                   UNITED STATES COURT OF APPEALS

                           FOR THE FIFTH CIRCUIT


                            __________________

                               No. 96-20096
                            __________________



     UNITED STATES OF AMERICA,

                                            Plaintiff-Appellee,

                                   versus

     DERRICK ANTHONY THOMAS; RONALD HARMON;
     ELLUARD J. JACKSON; THADDIUS
     CHRISTOPHER GOINS, also known as
     Cricket,

                                            Defendants-Appellants.

         ______________________________________________

      Appeals from the United States District Court for the
                    Southern District of Texas
          ______________________________________________
                          August 19, 1997

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

     This direct criminal appeal involves four appellants who were

convicted of conspiracy to possess with intent to distribute

cocaine base and a substantive count of possession with intent to

distribute cocaine base. The appellants make various challenges to

their convictions, including: alleged violations of the Fourth

Amendment, insufficient evidence to sustain their convictions, and

evidentiary   error.       Goins   and   Jackson   also   challenge   their

sentences.    We affirm.
I.     PROCEDURAL HISTORY AND BACKGROUND

       A grand jury charged Thaddius Christopher Goins (Goins),

Derrick   Anthony     Thomas   (Thomas),    Ronald   Harmon    (Harmon),      and

Elluard Jackson (Jackson) with one count of conspiracy to possess

with intent to distribute cocaine base and one count of possession

with   the   intent    to   distribute     cocaine   base.     21   U.S.C.     §§

841(a)(1), 841(b)(1)(A), 846 and 18 U.S.C. § 2.               Prior to trial,

all four defendants moved to suppress all the evidence seized

during a search of apartment #426 at 230 Uvalde in Houston.

Specifically,     the       police   discovered      crack    cocaine,     drug

paraphernalia, and a firearm in the apartment.

       The district court held a hearing on the defendants' motions,

and the following evidence was adduced.              Based on a tip from a

confidential informant that Goins would be manufacturing crack

cocaine   from   powder     cocaine,   Houston    police     officers   set    up

surveillance of the apartment at about 10 p.m. on May 4, 1995.

Approximately an hour and a half later Harmon exited the apartment

and began driving away in a white Cadillac.            The officers stopped

him because he was driving without his headlights and failed to

signal. In response to police inquiries, Harmon denied having just

left the apartment.          Harmon was arrested, and a search of his

person revealed a loaded firearm in his boot.

       At approximately 12:50 a.m., Thomas left the apartment and was

stopped by the police because the vehicle he was driving had

outstanding warrants.        The police arrested Thomas based on those

warrants.    Upon questioning, Thomas admitted there was "dope" in


                                       2
the apartment but would not say how much.      Thomas also gave the

officers conflicting responses regarding whether he lived in the

apartment.   He told one officer that he had no involvement with the

apartment, and he implied to another officer that it was his

girlfriend's apartment.    Further investigation after the search

revealed that Thomas's name was on the apartment lease.

     After Harmon's and Thomas's departures, Goins walked out of

the apartment several times, glanced at his watch, and looked

around the apartment complex, apparently awaiting the return of

Harmon and Thomas, both of whom, unbeknownst to Goins, had been

arrested.    About 1:30 a.m., Goins walked across the street to use

a pay phone outside a convenience store and was arrested on

outstanding warrants.   The police found $4,800 in cash on Goins's

person.     Additionally, when an officer asked Goins a question

regarding the amount of "dope" in the apartment, Goins replied

"Man, you already know what's up.     Why you asking me?   Why do you

think I would know how much it is?"

     The officers then decided to approach the apartment and try to

obtain consent to search.      Officers DeBlanc and Ong proceeded

through an open gate of a privacy fence surrounding the apartment

and knocked on the front door. Someone inside responded "come in,"

and DeBlanc knocked again and identified himself as a police

officer. Ultimately, the individual who had bid the officers "come

in" opened the door and walked away from the officers.1    From their

1
      Jackson testified at the suppression hearing and offered a
different version of the events. Jackson claimed the officers did
not identify themselves and that they just crashed through the door

                                  3
vantage point at the front door, the officers could see into the

kitchen.     Officer DeBlanc observed cocaine on the counter, a

beaker, microwave ovens, and boxes of baking soda.                At that point,

Officer DeBlanc knew he had witnessed a drug offense.                        Upon

entering the apartment Officer Ong conducted a protective sweep to

ascertain whether there were armed individuals present.                       The

officers   saw   Jackson   seated    in    a   chair   in   the    living   room,

apparently feigning sleep.

