                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 00-4438
BRIAN ARDEN RICHMOND,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
      for the Southern District of West Virginia, at Beckley.
             Charles H. Haden II, Chief District Judge.
                           (CR-99-239)

                        Argued: June 7, 2001

                      Decided: August 16, 2001

     Before LUTTIG, MOTZ, and GREGORY, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

ARGUED: Edward Henry Weis, First Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. John Lanier File,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee. ON BRIEF: Mary Lou Newberger, Acting Federal Public
Defender, Charleston, West Virginia, for Appellant. Rebecca A.
Betts, United States Attorney, Charleston, West Virginia, for Appel-
lee.
2                     UNITED STATES v. RICHMOND
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   Brian Richmond ("Richmond") appeals the district court’s denial of
a downward adjustment in his sentence for acceptance of responsibil-
ity, claiming that the court’s decision was improperly grounded in his
refusal to testify at his sentencing hearing regarding the quantity of
cocaine involved in the drug conspiracy that led to his plea. Finding
no clear error in the district court’s determination that Richmond did
not clearly demonstrate acceptance of responsibility for his offense,
we affirm.

                                    I.

   On December 14, 1999, a grand jury in Charleston, West Virginia
returned a ten-count indictment against Richmond, Marvin Anderson
("Anderson"), Earl Cox ("Cox"), Edgar Crislip ("Crislip") and others,
alleging, inter alia, that they conspired to knowingly and intentionally
distribute, and to possess with intent to distribute, cocaine and mari-
juana, in violation of 21 U.S.C.A. §§ 841(a)(1) and 846 (West 1999).
Shortly after being arrested, Richmond wrote Cox a letter (the "Cox
letter") outlining some elements of the conspiracy, but without, for
the most part, discussing the quantity of drugs involved.

   On February 24, 2000, Richmond entered into a plea agreement
(the "plea agreement") with the United States (the "government"),
under which he pled guilty to the conspiracy charge and promised to
answer truthfully questions posed by law enforcement officers. The
government, in turn, gave Richmond use immunity and promised to
dismiss the remaining counts against him.1
    1
   With respect to use immunity, the plea agreement provides that "noth-
ing contained in any statement or testimony provided by [Richmond]
pursuant to this agreement, or any evidence developed therefrom, will be
used against him, directly or indirectly, in any further criminal prosecu-
tions or in determining the applicable guideline range under the Federal
Sentencing Guidelines." (J.A. at 021.)
                      UNITED STATES v. RICHMOND                        3
   After Richmond pled guilty, the probation officer handling his case
compiled a Presentence Investigation Report (the "PSR"), an under-
taking that entailed the elusive yet critical task of determining the
quantity of drugs involved in the conspiracy.2 In fashioning her esti-
mate of cocaine quantity, the probation officer relied on the higher of
two estimates Anderson had provided to the authorities. In pre-plea
interviews, Anderson had estimated handling approximately 8.165
kilograms ("kg") of cocaine. Post-plea, however, Anderson had
revised his estimate downward to approximately .709 kg. Richmond,
for his part, denied that the conspiracy involved 8.165 kg of cocaine,
although he declined at first to provide an alternative figure. The pro-
bation officer nonetheless credited Anderson’s high estimate because
she thought it more consistent with the remaining evidence. She thus
converted the total amount of drugs involved to a marijuana equiva-
lency weight of 1,665.619 kg under § 2D1.1 of the U.S. Sentencing
Guidelines Manual (the "guidelines").

