In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2691

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EUGENE JOHNSON, also known as GENO,

Defendant-Appellant.



Appeal from the United States District Court
for the Central District of Illinois.
No. 98 CR 30091--Jeanne E. Scott, Judge.


Argued April 14, 2000--Decided September 13, 2000



  Before POSNER, RIPPLE and ROVNER, Circuit Judges.

  RIPPLE, Circuit Judge. Eugene Johnson was
indicted for selling 1.1 grams of cocaine base
("crack") to a Government informant. Before the
district court, he entered a plea of guilty to
the charge of knowingly and intentionally
distributing a controlled substance, in violation
of 21 U.S.C. sec.841(a)(1). At his sentencing
hearing, the court found that Mr. Johnson had
engaged in other relevant conduct by selling 56.7
grams of crack and 28.35 grams of cocaine. See
U.S.S.G. sec.1B1.3. The court added these amounts
to the 1.1 grams of crack that Mr. Johnson had
sold to the informant during the charged offense
and then calculated his base offense level as 32.


  The court then enhanced Mr. Johnson’s sentence
two levels for possessing a firearm during his
other relevant conduct. See U.S.S.G. sec.2D1.1.
Finding that Mr. Johnson had threatened the
informant in order to prevent him from
testifying, the court also enhanced Mr. Johnson’s
sentence two levels for obstructing justice, see
U.S.S.G. sec.3C1.1, and denied his request for a
downward departure for accepting responsibility,
see U.S.S.G. sec.3E1.1. The court further denied
Mr. Johnson’s request for a discretionary
downward departure based on his family
responsibilities.
  Then, the court sentenced him to 276 months
imprisonment and 6 years supervised release. Mr.
Johnson now challenges all aspects of his
sentence on appeal. For the reasons set forth in
the following opinion, we affirm the judgment of
the district court.

I
BACKGROUND
A. Facts

  For over a year, Earl Nelson sold crack that he
previously had purchased from Mr. Johnson and Mr.
Johnson’s co-defendant, Chris Harris. With
several charges pending against him, however,
Nelson agreed to cooperate with authorities and
to purchase crack from various drug dealers,
including Mr. Johnson and Harris. For Nelson’s
controlled purchase from Mr. Johnson, the
authorities outfitted Nelson with a recording
device and then monitored his actions while he
purchased 1.1 grams of crack from Mr. Johnson.
Based on this transaction, a grand jury returned
an indictment against Mr. Johnson for knowingly
and intentionally distributing crack in violation
of 21 U.S.C. sec.841(a)(1)./1

  Mr. Johnson entered an open plea of guilty
before the district court. At his plea hearing,
Mr. Johnson requested a downward departure in his
sentence for acceptance of responsibility. The
Government clarified that, although it probably
would not object to Mr. Johnson’s request, there
was no firm agreement between the parties on the
matter and that the Government had no obligation
to move for such a departure./2
  After this plea hearing and while awaiting
sentencing, Mr. Johnson was imprisoned, along
with Nelson and Harris, at the Sangamon County
Jail in Springfield, Illinois. During this time,
the Government received a report from Nelson in
which he stated that, because he was planning to
testify on behalf of the Government, Mr. Johnson
had threatened his life. According to Nelson, he
was entering the jail’s gym while Mr. Johnson was
leaving. While they were passing each other, Mr.
Johnson accused Nelson of setting him up. Mr.
Johnson then pointed his finger at Nelson, as if
his finger were a "gun," and said "pow." Sent.
Tr. at 60. Mr. Johnson also told Nelson, "when
you hit the streets, you dead." Id. At the same
time, Nelson could see Harris walking down the
hall toward them. As soon as Nelson was released
from jail, he reported these threats to an agent
of the Drug Enforcement Agency ("D.E.A."). In
response to the threats, the D.E.A. helped Nelson
move from the state of Illinois. The D.E.A. and
Nelson also began preparations for Nelson’s
family to join him in his new locale.
  Based on Mr. Johnson’s conduct toward Nelson,
the Government recommended that his sentence be
enhanced for obstructing justice and that his
request for a downward departure for accepting
responsibility be denied.