     The officers spoke with the man who had opened the door and

discerned that he was mentally impaired and thus, could not give

consent to search.    Sometime after the search, it was learned that

this man was Thomas's uncle.    The officers then spoke to Jackson to

try to obtain consent to search.          Jackson told the officers he was

left there to take care of the mentally impaired man.               To avoid the

appearance of coercion from the influx of police officers, the

officers requested that Jackson continue the conversation in the

bedroom.   Jackson did not sign the consent to search form but did

give oral consent to search.        Jackson admitted that he said "Yeah,

you already in, you might as well search."             At the time, Jackson

was unaware that the police taped part of the conversation.                 During

this conversation, Officer DeBlanc observed an open duffel bag on

the bed that contained crack cookies.

     After Jackson orally consented, the officers searched the

apartment.    Aside from the cocaine and paraphernalia previously

observed, the following items were seized: a semi-automatic pistol;


without being invited inside.

                                      4
cocaine from a closet; crack cookies inside a jacket; and a plate

in a bedroom with a razor blade.         It was later determined that the

bag in the bedroom contained nearly 3 kilograms of crack cocaine

cookies.

     After hearing the evidence, the district court made the

following findings:     there was an adequate basis to arrest Harmon

based on the officer's testimony; neither Harmon nor Goins had

standing to challenge the search of the apartment but Jackson and

Thomas did have standing; the officers reasonably believed that

Jackson, as a caretaker, had the limited authority to consent to a

search of the common areas of the apartment but not to a search of

the closets or underneath mattresses; the officers reasonably

believed that the front door of the apartment was accessible to the

public and that the uncle had consented for them to enter the

apartment; and the officers could see the contraband on the counter

top from the door.      Based on these findings, the district court

suppressed    the   evidence,   including    the   semi-automatic   pistol,

discovered outside the common areas of the apartment and allowed

the remaining evidence.

     At trial, the Government introduced evidence that earlier on

the day of the search, several officers set up surveillance of an

auto detailing shop and observed an exchange between Goins, who had

a white Cadillac, and another individual, who was driving a maroon

Oldsmobile.    Upon leaving in his Oldsmobile, the individual was

stopped, and a little over $20,000 in cash and a semi-automatic

pistol were recovered from hidden compartments in the vehicle.


                                     5
     The   Government     also    introduced    the    evidence       from   the

suppression hearing regarding the events that occurred during the

officers' surveillance and subsequent search of the apartment on

the night of May 4, 1995.        The evidence seized from the apartment

was introduced before the jury.           Among other things, a scale, a

metal pot, sixteen beakers, and the microwave ovens all contained

small or trace amounts of crack cocaine.             One beaker contained a

cookie consisting of 24.6 grams of crack cocaine.                The cookies

found in the bag in the bedroom contained 2.9 kilograms of crack

cocaine.

     Officer DeBlanc testified that crack cocaine is made by mixing

baking soda and water with the powder cocaine and heating the

mixture on the stove or in the microwave.        The cocaine then settles

to the bottom of the container and the adulterants or diluents rise

to the top.     While still wet, the cookies are taken out of the

beaker to dry.    After an hour or so, they become extremely hard.

It takes from 35 minutes to 1 hour to convert 1 kilogram of powder

cocaine into crack. Officer DeBlanc also testified that a kilogram

of cocaine costs between $17,000 and $21,000 wholesale.                  Street

value of a kilogram of cocaine would be in excess of $100,000.                He

further testified that 2.9 kilograms of crack cocaine was an

"incredibl[y] large amount of crack cocaine" and that it would take

several individuals to cook that much cocaine because "[i]t's like

an assembly type operation."       In his opinion, the cookies found in

the duffel bag had been freshly cooked.