   Although she had rejected Richmond’s denial that the conspiracy
involved 8.165 kg of cocaine, the probation officer nevertheless rec-
ommended that Richmond receive a downward adjustment in the base
offense level used to calculate his sentence on the ground that he had
accepted responsibility for his criminal conduct within the meaning
of § 3E1.1 of the guidelines. The probation officer reasoned that
Richmond’s rejection of Anderson’s first estimate was neither a "false
denial" of, nor a "frivolous argument" regarding, cocaine quantity.
(J.A. at 155.) In his reply to the PSR (the "reply"), Richmond objected
to the probation officer’s finding that the conspiracy involved 8.165
kg of cocaine. Arguing from other evidence, Richmond more specifi-
cally contended that the conspiracy involved a total of only 1.887 kg
of cocaine.3 Thus, according to Richmond, the total marijuana equiva-
  2
    Due to the nature of the charge to which Richmond pled guilty, the
aggregate amount of drugs involved in the conspiracy is attributable to
him for sentencing purposes. The task of determining drug quantity here
was particularly difficult because while there was no dispute that the
conspiracy involved between thirty-two and thirty-three kilograms of
marijuana, the quantity of cocaine involved was hotly disputed.
  3
    Richmond argued that co-conspirators Josh Johnson and Lionel Gar-
ner had transported a total of 793.8 grams of cocaine; Crislip had han-
dled another 907.2 grams; the Cox letter established an additional 155.93
grams; amounts sold to undercover officers revealed another 2.19 grams;
and officers’ estimates of other drug inventory established an additional
27.5 grams.
4                    UNITED STATES v. RICHMOND
lency weight came to 377.324 kg. The government, meanwhile, con-
ditionally objected to the recommendation that Richmond receive a
downward adjustment, arguing that if the district court were to agree
with Anderson’s first estimate regarding cocaine quantity, then it
would be inconsistent to grant Richmond an adjustment unless he
acknowledged involvement with that amount of cocaine.

   After considering the parties’ objections, the probation officer
switched her position and recommended against an acceptance of
responsibility adjustment. The revised Presentence Investigation
Report succinctly states her rationale:

    Based on the statements of Marvin Anderson, Earl Cox,
    Edgar Crislip, and Lionel Garner, it appears Mr. Rich-
    mond’s denial of the drug amounts for which he is held
    accountable is a false denial of relevant conduct. During the
    pre-sentence interview, upon advice of counsel, the defen-
    dant did not advise of a drug amount for which he believed
    he was accountable. The defendant did, however, clearly
    state his position in his letter of objection. From that state-
    ment, it appears Brian Richmond feels he is responsible for
    the distribution of no more than 1,886.62 grams of cocaine.
    This amount is significantly less than the statements of co-
    defendants suggest.

(J.A. at 181.)

   At Richmond’s May 22, 2000 sentencing hearing, the government
adduced testimony on the subject of drug quantity from Anderson,
Lionel Garner, and Josh Johnson. The government also called Richard
Hall, a sergeant for the West Virginia State Police, who testified to
statements Crislip had made on that subject. Notably, Anderson gave
yet a third estimate of the amount of cocaine handled in the course
of the conspiracy.

   Although Richmond presented no evidence, he renewed, through
counsel, his arguments concerning drug quantity, including the con-
tention that the conspiracy only involved 1.887 kg of cocaine. How-
ever, when the district court asked Richmond’s counsel directly how
                     UNITED STATES v. RICHMOND                          5
much cocaine was involved by Richmond’s own admission, the fol-
lowing exchange occurred:

    DEFENSE COUNSEL: Well, Your Honor, "by his own
    admission" is under the term[s] of the plea agreement,
    which is use immunized, excepting, of course, for the [Cox]
    letter.

    THE COURT: Well, tell me what that is.

    DEFENSE COUNSEL: And in my view, [the Cox] letter is
    five and a half or four ounces for 155.93 grams because the
    rest of the letter talks about the trips that Crislip, Garner and
    Johnson made.

    THE COURT: Well, you are not telling me what I’m asking
    you and I’m considering this for purposes of acceptance of
    responsibility.

(J.A. at 116.)

   Following this discussion, the court heard additional arguments
from both parties. Before taking a recess to determine the defendant’s
sentence, the court expressed frustration with the positions taken by
both parties:

    I think both individuals have been — left the Court with a
    great deal of vague information. The defense wishes to get
    acceptance of responsibility, but the defense is not candid in
    the amounts that it might admit to, and the government
    wishes to bring to the Court’s attention that there was at
    least five kilos of cocaine handled, if I were to credit every-
    thing that everyone has said at the highest level. The truth
    obviously lies somewhere in between, but I am not getting
    any help at all from the defense as to candor.

(J.A. at 122.)

  At this point, Richmond’s counsel reminded the court that his cli-
6                        UNITED STATES v. RICHMOND
ent had explicitly admitted to involvement in significant aspects of the
conspiracy through his acknowledgment of the truth of the contents
of the Cox letter. Putting these admissions together with the testimony
presented at the hearing, he again argued that the conspiracy involved
less than two kg of cocaine.4

   In the final analysis, however, the court determined that the con-
spiracy involved 2.934 kg of cocaine. In so doing, the court rejected
both Anderson’s first cocaine estimate and Richmond’s various con-
tentions that the conspiracy involved less than two kg of cocaine.
Converting aggregate drug quantity to a marijuana equivalency
weight, the court estimated that the conspiracy involved between 610
and 632 kg of marijuana.5

   The court then denied Richmond the adjustment for acceptance of
responsibility, remarking that:

        Obviously, Mr. Richmond has played his involvement in
        this conspiracy close to the vest and let the Court figure out
        what was involved here and I figured it out to the best of my
        ability based upon the evidence that I have heard, but not
        through the cooperation and candor of the defendant.

