                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS         October 15, 2003

                        FOR THE FIFTH CIRCUIT             Charles R. Fulbruge III
                                                                  Clerk


                            No. 02-50967



UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

                                versus

KENNETH DIJON BAKER and
MICHAEL HOLMES,

          Defendants-Appellants.



          Appeals from the United States District Court
                for the Western District of Texas
                      USDC No. SA-01-CR-579


Before REAVLEY, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Kenneth Baker and Michael Holmes appeal their convictions of

conspiracy to possess and distribute cocaine base.      Baker appeals

a second conviction of possession of cocaine base with intent to

distribute.    Appellants argue that there is insufficient evidence

to support their convictions.   Additionally, Appellants appeal the

district court’s application of the Sentencing Guidelines.         Baker

argues that the district court clearly erred by refusing to apply

     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
a two-level downward adjustment for “acceptance of responsibility”

and by applying a two-level upward adjustment for “possession of a

weapon.” Holmes argues that the judge clearly erred by refusing to

apply a two-level downward adjustment for playing a “minor role” in

the crime.    For the following reasons, we AFFIRM.

                                        I

     “In reviewing an appeal based on insufficient evidence, the

standard is whether any reasonable trier of fact could have found

that the evidence established the appellant’s guilt beyond a

reasonable doubt.”1     This court reviews the evidence in the light

most favorable to the verdict.2         We do not ask “whether the trier

of fact made the correct guilt or innocence determination, but

rather whether it made a rational decision to convict or acquit.”3

                                    II

     There was sufficient evidence for the jury to convict the

appellants of all charges.     The direct evidence, combined with the

circumstantial evidence, supports each conviction.

                                    A

     To convict Baker of possession with intent to distribute

cocaine    base   in   violation   of       21   U.S.C.   §   841(a)(1)   and   §



     1
       United States v. Jaramillo, 42 F.3d 920, 922-23 (5th Cir.),
cert. denied, 514 U.S. 1134 (1995).
     2
         Id. at 923.
     3
         Herrera v. Collins, 506 U.S. 390, 402 (1993).

                                        2
841(b)(1)(B)(iii), the government had to prove that the defendant

(1) knowingly, (2) possessed the cocaine, (3) with the intent to

distribute.4     Possession   can       be   actual   or   constructive.5

Constructive possession may be shown by “ownership, dominion or

control over the contraband, or over the vehicle in which the

contraband was concealed.”6    The offense may be proven by direct or

circumstantial evidence.7     One’s intent to distribute may be shown

by the possession of a large quantity of the drugs.8            Although

possession of a small amount of drugs does not raise an inference

of an intent to distribute,9 “[s]uch a quantity of a controlled

substance ... is sufficient when augmented by ... ‘large quantities

of cash.’”10    A jury found him guilty.

     Baker possessed 6.71 grams of crack cocaine in his car. Baker

possessed 7.09 grams of crack cocaine in his bedroom.         When asked


     4
          United States v. Diaz-Carreon, 915 F.2d 951, 953 (5th Cir.
1990).
     5
          United States v. Skipper, 74 F.3d 608, 611 (5th Cir. 1996).
     6
          Id.
     7
          Id. at 611.
     8
       United States v. Kates, 174 F.3d 580, 582-83 (5th Cir. 1999)
(finding that possession of 19.67 grams of cocaine, divided into
many small rocks, evidenced intent to distribute); United States v.
Mather, 465 F.2d 1035, 1038 (5th Cir. 1972) (possession of 198 grams
established a prima facie case of intent to distribute).
     9
          Turner v. United States, 396 U.S. 398, 423-35 (1970).
     10
       Skipper, 74 F.3d at 611 (quoting United States v. Munoz, 957
F.2d 171, 174 (5th Cir.), cert. denied, 506 U.S. 919 (1992)).

                                    3
if he had any other drugs, he stated, “That’s all I have left.”

Control and ownership of the vehicle in which the cocaine was

hidden is sufficient to show knowing possession.11                       Baker’s total

amount of crack cocaine was 13.80 grams.                    The testifying officer

opined that this amount was not for personal use and that the size

of the rocks was consistent with distribution.                      The possession of

this amount, combined with the large amount of cash found on Baker,

allows     a   reasonable   jury   to    find       an     intent   to    distribute.12

Furthermore, the police found a scale in Baker’s room, which is a

device for distribution, not use.                  There was a hole in Holmes’s

window large enough for one to pass drugs through.                       Several people

were seen approaching and leaving the house in short periods of

time.      Two loaded guns were found in Baker’s car.                       The direct

evidence, when coupled with the large amount of circumstantial

evidence, is sufficient to support the verdict.