     A   jury   found   all   defendants    guilty    as   charged,    and   the


                                      6
district court imposed the following sentences: Goins, 380 months;

Thomas, 292 months; Harmon, 292 months; and Jackson, 235 months.

II.   ANALYSIS

      A. SUFFICIENCY OF THE EVIDENCE

      Goins, Harmon, and Jackson contend that the evidence was

insufficient to sustain their convictions.                   When reviewing the

sufficiency    of   the    evidence,      we    view   all   evidence,      whether

circumstantial or direct, in the light most favorable to the

Government with all reasonable inferences to be made in support of

the jury's verdict.       United States v. Salazar, 958 F.2d 1285, 1290-

91 (5th Cir.), cert. denied, 506 U.S. 863, 113 S.Ct. 185 (1992).

The evidence is sufficient to support a conviction if a rational

trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.          Id.        The evidence need not exclude

every     reasonable   hypothesis      of      innocence     or   be     completely

inconsistent with every conclusion except guilt, so long as a

reasonable trier of fact could find that the evidence established

guilt beyond a reasonable doubt.               United States v. Faulkner, 17

F.3d 745, 768 (5th Cir.), cert. denied, 513 U.S. 870, 115 S.Ct. 193

(1994).

      To establish a conspiracy offense under 21 U.S.C. § 846, the

Government must establish: "1) the existence of an agreement

between two or more persons; 2) the defendant's knowledge of the

agreement; and 3) the defendant's voluntary participation in the

conspiracy."     United States v. Brown, 29 F.3d 953, 958 (5th Cir.),

cert. denied, 513 U.S. 1021, 115 S.Ct. 587 (1994).                     To sustain a


                                       7
conviction for the possession of crack cocaine with intent to

distribute, the Government must establish "the 1) knowing; 2)

possession     of    a    controlled    substance;    3)    with   the   intent   to

distribute it."          Id.

      Goins,      Harmon,       and    Jackson     argue    that   the     evidence

demonstrated only their "mere presence" at the apartment, and thus,

the   evidence       was       insufficient   to    establish      their    knowing

participation in either the conspiracy or the substantive offense.

      We begin with examining the evidence implicating Goins.                     On

the   day    of     the    instant     offense,     several    officers    set    up

surveillance of an auto detailing shop and observed an exchange

between Goins and another individual. Upon leaving, the individual

was stopped, and approximately $20,000 in cash and a semi-automatic

pistol were recovered from hidden compartments in the vehicle.

      Later that night, the officers began surveillance of Thomas's

apartment. After Harmon's and Thomas's departure, Goins walked out

of the apartment several times and would glance at his watch and

then look around the apartment complex, apparently awaiting the

return of Harmon and Thomas, both of whom, unbeknownst to Goins,

had been arrested.         Goins subsequently walked to a pay phone near

the apartment and was arrested on outstanding warrants. The police

found $4,800 in cash on Goins's person.                    Additionally, when an

officer made inquiries regarding drugs in the apartment, Goins made

an incriminating statement to the effect that because the police

already knew of the drug activity, they need not ask him.

      The above evidence, when examined in light of the cocaine and


                                          8
drug paraphernalia found in the apartment, would allow the jury to

conclude that Goins purchased one kilogram of cocaine from the

unidentified individual at the detail shop2 and brought it to

Thomas's apartment to "cook" it.        The evidence of Goins's actions

after Harmon's and Thomas's departure would also allow the jury to

conclude that   Goins   anxiously   awaited    their   return.   We   are

confident that the evidence of Goins's behavior, his incriminating

statement to the police, and the evidence found on Goins's person

and in the apartment demonstrate more than Goins's mere presence at

the crime scene.   The evidence is sufficient to prove beyond a

reasonable doubt that Goins was a knowing member of the drug

conspiracy and that he possessed with intent to distribute the

cocaine found in the apartment.

