1

The Honorable Linda R. Reade, Chief Judge, United States District Court for

the Northern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-1772

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Northern District of Iowa.

Montel Theopolis Jones, also known *

as Hollywood, *

*

Appellant. *

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Submitted: February 14, 2008

Filed: August 26, 2008

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Before BYE, RILEY, and MELLOY, Circuit Judges.

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MELLOY, Circuit Judge.

Appellant Montel Theopolis Jones pleaded guilty to a charge of distributing

cocaine base (crack cocaine) within 1000 feet of a protected location and now appeals

his sentence. He argues the district court1

 erred in its drug-quantity determination and

in its denial of a reduction for acceptance of responsibility. We affirm.
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The United States charged Jones with two counts of distributing crack cocaine

within 1000 feet of a protected location, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(B), and 860(a). The two counts alleged the sale of crack cocaine based on

separate controlled transactions in which Jones sold a total of 21.11 grams of crack

cocaine to a confidential informant. Jones pleaded guilty to the first count, and the

United States dismissed the second.

At sentencing, the district court found Jones responsible for distributing over

500 but less than 1500 grams of crack cocaine based largely on the testimony of

Donald Harris, who pleaded guilty to trafficking crack cocaine, faced the possibility

of life imprisonment, and agreed to cooperate with the government. In objections to

the presentence investigation report, Jones denied any prior involvement with Harris

and sought to be sentenced only on the 21.11 grams involved in the controlled

transactions. The district court ultimately found Harris credible and found Jones’s

failure to admit any dealings with Harris to be a frivolous denial of relevant conduct.

As a result, the district court found Jones had not accepted responsibility, and the

district court denied a reduction for acceptance of responsibility.

Determinations as to acceptance of responsibility and drug quantity are factual

findings that we review only for clear error. United States v. Winters, 416 F.3d 856,

860 (8th Cir. 2005) (“A district court’s factual determination on whether a defendant

has demonstrated acceptance of responsibility is entitled to great deference and should

be reversed only if it is so clearly erroneous as to be without foundation.”); United

States v. Houston, 338 F.3d 876, 878 (8th Cir. 2003) (“In reviewing the drug quantity

finding for clear error, we must affirm unless the entire record firmly convinces us that

a mistake has been made.”). We do not substitute our judgment for that of the district

court because the district court is in a better position to assess whether a defendant has

accepted responsibility and to assess the credibility of witnesses. United States v.

Quintana, 340 F.3d 700, 702 (8th Cir. 2003) (“It is . . . well established that in

sentencing matters a district court’s assessment of witness credibility is
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quintessentially a judgment call and virtually unassailable on appeal.”) (internal

citations omitted, alterations in original). Our review, then, is not to determine what

conclusion we might reach in the case were we to sit as the finders of fact, but to

determine whether the district court’s factual findings amount to clear error.

As to Harris’s credibility, Harris was not a strong witness. He knew Jones only

by the nickname “Hollywood,” he failed to notice a large tattoo on Jones’s forearm

(even though he claimed to have purchased crack from Jones multiple times per week

for over two years), he was strongly motivated to testify in order to obtain leniency

in his own case, and his testimony as to drug transaction amounts and frequency was

confusing and often internally inconsistent. Ultimately, however, the government was

able to rehabilitate Harris on re-direct and clarify his testimony. Reliance on the

testimony of a witness as inconsistent as Harris to greatly enhance a sentence is

troubling. However, it ultimately is the call of the sentencing judge to weigh those

inconsistencies and make the factual finding of whether the witness is embellishing

to better his own situation or suffers from a bad memory or confusion.

Here, we note that the district court also found a separate witness, Victor

Wright, to be credible. Wright’s testimony buttressed Harris’s credibility because,

although Wright did not testify as to quantities, his testimony clearly placed Jones in

transactions with Harris, as claimed by Harris and as denied by Jones. Further, the

district court only needed to find that Jones had sold over 500 grams of crack cocaine.

Harris’s testimony permitted the court to reach this threshold, even after the

application of substantial discounts regarding the frequency of transactions and

quantity of crack cocaine described by Harris. In summary, the evidence was

sufficient to support the quantity determination in this case such that the district court

did not commit clear error when it found Jones had sold more than 500 grams of crack

cocaine. 
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Similarly, the district court did not commit clear error when it found that

Jones’s express denial of any dealings with Harris was inconsistent with an acceptance

of responsibility. Jones argued that he merely stood mute and required the

government to prove related conduct. See U.S. Sentencing Guidelines Manual §

3E1.1, comment n.1(a) (2006) (“A defendant may remain silent in respect to relevant

conduct beyond the offense of conviction without affecting his ability to obtain a

reduction under this subsection.”). The district court rejected Jones’s argument. The

district court held that, through Jones’s objections to the presentence investigation

report, Jones denied entirely any association with Harris, effectively denying any drug

activity other than his sale of the 21.11 grams of crack cocaine involved in the

controlled transactions. The district court declared Jones’s position in this regard to

be “preposterous” and deemed Jones’s complete denial of any dealings with Harris to

be a false denial or frivolous contesting of relevant conduct. See id. (“[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.”).

Wright’s testimony, in combination with Harris’s testimony, provides sufficient

support for the district court’s determination. 

We affirm the judgment of the district court. 

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