                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 23, 2011
                 UNITED STATES COURT OF APPEALS A. Shumaker
                                            Elisabeth
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                         No. 09-3307
 v.                                           (D.C. No. 2:07-CR-20168-JWL-2)
                                                         (D. Kansas)
 MONTERIAL WESLEY,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *

Before TACHA, SEYMOUR, and O’BRIEN, Circuit Judges.


      Mr. Monterial Wesley was indicted on twelve counts relating to a

conspiracy to distribute cocaine and cocaine base in and around Kansas City. 1

After the jury was impaneled but before any evidence was presented, Mr. Wesley

pled guilty to four counts of the indictment, including conspiracy to manufacture,

to possess with intent to distribute, and to distribute fifty grams or more of

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with the terms and conditions of Fed.
R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
       Additional facts relating to this conspiracy are recited in United States v.
Foy, No. 09-3314, ___ F.3d ____, (10th Cir. 2011).
cocaine base and to possess with intent to distribute and to distribute five

kilograms or more of cocaine. He went to trial on the eight other counts, along

with a number of co-defendants, and was subsequently convicted on two of them.

      At the sentencing hearing, the district court found that Mr. Wesley was

accountable for 150 kilograms of cocaine, had possessed a firearm, and did not

qualify for an adjustment for acceptance of responsibility. The sentencing

guideline range was calculated to be 324 to 405 months; the district court

imposed a sentence of 360 months. On appeal, Mr. Wesley raises two issues.

First, he argues the district court erred by relying on insufficient and unreliable

evidence to determine the drug quantity attributable to him under U.S.S.G.

§ 2D1.1. Second, he claims he was entitled to a two-point reduction for

acceptance of responsibility under U.S.S.G. § 3E1.1(a) because he pled guilty to

the most serious charge in the indictment. We affirm.

      “Factual findings regarding drug quantities are reviewed for clear error and

are reversed only if the district court’s finding was without factual support in the

record or we are left with the definite and firm conviction that a mistake has been

made.” United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005) (internal

quotation marks omitted). “When the actual drugs underlying a drug quantity

determination are not seized, the trial court may rely upon an estimate to establish

the defendant’s guideline offense level so long as the information relied upon has

some basis of support in the facts of the particular case and bears sufficient

                                          -2-
indicia of reliability.” Id. (internal quotation marks omitted). “When choosing

between a number of plausible estimates of drug quantity, none of which is more

likely than not the correct quantity, a court must err on the side of caution.”

United States v. Richards, 27 F.3d 465, 469 (10th Cir. 1994) (alteration and

internal quotation marks omitted).

      The district court relied on the trial testimony of Mr. Thomas Humphrey

and the sentencing hearing testimony of Mr. Cruz Santa Anna to support its

finding that Mr. Wesley was accountable for at least 150 kilograms of cocaine.

The district court found that both witnesses were credible. With regard to Mr.

Humphrey’s testimony, the district court found that in 2007 alone, Mr. Humphrey

sold at least five kilograms of cocaine to Mr. Wesley three times per month,

totaling at least 165 kilograms.

      Mr. Wesley contends Mr. Humphrey’s testimony was inadequate to support

the court’s finding because Mr. Humphrey only testified about three specific

occasions when he sold cocaine to Mr. Wesley. Although the district court noted

Mr. Humphrey’s testimony could have been clearer, the record provides sufficient

support for the district court’s conservative estimate.

      The district court also found Mr. Santa Anna’s testimony separately

provided sufficient evidence that Mr. Wesley was responsible for at least 150

kilograms of cocaine. The district court found that between 2004 and July 2006,

Mr. Wesley’s co-conspirator Mr. Shevel Foy purchased thirty kilograms of

                                          -3-
cocaine per month from Mr. Santa Anna, totaling 900 kilograms, and Mr. Wesley

was present for forty percent of these purchases. In our related opinion of United

States v. Foy, No. 09-3314, ___ F.3d ____, (10th Cir. 2011), we held that Mr.