B.   The Sentencing Hearing

  At Mr. Johnson’s sentencing hearing, the court
determined that Mr. Johnson had engaged in the
"other relevant conduct"/3 of selling crack and
cocaine with Harris. According to testimony at
the sentencing hearing, Mr. Johnson was Harris’
"right hand man," and everywhere Harris went, Mr.
Johnson went. Sent. Tr. at 49. Together they had
sold or fronted crack and cocaine in large
quantities to several other dealers, who in turn
had sold the drugs for individual use. The court
consequently found that Harris and Mr. Johnson
had been involved in an ongoing course of conduct
involving the sale of crack and cocaine for the
one and one-half years prior to Mr. Johnson’s
arrest.

  From that course of conduct, the court found
that Mr. Johnson was accountable for 56.7 grams
of crack and 28.35 grams of cocaine. The court
based its crack calculation on the testimony of
Walter Kling. Kling testified extensively at the
sentencing hearing about his own involvement in
selling crack and cocaine with Harris and Mr.
Johnson. He also testified that, on one occasion,
he had brought a scale to Harris and watched as
Harris weighed crack on it. Then, Harris had
fronted 2 ounces (56.7 grams) of the crack to Mr.
Johnson and then 2 ounces to Kling. The court
attributed to Mr. Johnson the 56.7 grams of crack
that Harris had fronted to him. Next, the court
calculated the quantity of cocaine attributable
to Mr. Johnson by using information provided by
Jerry Smith. Smith, who had been arrested with
28.35 grams of cocaine in his possession,
reported to the D.E.A. that he had paid Harris
for the cocaine, which Mr. Johnson then had
handed to him. The court attributed to Mr.
Johnson this 28.35 grams of cocaine. The court
then added these two amounts to the 1.1 grams of
crack for which Mr. Johnson was arrested. From
the aggregation of these amounts, the court
calculated Mr. Johnson’s base offense level as
32.

  The court next found that Mr. Johnson had
possessed a firearm during his other relevant
conduct. Although no evidence indicated that Mr.
Johnson had possessed a firearm when he sold
Nelson the 1.1 grams of crack, the offense for
which he later was convicted, the court found
that Mr. Johnson had possessed a firearm during
his course of conduct of selling crack and
cocaine. Specifically, the court credited the
testimony of Nelson that, on one occasion, Mr.
Johnson had possessed a .45-caliber firearm while
he was selling crack to Nelson. The court stated,
moreover, that Mr. Johnson had been seen in the
possession of a firearm at a birthday party for
Harris. At this same time, Harris had a
substantial amount of money on him and was not
gainfully employed. In the absence of evidence
refuting these facts, the court found that there
was "a likely connection to the gun and the other
relevant conduct," namely, the sale of crack and
cocaine. Sent. Tr. at 138. Thus, under sec.2D1.1
of the Sentencing Guidelines, the court enhanced
Mr. Johnson’s sentence two levels for possession
of a firearm.

  At the sentencing hearing, Nelson also testified
about Mr. Johnson’s threat against him. Prison
officials testified that it was improbable that
Mr. Johnson and Nelson would encounter each other
while Harris was in sight, but they also stated
that it was not impossible. The officials also
noted that the gym time for Mr. Johnson’s cell
block immediately preceded the gym time for
Nelson’s cell block./4 Thus, concluded the
court, Mr. Johnson could have been leaving the
gym as Nelson was entering and the testimony of
the officials on this point lent credibility to
Nelson’s testimony about the incident.
Furthermore, the court noted other factors
indicating that Nelson’s testimony was credible,
including that Nelson had reported the incident
to the D.E.A. immediately after his release from
jail, that he had moved to a different state, and
that he also was planning to relocate his family.
Finding that Nelson was credible, the court found
that Mr. Johnson had threatened Nelson in order
to prevent Nelson from testifying against him. On
the basis of this evidence, the court held that,
because Mr. Johnson had threatened a witness
against him, he had obstructed justice and that
his sentence accordingly should be increased two
levels pursuant to sec.3C1.1 in the Sentencing
Guidelines. Moreover, because Mr. Johnson had
threatened Nelson, the court also found that he
had not accepted responsibility and, thus, denied
his request for a downward departure.

