United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1643

___________ United States of America, *

Plaintiff - Appellee, *

v. * District Court for the Heath Leon Ayers, also known as * “He-Dog,” *

Defendant - Appellant. * *

* Appeals from the United States

* Northern District of Iowa.

*

___________ No. 97-2189

___________ United States of America, *

Plaintiff - Appellee, *

v. * Roderick Williams, *

Defendant - Appellant. * *

*

*

*

*

___________ Submitted: October 21, 1997 Filed: March 6, 1998

___________

## The Honorable Michael J. Melloy, Chief Judge, United Sta tes District Court for 1 

## the Northern District of Iowa. Ayers was charged with th ree counts of distributing crack cocaine, in violation 2 

## of 21 U.S.C. § 841. Williams was charged with one count of the use of a communica

tion facility in causing and facilitating the distribution of crack cocaine, in v iolation of 21 U.S.C. § 843(b), one count of distributing and aiding and abetting the distributionof crack cocaine, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2, and onecount of possession with the intent to distribute crack cocaine, in violation of 21 U.S.C. § 841. -2- Before RICHARD S. ARNOLD, Chief Judge, LOKEN and HANSEN, Circuit Judges.

___________ HANSEN, Circuit Judge.

In these consolidated appeals, we consider Heath Leon Ayers’ an d Roderick Williams’ challenges to their respective sentences imposed fo r conspiracy

to distribute crack cocaine. Ayers claims the district court 1 erred in determining the quantity of drugs attributable to him fo r sent encing purposes and in failing to grant “judicial” immunity to a witness at his sentencing hearing. Williams claims the district cour t erred in enhancing his sentence under the United States Sentencin g Guidelines for being a manager or supervisor of criminal activity involvin g five or more participants, see U.S. Sentencing Guidelines Manual § 3B1.1 (1995), and in failing to grant him a three-level decrease in his bas e offens e level for acceptance of responsibility pursuant to Guidelines § 3E1.1(b)(2). We affirm both sentences.

I.

A grand j ury charged Ayers and Williams, along with seven othe r codefe ndants, with one count of conspiracy to distribute and possessio n with intent to distribute crack cocaine, in viol ation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A) (1994). In the same indictment, Ayers an d Williams were also each charged with three other felony counts relating to the distribution of crack cocaine. Ayers signed a plea agreement on 2

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Decemb er 2, 1996, the first day of trial, and then pleaded guilty o n Decem ber 4, 1996, to conspiracy to distribute crack cocaine. Th e govern ment then dismissed the remaining drug counts against Ayers a s provided by the plea agreement. Williams pleaded guilty to conspiracy to distribute crack coca ine on December 2, 1996, the first day of trial, and the government dismissed the remaining charges against Williams pursuant to the plea agreement.

At Ayers ’ lengthy sentencing hearing held over the course of thre e days, the parties presented evidence of the drug quantities involved in th e conspiracy and Ayers’ role in the offense. The district court determined that at least 500 gra ms but less than 1.5 kilograms of crack cocaine were attributable to Ayers. The court reached this r esult by totaling specific quantities of crack it found attributable to Ayers. First, the cour t rel ied on Ayers’ admission that he received 85 grams of crack fro m codefen dant David Johnson. Next, the court credited the testimony o f special agent Greg Brugman that Ayers participated in three controlled buy s of crack involving 23.3 grams, 23.1 grams, and 26.6 grams, respectively. The court attributed another 49 grams based on codefendant Luther Batte’s testim onythat he purchased 7 one-quarter-ounce packages of crack fro m Ayers. Although Eric Moss testified that he saw Ayers obtain 5 one-ounce packages of crack on two separate occasions from codefendant Gerald Leach, the court conservatively estimated that Ayers was responsible for 5 ounces , or 140 grams, of crack based on these transactions. Antiono Watkins state d he bought 17.71 grams of crack from Ayers. Anto nio Lucas testified he saw Ayers sell 7 grams of crack. Derrick Ware, whose testimony the district court discounted based on his lack of credibilit y, stated that he observed Ayers sell packages of crack ranging in size from one-quarter-ounce to one

ounce five times per week for nine months, a total of roughly 1,260 grams of crack. Based on t he collective testimony of Ware, Watkins, and Lucas,

