UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                                                      No. 96-4547

JAMMIE DARNELL LAWRENCE,
Defendant-Appellee.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 96-4548

JAMMIE DARNELL LAWRENCE,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-95-506-A)

Argued: June 6, 1997

Decided: August 27, 1997

Before HALL and NIEMEYER, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded by unpublished opin-
ion. Senior Judge Phillips wrote the opinion, in which Judge Hall and
Judge Niemeyer joined.

_________________________________________________________________
COUNSEL

ARGUED: Thomas More Hollenhorst, Assistant United States Attor-
ney, Alexandria, Virginia, for Appellant. James Clyde Clark, Alexan-
dria, Virginia, for Appellee. ON BRIEF: Helen F. Fahey, United
States Attorney, Alexandria, Virginia, for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PHILLIPS, Senior Circuit Judge:

Jammie Darnell Lawrence was convicted, after a bench trial, of
various drug-related offenses. At sentencing, the district court granted
a two-level reduction in sentence for acceptance of responsibility,
rejected the government's request for a two-level enhancement for
possession of a dangerous weapon, but granted its request, over Law-
rence's objection, for an enhanced sentence based on Lawrence's pos-
session of more than 150 kilograms of cocaine. Both the government
and Lawrence appealed. We affirm in part, reverse in part, and
remand for resentencing.

I

Defendant Jammie Darnell Lawrence was a mid-level distributor
selling powder cocaine in an illicit drug organization headed by Aslan
Paulino. Paulino obtained kilogram quantities of cocaine from Puerto
Rico that were transported to "stash houses," whence they were dis-
tributed to Lawrence and other distributors in the following manner:
Paulino employed a number of workers who would receive coded
telephone messages directing their distribution of specified quantities
from the stash houses to the mid-level distributors such as Lawrence.

Lawrence was arrested and released on bond on November 17,
1995, then charged in a ten-count indictment on December 13, 1995.

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Count I charged him with conspiracy to possess with intent to distrib-
ute and distribution of five or more kilograms of cocaine and distribu-
tion of 50 or more grams of cocaine base in violation of 21 U.S.C.
§§ 841(a)(1) and 846. Counts II through IX charged him with a vari-
ety of money laundering offenses, and Count X sought the forfeiture
of drug-related assets. Lawrence waived his right to a jury trial and
was tried in a bench trial in February 1996.

At the bench trial, the court heard evidence from several members
of the organization. Juan Morban, one of the "stash house" couriers,
testified that he delivered cocaine to Lawrence on four to six occa-
sions with deliveries of two to five kilograms, and picked up money
from him seven or eight times. Morban testified that he carried a gun
when he visited Lawrence. Joselito Ramos testified that he delivered
one to three kilograms of cocaine to Lawrence five or six times, and
picked up money from him on two to four occasions. Fernando Mer-
cedes testified that he delivered one to six kilograms to Lawrence
"twice a week" beginning in December 1994, and collected money
from Lawrence two to four times.

Paulino, the undisputed kingpin of the operation, testified for the
government at Lawrence's trial. He claimed that he supplied Law-
rence with two to four kilograms of cocaine once a week beginning
in 1992 or 1993 and continued to do so until his arrest in March 1995,
using his insulated method. Paulino also testified that Lawrence had
told him that he kept weapons in his car. Kermitt Oliver, one of Law-
rence's primary customers, testified that Lawrence supplied him with
two to three kilograms of cocaine, two or three times a week, for three
years.

When Paulino, Morban, and Mercedes were arrested in March
1995, police officers seized from Paulino's residence a bullet-proof
vest given to him by Lawrence, and a gun-cleaning kit. Officers also
seized various guns and drug paraphernalia from one of the stash
houses. When Lawrence was arrested, the police seized from a car
linked to him by photographs and court summons various incriminat-
ing items: a machine gun magazine, a bullet-proof vest, a gun-
cleaning kit, and a handgun magazine.