  Finally, the district court refused to depart
downward for Mr. Johnson’s family circumstances--
he has two young children to support--because Mr.
Johnson had not shown that his family
circumstances were out of the ordinary./5
  The court determined that Mr. Johnson had an
offense level of 36 and a Criminal History
Category of III, which produced a sentencing
range of 235 to 293 months. Then, the court
sentenced Mr. Johnson to 276 months imprisonment
and 6 years supervised release.
II
DISCUSSION
A. Standard of Review

   When reviewing a district court’s sentencing
determination, we look at the court’s
interpretation of the Sentencing Guidelines de
novo. See United States v. Ewing, 129 F.3d 430,
434 (7th Cir. 1997). However, "we review the
findings of fact underlying the application of
the sentencing guidelines for clear error."
United States v. McEntire, 153 F.3d 424, 431 (7th
Cir. 1998); Ewing, 129 F.3d at 434. A finding of
fact is clearly erroneous only when, on the
entire evidence, the reviewing court "is left
with the definite and firm conviction that a
mistake has been committed." United States v.
United States Gypsum Co., 333 U.S. 364, 395
(1948); see also McEntire, 153 F.3d at 431.
During sentencing, the Government must prove the
facts underlying the base offense or an
enhancement by a preponderance of the evidence.
See United States v. Smith, 210 F.3d 760, 762
(7th Cir. 2000). Furthermore, because the Federal
Rules of Evidence do not apply, the district
court may hear evidence that would not otherwise
be admissible, such as hearsay. See McEntire, 153
F.3d at 435; United States v. House, 110 F.3d
1281, 1285-86 (7th Cir. 1997).
B. Other Relevant Conduct
1.

  The district court’s calculation of the quantity
of drugs attributable to Mr. Johnson during both
the offense of his conviction and any other
relevant conduct is reviewed only for clear
error. See United States v. Robinson, 164 F.3d
1068, 1070 (7th Cir.), cert. denied, 120 S. Ct.
122 (1999); United States v. Beler, 20 F.3d 1428,
1431 (7th Cir. 1994). In determining a
defendant’s base offense level, the district
court must consider quantities of drugs that were
not specified in the count of conviction but that
were part of the "same course of conduct" or
"common scheme or plan" as the offense of
conviction. U.S.S.G. sec.1B1.3(a)(2); McEntire,
153 F.3d at 434; Beler, 20 F.3d at 1431. The
Commentary to the Sentencing Guidelines explains
that offenses are part of the same course of
conduct if they are "part of a single episode,
spree, or ongoing series of offenses." U.S.S.G.
sec.1B1.3, comment. (n.9). To make this
determination, the sentencing court should focus
"on whether the government has demonstrated a
significant ’similarity, regularity, and temporal
proximity’" between the uncharged conduct and the
convicted offense. United States v. Bacallao, 149
F.3d 717, 719 (7th Cir. 1998) (citations
omitted)./6 "[T]he information underlying the
court’s approximation must possess sufficient
indicia of reliability," and "[u]nreliable
allegations must not be considered." Beler, 20
F.3d at 1433 (citations omitted); see also
Robinson, 164 F.3d 1070; McEntire, 153 F.3d at
431.

  Mr. Johnson argues that the evidence of his
"other relevant conduct" was not sufficiently
reliable. He points to discrepancies in the
testimony of the witnesses and to the fact that
the witnesses were drug-using felons who were
receiving reductions in their own sentences for
testifying against Mr. Johnson. The district
court heard these facts and the witnesses’
testimony and found the testimony to be credible.
A sentencing court’s credibility determinations
are accorded exceptional deference. See United
States v. McClinton, 135 F.3d 1178, 1193 (7th
Cir.), cert. denied, 524 U.S. 921 and 525 U.S.
885 (1998). "As this court has held countless
times, sentencing judges are fully capable of
considering the motivations of witnesses in
weighing conflicting evidence and, because they
have had an opportunity to assess the demeanor of
the witnesses, are in a better position than this
court to make credibility determinations." House,
110 F.3d at 1285-86. Moreover, we have held that
"a district court is entitled to credit testimony
that ’is totally uncorroborated and comes from an
admitted liar, convicted felon, large scale drug-
dealing, paid government informant.’" McEntire,
153 F.3d at 436 (quoting United States v. Garcia,
66 F.3d 851, 857 (7th Cir. 1995)).