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the court found there was at least another 155 g rams of crack attributable to Ayers, putting the total quantity above 500 grams but below 1. 5 kilograms. See USSG § 2D1.1(c). After determining that the sentencin g range was between 262 months and 327 months, the district court sentenced Ayers to 262 months’ imprisonment.
Williams admitted during his plea hearing that he was involved in a conspi racyto distribute crack cocaine with Gerald Leach, Luther Batte , Lester Batte, David Johnson, Eric Moss, and Christopher Cungtion. A t Williams’ sentencing hearing, Officer Douglas Larison of the Cedar Rapids Police Department testified that Williams and codefendant Gerald Leach wer e the leaders of the crack cocaine distribution organization in Cedar Rapids , Iowa. Larison stated that Williams was the source that supplied crac k cocaine to the organization. Williams admitted that on numerous occasions he traveled to Chicago, or directed someone to go to Chicago for him, to obtain crack cocaine for the conspiracy. Codefendant David Johnso n testif ied that he became involved in drug trafficking through Williams

. Johnson also stated that he obtained the crack he sold from Williams and that Williams directed to whom and for what price the crack was to be sold

.
The district court determined that Williams was a manager o r superv isor of criminal activity involving five or more participants an d thus subject to a three-level enhancement under USSG § 3B1.1(b). The cour t also found that Williams had accepted responsibility for his offense and decreased his offense level by two levels pursuant to USSG § 3E1.1(a). Th e court denied Williams the additional third level decrease authorized b y USSG § 3E1.1(b)(2). After determining that the sentencing range was 360 mont hs to life, the district court sentenced Williams to 360 months ’ imprisonment.

## -5- II.

We fir st consider Ayers’ appeal. Ayers challenges the distric t court’s drug quantity findings, claiming the court arbitrari ly assessed the amount o f crack cocaine attributable to him. We review the distric t court's determination of a drug quantity for sentencing purposes for clear
error. 18 U.S.C. § 3742(e) (1994); United States v. Payne , 119 F.3d 637, 645 (8th Cir.), cert. denied , 118 S. Ct. 454 (1997).
Our review of the record convinces us that the d istrict court did not commit clear error in determining the amount of crack cocaine attributable to Ayers. Contrary to Ayers’ assertion, the district court did no t ar bitrarilydetermine the amount of crack attributable to Ayers. Th e distric t court heard extensive testimony and made factual finding s regard ing drug quantities based on its assessment of the evidence. As we exp lained earlier, the district court calculated the amount of crac k cocaine attributable to Ayers by totaling the amounts from various dru g trans actions described by witnesses, discounting some testimony based o n its credibility findings, and approximating certain amounts based on al l the evidence. It was proper for the district court to reasonably estimate the total drug quantities based on its assessment of the evidence. Se e USSG § 2D 1.1, comment. (n.12); United States v. Newton , 31 F.3d 611, 61 4 (8th Cir. 1994) (court “may estim ate total drug quantity based on evidence that reasonably supports a factua l finding”). We see no reason to disturb the district court’s drug quantity determination.
Ayers next claims that the district court should have grante d “judic ial” immunity to a witness, Toyon Valentine, who asserted his Fifth Ame ndment right not to testify when called by Ayers at the sentencin g hearing. Ayers proffered that Valentine would have testified that Ayer s was not involved in certain drug transactions that a government witnes s claimed were attributable to Ayers. Ayers argues that the d istrict court’s refusal to grant immunity to Valentine violated Ayers’ right s to compulsory proce ss under the Sixth Amendment and due process under the Fourteent h Amendment.

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We reject this argument. “The district court did not have the authorit y to gra nt [Valentine] immunity because this court has consistently refused to recognize the concept of judic ial immunity.” United States v. Stewart , 122 F.3d 625, 627 (8th Cir. 1997) (citing United States v. Warfield , 9 7 F.3d 1014, 1020 (8th Cir. 1996), cert. denied , 117 S. Ct. 11 19 (1997)); see also Uni ted States v. Dierling , 131 F.3d 722, 732-33 (8th Cir. 1997 ) (declining to recognize authority of court to grant immunity to a witness); United Sta tes v. Robaina , 39 F.3d 858, 863 (8th Cir.1994) (same); Unite d Sta tes v. Capozzi , 883 F.2d 608, 613-14 (8th Cir. 1989) (same), cert
. denied , 495 U.S. 918 (1990); United States v. Doddington , 82 2 F.2d 818, 821 (8th C ir. 1987) (same); United States v. Hardrich , 707 F.2d 992, 994 (8th Cir.) (s ame), cert. denied , 464 U.S. 991 (1983). The district cour t properly refused to grant Valentine immunity.