     As for Harmon, the evidence demonstrated that he was already

in the apartment at the time the police began surveillance at 10:00

p.m., and he left about an hour and a half later.        Harmon was then

arrested, and a search of his person revealed a loaded handgun.

Recognizing that for drug dealers, firearms are "tools of the

trade," this Court has explained that possession of a gun is

"highly probative in proving criminal intent."         United States v.

Martinez, 808 F.2d 1050, 1057 (5th Cir.), cert. denied, 481 U.S.

1032, 107 S.Ct. 1962 (1987). Also, when questioned by the officer,

Harmon denied having just left the apartment; instead, he claimed

that "he was just in the area riding around."       This patently false


2
       The Government introduced evidence that one kilogram of
cocaine costs $20,000.

                                    9
statement is circumstantial evidence of Harmon's guilty knowledge.

United States v. Richardson, 848 F.2d 509, 513 (5th Cir. 1988).

Also, the evidence of Goins's behavior in awaiting Harmon's return

implicates Harmon in the conspiracy.                Viewed in the light most

favorable to the Government, this evidence, together with the

evidence regarding the amount of time and number of people involved

in   the     cooking    process,   is     sufficient    to   sustain    Harmon's

convictions.

       Finally, we examine the evidence implicating Jackson.              At the

time   the    police    entered    the   apartment     Jackson   was    the   only

remaining responsible adult, and the water was "on" in the kitchen.

The officers also noticed the "pungent" odor of the recently cooked

cocaine and the cocaine and drug paraphernalia that was visible as

soon as one entered the apartment.             Additionally, Jackson never

left the apartment during the time that the jury could infer the

nearly three kilograms of crack cookies were being cooked.                    This

evidence shows Jackson's knowledge of the crack laboratory and also

indicates      that    the   cooking     process,    which   required    several

participants, was ongoing. As the Government points out, Jackson's

codefendants left him alone in the apartment with a small fortune

in cocaine.     Although Jackson argues that he was merely present in

the apartment, we have explained that "[t]he implicit rationale

behind the `mere presence' argument is the theory that there may

often be innocent parties who on occasion unwittingly associate

with guilty parties at the scene of their criminal activity."

United States v. Martinez-Moncivais, 14 F.3d 1030, 1034 (5th Cir.),


                                         10
cert. denied, 513 U.S. 816, 115 S.Ct. 72 (1994).    Here, the crime

scene does not support Jackson's defense of unwitting association

with his codefendants.    Certainly, the jury was entitled to reject

such a defense.    The evidence was sufficient to sustain Jackson's

convictions.

     B.     STANDING

     Goins argues that the district court erred in finding that he

did not have standing to challenge the warrantless search of the

apartment.     Goins has the burden of demonstrating that he has

standing.     United States v. Wilson, 36 F.3d 1298, 1302 (5th Cir.

1994).    He must show (1) an actual, subjective expectation of

privacy with respect to the place searched or things seized, and

(2) that the expectation is such that society would recognize it as

reasonable.    Id. at 1302-03.

     To make this showing, Goins relies on his presence in the

apartment prior to his arrest and information from a confidential

informant indicating that he had control over the apartment.    The

evidence established that Goins was present at the apartment prior

to his arrest; however, contrary to Goins's assertion, the district

court did not find that Goins had control over the apartment.

Instead, the district court found that "the only information [from

the confidential informant] that Officer Campbell had was that Mr.

Goins was believed to be the custodian of the cocaine who was being

allowed to use the apartment to process the cocaine."      As such,

Goins failed to make the requisite showing.      The district court

properly concluded that Goins lacked standing to challenge the


                                  11
search of the apartment.

      C.   CURTILAGE OF THE APARTMENT

      Thomas and Jackson both argue that their Fourth Amendment

rights were violated when the officers, without a warrant, entered

through the gate of the privacy fence surrounding the apartment.

We disagree.

      The Fourth Amendment extends to protect the “curtilage” of a

home from unconstitutional searches.    United States v. Dunn, 480

U.S. 294, 300, 107 S.Ct. 1134, 1139 (1987).        The “curtilage”

constitutes the area within which a person “reasonably may expect

that the area in question should be treated as the home itself.”