  Here, the district court detailed how it
determined the amount of drugs attributable to
Mr. Johnson for his other relevant conduct. The
court’s findings were based on witnesses’
testimony that it found credible; no facts
directly contradicted the witnesses’ testimony,
and aspects of the testimony were corroborated by
other sources. Therefore, the evidence underlying
the witnesses’ testimony had a sufficient indicia
of reliability, and the district court’s drug
quantity calculation must be upheld.

2.

  The district court enhanced Mr. Johnson’s
sentence for possession of a firearm in
connection with his drug trafficking activities
pursuant to sec.2D1.1 of the Sentencing
Guidelines. At the sentencing hearing, Nelson
testified that he had seen Mr. Johnson with a
.45-caliber firearm on two separate occasions. On
one occasion, Mr. Johnson was with Harris, who
was in possession of a large quantity of cash,
and, on the other occasion, Nelson was purchasing
drugs from Mr. Johnson. Based on this evidence,
the court found that Mr. Johnson had possessed
the firearm during his related course of conduct
of selling crack and cocaine.

  The applicable guideline section states: "If a
dangerous weapon (including a firearm) was
possessed, increase by 2 levels." U.S.S.G.
sec.2D1.1. "Although it is the government’s
initial burden to prove by a preponderance of the
evidence ’that the defendant possessed a weapon
in a place where drugs were present,’ the burden
of persuasion then falls upon the defendant to
demonstrate that it is ’clearly improbable’ that
the weapon was connected with [his] drug
trafficking." United States v. Tyler, 125 F.3d
1119, 1122 (7th Cir. 1997) (quoting United States
v. Booker, 115 F.3d 442, 443 (7th Cir. 1997) (per
curiam)); see also McClinton, 135 F.3d at 1193.
The district court’s characterization of the
relationship between a weapon and a defendant’s
underlying offense is a factual assessment that
is reviewed only for clear error. See United
States v. Cain, 155 F.3d 840, 843 (7th Cir.
1998); McClinton, 135 F.3d at 1193; Tyler, 125
F.3d at 1122.

  The firearm possession here did not occur during
the transaction for which Mr. Johnson was
convicted; however, we have stated previously
that the enhancement may be applied if the
sentencing court finds that the defendant
possessed the firearm during the offense that led
to the conviction or during relevant conduct. See
United States v. Berkey, 161 F.3d 1099, 1102 (7th
Cir. 1998); Cain, 155 F.3d at 843. "[A]n
enhancement under sec.2D1.1(b)(1) is appropriate
for simple, and entirely passive, possession" of
a firearm. Booker, 115 F.3d at 443. "For purposes
of a weapons enhancement, the government need not
show that the defendant used the firearm during
the commission of a drug sale, but only that he
possessed the firearm during the offense that led
to the conviction, or during relevant conduct, as
defined by U.S.S.G. sec.1B1.3." Berkey, 161 F.3d
at 1102. The proximity of a weapon to drug
proceeds provides a sufficient nexus to conclude
that "it was not clearly improbable that the gun
was connected with the offense." McClinton, 135
F.3d at 1193.

  The district court found that Mr. Johnson
possessed the firearm on two occasions: (1) when
he was in the company of Harris, who was in
possession of a large amount of cash and (2)
during the sale of crack to Nelson. Mr. Johnson
offered no evidence to show that it was clearly
improbable that the firearm was used in
connection with his drug sales. See Berkey, 161
F.3d at 1103. The Government’s evidence,
therefore, is sufficient to support a finding
that Mr. Johnson possessed the firearm during his
other relevant conduct of selling crack and
cocaine. Because the court found that Mr. Johnson
possessed the firearm during his relevant conduct
of selling crack cocaine and cocaine, it properly
enhanced his sentence for possession of a
firearm.

