadjudicated offenses which occur after the offense of conviction

for sentencing purposes, but only if they are “relevant conduct”

under U.S.S.G. § 1B1.3. In order for the unadjudicated offenses in

the instant case to rise to the level of “relevant conduct”, they

had to be “part of the same course of conduct or common scheme or

plan as the offense of conviction.” U.S.S.G. §1B1.3(a)(2).

Although there was no express finding by the district court that

the unadjudicated offenses were part of a common scheme or plan,

this finding is implicit in the trial court’s express determination

that the unadjudicated offenses did in fact constitute “relevant

conduct” for sentencing purposes.

A finding by a district court that conduct is part of a common

scheme is a factual determination subject to review under the

clearly erroneous standard. U nited States v. Lokey

, 945 F.2d 825,

839-40 (5th Cir. 1991). Although the district court's implicit

fi nding of a common scheme or coherent course of conduct in the

instant case might otherwise be subject to review for clear error,

Vital failed to object to the district court's consideration of the

unadjudicated offenses during sentencing. Therefore, the district

court's consideration of these episodes of co nduct is reviewable

only for plain error.

Pursuant to Fed. R. Crim. P. 52(b), this court may correct

forfeited legal errors, or unobjected-to errors, only when there is

a demonstration of the following: (1) there must be an error; (2)8

the error must be clear, obvious or readily apparent; and (3) this

obvious legal error must affect substantial rights. U nited States

v. Calverley

, 37 F.3d 160, 162-164 (5th Cir. 1994) (en banc)

(ci ting U

nited States v. Olano

, --- U.S. ---, 113 S. Ct. 1770,

1776-79, 123 L. Ed. 2d 508 (1993)), cert. denied

, --- U.S. ---, 115

S. Ct. 1441, 131 L. Ed. 2d 320 (1995). Upon a finding that these

requisites of plain error have been met, this court is empowered,

in its sound discretion, to correct the assigned error. However,

plain errors affecting substantial rights "should be corrected on

appeal only if they 'seriously affect the fairness, integrity, or

public reputation of judicial proceedings.'" Id. at 164 (quoting

United States v. Atkinson , 297 U.S. 157, 160, 56 S. Ct. 391, 392,

80 L. Ed. 555 (1936)). "[I]n most cases it means that the error

must have been prejudicial: It must have affected the outcome of

the District Court proceedings." O lano

, 113 S. Ct. at 1778.

Furthermore, "Rule 52(b) is permissive, not mandatory. If the

forfeited error is 'plain' and 'affect[s] substantial rights,' the

Court of Appeals has authority to order correction, but is not

required to do so." Id. (quoting Fed. R. Crim. P. 52(b)).

The narrow discretion of this court to correct plain error

pursuant to Rule 52(b) is even further pared in the present

instance: "’[Q]uestions of fact capable of resolution by the

district cour t upon proper objection at sentencing can never

constitute plain error.’" United States v. McCaskey , 9 F.3d 368,

376 (5th Cir. 1993)(quoting United States v. Lopez

, 923 F.2d 47, 50

(5th Cir.), cert. denied

, --- U.S. ---, 111 S. Ct. 2023, 114 L. Ed.9

2d 117 (1991)).

At sentencing, Vital did not object to those portions of the

PSR that expressly referred to his unadjudicated conduct described

in the dismissed counts of the indictment. If Vital had objected

to the distri ct court's consideration of these unadjudicated

offenses as relevant conduct, then the distri ct court could have

resolved this que stion of fact at sentencing. In the absence of

any such objection, however, the di strict court adopted the

recommendations set forward in the PSR. Therefore, following this

court's opinion in McCaskey, supra

, the district court did not

commit plain error when it considered the conduct described in the

dismissed counts of the indictment as being part of a common scheme

for sentencing purposes.

SENTENCE ENHANCEMENT FOR FIREARMS POSSESSION

The decision by the district court to enhance Vital's sentence

for possession of firearms pursuant to U.S.S.G. § 2D1.1(b)(1) was

a factual det ermination. Therefore, this court reviews this

determination for clear error. U nited States v. Eastland

, 989 F.2d

760, 769 (5th Cir.), cert. denied

, --- U.S.---, 114 S. Ct. 246, 126

L. Ed. 2d 200 (1993).

A sentencing court should increase a defendant's base offense

level by two points in situations involving possession of a

dangerous weapon "if the weapon was present, unless it is clearly

improbable that the weapon was connected w ith the offense."