Following Lawrence's conviction on eight of the ten counts, the
probation officer's Pre-Sentence Investigative Report (PSR) recom-

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mended that he be sentenced at an offense level of 40, Criminal His-
tory Category I, with a base level of 38 under U.S. Sentencing
Guidelines Manual §§ 2D1.1(a)(3) and (c)(1) (1995), including a two-
level enhancement for possessing more than 150 kilograms of
cocaine. The PSR also recommended a two-level enhancement for
possession of a dangerous weapon under § 2D1.1(b)(1). Finally, the
PSR recommended rejection of Lawrence's request for a two-level
reduction in sentence for acceptance of responsibility.

At sentencing, the district court found that Lawrence had possessed
more than 150 kilograms of cocaine. Lawrence maintained that he
had received only 20 kilograms of cocaine from Paulino, but the court
found that the testimony of Paulino, Morban and Oliver was "more
than sufficient to support the probation officer's use of the higher
quantity of 150 or more kilograms of cocaine." JA 290. Pursuant to
§ 2D1.1(c)(1) of the Guidelines, this resulted in a base offense level
of 38. The district court, however, granted Lawrence's motion for a
two-level reduction in his sentence level for his acceptance of respon-
sibility, noting that Lawrence had waived his right to a jury trial and
stood for a bench trial instead. The district court also refused the gov-
ernment's request to increase Lawrence's sentence for possession of
a dangerous weapon under § 2D1.1(b)(1), concluding the government
had not established that Lawrence ever possessed a firearm.

Ultimately, Lawrence was sentenced to 188 months confinement
on four of the counts, along with a concurrent sentence of 120 months
as to the other four, at an offense level of 36, Criminal History Cate-
gory I. The government appeals the district court's refusal to grant the
enhancement and its decision to grant the reduction. Lawrence cross-
appeals, contending that his offense level should have been 34
because there was insufficient evidence to support the two level
enhancement for possession of more than 150 kilograms of cocaine.

II

In reviewing the district court's application of the sentencing
guidelines, we review factual determinations for clear error, while
legal determinations are subject to de novo review. United States v.
Blake, 81 F.3d 498, 503 (4th Cir. 1996). The cross-appeals raise three
issues: (1) whether the district erred in determining that Lawrence

                     4
possessed more than 150 kilograms of cocaine; (2) whether the dis-
trict court erred in granting Lawrence's request for a two-level reduc-
tion in sentence for acceptance of responsibility; and (3) whether the
district court erred in concluding that Lawrence did not possess a dan-
gerous weapon under § 2D1.1(b)(1) of the Guidelines. We take these
in turn.

A.

Lawrence's only claim is that the district court clearly erred in
determining that he possessed more than 150 kilograms of cocaine.
He contends that the evidence upon which the court relied was inter-
nally inconsistent and unreliable. We disagree. The government
needed only to establish the amount possessed by a preponderance of
evidence. See United States v. Engleman, 916 F.2d 182, 184 (4th Cir.
1990) (citing United States v. Powell, 886 F.2d 81, 85 (4th Cir.
1989)). In finding the 150 kilogram amount, the court relied on the
testimony of several of Lawrence's coconspirators which, taken
together, indicated that Lawrence had bought and sold well over 150
kilograms of cocaine over the two years that Lawrence was part of the
drug ring. We briefly recapitulate that testimony. Aslan Paulino, Law-
rence's supplier, testified that he supplied two to four kilograms per
week to Lawrence for at least two years, which minimally would
amount to more than 200 kilograms. Kermitt Oliver testified that he
had purchased two to three kilograms of cocaine from Lawrence in
a typical transaction, and that he bought cocaine from Lawrence two
to three times per week for three years. Against this testimony, Law-
rence only points out that Paulino also testified inconsistently that he
had only sold a total of 30 kilograms to Lawrence throughout the con-
spiracy, and that Oliver said that he purchased anywhere from 400 to
2200 kilograms of cocaine from Lawrence, ultimately admitting that
he did not know the total amount he had purchased.

