UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 97-4274

GEORGE JENKINS,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 97-4319

COREY SEAN HOOD,
Defendant-Appellant.

Appeals from the United States District Court
for the District of South Carolina, at Rock Hill.
Joseph F. Anderson, Jr., District Judge.
(CR-96-15)

Submitted: April 28, 1998

Decided: May 21, 1998

Before LUTTIG and MOTZ, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Jack B. Swerling, Columbia, South Carolina; J. Dennis Bolt, Colum-
bia, South Carolina, for Appellants. J. Rene Josey, United States
Attorney, Marshall Prince, Assistant United States Attorney, Colum-
bia, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Appellants Corey Sean Hood and George Jenkins were named,
along with thirty-four others, in a twenty-two count indictment fol-
lowing an investigation into the illegal drug activities of co-defendant
Robert Coleman. Hood sold 2.11 grams of crack cocaine to a confi-
dential informant during a controlled drug buy. He then pled guilty
to possession with intent to distribute crack cocaine, in violation of
21 U.S.C. § 841(a)(1) (1994). The district court found Hood account-
able for one ounce (approximately twenty-eight grams) of crack
cocaine, and sentenced him to serve ninety-five months' imprison-
ment to be followed by three years of supervised release.

Coleman informed authorities that Jenkins delivered cocaine to him
on several occasions on behalf of co-defendant Leroy Gardner, Jen-
kins' cousin. Jenkins pled guilty to conspiracy to possess with intent
to distribute and to distribute cocaine and crack cocaine, in violation
of 21 U.S.C. § 846 (1994). The district court held Jenkins accountable
for at least five but less than fifteen kilograms of cocaine and sen-
tenced him to seventy months' imprisonment to be followed by a
five-year supervised release term.1 Hood and Jenkins now appeal their
sentences. Finding no error, we affirm.
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1 Jenkins' seventy-month sentence, a substantial departure from the ten-
year statutory minimum, arose from the district court's employment of
the Sentencing Guidelines' "safety-valve" provisions. See U.S. Sentenc-
ing Guidelines Manual §§ 2D1.1(b)(4), 5C1.2 (1995).

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Both Appellants allege that the district court erred in its determina-
tion of the quantity of drugs for which they were held accountable and
in overruling their objections to passages of their presentence reports
that set forth those amounts. We disagree.

For sentencing purposes, the district court's factual determination
concerning the amount of drugs attributable to Appellants should be
upheld absent clear error.2 The government must establish by a pre-
ponderance of the evidence the quantity of drugs but Appellants bear
the burden of showing the inaccuracies of drug amounts in the presen-
tence report.3 A mere objection to the finding in the presentence
report is insufficient. Rather, Appellants have an affirmative duty to
show that the information in the reports is unreliable and articulate the
reasons why its facts are untrue or inaccurate. 4 Without such an affir-
mative showing, the district court is "`free to adopt the findings of the
[presentence report] without more specific inquiry or explanation.'"5

Hood questions the confidential witness's estimate of the weight of
drugs that he observed in Hood's apartment. The witness testified that
when he bought the 2.11 grams of crack cocaine, Hood had broken
that portion off from one of the four to five other"rocks" that were
on the table. The witness estimated that the rocks weighed approxi-
mately one ounce, but admitted during cross-examination that they
could have weighed less. Hood contends that his presentence report
is inaccurate because it does not coincide with the witness's testimony
that the drugs could have weighed less than an ounce.

Since the additional drugs that the confidential witness observed
were not recovered and because the 2.11 grams of crack cocaine sold
to the witness did not reflect the scale of Hood's involvement in the
distribution of crack cocaine, the district court properly estimated the
_________________________________________________________________
2 See United States v. Lamarr, 75 F.3d 964, 972 (4th Cir.), cert. denied,
___ U.S. ___, 65 U.S.L.W. 3309 (U.S. Oct. 21, 1996) (No. 95-9398);
United States v. D'Anjou, 16 F.3d 604, 614 (4th Cir. 1994).
3 See United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990).
4 Id.
5 Id. (quoting United States v. Mueller, 902 F.2d 336, 346 (5th Cir.
1990)).

