FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 DECEMBER 9, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 10-10405

Non-Argument Calendar

________________________

D.C. Docket No. 1:08-cr-21097-JAL-1

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

 versus

TERRANCE SCOTT,

a.k.a. “T”,

 Defendant-Appellant.

________________________

No. 10-10506

Non-Argument Calendar

________________________

D.C. Docket No. 1:08-cr-21097-JAL-5

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

 versus

TORRENCE HOLMES,

a.k.a. Ton Ton,
 Defendant-Appellant.

__________________________

Appeals from the United States District Court 

for the Southern District of Florida

_________________________

(December 9, 2010)

Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

Terrance Scott and Torrence Holmes appeal their respective sentences of

108 and 144 months of imprisonment for conspiring to possess with intent to

distribute heroin, 21 U.S.C. § 846, and possessing with intent to distribute heroin,

id. §§ 841(a)(1), (b)(1)(C). Scott argues that he was entitled to a one-level

reduction for his acceptance of responsibility, U.S. Sentencing Guidelines Manual

§ 3E1.1(b) (2008). Holmes argues that he was not responsible for five ounces or

more of heroin and he should not have been classified as a career offender. We

affirm.

The district court did not err by refusing to award Scott a one-level

reduction for accepting responsibility. If a defendant qualifies for a two-level

reduction for acceptance of responsibility, he may receive an additional one-level

reduction upon motion of the government. U.S.S.G. § 3E1.1(b). The Guidelines

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vest the government with broad discretion to determine if the additional reduction

is warranted: “Because the Government is in the best position to determine

whether the defendant has assisted authorities in a manner that avoids preparing

for trial, an adjustment under subsection (b) may only be granted upon a formal

motion by the Government at the time of sentencing.” Id. cmt. n.6. The

government did not move for Scott to receive the one-level reduction.

Scott argues that he is situated identically to his co-defendant Holmes and,

by process of elimination, the government must have refused to grant the

additional one-level reduction based on an unconstitutional motive, but we

disagree. Scott fails to identify what unconstitutional motive purportedly lies

behind the decision to deny the additional reduction, and the government provided

a legitimate explanation for its decision. At the sentencing hearing, the

government stated that it refused to move for an additional one-level reduction

because Scott had made inconsistent statements about the amount of drugs

involved in his crimes and had filed pro se objections in concert with co-defendant

Holmes, all of which suggested that Scott had not accepted responsibility for his

crimes. Scott is not entitled to relief.

The district court did not clearly err by attributing to Holmes 5 ounces or

more of heroin. At the sentencing hearing, cohort Reginald Holsey authenticated

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tape recorded telephone conversations in which Holmes purchased on at least five

occasions single-ounce quantities of heroin from Holsey. See United States v.

Mertilus, 111 F.3d 870, 873 (11th Cir. 1997). Holmes challenges Holsey’s

credibility, but the district court was entitled to credit Holsey’s testimony. See

United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). The record

supports the finding that Holmes’s offenses involved at least 5 ounces of heroin. 

The district court also did not err in sentencing Holmes as a career offender. 

Holmes argues that his prior convictions are related and treated as a single offense

for purposes of enhancement, but he acknowledges that his argument is foreclosed

by our decision in United States v. Wilks, 464 F.3d 1240 (11th Cir. 2006). In

Wilks, we held that prior felony convictions are counted separately when the

defendant is arrested for his crimes on different days. Id. at 1244. Like the

defendant in Wilks, Holmes was arrested on separate occasions for two different

crimes of possessing with intent to distribute heroin.

We AFFIRM the sentences imposed on Scott and Holmes.

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