These inconsistencies go only to the weight to be ascribed to the
testimony of these two witnesses, hence to their credibility as to those
portions unfavorable to Lawrence. We of course owe special defer-
ence to such credibility determinations. See 18 U.S.C. § 3742(e)
(1994); accord United States v. Daughtrey, 874 F.2d 213, 217 (4th
Cir. 1989). We cannot find clear error here in the district court's find-

                     5
ing, despite the inconsistencies in the witnesses' testimony, that more
than 150 kilograms were possessed.

B.

Section 3E1.1 of the Sentencing Guidelines provide for a two level
reduction if the defendant accepts responsibility for his criminal con-
duct. In its commentary the Sentencing Guidelines Commission
observed that a court could grant this reduction when a defendant
truthfully admitted the conduct comprising the offense of conviction,
but "a defendant who falsely denies, or frivolously contests, relevant
conduct that the court determines to be true has acted in a manner
inconsistent with acceptance of responsibility." U.S. Sentencing
Guidelines Manual § 3E1.1 commentary n. 1(a) (1995). We have pre-
viously held that in order for § 3E1.1 to apply, "a defendant must first
accept responsibility for all of his criminal conduct." United States v.
Gordon, 895 F.2d 932, 936 (4th Cir. 1990) (emphasis added).

The district court concluded that Lawrence had sufficiently demon-
strated his acceptance of responsibility for his criminal conduct, stat-
ing,

          I remember I tried this case. It was a bench trial, and I do
          recall that in effect the defendant in what he said to the pro-
          bation officer effectively admits the offense, and it was a
          relatively straightforward and simple trial, not a whole lot of
          issues in contest; and it was a bench trial, so that there were
          costs saved. Most defendants don't waive a jury, and this
          defendant did. I think he therefore deserves some credit for
          that. And he actually has agreed to and accepted all the ele-
          ments of the offense.

           It is simply the quantity of drugs with which he disputes
          the government's position. And for those reasons, I think it
          is appropriate to give him a two credit for acceptance of
          responsibility.

JA 289.

                     6
Lawrence has correctly pointed out that standing trial is not neces-
sarily inconsistent with an acceptance of responsibility. The Commis-
sion has acknowledged that a defendant may exercise his right to a
trial to make a constitutional challenge to a statute, for example, yet
still be entitled to an acceptance of responsibility reduction. See U.S.
Sentencing Guidelines Manual § 3E1.1 commentary n. 2. Such a situ-
ation is "rare," however, and § 3E1.1 was "not intended to apply to
a defendant who puts the government to its burden of proof at trial
by denying the essential factual elements of guilt, is convicted, and
only then admits guilt and expresses remorse." Id. Though Lawrence
waived his right to a jury trial, he nevertheless put the government to
its burden of putting him to trial on disputed facts which the Govern-
ment had the burden to prove.

By continuing to maintain through trial that he only possessed 20
kilograms of cocaine through the life of the conspiracy, Lawrence has
not admitted to all relevant conduct for the offense of conviction and
therefore is ineligible for the two-level reduction. See United States
v. Taylor, 72 F.3d 533, 551 (7th Cir. 1995) (holding that a defendant's
"false denial" of relevant conduct as found by the sentencing court
precludes a claim of acceptance of responsibility). Cf. United States
v. Campos, 87 F.3d 261, 265 (8th Cir. 1996) ("Where . . . the district
court reasonably determines that the defendant accepted responsibility
for less than all of his criminal conduct, it is not clearly erroneous to
deny a reduction in offense level."); United States v. Falesbork, 5
F.3d 715, 721-22 (4th Cir. 1993) (affirming denial of reduction when
defendant lied to probation officer about relevant conduct).