Id.   In determining whether an area outside the home is curtilage,

we must consider four factors: the proximity of the area to the

home, whether it is within an enclosure surrounding the home, the

nature of the uses to which the area is put, and the steps taken by

the resident to protect the area from outside observation.   Id. at

301, 107 S.Ct. at 1139.    The Supreme Court explained that these

factors are not to be "mechanically applied;" instead they are

helpful to the extent they shed light on the ultimate inquiry of

“whether the area in question is so intimately tied to the home

itself that it should be placed under the home’s ‘umbrella’ of

Fourth Amendment protection.”    Id. at 301, 107 S.Ct. at 1140.

      In the instant case, after hearing the evidence on the motion

to suppress, the district court found that the gate was open when

the officers entered the area.   The court further found there was

no indication "that [the gate] was meant to be used by any person


                                 12
approaching that dwelling as . . . a place to which permission to

enter had to be given.        It was -- the gate was hanging open.

There's no door bell there.     There is no knocker there."       "From the

photographs and the testimony, it appears that there was -- it was

certainly reasonable for the officers to believe the front door was

readily accessible to the general public; and it was the principal

means of access to the dwelling."

      In regard to the first two factors, the proximity to the home

and whether the area was within an enclosure surrounding the home,

there was testimony that a fence surrounded the apartment and that

it   was   approximately   three   feet    away   from   the   door   of   the

apartment.    Those two factors weigh in favor of the appellants.

The next two factors, the nature of the uses to which the area is

put and the steps taken by the resident to protect the area from

outside    observation,    strongly    indicate   that   the   area   is   not

curtilage.     As found by the district court, the gate was left

hanging open, and the resident had not taken any steps to indicate

that the gate was an entry to a place that permission had to be

given to enter.      Because there is evidence to support those

findings, they are not clearly erroneous.

      Based on those findings, the district court properly concluded

that the officers could reasonably believe that the gate provided

the principal means of access to the apartment, through which they

could approach the front door.        See United States v. James, 40 F.3d

850, 862 (7th Cir. 1994), modified on other grounds, 79 F.3d 553

(7th Cir. 1996).     Under these circumstances, the police did not


                                      13
violate the Fourth Amendment by approaching the front door.

     D.   CONSENT TO SEARCH

     Thomas and Jackson challenge the validity of the consent

obtained to enter and search the apartment.   They first argue that

because the officers failed to identify themselves as police, they

could not have reasonably believed that anyone opening the door was

consenting to the police entering the apartment.   Contrary to the

appellants' position, the district court credited the following

testimony of Officer DeBlanc, who testified that he did announce

"police" and that "after the first two knocks, each time a voice

from the inside of the apartment told them to come in."   The court

also credited Officer DeBlanc's testimony that, after the third

knock, a person opened the door from the inside and immediately

walked away, which provided the officers with a view of the

contraband prior to entering the apartment.      Upon entering the

apartment and speaking to the man who opened the door, the officers

realized the man was not capable of giving proper consent for a

search.   They then approached Jackson to request his consent to

search the apartment.

     The district court's decision to credit Officer DeBlanc's

testimony over Jackson's was not clearly erroneous.   United States

v. Bass, 10 F.3d 256 (5th Cir 1993).      Under the circumstances

outlined above, we conclude that the officers reasonably believed

that they had received consent to enter the apartment.

     Thomas and Jackson next contend that Jackson did not have the

authority to consent to a search of the apartment.    The district


                                14
court concluded that Jackson had apparent authority to consent to

a search of the common areas of the apartment and found that:

          Mr. Jackson's testimony and the testimony of the
     officers is that he was simply there as a babysitter. As
     a babysitter, he would have a right of access to and of
     mutual use of the common areas, which would include,
     given his description of what he was charged with doing,
     the bedrooms, the bathrooms; but I don't see any basis
     that would enable me to say that he had the authority to
     consent to the insides of closets, underneath mattresses,
     or areas that would be beyond those areas in which an
     individual who is there as a babysitter would have a
     right of access.