C.   Obstruction of Justice

  Because the district court found that Mr.
Johnson had threatened Nelson, we must uphold
this finding unless we are left with the firm
belief that an error has been made. See Ewing,
129 F.3d at 433-34. We conclude that a rational
trier of fact could find that Nelson was a
credible witness. The testimony of the prison
officials corroborated, in part, Nelson’s
testimony; the officials reported on the
prisoners’ housing patterns and activities and
explained that it was not impossible for all
three men to pass. Also, Nelson and a D.E.A.
agent testified that, as soon as Nelson left the
jail, he reported the threats to the D.E.A. and
then moved out of the state. Based on this
evidence, a rational fact finder could find that
Nelson was a credible witness and could credit
Nelson’s statement that Mr. Johnson threatened
him.

  Section 3C1.1 of the Sentencing Guidelines
provides that a defendant’s sentence may be
increased for obstructing justice. The section
states as follows:

If (A) the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the
administration of justice during the course of
the investigation, prosecution, or sentencing of
the instant offense of conviction, and (B) the
obstructive conduct related to (i) the
defendant’s offense of conviction and any
relevant conduct; or (ii) a closely related
offense, increase the offense level by 2 levels.

U.S.S.G. sec.3C1.1. The Commentary to this
section explains that a defendant may obstruct
justice by "threatening, intimidating, or
otherwise unlawfully influencing a co-defendant,
witness, or juror, directly or indirectly, or
attempting to do so." U.S.S.G. sec.3C1.1,
comment. (n.4(a)). Thus, because the district
court found that Mr. Johnson had threatened
Nelson, its finding that Mr. Johnson obstructed
justice is not clearly erroneous. Based on its
findings, the district court properly enhanced
Mr. Johnson’s sentence for obstruction of
justice.

D.   Acceptance of Responsibility
  Because the district court found that Mr.
Johnson had threatened Nelson, it also found that
he did not accept responsibility. "The district
court’s acceptance of responsibility
determination is a factual finding which we
review for clear error." United States v. Fiore,
178 F.3d 917, 925 (7th Cir. 1999). A defendant
may be entitled to a reduction in his sentence if
he accepts responsibility for his actions./7 See
Ewing, 129 F.3d at 435. By threatening Nelson,
however, Mr. Johnson is not entitled to such a
reduction in his sentence. As the Commentary to
U.S.S.G. sec.3E1.1 explains:

4. Conduct resulting in an enhancement under
sec.3C1.1 (Obstructing or Impeding the
Administration of Justice) ordinarily indicates
that the defendant has not accepted
responsibility for his criminal conduct. There
may, however, be extraordinary cases in which
adjustments under both sec.sec.3C1.1 and 3E1.1
may apply.

5. The sentencing judge is in a unique position to
evaluate a defendant’s acceptance of
responsibility. For this reason, the
determination of the sentencing judge is entitled
to great deference on review.

U.S.S.G. sec.3E1.1, comment. (nn.4 & 5) (emphasis
added). Therefore, once a court finds that the
defendant obstructed justice, absent
extraordinary circumstances, the defendant should
be denied a reduction for accepting
responsibility. See Ewing, 129 F.3d at 435.

  Mr. Johnson has not shown that extraordinary
circumstances exist here. Indeed, the situation
before us presents a particularly appropriate one
in which to enhance a sentence for obstructing
justice and to deny a downward departure for
accepting responsibility. Mr. Johnson claims that
he demonstrated acceptance of responsibility by
pleading guilty. Yet, after entering that plea
and awaiting sentence, he threatened the witness
against him. Mr. Johnson’s threat of Nelson
belied any sense of remorse that should be
attendant to an acceptance of responsibility. Mr.
Johnson clearly did not accept responsibility for
his actions, and, therefore, the district court
properly denied his request for a downward
departure.

E. Downward Departure for Family
Responsibilities

  Finally, Mr. Johnson seeks review of the
district court’s refusal to grant a downward
departure due to his family responsibilities. Mr.
Johnson has two dependents that he claims to
support financially. The court explained that
courts usually depart only "where the record
supports a finding of significant or unusual
family responsibilities." Sent. Tr. at 142. The
court considered Mr. Johnson’s request but stated
that Mr. Johnson had not shown that his situation
was anything but typical. Thus, the court refused
Mr. Johnson’s request for a downward departure.

