IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 91-7117

(Summary Calendar)

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BENJAMIN J. SHIPLEY, JR., 

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Texas

(May 29, 1992)

Before JONES, DUHÉ and WIENER, Circuit Judges. 

PER CURIAM: 

In this sentencing guideline case, we consider the propriety

of the sentencing court's refusal to reduce the Defendant's offense

level by two as required by U.S.S.G. § 3E1.1(a) (Nov. 1990) for

recognition and acceptance of personal responsibility for his

criminal conduct. Here, the defendant clearly admitted and
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accepted full responsibility for the crime of conviction--bank

robbery in violation of 18 U.S.C. § 2113(A)--unconditionally

acknowledging that he committed each element of the crime during

the course of the offense. He denied, however, that his was a

leadership role--itself not a crime of conviction but related

conduct addressed as a sentence enhancing provision in the

guidelines. We thus consider the question whether a defendant's

denial of such sentence enhancing behavior taints an otherwise

complete and unequivocal acceptance of personal responsibility for

the crime of conviction, as a result of which the defendant is

ineligible for the mandatory offense level reduction for acceptance

of responsibility. Finding that it does, we agree with the

district court's denial of Shipley's reduction for acceptance of

responsibility, and affirm the sentence imposed by the court. 

I

FACTS AND PROCEEDINGS

After entering a bank in Dallas, Texas, handing a teller a

note stating that an armed robbery was in progress, and demanding

money from her teller's drawer, Defendant-Appellant Benjamin

Shipley left the bank with $2,589, including some "bait bills"

which bore previously recorded serial numbers. A surveillance

camera in the bank photographed Shipley committing the robbery.

Outside, Shipley got into the back seat of a car driven by coDefendant Dennis Restle. The front seat of the getaway car was

occupied by another co-Defendant, Allen Miller. Within minutes of

the robbery, the getaway car was spotted and stopped by law
3

enforcement agents. Identifiable bait bills were found in the car.

During the presentence investigation the probation officer was

told by Shipley that he committed the bank robbery. He implied

that Restle was the unofficial leader of the group who had

persuaded Shipley to come to Dallas and rob a bank. Shipley's coDefendants, however, claimed that Shipley was the planner and

leader. 

In the presentence report (PSR) the investigating probation

officer recommended no downward adjustment to Shipley's base level

offense for acceptance of responsibility. After Shipley objected,

the probation officer acknowledged that Shipley had admitted the

robbery but had claimed he was only "going along" with the other

members of the group. The district court resolved the objection

against Shipley, implicitly choosing to credit his two coDefendants regarding Shipley's leadership role. 

II

ANALYSIS

Our review of a sentence under the guidelines is "confined to

determining whether a sentence was `imposed in violation of law' or

`as a result of an incorrect application of the sentencing

guidelines.'" United States v. Nevarez-Arreola, 855 F.2d 243, 245

(5th Cir. 1989) (citing 18 U.S.C. § 3742(e)). We affirm

applications of the guidelines when they are based on factual

findings that are not clearly erroneous. Id. "A factual finding

is not clearly erroneous as long as it is plausible in light of the

record read as a whole." United States v. Sanders, 942 F.2d 894,
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897 (5th Cir. 1991). 

Under U.S.S.G. § 3E1.1(a) (Nov. 1990) a sentencing court must

reduce the offense level by two if the Defendant clearly

demonstrates a recognition and affirmative acceptance of personal

responsibility for his criminal conduct. See Nevarez-Arreola, 885

F.2d at 245-46. The mere entry of a guilty plea, however, does not

entitle a defendant to a sentencing reduction for acceptance of

responsibility as a matter of right. § 3E1.1(b). "Entry of a

guilty plea prior to commencement of trial combined with a truthful

admission of involvement in the offense and related conduct will

constitute significant evidence of acceptance of responsibility."

§ 3E1.1, Application Note 3 (Nov. 1990) (emphasis added).

"However, this evidence may be outweighed by conduct of the

defendant that is inconsistent with such acceptance of

responsibility." Id. 

Determination by the district court whether the Defendant has

accepted responsibility is entitled to even greater deference on

review than that accorded under a simple "clearly erroneous"

standard. Nevarez-Arreola, 885 F.2d at 245. "This is so because

the sentencing judge is in a unique position to evaluate whether

the defendant has indeed accepted responsibility." Id. 

Facially, the instant case appears to illustrate a blurring of

two guidelines provisions: reduction of offense level for

acceptance of responsibility and enhancement of offense level for

a leadership role. A careful analysis dispels that appearance.