          [I]t is the Court's conclusion that Mr. Jackson's
     ability to give consent -- apparent consent that the
     officers would have reasonably believed he had the
     authority to give would be an authority limited to the
     common areas and the bedroom areas of the apartment, the
     areas in which he testified he was permitted to use and
     was given free access to as a babysitter.      I do not
     believe that it extends to a reasonable appearance of
     authority to search inside closets or underneath
     mattresses.

     We agree that the officers reasonably relied on Jackson's

apparent authority to consent to their search of the common areas

of the apartment.   See United States v. Jenkins, 46 F.3d 447, 458

(5th Cir. 1995).3

3
     In the court below, after the suppression hearing, the
Government conceded that Thomas was arrested based on a nonexistent
traffic warrant. The appellants contend that although the police
knew that Thomas lived in the apartment, instead of asking for his
consent to search, they obtained consent from the remaining persons
in the apartment. Thomas and Jackson thus argue the officers could
not have reasonably believed that the remaining occupants could
validly consent to search.
     Initially, it should be noted that the officers had
conflicting information regarding whether Thomas lived in the
apartment. One officer testified that Thomas denied any knowledge
of the apartment when he was arrested. In any event, it is well
established that valid consent may be obtained from a third party
with joint access to and control of the property. United States v.
Rizk, 842 F.2d 111, 112 (5th Cir.), cert. denied, 488 U.S. 832, 109
S.Ct. 90 (1988). Thus, Thomas and Jackson have not shown that the

                                15
     Finally, after considering the relevant portion of the record,

briefs and arguments of counsel, we find the remaining challenges

to the search of the apartment to be without merit.

     E.    SEARCH OF HARMON INCIDENT TO ARREST

     Harmon challenges the district court's denial of his motion to

suppress the evidence obtained as a result of a search incident to

his arrest. Specifically, he moved to suppress a statement he made

to the police4 and a pistol found in his boot.

     The thrust of Harmon's argument is that the initial stop was

illegal because driving in a private parking lot without headlights

did not violate any Texas law.       Citing Texas statutes that provide

the definition of the terms "highway" and "roadway," he contends

that "[t]here was no justifying of a custodial arrest . . . for

driving in the apartment parking lot with his parking lights on."

This argument ignores that the district court found the testimony

given by   Officer   Campbell   to   be     credible.   Officer   Campbell

testified that he "saw [Harmon] go into the roadway without his

lights on."   Officer Campbell further testified that Harmon failed

to signal and was not wearing a seat belt.         The factual premise of

Harmon's argument is incorrect.           Harmon therefore has failed to

show that the stop was illegal.           Whren v. United States, __ U.S.

__, 116 S.Ct. 1769 (1996) (traffic stop reasonable where probable

cause to believe traffic code violated).         Further, a peace officer



district court erred in concluding that the officers reasonably
believed the remaining occupants could consent to search.
4
     He denied that he had just left the apartment.

                                     16
may arrest without a warrant if the officer observes the individual

commit a traffic violation.           Tex. Rev. Civ. Stat. Ann. art. 6701d,

§ 153 (Vernon 1977) (current version codified at Tex. Transp. Code

Ann. § 543.001 (Vernon 1995)).5           Once an officer makes such a valid

arrest,   the    officer      is   entitled    to     conduct   a   search      of    the

arrestee's person. Gustafson v. Florida, 414 U.S. 260, 266, 94

S.Ct. 488, 492 (1973).

     Finally, Harmon argues that the arrest was pretextual.                          That

argument is entirely without merit. United States v. Robinson, 414

U.S. 218, 94 S.Ct. 467 (1973) (explaining that arrest for traffic

violation not rendered invalid because it was a pretext for a

narcotics search).           The district court properly denied Harmon's

motion to suppress.

     F.     ADMISSION OF EVIDENCE UNDER RULE 403

     Goins argues that the district court erred in overruling his

objection to the admission of evidence relating to the seizure of

$20,000 in      cash   and    a    semi-automatic      pistol   from      the   maroon

Oldsmobile that was stopped on the afternoon of May 4, 1995, after

the driver was observed making an exchange with Goins.                    We are not

persuaded      that    the    probative       value     of   this    evidence        was

"substantially outweighed" by the risk of undue prejudice. Fed. R.

