UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-60167

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

WILLIAM DELMER EDWARDS, JR.,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Mississippi

(September 18, 1995)

Before WISDOM, HIGGINBOTHAM, and PARKER, Circuit Judges.

WISDOM, Circuit Judge:

William Delmer Edwards, Jr., the defendant/appellant,

brings this appeal to challenge three aspects of his sentence. We

hold that the district court did not err in its decisions regarding

the defendant's sentence.

I.

Edwards pleaded guil ty to the charge of possession of

methamphetamine with the intent to distribute, in violation of 21

U.S.C. § 841. He admitted attending a meeting with co-conspirators

at a motel, weighing the methamphetamine brought to the meeting by

his co-conspirators, and leaving with at least 10 ounces of1 Record, volume 2 at 7-12.

2 Record, volume 2 at 13-25.

3 Record, volume 2 at 26-7.

2 methamphetamine.

At the sentencing hearing, Edwards raised several

objections. First, he contested the amount of drugs attributed to

him by the Presentence Investigation Report (PSI). According to

the PSI, the transaction in which Edwards participated involved 566

grams of methamphetamine. The district court received testimony

regarding the amount of drugs from both the defendant and a special

agent of the Drug Enforcement Administration (DEA), Thomas Moffett.

Edwards testified that he was told to expect a one pound delivery

(or 452.8 grams) but the bag was short when he received it and he

left the mote l with only 10 ounces (or 283 grams). 1 Moffett

testified that he had three informants in the motel room who each

report ed to him the amount of drugs delivered and weighed. One

informant reported that there were 566 grams of methamphetamine and

two others report ed that there was one pound (or 452.8 grams). 2

After this testimony, the district court stated that it chose not

to credit the defendant's testimony that there were only 283 grams

of methamphetamine, but would reduce the amount attributed to the

defendant to 452 grams based on the informants' reports. 3

At sentencing, the defendant also arg ued that he was

entitled to a reduction in his offense level under U.S.S.G. § 3B1.2

because of his minimal participation in the offense. In addition,

Edwards contended that he should receive a downward departure under4 United States v. Bermea

, 30 F.3d 1539, 1575 (5th Cir.

1994), cert. denied , 115 S.Ct. 1113, 115 S.Ct. 1825 (1995).

5 Id.

6 United States v. Jackie Brown , 7 F.3d 1155, 1159 (5th

Cir. 1993).

3 U.S.S.G. § 5C1.2. The district court rejected both of these

arguments and determined that the defendant's offense level was 25,

w ith a sentencing range of 57 to 71 months. A statutory minimum

applies to this charge, however, and the mandatory minimum is 60

months. The district court sentenced Edwards to 60 months in

prison, 5 years supervised release, and imposed a fine of $2500

with a special assessment of $50. Edwards appeals.

II.

A. Standard of Review

We review the application of the Sentencing Guidelines de

novo

. 4 And, we review the sentencing court's findings of fact for

clear error. 5 "A factual finding is not clearly erroneous as long

as the finding is plausible in the light of the record as a

whole." 6

B. Amount of Drugs Attributed to Edwards

Edwards conte nds that the district court erred in not

crediting his testimony regarding the amount of methamphe tamine,

especially in the light of the initial mistake in the PSI. He

argues that the district court's factual finding was clearly

erroneous because it was based on unreliable hearsay information.

For sentencing purposes, a district court "may consider

relevant information without regard to its admissibility under the7 U.S.S.G. § 6A1.3; see also

, Bermea , 30 F.3d at 1576;

United States v . Smith , 13 F.3d 860, 863 n.5 (5th Cir.), c ert.

denied , 114 S.Ct. 2151 (1994).

8 United States v. Rogers

, 1 F.3d 341, 343 (5th Cir. 1993);

see also

, United States v. West

, 58 F.3d 133, 138 (5th Cir. 1995);

United States v. Golden , 17 F.3d 735, 736 (5th Cir. 1994).