"[B]efore a defendant is entitled to reduction for acceptance of
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responsibility, he must first accept responsibility for all of his

relevant criminal conduct." United States v. Mourning, 914 F.2d

699, 705 (5th Cir. 1990) (statutorily overruled in part on another

issue) (emphasis added). In Mourning the district court declined

to award a 2-level reduction for acceptance of responsibility. Id.

The PSR indicated that Mourning "sought to minimize his role in the

drug trafficking and conspiracy activities by `characterizing

himself as a peripheral observer or minimal participant.'" Id.

The PSR concluded, based on the DEA's investigation and the

district court's findings in connection with Mourning's motion to

suppress, that Mourning "took the lead" in negotiations related to

the conspiracy. Id. 

The proposition implicit in Mourning is that a defendant who

is found to have had a leadership role in the offense does not

fully accept responsibility for purposes of § 3E1.1 if, despite his

admission of all elements of the offense of conviction, he

nevertheless attempts to minimize his leadership role. This

proposition finds support in the Ninth Circuit. See United States

v. Sanchez, 908 F.2d 1443, 1450-51 (9th Cir. 1990). 

Both Mourning and Sanchez are similar to the instant case.

Shipley's refusal to acknowledge responsibility for all of his

relevant conduct, including his leadership role in the bank

robbery, relieves the district court of the obligation to award a

2-level reduction for acceptance of responsibility. 

Shipley claims that the district court abused its discretion

in denying him a reduction for acceptance of responsibility "solely
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on the basis of extra judicial [sic] assertions by co-defendants

with a significant interest in lowering their level of criminal

responsibility." There is no indication in the record, however,

that the district court relied solely on the assertions of the codefendants; there was also Shipley's own attempts to shift some of

the blame to Restle. 

Moreover, the district court is allowed to rely on information

contained in the PSR in making factual sentencing determinations

"so long as the information has `some minimum indicium of

reliability.'" United States v. Vela, 927 F.2d 197, 201 (5th

Cir.), cert. denied, 112 S.Ct. 214 (1991) (quoting United States v.

Vonsteen, 910 F.2d 187, 190 (5th Cir. 1990)). Shipley bore the

responsibility for demonstrating that the information on which the

district court relied was materially untrue. Id. Assuming for the

sake of argument that the district court had relied solely on

assertions of the co-defendants, Shipley still has not demonstrated

that those assertions were materially untrue. His own coyness and

lack of candor demonstrate an inadequate acceptance of

responsibility. 

For purposes of comparing acceptance of responsibility and

leadership role, it is important to observe the temporal

relationships of those guideline provisions. A clear reading of

§ 3B1.1, the guideline provision regulating adjustments to the base

offense level for the defendant's role in the offense, demonstrates

that such an adjustment is based on evidence of the defendant's

role during the commission of the offense and his related conduct.
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See esp. § 3B1.1, Introductory Commentary. On the other hand, such

a reading of § 3E1.1, the guideline provision regulating

adjustments for acceptance of responsibility, is concerned with the

defendant's post-offense acknowledgment of his conduct during the

commission of the crime. Once evidence with the required "indicium

of reliability" is introduced in connection with sentencing to

suggest that the defendant was a leader in the offense, the

defendant must either acknowledge such role or demonstrate that the

information on which the district court relied was untrue. United

States v. Vela, 927 F.2d 197, 201. Here, the district court made

the permissible credibility decision to believe Shipley's codefendants' statements and found that Shipley was probably "more

culpable" than his co-defendants. This finding of fact was not

clearly erroneous because it was "plausible in light of the record

read as a whole." United States v. Sanders, 942 F.2d 894, 897.

The district court was entitled to consider that fact among those

relevant to Shipley's acceptance of responsibility. 

III

CONCLUSION

The district court was not clearly erroneous in crediting

Shipley's co-Defendants to find that Shipley's role in the bank

robbery was greater than that of a mere follower, as he insisted.

Even though leadership role in the offense of conviction is covered

in a different section of the guidelines than is acceptance of

responsibility for committing that crime, such a role is conduct

related to the offense and thus proper grist for the "acceptance of
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responsibility" mill. The sentencing court committed no reversible

error in denying the otherwise mandatory 2-level reduction for

acceptance of responsibility in light of Shipley's unrelenting

denial of the role that the district court found he played in the

bank robbery. Therefore, the sentence imposed by the district

court is 

AFFIRMED.