Evid.   403.     The    district      court    therefore     did    not   abuse       its

5
     Harmon asserts that he "was arrested on the pistol." Officer
DeBlanc testified that Harmon was arrested because "[h]e drove
without his lights and there was some traffic violations and he was
found in possession of a handgun." The district court credited
Officer DeBlanc’s account of the arrest, and this decision is not
clearly erroneous. Accordingly, we assume that Harmon was arrested
prior to the search that disclosed the weapon on his person.

                                         17
discretion in allowing this evidence.       United States v. Morris, 79

F.3d 409, 411-12 (5th Cir. 1996).

     G.     IMPROPER COMMENTS

     In his final challenge to his convictions, Goins argues that

the district court erred in failing to grant his request for a

mistrial on two separate occasions.           He contends that both a

comment   made   by   defense   counsel   during   cross-examination   and

certain improper remarks made by the Government during closing

argument warranted the granting of a mistrial.6           Goins promptly

objected to both the prosecutor's and defense counsel's challenged

remarks, and the district court instructed the jury to disregard

same. We are satisfied that the instruction to disregard cured any

error occasioned by the comments. The district court did not abuse

its discretion in denying Goins' motions for a mistrial.               See

United States v. Limones, 8 F.3d 1004, 1007-08 (5th Cir. 1993),

cert. denied, 511 U.S. 1033, 114 S.Ct. 1543 (1994).

     F.    POSSESSION OF A DANGEROUS WEAPON UNDER § 2D1.1(b)(1)

     Goins and Jackson argue that the district court erred in

assessing them two points for possessing a dangerous weapon under

§ 2D1.1(b)(1).    This assessment should be given if the weapon was

present, unless it is clearly improbable that the weapon was

connected to the offense.       United States v. Sparks, 2 F.3d 574, 587


6
     By adoption, Jackson attempts to raise these two claims.
However, because it was Jackson's counsel who made the challenged
comments during cross-examination, he is not entitled to raise that
particular issue. He is entitled to adopt the challenge to the
Government’s closing argument. This latter claim is rejected for
the same reason that we reject Goins’ challenge.

                                     18
(5th Cir. 1993) (citing § 2D1.1, comment. (n.3)), cert. denied, 510

U.S. 1056, 114 S.Ct. 720 (1994).

      Both appellants argue that there is no evidence that they had

knowledge    of   their    codefendants'       possession     of   weapons.

"[S]entencing courts may hold a defendant accountable for a co-

defendant's reasonably foreseeable possession of a firearm during

the commission of a narcotics trafficking offense, pursuant to

section 2D1.1(b)(1)."     United States v. Aguilera-Zapata, 901 F.2d

1209, 1215 (5th Cir. 1990).         If the Government establishes that

another codefendant knowingly possessed a gun at the time "he and

the   defendant   committed   the    offense   by   jointly   engaging   in

concerted criminal activity involving a quantity of narcotics

sufficient to support an inference of intent to distribute," then

a sentencing court may infer that a defendant should have foreseen

a codefendant's possession of a dangerous weapon.           Id.

      Here, the Government met its burden of demonstrating that, on

May 4-5, 1995, the defendants were jointly engaged in the crime of

possession with intent to distribute a very large amount of cocaine

at the apartment.   Jackson and Goins do not dispute that Harmon had

possession of one weapon and another was found at the apartment.

Thus, the sentencing court did not err in finding that it was

reasonably foreseeable to Jackson and Goins that their codefendants

would have possession of a dangerous weapon.

      G.    AGGRAVATED ROLE IN THE OFFENSE UNDER § 3B1.1(c)

      Goins argues that the district court erred in finding that he

had an aggravated role in the offense under § 3B1.1(c).            "If the


                                     19
defendant was an organizer, leader, manager, or supervisor in any

criminal activity" involving less than five participants, a two

level increase is warranted.     U.S.S.G. § 3B1.1(c).     We review such

a factual finding for clear error.      United States v. Giraldo, 111

F.3d 21 (5th Cir. 1997).