9 United States v. Ashburn

, 20 F.3d 1336, 1349 (5th Cir.

1994), cert. denied , 115 S.Ct. 1969 (1995).

10 Edwards also argues that the district court failed to

determine the amount of drugs reasonably foreseeable to him under

U.S.S.G. § 1B1.3(a)(1)(B). The defendant himself, however,

testified at the sentencing hearing that he was expecting a full

pound of methamphetamine. Record, volume 2 at 7-12. Thus, this is

an alternative basis for affirmin g the district court's factual

4 rules of evidence applicable at trial, provided that the

information has sufficient in dicia of reliability to support its

probable accur acy". 7 And, this Court has previously held that

"out-of-court statements by unidentified informants" may be

considered provided that there is sufficient corroboration. 8

Further, a district court has wide discretion in determining which

evidence to consider and which testimony to credit. 9

In this case, three informants reported that the

methamphetamine delivered to the motel room was at least one pound

(or 452.8 grams). Edwards himself testified at the sentencing

hearing that he was expecting a full pound of methamphetamine.

Faced with conflicting reports of the amount of drugs involved, the

district court was free to make a credibi lity choice. We see no

error in the district court's decision to credit the testimony of

Agent Moffett and conclude that approximately 452 grams was

involved on the motel room transaction. Thus, we reject the

defendant's challenge to this aspect of his sentence. 10finding that one pound of methamphetamine was attributable to the

defendant.

11 United States v. Hart , 876 F. Supp. 4, 5 (D.D.C. 1995).

5 C. Downward Departure under U.S.S.G. § 5C1.2

Edwards argues that he meets the requirements for a

downward depar ture under U.S.S.G. § 5C1.2 and that the district

court failed to fully consider his eligibility. Edwards argues

that th e reduction in his offense level for acceptance of

responsibility under U.S.S.G. § 3E1.1 suggest s that he qualifies

for a downward departure.

U.S.S.G. § 5C1.2 is a "safety val ve" provision which

allows qualified defendants to escape the applicable statutory

minimum sentence. 11 U.S.S.G. § 5C1.2 allows this relief only if the

defendant meets five criteria:

(1) the defendant doe s not have more than 1

criminal history point, as determined under

the sentencing guidelines;

(2) the defendant did not use violence or

credible threats of violence or possess a

firearm or other dangerous weapon (or

induce another party to do so) in connection

with the offense;

(3) the offense did not result in death or

serious bodily injury to any person;

(4) the defendant was not an organizer,

leader, or supervisor of others in the

offense, as determine under sentencing

guidelines and was not engaged in a continuing

criminal enterprise, as defined in 21 U.S.C.

§ 848; and

(5) not later than the time of the sentencing

hearing, the defendant has truthfully provided

to the Government all information and evidence

the defendant has concerning the offense or12 United State s v. Rodriguez

, 60 F.3d 193, 194 n.1 (5th

Cir. 1995).

13 PSI at 4.

6 offenses that were part of the same course of

conduct or of a common scheme or plan, but the

fact that the defendant h as no relevant or

useful information shall not preclude a determination by the court that the defendant

has complied with this requirement.

In this case, the government opposed the application of

§ 5C1.2 because it argued that, by alleging that there were only 10

ounces of methamphetamine present, Edwards failed truthfully to

pro vide the government with all information and that, therefore,

Edwards failed to meet the fifth criteria. Edwards responds by

arguing that his challenge of the amount of drugs attributed to him

by the PSI does not preclude application of § 5C1.2, especially in

the light of the initial mistake in the PSI.

"A sentencing court's refusal to apply § 5C1.2 is a

factual finding, which we review for clear error." 12 We agree with

Edwards that a mere challenge to factual findings at sentencing

does not automatically exclude application of §5C1.2. In this

case, however, more occurred at sentencing which is relevant to the

application of this section. Edwards offered testimony which

directly contradicted information gathered by the government. The

district court did not credit Edwards's testimony, as evidenced by

his finding that at least 452 grams of methamphetamine were

involved. Furthermore, the PSI indicates that Edwards told agents

at the time of his arrest that he had received only a half pound of

methamphetamine. 13 Later, the defendant alleged that he received14 Id.