Foy was responsible for the full quantity of cocaine sold to Mr. Wesley in

furtherance of their conspiracy. See id., slip op. at 21 (“[I]n calculating drug

quantity, the district court may consider, in the case of a jointly undertaken

criminal activity, all reasonably foreseeable acts and omissions of others in

furtherance of the jointly undertaken criminal activity.” (quoting U.S.S.G.

§ 1B1.3(a)(1)(B)) (alteration and internal quotation marks omitted)). Similarly,

the district court could have attributed all of Mr. Foy’s purchases from Mr. Santa

Anna to Mr. Wesley. Instead, the court conservatively found Mr. Wesley

accountable only for the approximately 360 kilograms purchased from Mr. Santa

Anna while Mr. Wesley was present.

      Mr. Wesley claims the district court erred in relying on Mr. Santa Anna’s

testimony because he only testified as to sales outside of the scope of the

conspiracy. As we explained in Foy, however, “it is well-established that ‘a

sentencing court may look beyond the charges alleged in the indictment and may

consider quantities of drugs not alleged in calculating a defendant’s base offense

level, provided the drugs were part of the same course of conduct or common

scheme or plan as the offense of conviction.” Id., slip op. at 22 (quoting United

States v. Hamilton, 587 F.3d 1199, 1221 (10th Cir. 2009)). The district court

                                          -4-
made its findings based on conservative, cautious interpretations of the evidence.

Given the ample evidence regarding the enormous quantity of drugs distributed in

this conspiracy, the court clearly did not err in calculating the drug quantity

attributable to Mr. Wesley.

      Mr. Wesley also argues he was entitled to a two-point reduction in the level

of his sentence for his acceptance of responsibility under U.S.S.G. § 3E1.1(a)

because he pled guilty to conspiracy, the most serious charge against him, even

though he went to trial on other counts. Pursuant to U.S.S.G. § 3E1.1(a), a

defendant’s base level offense is decreased by two levels if “the defendant clearly

demonstrates acceptance of responsibility for his offense.” U.S.S.G. § 3E1.1(a).

“Determination of acceptance of responsibility is a question of fact reviewed

under a clearly erroneous standard.” United States v. Tom, 494 F.3d 1277, 1281

(10th Cir.2007) (internal quotation marks omitted). The sentencing judge is in a

unique position to evaluate a defendant’s acceptance of responsibility and is

therefore entitled to great deference on review. United States v. Quarrell, 310

F.3d 664, 682 (10th Cir. 2002) (quoting U.S.S.G. § 3E1.1, cmt. n.5). “Among the

considerations used in determining whether a defendant should receive the

acceptance of responsibility adjustment are whether the defendant admitted to the

elements of the crimes and whether the defendant admitted to, or at least did not

falsely deny, any other relevant conduct.” Id. (citing U.S.S.G. § 3E1.1, cmt.

n.1(a)).

                                          -5-
      The district court found that Mr. Wesley did not accept “the wrongfulness

of what he did and the seriousness of what he did,” and accordingly it determined

that Mr. Wesley’s case was not “the kind of . . . exceptional circumstance where

acceptance of responsibility should be awarded even where someone went to

trial.” 2 Rec., vol. 9 at 1852. As the district court noted, although Mr. Wesley

pled guilty to the conspiracy count, he “fully contest[ed] other issues in the case

at trial, and . . . on a very thin basis contest[ed] things like quantity in the

sentencing context.” Id. These findings are not clearly erroneous. Because Mr.

Wesley denied relevant conduct both while entering his guilty plea and during

sentencing, the district court did not clearly err by declining to grant him a two-

point reduction in his offense level for acceptance of responsibility.

      For the foregoing reasons, we AFFIRM Mr. Wesley’s sentence.


                                         ENTERED FOR THE COURT


                                         Stephanie K. Seymour
                                         Circuit Judge




      2
        The district court gave Mr. Wesley “some credit” for pleading guilty to
conspiracy, and noted that it was for this reason that Mr. Wesley was given a
sentence in the middle of the guidelines range, rather than at the high end. See
Rec., vol. 9 at 1851.

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