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amount of drugs attributable to Hood.6 Here, the district court
acknowledged the inconsistencies in the witness's testimony and con-
cluded that the witness was doing his best to give an honest estimate
of the amount of drugs he saw in Hood's apartment. Moreover, the
district court's assessment of the witness's credibility is not subject
to review.7 Therefore, since the district court's weight determination
for the unrecovered drugs is supported by a preponderance of the evi-
dence, it was not clearly erroneous.8

Jenkins' drug quantity challenge is based on the district court's
reliance on the testimony of one witness over another. Before the
grand jury, Coleman testified that Jenkins delivered between one to
two kilograms of cocaine every seven to ten days. Coleman estimated
that Jenkins delivered approximately fifteen to twenty kilograms of
cocaine over a six to seven month period. During sentencing, Jenkins
admitted to making three nine-ounce deliveries to Coleman, for a total
of twenty-seven ounces.9

In conspiracy cases, the district court looks to"the quantity of
[drugs] reasonably foreseeable to each coconspirator within the scope
of the agreement."10 Determinations regarding reasonable foreseea-
bility are reviewed for clear error.11 As with Hood, Jenkins' drug
quantity challenge involves the issues of witness credibility and unre-
covered drugs. Therefore, since the district court's estimate of the
amount of drugs for which Jenkins should be held accountable is sup-
ported by the evidence, we find it was not clearly erroneous.

Next, Hood challenges the district court's denial of a sentence
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6 See United States v. Kennedy, 32 F.3d 876, 887 (4th Cir. 1994).
7 See United States v. Saunders , 886 F.2d 56, 60 (4th Cir. 1989).

8 See United States v. Williams , 986 F.2d 86, 90 (4th Cir. 1993).
9 Jenkins and Gardner both testified before the grand jury that Jenkins
only delivered twenty-seven ounces of cocaine to Coleman.
10 United States v. Irvin, 2 F.3d 72, 78 (4th Cir. 1993); see also USSG
§ 1B1.3(a)(1)(B) ("all reasonably foreseeable acts and omissions of oth-
ers in furtherance of the jointly undertaken criminal activity" are taken
into account when determining relevant conduct under the Guidelines).
11 See United States v. Banks, 10 F.3d 1044, 1057 (4th Cir. 1993).

                    4
reduction for acceptance of responsibility. To earn a reduction under
USSG § 3E1.1 for acceptance of responsibility, a defendant must
affirmatively show acceptance of personal responsibility for all his
criminal conduct, not just for the counts of conviction to which he
pled guilty.12 This includes"any additional relevant conduct for which
the defendant is accountable under § 1B1.3."13 The defendant must
demonstrate that he is entitled to the adjustment by a preponderance
of the evidence.14

During sentencing, Hood flatly denied the existence of the addi-
tional drugs that formed the basis of his relevant conduct. Since such
behavior is inconsistent with acceptance of responsibility, the district
court's refusal to apply the acceptance of responsibility sentencing
reduction was not clearly erroneous.15

In Hood's final claim, he asserts that the Government failed to
prove that the drugs that formed the basis of his relevant conduct was
actually crack cocaine. We find this claim meritless. Hood did not
present any evidence at sentencing that the substance involved was
anything other than crack cocaine. He pled guilty to possession with
intent to distribute crack cocaine and admitted that he sold crack
cocaine to the confidential witness. Further, since the amount that
Hood admits selling to the confidential witness had been broken off
one of the rocks on the table in his apartment, we find that the Gov-
ernment proved by a preponderance of the evidence that the substance
attributed to Hood's relevant conduct was indeed crack cocaine.

Accordingly, we affirm Appellants' sentences. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

AFFIRMED
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12 See United States v. Gordon, 895 F.2d 932, 936 (4th Cir. 1990).
13 USSG § 3E1.1, comment. (n.1(a)).
14 See United States v. Harris, 882 F.2d 902, 907 (4th Cir. 1989).
15 See United States v. Holt, 79 F.3d 14, 17 (4th Cir.), cert. denied,___
U.S. ___, 65 U.S.L.W. 3260 (U.S. Oct. 7, 1996) (No. 95-9448).

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