15 U.S.S.G. § 3B1.2 provides:

Based on the defendant's role in the offense,

decrease the offense level as follows:

(a) If the defendant was a minimal

participant in any criminal activity, decrease

by 4 levels.

(b) If the defendant was a minor

participant in any criminal activity, decrease

by 2 levels.

In cases falling between (a) and (b),

decrease by 3 levels.

16 The defendant also alleges that the district court did

not make sufficient factual findings on this issue. The district

court raise d the issue at the prompting of a recent letter from

defendant's counsel and sought the government's opinion. The

government expre ssed its opinion that Edwards was not a minor

participant. Although the district court did not specifically

detail its reasons for rejecting the defendant's argument, its

refusal t o apply §3B1.2 suggests that the district court agreed

with the government's s tatement that Edwards was not a minor

participant. We will not, as Edwards suggests, remand this case to

the sentencing court based on this slight ambiguity in the record.

7 only two ounces of methamphetamine. 14 In these circumstances, the

district cour t could have concluded that Edwards did not, as

alleged by the government, truthfully provide all relevant

inf ormation. We see no clear error in this conclusion and we,

therefore, affirm the district court's decision on this issue.

D. Minimal participant adjustment under U.S.S.G. § 3B1.2

Finally, the d efendant argues that he was entitled to

between a two and four point reduction in his offense level because

of his minor or minimal participation in the offense. 15 The

defendant raised this issue at the sentencing and it was rejected

by the district court. 16

U.S.S.G. § 3B1.2 is designed to reduce a defendant's1 7 United States v. Sparks

, 2 F.3d 574, 586 (5th Cir. 1993),

cert denied , 114 S.Ct. 720, 114 S.Ct. 899, 114 S.Ct. 1548 (1994).

18 United States v. Zuniga , 18 F.3d 1254, 1261 (5th Cir.),

cert. denied , 115 S.Ct. 214 (1994).

19 U.S.S.G. § 3B1.2, comment 2.

20 Zuniga

, 18 F.3d at 1261 (holding that a defendant who

accepted custody of heroin and then delivered it to the buyer

played an important role and was not entitled to e reduction under

§3B1.2); United States v. Pofahl , 990 F.2d 1456, 1485 (5th Cir.),

cert. denied , 114 S.Ct. 266, 114 S.Ct. 560 (1993) (noting that "a

`mule or transpo rter of drugs may not be entitled to minor or

minimal status'") (quoting United States v. Bethley , 973 F.2d 396

(5th Cir. 1992)).

21 PSI at 5.

22 Id.

8 sentence when he is "substantially less culpable than the average

participant." 17 This section does not apply whenever a defendant

is, to a lesser degree, less culpable than his co-con spirators. 1 8

Rather, as noted in the comments to § 3B1.2, "a downward adjustment

for a minimal participant will be used infrequently." 19 Also, this

Court has held previously that defendants like Edwards, whose

participation is limited to holding or delivering drugs, may not,

despite their more limited role in the conspiracy, be eligible for

a reduction of their offense level under § 3B1.2. 20

According to admissions he made to the probation officer

in preparation of the PSI, Edwards helped weigh the drugs, hid them

on behalf of the conspiracy, and on several occasions accompanied

a co-conspira tor making deliveries. 2 1 Furthermore, the defendant

admitted to making several sa les on his own. 2 2 In these

circumstances, the d istrict court did not clearly err when it9

determined that Edwards was not entitled to a reduction in his

offense level because he was a minor or minimal participant. We,

therefore, affirm this aspect of Edwards's sentence.

III.

The def endant brought this appeal to challenge several

factual findings made by the district court in determining his

sentence. We see no clear error in the decisions of the district

court and, therefore, we AFFIRM the defendant's sentence.