     In view of the evidence before the district court regarding

Goins's purchase of a large amount of cocaine in exchange for

approximately $20,000 in cash, his behavior during the officers'

surveillance of the apartment, and his attempt to contact Harmon by

beeper after Harmon left the apartment7 we are satisfied that the

district court's finding that Goins was a manager or leader is not

clearly erroneous.

     H.   ACCEPTANCE OF RESPONSIBILITY

     Goins contends that the district court erroneously denied him

a   two-point   reduction   in   his    sentence    for   acceptance   of

responsibility.    U.S.S.G. § 3E1.1(a).      If a defendant "clearly

demonstrates acceptance of responsibility for his offense," the

sentencing guidelines instruct the district court to decrease the

defendant's offense level by two points.           U.S.S.G. § 3E1.1(a).

Because of the district court's unique position to evaluate whether

the defendant has demonstrated acceptance of responsibility, we


7
     After Harmon and Thomas left the apartment (and unbeknownst to
Goins) were arrested, Goins walked out of the apartment several
times and looked anxiously towards the entrance of the complex,
apparently awaiting the return of Harmon and Thomas. Using his
cellular phone, Goins attempted to locate Harmon by calling
Harmon's beeper. Also, at the time the officers arrested Goins, he
had walked across the street to use a pay phone near the apartment.


                                   20
review such   a   determination   under   a   standard   of   review   more

deferential than that of clear error.         United States v. Diaz, 39

F.3d 568, 571 (5th Cir. 1994).     The defendant bears the burden of

proving that he is entitled to a downward adjustment.              United

States v. Kinder, 946 F.2d 362, 367 (5th Cir. 1991), cert. denied,

503 U.S. 987, 112 S.Ct. 1677 & 2290 (1992).

     To shoulder this burden, Goins relies on the inculpatory

statement he made to the police upon his arrest.         Although Goins's

statement to the effect that he did not know the quantity of drugs

in the apartment was incriminating, it is hardly a statement of

contrition.   Goins also contends that he should not be denied this

reduction in sentence because he exercised his right to trial in

order to preserve, among other things, the issue regarding the

admissibility of his statement to the police.8           Goins correctly

contends that he should not be denied the reduction simply because

he exercised his right to a trial by jury.       United States v Siebe,

58 F.3d 161, 163 (5th Cir. 1995).      The record reveals that that is

not what happened.    At sentencing, the district court expressly

recognized the commentary to § 3E1.1 that provides that a defendant

who goes to trial may be accorded a reduction for his acceptance of

responsibility.     § 3E1.1, comment. (n.2).         Reading from that

commentary, the district court further recognized that "in each

such instance, however, a determination that a defendant has

accepted responsibility will be based primarily upon pretrial


8
     Of course, as the Government points out, Goins does not
challenge on appeal the admission of his statement to the police.

                                  21
statements and conduct."    The district court then found that there

had been no pretrial statements of acceptance of responsibility.9

See United States v. Diaz, 39 F.3d 568, 572 (5th Cir. 1994)

(timeliness is properly taken into consideration to determine

whether defendant accepted responsibility).          Goins has not shown

that the district court's conclusion that Goins had not accepted

responsibility was clearly erroneous.

     I.   REFUSAL TO DEPARTURE DOWNWARD

     Goins argues that the district court erred in failing to grant

a downward departure under § 5K2.0, based on the fact that the

Sentencing Commission did not take into consideration the racially

discriminatory   effect    of   the    application   of   the   sentencing

guidelines regarding cocaine base or "crack."         Because this Court

recently rejected this argument, Goins is precluded from prevailing

on this claim.   United States v. Fonts, 95 F.3d 372, 374 (5th Cir.

1996).

     For the above reasons, the convictions and sentences of the

four appellants are AFFIRMED.




9
     Although Goins does not refer to it on appeal, he apparently
wrote the court a letter in an attempt to demonstrate his
acceptance of responsibility after he had been convicted.

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