           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        November 28, 2007

                                     No. 07-10406                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

MARK ANTHONY DRIVER

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 4:06-CR-82-ALL


Before GARWOOD, GARZA and OWEN, Circuit Judges.
PER CURIAM:*
       Mark Anthony Driver pleaded guilty to distributing approximately 1.56
grams of cocaine base contrary to 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and was
sentenced to 240 months of imprisonment,1 to be served consecutively to his
undischarged state sentence, and a three-year term of supervised release.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
         The maximum statutory sentence for selling 1.56 grams of crack is 20 years. 21
U.S.C. § 841(b)(1)(C).
                                       No. 07-10406

       Driver argues that the district court clearly erred in basing its
determination of drug quantity on uncharged relevant conduct that was based
on unsworn hearsay allegations that did not have sufficient indicia of reliability
and were not sufficiently corroborated, in violation of due process. The district
court’s calculation of the quantity of drugs involved in an offense is a factual
determination reviewed for clear error. United States v. Betancourt, 422 F.3d
240, 246 (5th Cir. 2005). For guideline purposes, the district court found by a
preponderance of the evidence that, with the related conduct, Driver possessed
156.2 grams of crack.2 Considering Agent Coffindaffer’s testimony about the
reliability of the informants, and the corroborating testimony of Officers
Caruthers and Broadwater, the district court did not clearly err, and did not
violate due process, in finding that the information in the presentence report
concerning other quantities of crack possessed or sold by Driver was sufficiently
reliable. See United States v. Rogers, 1 F.3d 341, 343-44 (5th Cir. 1993); United
States v. Young, 981 F.3d 184-86 (5th Cir. 1992).
       Driver argues that the district court erred in holding him accountable for
uncharged relevant conduct that does not fall within the definition contained in
U.S.S.G. § 1B1.3. The district court’s finding is a factual determination reviewed
under the clearly erroneous standard. United States v. Vital, 68 F.3d 114, 118
(5th Cir. 1995). Driver was directly involved in the possession and sale of
additional quantities of crack cocaine during the fall and winter of 2005 at the
Bideker St. location, which was part of the same course of conduct under section


       2
         Based of Driver's Criminal History Category of VI and a Total Offense Level of 34
(between 150 and 500 grams of crack), his Guideline Imprisonment Range was between 262
and 327 months. U.S.S.G. § 5A, Sentencing Table. Since the guideline range was higher that
the maximum statutory term of imprisonment of 20 years, his guideline range was reduced to
240 months. U.S.S.G. § 5G1.1(a). Additionally, Driver's 240 month sentence would have been
within the guideline range even if the district court had found that he possessed as little as
fifty grams of crack. See U.S.S.G. § 5A, Sentencing Table (a Total Offense Level of 32 and a
Criminal History Category of VI produces a guideline range between 210 and 262 months).

                                              2
                                       No. 07-10406

1B1.3(a)(2). The district court did not clearly err in finding that this was
relevant conduct. See United States v. Bethley, 973 F.2d 396, 400-01 (5th Cir.
1992).
       Driver argues that the district court clearly erred in denying him a
reduction in his offense level for acceptance of responsibility. He contends that
the district court never stated why it denied acceptance of responsibility. He
argues that the district court could not properly deny acceptance of
responsibility because he denied uncharged relevant conduct. This court accords
“great deference” to the sentencing court’s refusal to credit a defendant’s
acceptance of responsibility. Vital, 68 F.3d at 121. Having already determined
that the conduct of distributing additional quantities of crack was relevant
conduct, the district court’s denial of acceptance of responsibility for the reason
that Driver had falsely denied to the probation officer this relevant conduct is
entitled to this court’s “great deference.” See Vital, 68 F.3d at 120-21.3
                                       AFFIRMED.




       3
        Driver did not testify at sentencing, but did allocute; in his allocution (unsworn) he
also denied relevant conduct.

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