(J.A. at 126.)

  The court then sentenced Richmond to 189 months in prison,6 five
years of supervised release, and a $1,000 fine. On May 25, 2000,
    4
     Here, counsel argued that Richmond had admitted to involvement in
the conspiracy from June of 1998 until February or early March of 1999.
Since, in his view, the members of the conspiracy handled an average of
two ounces of cocaine per week throughout a thirty-five-week period, he
argued that the total amount of cocaine came to seventy ounces, or 1.985
kg.
   5
     In its May 25, 2000 sentencing report, the court fine-tuned its calcula-
tion to a marijuana equivalency weight of 619.5 kg.
   6
     The applicable guideline range was 168 to 210 months. Had the court
awarded Richmond a full three-level reduction for acceptance of respon-
sibility, the applicable guideline range would have been 121 to 151
months.
                     UNITED STATES v. RICHMOND                        7
Richmond timely filed this appeal, in which he argues that the district
court erred in denying him an acceptance of responsibility adjustment.

                                  II.

   A district court’s decision to grant or deny an adjustment for accep-
tance of responsibility under § 3E1.1 of the guidelines is a factual
determination that we review for clear error. See, e.g., United States
v. Gordon, 895 F.2d 932, 937 (4th Cir. 1990). Because the sentencing
court "is in a unique position to evaluate a defendant’s acceptance of
responsibility," the guidelines specifically provide that the court’s
determination "is entitled to great deference on review." U.S. Sen-
tencing Guidelines Manual § 3E1.1, cmt. n.5 (1998).

                                  III.

   The guidelines authorize a sentencing judge to reduce a defen-
dant’s base offense level "[i]f the defendant clearly demonstrates
acceptance of responsibility for his [or her] offense." U.S.S.G.
§ 3E1.1(a). In determining whether a defendant has accepted respon-
sibility for purposes of § 3E1.1(a), the court may consider whether the
defendant, among other things,

    truthfully admitt[ed] the conduct comprising the offense(s)
    of conviction, and truthfully admitt[ed] or [did] not falsely
    deny[ ] any additional relevant conduct for which the defen-
    dant is accountable under § 1B1.3 (Relevant Conduct). Note
    that a defendant is not required to volunteer, or affirmatively
    admit, relevant conduct beyond the offense of conviction in
    order to obtain a reduction under subsection (a) [of § 3E1.1].
    A defendant may remain silent in respect to relevant con-
    duct beyond the offense of conviction without affecting his
    [or her] ability to obtain a reduction under [subsection (a)].
    However, a defendant who falsely denies, or frivolously con-
    tests, relevant conduct that the court determines to be true
    has acted in a manner inconsistent with acceptance of
    responsibility. U.S.S.G. § 3E1.1, cmt. n.1(a) (emphasis
    added).
8                     UNITED STATES v. RICHMOND
   Richmond maintains that because the court did not explicitly cite
any of the guidelines criteria relevant to an acceptance of responsibil-
ity determination, we must conclude that the court relied solely on his
refusal to testify at his sentencing hearing in denying him the adjust-
ment. Because, moreover, the government guaranteed him use immu-
nity under the plea agreement, and in view of the provision in the
guidelines that, as to acceptance of responsibility, a defendant may
remain silent at sentencing, Richmond contends that the court’s reli-
ance on his refusal to testify amounts to reversible error.

   We find Richmond’s arguments meritless. Assuming, without
deciding, that drug quantity here constitutes "relevant conduct beyond
the offense of conviction," as to which Richmond may "remain silent
. . . without affecting his ability to obtain a reduction,"7 the court
below had ample ground to deny Richmond a reduction for accep-
tance of responsibility, because Richmond in fact did not remain
silent. Rather, Richmond argued quite directly, both in the reply and
at sentencing, that the amount of cocaine attributable to the conspir-
acy, and thus to him, did not exceed two kg.

