                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                 UNITED STATES COURT OF APPEALS                                FEB 23 1999

                                 TENTH CIRCUIT                               PATRICK FISHER
                                                                                    Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                              No. 97-6044
 v.                                                       (D.C. No. 96-CR-108)
                                                              (W.D. Okla.)
 THEODORE WILLIS FLOWERS, JR.,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BARRETT and TACHA, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without

oral argument.    See Fed. R. App. P. 34(a)(2); 10   th
                                                          Cir. R. 34.1(G).




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Theodore Willis Flowers, Jr., entered a plea of guilty to a single-count

superceding indictment for maintaining a place for the purpose of distributing

cocaine base in violation of 21 U.S.C. 856 (a)(1). He received a sentence of 240

months. On appeal, he objects to the district court’s failure to award him an

offense level reduction for acceptance of responsibility and for a minor role in

the drug conspiracy. We affirm.

      Mr. Flowers was charged in a multi-count drug conspiracy that extended

from Los Angeles to Oklahoma City. It is undisputed that Mr. Flowers’

automotive shop served as a center for the conspiracy’s crack transactions for

almost two years. He thus facilitated drug sales and sporadically sold drugs from

the auto shop himself. When the prosecutor offered Mr. Flowers a plea

agreement, he immediately accepted. In exchange for the dismissal of all

conspiracy counts against him, Mr. Flowers pled guilty to maintaining a place to

distribute cocaine base.

      Three and a half months after the plea, Mr. Flowers sent the district court a

handwritten letter dated January 9, 1997, discussing his struggling economic

situation, his confused interactions with police regarding the vehicles in his shop,

and the circumstances surrounding his crime. In relevant part to the crime to

which he pled guilty, Mr. Flowers wrote, “I have been charge[d] with the

following violation 21 U.S.C. § 856 maintaining & dwelling. At this time I


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would like to express to you about the innocent [sic] of this crime that I’ve been

so accused.” Ct. Exh. 2 at 1. He denied he knew his shop was used for drug

sales. “I never was aware of the type of call that was made . . . . And with all

the things I had to do I didn’t have time to sale [sic] any drug[s] . . . . [T]hat[’s]

a job within itself.”   Id. at 8.

         Thereafter at sentencing, Mr. Flowers objected to the court’s denial of an

offense level reduction for a minor participant and for acceptance of

responsibility. The district court rejected Mr. Flowers’ request to consider him a

minor participant. The court made written findings that Mr. Flowers’ role as

owner of the automotive shop made him the key indispensable actor in

maintaining a place for the sale of drugs. Aplt. App. at 11. The court also

denied Mr. Flowers a reduction for acceptance of responsibility after finding that

he was not forthcoming, did not offer complete and accurate information in

earlier debriefings, and had attempted to exculpate himself by his letter.    Id. at

10-11.

       We review the district court’s determination that Mr. Flowers was not a

minor participant as a finding of fact under the clearly erroneous standard. We

also give due deference to the court's application of the Sentencing Guidelines.

See United States v. Ballard , 16 F.3d 1110, 1114 (10th Cir.1994). The burden is

on a defendant to establish that he was a minor participant.       Id. Under the


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Sentencing Guidelines, “[b]ased on the defendant’s role in the offense,” there is a

reduction for a minor participant “who is less culpable than most other

participants . . .”   See U.S.S.G. § 3B1.2 and comment. n.3. As the district court

noted, Mr. Flowers did not plead to conspiracy. To the contrary, all conspiracy

charges were dropped in exchange for his guilty plea to the charge of maintaining

a place for the distribution of crack cocaine. With respect to that offense, the

record shows Mr. Flowers was the owner and operator of the auto shop and

occasionally sold crack from the shop himself. As such, he was fully and

indispensably culpable for the maintenance of the auto shop as a place to

distribute cocaine. The district court did not err in finding that Mr. Flowers was

not a minor participant.   1




       1
         Mr. Flowers contends the district court erred in making this determination
by considering evidence from the trial of his co-defendants without notice to him.
However, it is clear from both the sentencing transcript, aplt. app. at 16, and the
district court’s written order, id. at 11, that the court did not consider Mr.
Flowers’ role in the drug conspiracy in denying him a reduction as a minor
participant. In this regard, the court said, “It’s important to keep in mind in this
respect what is the count . . . ; it’s maintaining the place, not the conspiracy for
the distribution of the crack cocaine. And fundamentally, one either maintains the
place or he doesn’t. And with respect to maintaining the place, Mr. Flowers is the
key and the indispensable person because it is his place of business.” Id. at 16. It
was thus unnecessary for the court to consider evidence from the trial of Mr.
Flowers’ co-defendants in determining the nature of Mr. Flowers’ role in the
offense. The circumstances surrounding Mr. Flowers’ guilty plea established
sufficient evidence that he was not a minor participant in the activity for which he
was convicted.

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       We review the district court’s denial of a reduction for acceptance of

responsibility under the clearly erroneous standard.         See United States v.

Robertson , 45 F.3d 1423, 1449 (10th Cir.1995). The district court has “broad

discretion to grant or deny the reduction.”         Id. ; U.S.S.G. § 31E1.1 comment. n.5.

Here, the district court found Mr. Flowers’ letter to be an attempt to exculpate

himself. In the letter, Mr. Flowers expressed innocence and lack of knowledge.

That was directly contrary to his plea, in which he conceded he maintained a

place for drug distribution and even sold drugs from the auto shop himself.

Notwithstanding the beseeching sentiments of the letter, its expression of

innocence contradicts Mr. Flowers’ guilty plea and belies an acceptance of

responsibility. Consequently, it was well within the district court’s broad

discretion to deny a reduction for acceptance of responsibility.

       We AFFIRM the district court’s denial of offense level reductions for Mr.

Flowers as a minor participant and for acceptance of responsibility.

                                          ENTERED FOR THE COURT


                                          Stephanie K. Seymour
                                          Chief Judge




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