                                             B

      There was sufficient evidence to convict Baker and Holmes with

conspiracy to distribute cocaine base in violation of 21 U.S.C. §

841(a)(1), § 841(b)(1)(B)(iii), and § 846. As discussed in Part A,

the   evidence     is    sufficient     to       support    Baker’s      conviction   of

possession with intent to distribute.                 The question of conspiracy



      11
           Id. at 611.
      12
        Id. at 611 (quoting United States v. Munoz, 957 F.2d 171,
174 (5th Cir.), cert. denied, 506 U.S. 919 (1992)).

                                             4
is whether Baker had any agreement with Holmes to possess the drugs

with the intent to distribute.

     To prove a conspiracy, the government had to prove beyond a

reasonable doubt (1) the existence of an agreement to possess the

crack cocaine with the intent to distribute, (2) knowledge of the

agreement, and (3) voluntary participation in the agreement.13     The

“agreement may be shown by circumstantial evidence such as the

conduct of the alleged participants or evidence of a scheme.”14

Likewise, a defendant’s knowledge and participation may be inferred

from the circumstances.15

     It must be said     ... that participation in a criminal
     conspiracy need     not be proved by direct evidence; a
     common purpose      and plan may be inferred from a
     “development and    a collocation of circumstances.”16

Otherwise lawful acts may become unlawful when they as a whole

constitute a criminal conspiracy.       The law allows these inferences

when dealing with conspiracies because “secrecy is the norm in an

illicit conspiracy.”17

     The contents of Baker’s car and bedroom - cocaine, guns, and

a scale - coupled with the contents of Holmes’s bedroom could allow

     13
          United States v. Polk, 56 F.3d 613, 619 (5th Cir. 1995).
     14
          United States v. Garcia, 917 F.2d 1370, 1376 (5th Cir. 1990).
     15
          Id.
     16
       United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.
1979) (quoting Glasser v. United States, 315 U.S. 60, 80 (1942)).
     17
          United States v. Greenwood, 974 F.2d 1449, 1457 (5th Cir.
1992).

                                    5
a reasonable jury to find a conspiracy to distribute.         Crack

cocaine was in both Baker’s and Holmes’s bedrooms.   Next to the bag

of crack in Holmes’s dresser was his military identification card

and his credit card.      The crack cocaine was packaged in bags

similar to those found in Baker’s possession.        The testifying

officer opined that the bags came from the same source.   The screen

on Holmes’s window was torn.   The floor in Holmes’s room was messy,

but the area around the window was clear.     The police witnessed

various people approach the home in a short amount of time and then

leave immediately.   The police found no drug paraphernalia, which

would imply recreational use as opposed to distribution.

     The government points to further circumstantial evidence to

support the conviction.   It notes that (1) the drugs were in the

center console of the car and were accessible by both men; (2) the

second gun was unexplained, so a reasonable juror could conclude

that it belonged to Holmes; (3) the Lexus did not drive erratically

during the one-half mile refusal to pull over, which could lead one

to conclude that Holmes, the passenger, must have helped hide the

drugs and guns; and (4) the key to the glove compartment was found

under Holmes’s headrest, not Baker’s.

     The jury heard Holmes’s and Baker’s explanation of each of

these circumstances, it judged their credibility, and convicted

both of them.   Credibility determinations and inferences are for

the jury to conclude, and not for the appellate court to second-



                                  6
guess.18 The direct evidence and the accumulation of circumstantial

evidence could lead a rational jury to convict.

                                      III

     The    district   court   did    not    clearly   err      in   any   of   its

conclusions affecting the Sentencing Guidelines.                 It found that

Baker did not accept responsibility, that Baker possessed a weapon

while in possession of cocaine, and that Holmes did not play a

minor role.    We review these findings for clear error.19

                                        A

     The standard of review is extremely deferential when reviewing

a court’s finding regarding “acceptance of responsibility” under §

3E1.1.    “Because trial courts are in a unique position to evaluate

whether     the   defendant       has       demonstrated        acceptance       of

responsibility,    a   district      court’s   finding     on    acceptance     of

responsibility is examined for clear error but under a standard of

review even more deferential than a pure ‘clearly erroneous’

standard.”20   It is the defendant’s burden to show the adjustment’s

applicability.




     18
          United States v. Resio-Trejo, 45 F.3d 907, 910 (5th Cir.
1995).
     19
          United States v. Henderson, 254 F.3d 543, 543 (5th Cir.
2001).
     20
       United States v. Cano-Guel, 167 F.3d 900, 906 (5th Cir. 1999)
(internal quotation and citation omitted).

