UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 98-4398

JERRY L. GAINES,
Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of West Virginia, at Clarksburg.
Irene M. Keeley, District Judge.
(CR-97-20)

Submitted: March 11, 1999

Decided: March 22, 1999

Before ERVIN and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

John R. Angotti, ANGOTTI & STRAFACE, Morgantown, West Vir-
ginia, for Appellant. William D. Wilmoth, United States Attorney,
Robert H. McWilliams, Jr., Assistant United States Attorney, Whee-
ling, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Jerry L. Gaines pled guilty to one count of distributing crack
cocaine, 21 U.S.C. § 841(a) (1994), and was sentenced to a term of
240 months imprisonment. He appeals his sentence, arguing that the
district court clearly erred in finding that he was a leader or organizer
in the offense, see U.S. Sentencing Guidelines Manual § 3B1.1(a)
(1997), that he obstructed justice by threatening a witness, see USSG
§ 3C1.1, and that he failed to accept responsibility for his criminal
conduct, see USSG § 3E1.1. We affirm.

From 1994 until his arrest in March 1997, Gaines made regular
trips from Pittsburgh to West Virginia to sell crack. He first sold
crack in Fairmont, but later began traveling to Clarksburg. In Fair-
mont, Gaines paid Eleanor Walker and Helen King Morris for the
privilege of selling crack from their houses. Eventually, Gaines began
insulating himself by refusing to sell directly to some customers, deal-
ing instead through intermediaries such as Walker, Carrie King, and
Raynard Lindsey. After moving his operation to Clarksburg, Gaines
made his local contacts through Maureen Garrett. Gaines sold crack
through Garrett to Martin Queen, who became an important customer,
until he felt he could trust Queen. He then dealt with Queen directly.
Similarly, Monica Angle sold crack for Gaines to Tronia (Tony)
Shade until Gaines trusted Shade enough to sell to him directly. Sev-
eral times, Gaines had Shade pick him up at the bus station, and gave
him crack in return.

Gaines was arrested after police in Clarksburg received a tip about
his drug trafficking and observed Queen, who was a known crack
user, leaving his motel room. When Queen was questioned by police,
he admitted buying $300 worth of crack from Gaines at the motel and
buying $400 worth of crack from Gaines at a mall earlier the same
day. Within a few days of Gaines' arrest, Queen received a call on his

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cell phone from an unknown person who said, "We have your num-
ber, we know where you live, you better watch your family." Queen
testified that he dialed *69 and learned that the call had been made
from a pay phone.

The probation officer recommended a four-level adjustment
because Gaines was a leader or organizer of a drug trafficking enter-
prise that involved five or more participants. See USSG § 3B1.1(a).
Gaines filed written objections to the presentence report in which he
challenged the probation officer's recommendations, claiming that
none of the witnesses who had provided information about his activi-
ties were credible. At sentencing, the district court heard extensive
testimony from Queen, Shade, Angle, and Morris, as well as Corrie
Clayton, one of Gaines' customers, and Clarence Williams, a taxi
driver who on occasion drove Gaines from Fairmont to Clarksburg
and was paid in crack. The court also reviewed the grand jury testi-
mony of Queen, Morris, Walker, Clayton, and several others. Finally,
the district court determined that Gaines qualified for the adjustment.
We review the district court's determination for clear error. See
United States v. Hyppolite, 65 F.3d 1151, 1159 (4th Cir. 1995).

First, it is clear that the criminal activity involved more than five
participants. Second, a defendant may qualify for the adjustment if he
leads or organizes "one or more other participants." USSG § 3B1.1,
comment. (n.2). Gaines concedes that he exercised some control over
Walker and Morris, but maintains that he had nothing more than a
buyer-seller relationship with all the other participants. Under the
clear language of the guideline commentary, leading or organizing
two participants is sufficient to trigger the adjustment. Consequently,
we need go no further to find that the district court did not clearly err
in making the adjustment.

Next, Gaines contends that the court clearly erred in finding that
he obstructed justice by attempting to tamper with a witness. See
United States v. Self, 132 F.3d 1039, 1041 (4th Cir. 1997) (standard
of review). He argues that Queen's testimony was unreliable and
uncorroborated and thus did not permit the court to find by a prepon-
derance of the evidence that he had instigated the threats Queen
received. We do not review the district court's assessment of Queen's
credibility. See United States v. Saunders, 886 F.2d 56, 60 (4th Cir.

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1989) (standard of review for adjustment under § 3C1.1). While the
evidence that Gaines was behind the threat to Queen was circumstan-
tial, it was compelling. Shortly after he made two large sales to
Queen, Gaines' motel room was searched under a warrant and he was
arrested. When Queen received the anonymous threatening call a few
days later, he assumed it was being made on Gaines' behalf. Although
Queen testified that he bought drugs from other people, he received
no other threats. We find that the district court did not clearly err in
finding that Gaines was responsible for the threat.

Last, Gaines argues that the district court clearly erred in finding
that he had not accepted responsibility for the offense merely because
he challenged the amount of crack attributable to him. He contends
that he justifiably objected "to the 1800 grams the probation officer
had originally calculated for the purposes of sentencing," and points
out that he "was eventually sentenced based on 422.39 grams" of
crack. This statement is inaccurate. The record reveals that, while the
government initially suggested that Gaines sold 1800 grams of crack,
the probation officer recommended that Gaines was responsible for
only 442.39 grams. Gaines contested this amount by impugning the
veracity of every witness against him and admitting only that he sold
crack. Most important, the commentary to USSG § 3E1.1 provides
that an adjustment for acceptance of responsibility is not ordinarily
available to a defendant who receives an adjustment for obstruction
of justice. See USSG § 3E1.1, comment. (n.4). This is not an extraor-
dinary case where both might apply.

We therefore affirm the sentence. 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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