III.

We next consider Williams’ appeal. Williams first claims that th e district court erred in enhancing his sentence by three leve ls based on its finding that he was a manager or supervisor in a criminal activit y involv ing more than five participants. See USSG § 3B1.1(b). The district court’ s determination of a participant’s role in the offense is a factual findin g that we review for clear error. United States v. Flores , 73 F.3d 826, 835 (8th Cir.), cert. denied , 116 S. Ct. 2568 (1996).
Our review of the record leads us to conclude th at the district court did not c ommit clear error in determining that Williams was a manager o r supervisor of five or more participants in the crack cocaine conspiracy

. First, it is clear from the record that the court did not err in findin g that the criminal activity involved five or more participant s. At his plea hearing, Williams admitted to bei ng involved in a conspiracy to distribute
cra ck cocaine involving six other individuals. Counting his ow n involveme nt there were seven. Second, the court properly found tha t Wil liams exercised such control over others in the criminal organizatio n to easily qualify as a manager or supervisor. The record clearly supports this determination. Williams set

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the price of the crack sold by coconspirator David Johnson. See USSG § 3B1.1, comment. (n.4) (factor in determining whether defenda nt is a manager
or supervisor includes “degree of control and authority exercised ove r others ”). Williams also determined to whom Johnson would sell the crack. See id

. Williams was the source of crack for the Cedar Rapids conspiracy and co uld therefore control the amount of crack sold by the conspirators. Williams also recruited David Johnson to come to Cedar Rapid s to sell drugs for the co nspiracy. See id. (factor in determining whether defendant i s a manager or supervisor includes “the recruitment of accomplices”).
Williams next argues that the district court erred in failing to gran t him a three-level decrease in his sentence for acceptance o f respon sibility. See USSG § 3E1.1(b). We give “great deference” to a district court’s finding of whether a defendant has acceptedresponsibility for his offense and will reverse only for clear error. United States v

. Thomps on , 60 F.3d 514, 517 (8th Cir. 1995); USSG § 3E1.1, comment. (n.5). The district court granted Willia ms a two-level decrease for acceptance of respon sibility pursuant to USSG § 3E1.1(a), but declined to grant him the additi onal one-level decrease authorized by USSG § 3E1.1(b)(2). Williams claims the court erred in failing to grant him this additional decrease

.

Section 3E1.1(b)(2) provides an additional one-level decrease to a defen dant who: (1) has accepted responsibility for his offense under § 3E1.1(a); (2) has an offense level greater than 16; and (3) has, “by timely notifying authorities of his intention to enter a plea of guilty, . .

. permitt[ed] the government to avoid preparing for trial and permitt[ed] the court to allocate its resources efficiently.” Williams met the first two requir ements, but the district court ruled the third element was lacking. The comme ntary to § 3E1.1 explains that “to qualify under subsectio n (b)(2), the defendant must have notified authorities of his intention t o enter a plea of guilty at a sufficiently early point in the process so that the government may avoid preparing for trial and the court m ay schedule its cale ndar efficiently.” USSG § 3E1.1, comment. (n.6). Williams did no t plead guilty until the morning of his first day of trial. B y this time the

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government had prepared for trial, a jury was waiting to serve, and th e distri ct court had set aside two weeks on its docket for the trial. W e easily conclude that the district court did not err in denying Williams an additional one-level decrease in his adjusted offense level under § 3E1.1. See Thomps on , 60 F.3d at 517 (denying decrease under § 3E1.1(b)(2) wher e defendant did not give notice of his intent to plead guilty unti l government had “essentially alrea dy completed its preparation for trial”); United States v. McQuay , 7 F.3d 8 00, 803 (8th Cir. 1993) (denying decrease und er § 3E1.1(b)(2) where defendant notified the government of hi s intention to plead on the day before his second trial).

IV. We have considered and rejected all of Ayers’ an d Williams’ arguments challe nging their sentences. Accordingly, we affirm the judgments of the district court.
A true copy.

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