                                        7
      Section 3E1.1 applies “[i]f the defendant clearly demonstrates

acceptance of responsibility for his offense.”21           However, it “is

not intended to apply to a defendant who puts the government to its

burden of proof at trial by denying the essential factual elements

of guilt, is convicted, and only then admits guilt and expresses

remorse.”22      The comment provides a rare exception to this general

rule when a criminal defendant accepts responsibility for the

conduct but continues to trial nonetheless to preserve issues for

appeal.23

      Baker put the government to its proof, so the adjustment is

not intended to apply unless Baker shows his case to be one of the

rare exceptions mentioned in the commentary.             His case does not

qualify.     The exception applies to those who accept responsibility

but continue to trial only to preserve issues for appeal that do

not   relate      to   his   factual    guilt.   Baker   did   not   accept

responsibility and did not go to trial for issues other than his

factual guilt. Accordingly, the district court did not clearly err

by refusing to apply the two-level downward adjustment.

                                       B

      The court did not clearly err by applying a two-level upward

adjustment to Baker’s sentence for possessing a dangerous weapon


      21
           U.S. SENTENCING GUIDELINES MANUAL § 3E1.1.
      22
           Id., cmt. 2.
      23
           Id.

                                       8
while in possession of the cocaine pursuant to § 2D1.1(b)(1) of the

Sentencing      Guidelines.    A   two-level   upward    adjustment   is

appropriate when a defendant possessed a dangerous weapon while

possessing or trafficking drugs.24        A judge’s finding that a

defendant possessed a dangerous weapon under § 2D1.1(b)(1) is a

factual finding reviewed for clear error.25      The government bears

the burden of proof to show a temporal and spatial relation between

the weapon, the drug trafficking, and the defendant.26      This burden

is met if the government shows the gun to be in the same location

as the drugs.27 “The adjustment should be applied if the weapon was

present, unless it is clearly improbable that the weapon was

connected with the offense. For example, the enhancement would not

be applied if the defendant, arrested at his residence, had an

unloaded hunting rifle in the closet.”28

     The government met its burden in this case by showing that (1)

Baker possessed cocaine in his car with intent to distribute, and

(2) Baker possessed two guns in the same car.           The spatial and

temporal relation requirement is met by the fact that the gun and


     24
          Id. at § 2D1.1(b)(1).
     25
          Id.
     26
          United States v. Vasquez, 161 F.3d 909, 912 (5th Cir. 1998).
     27
       United States v. Cooper, 274 F.3d 230, 245 (5th Cir. 2001);
United States v. Eastland, 989 F.2d 760, 770 (5th Cir. 1993).
     28
       U.S. SENTENCING GUIDELINES MANUAL § 2D1.1(b)(1), cmt. 3 (emphasis
added).

                                   9
drugs were both located in the car.29    Based on the close proximity

of the drugs and the guns, the decision to apply the two-level

increase was not clear error.

                                    C

     The district court did not clearly err by denying Holmes a

two-level downward adjustment for playing a minor role in the

offense.    Section 3B1.2(b) of the Sentencing Guidelines allows a

two-level decrease if “the defendant was a minor participant in any

criminal activity.”         A minor participant is one “who is less

culpable than most other participants, but whose role could not be

described as minimal.”30       The district court’s determination is

factual and reviewed for clear error:

     The determination whether to apply [§ 3B1.2(b)], or an
     intermediate adjustment, involves a determination that is
     heavily dependent upon the facts of the particular case.
     As with any other factual issue, the court, in weighing
     the totality of the circumstances, is not required to
     find, based solely on the defendant’s bare assertion,
     that such a role adjustment is warranted.31

Usually, courts find criminal participants similarly culpable, and

therefore, this adjustment is applied infrequently.32 The defendant




     29
       United States v. Cooper, 274 F.3d 230, 245 (5th Cir. 2001);
United States v. Eastland, 989 F.2d 760, 770 (5th Cir. 1993).
     30
          Id. at § 3B1.2(b), cmt. 5.
     31
          Id., cmt. 3(C).
     32
          United States v. Tremelling, 43 F.3d 148, 153 (5th Cir.
1995).

                                    10
must bear the burden of showing that he is “substantially less

culpable.”33

      Holmes argues that he was a mere passenger in a drug dealer’s

car, and a mere houseguest in a drug dealer’s house.         Further, he

notes that the police found no money on him and that they did not

find a scale in his room.           Finally, Holmes argues that the

government itself viewed Holmes as a minor participant by stating

in its closing argument that “a person can play a minor role in a

conspiracy and still be guilty.”

      The court heard these arguments but concluded that Holmes was

not   a    “minor   participant”   within   the   meaning   of   §   3B1.2.

Considering (1) Holmes was in a car containing crack cocaine and

two loaded handguns, (2) Holmes’s bedroom contained crack cocaine

and an open screen, (3) Baker’s bedroom contained crack cocaine and

a scale, (4) multiple people were seen approaching the house and

then immediately leaving within a short period of time, and (5) the

key to the glove box containing the loaded handguns was found under

Holmes’s headrest, the district court did not clearly err.

                                    IV

      For the reasons above, we AFFIRM.




      33
           United States v. Garcia, 242 F.3d 593, 597 (5th Cir. 2001).

                                    11
