The Honorable Warren K. Urbom, United States District Judge 1

for the District of Nebraska. 

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No. 95-3823

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United States of America, *

 *

Appellee, *

 * Appeal from the United States

v. * District Court for the

 * District of Nebraska.

Corey J. Hupp, *

 * [UNPUBLISHED]

Appellant. *

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 Submitted: May 2, 1996

 Filed: May 10, 1996

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Before FAGG, BOWMAN, and HANSEN, Circuit Judges. 

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PER CURIAM.

Corey J. Hupp challenges the 41-month sentence imposed by the

District Court after he pleaded guilty to conspiring to distribute

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methamphetamine and to possess it with intent to distribute, in violation

of 21 U.S.C. §§ 841(a)(1) and 846 (1988). We affirm.

After an evidentiary hearing at which Marcia and Ron Delgado

testified about methamphetamine distributions they had made to Hupp, the

District Court found Hupp was responsible for two ounces of

methamphetamine, and was not entitled to an acceptance-of-responsibility

reduction under U.S.S.G. § 3E1.1.

Hupp first contends that the parties agreed he would be held

accountable for only one ounce of methamphetamine, and that the
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government breached the plea agreement by introducing evidence of other

drug activity at the evidentiary hearing. We reject this contention, as

the change-of-plea transcript clearly reflects that the parties agreed the

amount of methamphetamine at issue would be determined at sentencing, and

that there was no suggestion of any limit on that amount. Moreover, Hupp

did not make this argument below.

We also reject Hupp's argument that the District Court clearly erred

in calculating the amount of methamphetamine for which he was responsible.

See United States v. Williams, 77 F.3d 1098, 1100 (8th Cir. 1996) (standard

of review). The District Court's decision to credit Marcia's testimony in

making its finding is virtually unassailable on appeal. See United States

v. Wessels, 12 F.3d 746, 754 (8th Cir. 1993), cert. denied, 115 S. Ct. 105

(1994). Hupp maintains that the District Court should not have held him

accountable for methamphetamine Marcia distributed to him around Christmas

1992, the month before the beginning date of the conspiracy as alleged in

the indictment. Ron, however, testified that he distributed

methamphetamine to Hupp during the relevant period, and to the extent Hupp

received methamphetamine from Marcia in the month prior to the beginning

date alleged in the indictment, this conduct was part of "the same course

of conduct or common scheme or plan involving the offense of conviction"

and thus constituted relevant conduct. See U.S.S.G. § 1B1.3(a)(2);

Williams, 77 F.3d at 1100; United States v. Chatman, 982 F.2d 292, 294 (8th

Cir. 1992).

Finally, we conclude the District Court did not clearly err in

refusing to grant Hupp an acceptance-of-responsibility reduction, because

Hupp denied the extent of his role in the offense. See U.S.S.G. § 3E1.1,

comment. (n.1(a)); United States v. Evans, 51 F.3d 764, 766 (8th Cir. 1995)

(standard of review).

Accordingly, the judgment of the District Court is affirmed.
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A true copy.

Attest:

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