  "The decision of a district court to deny a
downward departure is a discretionary decision
not subject to the review of this court." United
States v. Saunders, 129 F.3d 925, 933 (7th Cir.
1997); see also United States v. Mattison, 153
F.3d 406, 413 (7th Cir. 1998); United States v.
Tyler, 125 F.3d 1119, 1123 (7th Cir. 1997). We
lack jurisdiction to review the district court’s
decision unless the sentence is imposed in
violation of the law or as a result of an
incorrect application of the Sentencing
Guidelines. See United States v. Guy, 174 F.3d
859, 861 (7th Cir. 1999); United States v. Yoon,
128 F.3d 515, 529 (7th Cir. 1997).

  According to sec.5H1.6 of the Sentencing
Guidelines, "[f]amily ties and responsibilities .
. . are not ordinarily relevant in determining"
the defendant’s sentence. We have held, however,
that unusual and extraordinary family
circumstances may justify a downward departure,
although this departure is not the norm. See Guy,
174 F.3d at 860. Here, the court understood it
had the power to grant a downward departure for
family responsibilities, but specifically
addressed the request and refused to grant it.
Because that decision was within the court’s
discretion, and not in violation of the law or an
incorrect application of the Sentencing
Guidelines, we cannot review it.

Conclusion

  For the foregoing reasons, the judgment of the
district court is affirmed.

AFFIRMED




/1 The relevant statutory provision states as
follows:
(a) Unlawful acts
  Except as authorized by this subchapter, it
shall be unlawful for any person knowingly or
intentionally--

  (1) to manufacture, distribute, or dispense, or
possess with intent to manufacture, distribute,
or dispense, a controlled substance[.]
21 U.S.C. sec.841.

/2 In order to clarify the Government’s position,
the district court asked Mr. Johnson’s counsel
whether a plea agreement existed. The following
exchange then took place:

  MR. REID (Counsel for Mr. Johnson): Well, there
is no written agreement, Your Honor. And I would
say there’s no agreement, other than we--

  THE COURT: You’re request is a three Offense
Level reduction, but has the Government agreed to
that, for example?

  MR. BASS (Counsel for the Government): Your
Honor, I will say I have indicated to Mr. Reid
that as we stand here today, if the Defendant
pleads guilty, then as we sit here today it would
be my view that he has accepted responsibility
and has done so in a timely manner. But having
said that, there’s no specific agreement between
the Government and the Defense.

  And as I indicated to Mr. Reid, in all
likelihood, if circumstances don’t change, I’m
not going to have any objection to that
acceptance. But there’s still issues to be
addressed that could have a bearing on that
acceptance.

  THE COURT:    So you’re not binding yourself at
this time?

  MR. BASS: Exactly.
  THE COURT: Is that understood, Mr. Reid?

  MR. REID:    That’s understood, judge.

R.17 at 4-5.

/3 See U.S.S.G. sec.1B1.3.

/4 Moreover, the prison officials stated that a
guard might not observe one inmate verbally
threatening another, due to the guard’s
responsibility to watch several inmates at once,
and that, even if the guard did observe the
threat, he might not report the incident because,
"it’s not uncommon for inmates to threaten other
inmates" or prison guards. Sent. Tr. at 100.

/5 Mr. Johnson has two young children with his
girlfriend of five years. He also claims to
support a child his girlfriend had from a
previous relationship.

/6 A finding that a defendant engaged in "other
relevant conduct" allows the court to consider
quantities of drugs not addressed in the count of
conviction as long as "’the unconvicted
activities bore the necessary relation to the
convicted offense.’" Bacallao, 149 F.3d at 719
(quoting United States v. Duarte, 950 F.2d 1255,
1263 (7th Cir. 1991)).

/7 sec.3E1.1.   Acceptance of Responsibility

(a) If the defendant clearly demonstrates
acceptance of responsibility for his offense,
decrease the offense level by 2 levels.

(b) If the defendant qualifies for a decrease
under subsection (a), the offense level
determined prior to the operation of subsection

(a) is level 16 or greater, and the defendant has
assisted authorities in the investigation or
prosecution of his own misconduct by taking one
or more of the following steps:

(1) timely providing complete information to the
government concerning his own involvement in the
offense; or

(2) timely notifying authorities of his intention
to enter a plea of guilty, thereby permitting the
government to avoid preparing for trial and
permitting the court to allocate its resources
efficiently,

decrease the offense level by 1 additional level.

U.S.S.G. sec.3E1.1.
