UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                        No. 97-4998

MACEE ANTHONY PASSEE,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Samuel G. Wilson, Chief District Judge.
(CR-97-42)

Submitted: January 12, 1999

Decided: February 8, 1999

Before NIEMEYER and WILLIAMS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Michael T. Hemenway, Charlottesville, Virginia, for Appellant. Rob-
ert P. Crouch, Jr., United States Attorney, Ray B. Fitzgerald, Jr.,
Assistant United States Attorney, Charlottesville, Virginia, for Appel-
lee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Macee Anthony Passee appeals his conviction and sentence for
conspiring to distribute cocaine base, in violation of 21 U.S.C. § 846
(1994), and possessing with the intent to distribute cocaine base, in
violation of 21 U.S.C. § 841(a)(1) (1994). For the following reasons,
we affirm.

Passee was named in both counts of a two-count indictment. Count
one charged that Passee and Latrese Taylor conspired to posses with
intent to distribute cocaine base and count two charged that Passee
and Taylor did unlawfully possess with intent to distribute cocaine
base or did aid and abet one another to distribute cocaine base.

On the day set for both defendants' trial, Taylor pled guilty to both
counts of the indictment pursuant to the terms of a written plea agree-
ment. On the same day, Passee proceeded to trial. Prior to his trial,
Passee requested information from the Government as to whether
Taylor would be testifying and, if so, whether she would testify under
any agreement with the Government. The Government answered that
although Taylor would be testifying, she would not be testifying pur-
suant to any agreement with the Government.

During Passee's trial, Taylor testified as a Government witness and
directly implicated Passee. Upon cross-examination, Taylor denied
that any promise had been made to her in exchange for her testimony.
The jury found Passee guilty on both counts and the matter was set
for sentencing.

Approximately three months later, before Passee's scheduled sen-
tencing hearing, Taylor's counsel informed Passee's counsel that Tay-
lor had testified under an agreement with the Government and that the
Government would make a downward departure motion at Taylor's

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sentencing in exchange for her testimony. At Passee's and Taylor's
joint sentencing hearing, Passee moved for a mistrial alleging that
Taylor testified pursuant to an agreement with the Government, which
had not been disclosed to Passee prior to or during his trial, and that
the nondisclosure severely prejudiced him. The district court denied
the motion.

After the presentation of Passee's presentence report, the district
court imposed a sentence of 200 months imprisonment. Passee subse-
quently moved for a new trial based on newly discovered evidence
and submitted, as an exhibit in support of his motion, Taylor's Motion
To Compel Specific Performance. Taylor's motion was signed by her
counsel and alleged that the Government had agreed to make a down-
ward departure motion from her guideline range depending on her tes-
timony at Passee's trial. At the joint sentencing hearing, the district
court denied Taylor's Motion for Specific Performance after finding
that the only valid agreement between Taylor and the Government
was the one she entered into on the date she pled guilty, which did
not include a promise of a downward departure motion from the Gov-
ernment.

The district court denied Passee's motion for a new trial without
holding a hearing. The court found that it had heard Taylor state
under oath on two occasions her understanding of her plea agreement
and that her understanding contradicted Passee's claim. The court fur-
ther found that, when it heard Passee's prior motion for a mistrial,
Passee offered no evidence to support his allegation and reasoned that
Passee could have called Taylor as a witness in support of his prior
motion. The court also noted that Passee could have filed an affidavit
in connection with his motion for a new trial or suggested why he
could not file an affidavit. The court concluded that Passee's contra-
dicted and unsupported allegations merited no additional inquiry and
denied his motion for a new trial.

On appeal, Passee claims that the district court erred in denying his
motion for a new trial based on newly discovered evidence without
holding an evidentiary hearing. Passee also claims that the district
court erred in imposing a two-level enhancement of his offense level
for his role in the offense as a leader or organizer pursuant to U. S.
Sentencing Guidelines Manual § 3B1.1(c) (1997), and by denying a

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two-level reduction of his offense level for acceptance of responsibil-
ity under U.S.S.G. § 3E1.1(a).

A district court's denial of a motion for a new trial will not be set
aside absent an abuse of discretion. See United States v. Campbell,
977 F.2d 854, 860 (4th Cir. 1992). An abuse of discretion occurs
when a judge fails completely to exercise discretion, fails to use judi-
cially recognized factors that apply in the context of the case, or exer-
cises his discretion based upon erroneous factual or legal premises.
See James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993). The district
court may grant a new trial for newly discovered evidence only when
the following criteria are met: (i) the evidence must in fact be newly
discovered since the trial; (ii) facts must be alleged from which the
court may infer diligence on the movant's part; (iii) the evidence on
which the court relies must not be merely cumulative or impeaching;
(iv) the evidence must be material to the issues involved; and (v) the
evidence must be such that, on a new trial, it would probably produce
an acquittal. See United States v. Chavis, 880 F.2d 788, 793 (4th Cir.
1989). If all the criteria are not met, the motion for a new trial must
be denied. See id.

Passee fails to satisfy the first requirement for a new trial, because
he offered no new evidence. Rather, he only offered allegations that
Taylor had an undisclosed agreement with the Government whereby
the Government promised to make a downward departure motion at
her sentencing in exchange for her testimony at Passee's trial.
Although Passee submitted Taylor's Motion to Compel Specific Per-
formance as an exhibit in support of his motion for a new trial, it con-
tained nothing more than Taylor's unsupported allegations regarding
her alleged agreement with the Government and the district court
denied Taylor's motion. As the district court noted, Passee could have
filed an affidavit in connection with his motion for a new trial or
explained why he could not file one. Because Passee does not satisfy
the first requirement of the Chavis factors, it is unnecessary to review
the remaining factors. See id.

Passee next claims that the district court erred in imposing a two
level enhancement of his offense level for his role in the offense. The
Government was required to prove Passee's role in the offense by a
preponderance of the evidence. See McMillan v. Pennsylvania, 477

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U.S. 79, 91 (1986). Furthermore, the sentencing court's determination
that Passee is an organizer or leader is subject to the clearly erroneous
standard of review. See United States v. Smith , 914 F.2d 565, 569 (4th
Cir. 1990).

Taylor testified that she had been recruited in New York by Passee
to carry crack cocaine to West Virginia in exchange for a fee. Her tes-
timony was consistent with her statement to the police at the time of
her arrest. To the extent that Passee challenges Taylor's credibility on
appeal, we cannot review the district court's credibility determination.
See United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989). Her
testimony was sufficient to establish Passee's leadership role. There-
fore, we find that the district court did not clearly err in finding that
the Government proved by a preponderance of the evidence that Pas-
see was a leader or organizer of the conspiracy.

Lastly, Passee contends that the court erred by denying a two-level
reduction of his offense level for acceptance of responsibility. See
U.S.S.G. § 3E1.1(a). Again, we review the court's factual determina-
tion regarding whether to apply § 3E1.1 under the clearly erroneous
standard. See United States v. Myers, 66 F.3d 1364, 1372 (4th Cir.
1995). The district court found that, based upon Taylor's testimony
and the corroborating evidence, Passee had not accepted the full
extent of his responsibility for his participation in the offense. Further,
the district court's finding was made in light of Passee's continued
denial of his leadership role. Therefore, we find that the district court
did not clearly err in finding that Passee failed to accept responsibility
for his offense.

Accordingly, we affirm Passee's conviction and sentence. We dis-
pense 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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