U.S.S.G. § 2D1.1, comment . (n.3). This court has held that this

adjustment is not limited to those scenarios in which the defendant10

possesses a dangerous weapon during the offense of conviction; the

adjustment is also to be made when the defendant possesses a

dangerous weap on during the course of related relevant conduct.

United States v. Vaquero

, 997 F.2d 78, 85 (5th Cir.), cert. denied

,

--- U.S. ---, 114 S. Ct. 614, 126 L. Ed. 2d 578 (1993). As

previously discussed, Vital’s arres t on June 5, 1992, and the

circumstances sur rounding that arrest, were relevant conduct for

sentencing purposes. Therefore, the issue before this court is

whether the district court was correct when it found that Vital

possessed the firearms found in his home on that date.

At sentencing, Vital objected to the firearms enhancement on

the basis that there was no evidence that he owned or possessed a

firearm. However, Vital’s admissions in the PSR do not support

this conten tion. In the PSR Vital admitted that the firearms

seized on June 5, 1992, belonged to his girlfriend and that he was

aware that she kept firearms in his home.

This court has determined that access to, and not ownership

of, the dangerous weapon must be established; even if the defendant

did not intend to use the weapon, it suffices that the weapon could

have been used. U nited States v. Menesses

, 962 F.2d 420, 429 (5th

Cir. 1992). In light of this court's opinion in M enesses, the

admissions by Vital are sufficient to support the district court's

enhancement of the base offense level. Therefore, the district

court's enhancement of Vital's base offense level for possession of

a dangerous weapon was not clearly erroneous.6 Supra note 5.

11 AMOUNT OF DRUGS ATTRIBUTABLE TO VITAL

Relying on the testimony of August, the U.S. probation officer

who prepared the PSR imputed an additional 340.2 grams of cocaine

powder to Vital for sentencing purposes. 6 The district court then

used this finding to enhance Vital's base offense level by an

additional two points. Vital objected at the sentencing hearing,

arguing that August's testimony was hearsay on hearsay, made under

duress, and with the hope or expectation of consideration for his

testimony.

This court is to uphold the district court's factual findings

regarding the quantity of drugs attributable to the defendant for

sentencing purposes unless such findings are clearly erroneous.

United States v. Robins

, 978 F.2d 881, 889 (5th Cir. 1992). In

determining the relevant facts at sentencing, the district court is

not restricted to information that would be admis sible at trial.

The district court may consider any information which has

"sufficient indicia of reliability to support its probable

accuracy." U.S.S.G. § 6A1.3, comment.; s ee also

, United States v.

Manthei

, 913 F.2d 1130, 1138 (5th Cir. 1990). A presentence report

is considered reliable and may be considered as evidence by the

trial judge in making sentencing determinations. U nited States v.

Lghodaro

, 967 F.2d 1028, 1030 (5th Cir. 1992) (citing United States

v. Sanders , 942 F.2d 894, 897-898 (5th Cir. 1991)). Furthermore,

if no relevant affidavits or other evidence is submitted to rebut

the information contained in the PSR, the court is free to adopt12

its findings without further inquiry or explanation. U nited States

v. Mir , 919 F.2d 940, 943 (5th Cir.), cert. denied , --- U.S. ---,

113 S. Ct. 105, 121 L. Ed. 2d 64 (1990). Vital failed to present

any evidence to support his objection to the court’s reliance on

the information set forward in the PSR pertaining to Augu st's

testimony. Consequently, the district court's reliance on the PSR

was not clearly erroneous.

ACCEPTANCE OF RESPONSIBILITY

At sentencing, Vital argued that his plea of guilty and his

admission of conduct comprising the offense of conv iction

demonstrated his acce ptance of responsibility for his offense.

Vital also protested the probation officer's unfavorable

recommendations based on Vital's inability to recall the details of

the offense. This court has not definitively determined the

standard for reviewi ng a district court's refusal to credit a

defendant's purported acceptance of responsibility. The court has

applied, on separate occasions, the clearly erroneous standard, the

"without foundation" standard, and the "great deference" standard

w hen conducting such a review. U nited States v. Thomas

, 12 F.3d

1350, 1372 & n.39 (5th Cir.), cert. d enied , --- U.S. ---, 114 S.