The Guidelines and our precedent make clear that a defendant must
admit all relevant conduct to be eligible for a reduction, and Lawrence
simply has not done so. Accordingly we hold that the district court
clearly erred in granting Lawrence a two-level reduction in sentence
for acceptance of responsibility.

C.

At sentencing the government alleged that Lawrence had possessed
a dangerous weapon in furtherance of the drug conspiracy, and there-
fore requested a two-level increase in Lawrence's sentencing level

                    7
pursuant to § 2D1.1(b)(1) of the Guidelines. The district court refused
to grant the enhancement, stating,

           In terms of the gun issue, I am also troubled that I don't
          think there is enough evidence there for sentencing purposes
          to give this defendant a two point enhancement for having
          a firearm. No firearm was found on him. The testimony was
          diminimous (sic) that somebody had once seen him with the
          firearms in these transactions.

           The fact that bullets or something may have been found,
          I don't think is sufficient. The government didn't charge
          him with that type of offense, and I am not going to start
          imposing effectively new convictions in the context of sen-
          tencing. So, I am not giving him the enhancement of those
          two points.

JA 289-90. The government contends the district court failed to con-
sider its argument that even if Lawrence did not himself possess a
dangerous weapon, he met the requirements of § 2D1.1(b)(1) because
he reasonably could have foreseen that other coconspirators possessed
dangerous weapons in furtherance of the conspiracy.

We have held that a defendant should receive this enhancement
when it is reasonably foreseeable to him that his coconspirators pos-
sessed dangerous weapons that are connected with the conspiracy. See
United States v. Hunter, 19 F.3d 895, 896 (4th Cir. 1994); United
States v. Nelson, 6 F.3d 1049, 1056 (4th Cir. 1993); United States v.
White, 875 F.2d 427, 433 (4th Cir. 1989). Accordingly, weapons pos-
sessed by Lawrence's coconspirators are attributable to Lawrence for
sentencing purposes, so long as Lawrence could reasonably foresee
that his coconspirators possessed the weapons, "unless it is clearly
improbable that the weapon was connected with the offense." U.S.
Sentencing Guidelines Manual § 2D1.1 commentary n. 3 (1995).

The government presented a strong circumstantial case to support
its claim that Lawrence thus "possessed" firearms to further the con-
spiracy. The police seized a pistol grip shotgun, a handgun, and
ammunition from one of Paulino's stash houses, and a bullet-proof
vest and a gun cleaning kit from Paulino's home. Paulino testified that

                    8
Lawrence had given him the vest, and that Lawrence had told Paulino
that he kept guns in his car. Paulino also testified that he had observed
firearms in Lawrence's apartment. Four other handguns were seized
from conspiracy members' vehicles. Morban and Oliver testified that
they were armed during transactions with the defendant, and Oliver
testified that he had seen weapons in Lawrence's vehicles. Finally,
authorities seized a bullet-proof vest, a gun carrying bag, a gun clean-
ing kit and ammunition from a car that also contained personal items
attributable to Lawrence, including photos of Lawrence and a sum-
mons for Lawrence under one of his aliases.

While Lawrence responds that the government could not make a
direct link between Lawrence and the weapons, at a minimum the
government made a showing sufficient to prove that Lawrence rea-
sonably should have foreseen that his coconspirators regularly used
dangerous weapons. Relying exclusively on the somewhat less con-
clusive evidence of Lawrence's own possession of weapons, the dis-
trict court clearly erred in determining that Lawrence should not
receive a two-level increase in his sentence.

III

While the district court correctly concluded that Lawrence pos-
sessed more than 150 kilograms of cocaine, it clearly erred in provid-
ing a two-level reduction in sentence for acceptance of responsibility
and in failing to order a two-level increase in Lawrence's sentence
level for possession of a dangerous weapon. Accordingly, we affirm
in part, reverse in part and remand for resentencing consistent with
this opinion.

AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED FOR RESENTENCING

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