   The district court, in contrast, determined that the amount of
cocaine attributable to Richmond approached three kg. As to nearly
a full kilogram of cocaine, it is therefore clear that Richmond falsely
denied "relevant conduct that the court determine[d] to be true."
U.S.S.G. § 3E1.1, cmt. n.1(a). As the guidelines clearly provide, such
a defendant "has acted in a manner inconsistent with acceptance of
responsibility." Id. Plainly, then, the district court could properly deny
Richmond an adjustment under § 3E1.1 on the ground that he falsely
denied relevant conduct.
    7
   The parties are in dispute as to whether drug quantity here constitutes
"conduct comprising the offense" (i.e., "offense conduct") or "relevant
conduct beyond the offense of conviction" (i.e., "relevant conduct") for
purposes of § 3E1.1. In light of our conclusion, discussed further below,
that even if drug quantity here constitutes relevant conduct, the district
court properly found that Richmond falsely denied such conduct, it is
unnecessary for us to pass on the question of whether drug quantity here
constitutes relevant conduct, or on the secondary question of whether a
denial of a § 3E1.1 adjustment could properly be based on a defendant’s
decision to remain silent as to such conduct.
                      UNITED STATES v. RICHMOND                         9
   The court’s remarks at sentencing indicate that this is precisely
what the court did. After Richmond asserted that the conspiracy only
involved 1.867 kg of cocaine, the court noted that while Richmond
desired an acceptance of responsibility adjustment, the defense was
not "candid in the amounts that it might admit to." (J.A. at 122.) The
court went on to express its dismay at the positions taken by both par-
ties, observing that "[t]he truth obviously lies somewhere in
between." Id. The first remark evidences the court’s awareness of the
fact that while Richmond had admitted, through counsel, involvement
with a certain quantity of cocaine, he nevertheless had not been fully
"candid" with respect to those amounts.8 The court’s second comment
manifests its frustration with being forced to choose between widely
disparate representations, neither of which it regarded as true.

   The importance of these remarks is not only that the court deemed
Richmond’s arguments untruthful, but that it considered this fact in
determining whether or not he had accepted responsibility for his
crime. In pointing out the incongruity in Richmond’s attempt to
obtain an acceptance of responsibility adjustment while arguing half-
truths regarding drug quantity, the court revealed its view that Rich-
mond’s arguments amounted to false denials within the meaning of
§ 3E1.1. Put another way, the court’s remarks indicate that the deci-
sion to deny Richmond a reduction for acceptance of responsibility
was based not on adverse inferences drawn from his silence, but,
rather, on inferences properly drawn from his "admissions."9
  8
     In this regard, the court apparently used the word "candid" to mean
"free from expedient reservation and modification," or "indicating or
suggesting sincere honesty and absence of deception and duplicity."
Webster’s Third New International Dictionary (1986).
   9
     We further note that the court’s conclusions echo those of the proba-
tion officer, who only reversed her position when Richmond, through
counsel, made specific representations in the reply to the PSR that under-
estimated drug quantity. As noted above, the probation officer had rec-
ommended in the PSR that Richmond receive a downward adjustment,
notwithstanding the fact that he had not forwarded any evidence, nor
made any affirmative representations, regarding drug quantity. The cen-
tral point here is that a thorough review of the sentencing hearing tran-
script — including the court’s additional remarks that Richmond had
played his involvement "close to the vest," that the court had calculated
10                    UNITED STATES v. RICHMOND
   Under these circumstances, we cannot say that the district court
clearly erred in reaching its determination that Richmond did not
accept responsibility for his criminal conduct within the meaning of
§ 3E1.1. We are especially confident in our decision given that "the
determination of the sentencing judge is entitled to great deference on
review."

                                  IV.

   In sum, the nearly fifty percent variance between the amount of
cocaine Richmond acknowledged accountability for and the amount
the district court ultimately attributed to him provided a factual basis
for denying Richmond an adjustment for acceptance of responsibility.
The district court was thus entitled to find — as its comments indicate
it did — that Richmond evinced a "lack of candor" unbefitting a
defendant seeking such an adjustment. For these reasons, the judg-
ment of the district court is hereby affirmed.

                                                           AFFIRMED

drug quantity "without the cooperation and candor of the defendant," and
that "you [Richmond] are not telling me what I’m asking you" — indi-
cates that the court’s denial of the adjustment was likewise based on
Richmond’s duplicitous legal strategy of underestimating drug quantity
while simultaneously seeking an adjustment for acceptance of responsi-
bility, not on Richmond’s failure to testify.