Ct. 1861, 128 L. Ed. 2d 483, and cert. denied

, --- U.S. ---, 114 S.

Ct. 211 9, 128 L. Ed. 2d 676 (1994). In T homas

, this court

determined that, "for the purpose of this appeal, there appears to

be no practical difference between the three standards." Id.

The sente n cing guidelines shed considerable light on the

deference which a reviewing court must afford the sentencing court13

in this context: "The sentencing judge is in a unique position to

evaluate a defendant's acceptance of responsibility . For this

r eason, the determination of the sentencing judge is entitled to

great deference on review." U.S.S.G. § 3E1.1, comment. (n.5).

Furthermore, "a defendant who enters a plea of guilty is not

entitled to an adjustment under this section as a matter of right."

U.S.S.G. § 3E1.1 comment., (n.3). Finally, "a defendant who

falsely denies, or frivolously contests, relevant conduct that the

court determines to be true has acted in a manner inconsistent with

acceptance of responsibility." U.S.S.G. § 3E1.1, comment.

(n.1(a)). In light of this commentary, we hold that the correct

standard of review to apply to a district court’s refusal to credit

a defendant’s acceptance of responsibility is the “great deference”

standard.

The district court responded to Vital's objections at

sentencing, observing that Vital's three positive tests for cocaine

metabolite since hi s arrest undercut his acceptance of

responsibility. In addition, the district court noted that Vital,

at the time of sentencing, contin ued to deny several factual

elements of the offense, maintaining that (1) he never sold cocaine

f or $1,200 an ounce, (2) he was never in possession o f crack

cocaine, and (3) he never visited or lived in the Florida Street

Apartments, the scene of the offense of conviction. During Vital's

interview prior to sentencing, he stated that he could not recall

"any of the specific incidents detailed in the offense reports

provided by law enforcement," and denied that he told anyone that14

others were selling cocaine for him or that he purchased the

cocaine from a source in Houston.

Based o n this evidence, the district court found that Vital

had denied facts bearing on the offense of conviction and on

relevant conduct. Granting great deference to these findings, we

hold that the trial court did not err when it refused to reduce

Vital’s sentence for acceptance of responsibility.

BURDEN OF PROOF REQUIRED TO SUPPORT FACTUAL FINDINGS

Vital argues that the district court's factual determinations

relating to the testimony of August should have been based upon

clear and convincing evidence because this testimony had the effect

of dramatically increasing Vital's sentence. Vital urges that the

district court should have departed from the established burden of

proof of “preponderance of the evidence” and used a higher standard

for making its factual determinations in the instant case. S ee

United States v. Mitchell

, 31 F.3d 271, 277 (5th Cir.) (factual

findings must be established by a preponderance of the evidence),

cert. denied

, - -- U.S. ---, 115 S. Ct. 455, 130 L. Ed. 2d 363

(1994).

In support of this argument, Vital relies primarily on United

States v. Kikumura

, 918 F.2d 1084 (3d Cir. 1990). In K ikumura

, the

Third Circuit held that the district court should have based its

factual determinations upon "clear and convincing" evidence in a

situation where the sentence was increased from thirt y months to

thirty years, a 22-level increase in the offense level, where the

increase was based, in part, upon hearsay testimony. I d. at 1100-15

02.

Vital contends that, as a direct consequence of the district

court's consideration of August's testimony, Vital was sentenced to

78 months instead of 63 months. Vital contends that August's

testimony therefore resulted in a dramatic increase of his sentence

-- an increase of over 23%. If we assume, a rguendo

, that Vital is

accurate in his contention that the district court's consideration

of August's testimony did result in a 23% increase in his sentence,

this still does not constitute a departure from the guidelines of

such magnitude that would require the imposition of a higher burden

of proof. See United States v. C arreon , 11 F.3d 1225, 1240 (5th

Cir. 1994) (where sentence was enhanced from roughly six years to

twenty years, the application of a higher burden of proof to the

evidence used for enhancement purposes was not warranted).

CONCLUSION

For the foregoing reasons, the judgment of the district court

is AFFIRMED.