                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           MAY 26 1999
                                    TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,           Nos. 98-6421, 98-6422, 98-6423
           v.                                           W. D. Oklahoma
 EDWARD LEE MCFADDEN,                              (D.C. Nos. CR-97-142-L,
                                                  CR-97-177-L, CR-97-189-L)
                Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.



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

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Edward Lee McFadden pleaded guilty in the district court to two counts of

possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1),



       This order and judgment is not binding precedent, except under the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.
and one count of conspiracy to distribute cocaine and cocaine base, in violation of

21 U.S.C. § 846. He was sentenced to three concurrent terms of 360 months’

imprisonment, and now appeals his sentence. He argues that he was improperly

denied a reduction for acceptance of responsibility and that his sentence was

incorrectly enhanced for a leadership role in the offenses. For the reasons stated

below, we disagree with McFadden and affirm his sentence.



                                 BACKGROUND

      McFadden was involved in extensive, multistate, illegal drug distribution

operations from at least 1986 until his arrest in Oklahoma City on July 16, 1997.

Prior to his arrest, McFadden was named in two separate indictments for drug

offenses, and after his arrest he was named in a third. The first, handed down in

the Central District of California on December 3, 1987, named McFadden in 33 of

48 counts, including charges of conspiracy to distribute, distribution, and

possession with intent to distribute controlled substances, as well as money

laundering. The second, returned in the Southern District of Ohio on August 28,

1991, charged him with similar crimes in four counts of a 91-count indictment.

The third, issued in the Western District of Oklahoma on September 3, 1997,

named McFadden in 10 of 12 counts, charging (inter alia) conspiracy to distribute




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and distribution of cocaine. The Ohio and California indictments were transferred

to Oklahoma under Fed. R. Crim. P. 20.

      On January 8, 1998, pursuant to a written plea agreement, McFadden

pleaded guilty to three offenses, one from each indictment: Count 34 of the

California indictment (possession with intent to distribute cocaine, in violation of

21 U.S.C. § 841(a)(1)); Count One of the Ohio indictment (conspiracy to

distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846); and Count

Twelve of the Oklahoma indictment (possession with intent to distribute cocaine,

in violation of 21 U.S.C. § 841(a)(1)). The government accordingly dropped all

other charges in the indictments.

      The presentence investigation report (PSR) concerned only the Ohio and

Oklahoma cases, because the California case involved conduct occurring prior to

the applicability of the Sentencing Guidelines. The PSR, however, used the

California conduct as relevant conduct under USSG § 1B1.3.     See PSR at 14 ¶ 61.

The PSR calculated McFadden’s criminal history category to be I and his offense

level to be 42, including a base offense level of 38 (for distributing more than 100

kilograms of cocaine and cocaine base), with a 4-point enhancement under

§ 3B1.1(a) for a leadership role in the offense. McFadden filed objections to the

PSR regarding the drug quantities, the leadership enhancement, and the denial of

a reduction for acceptance of responsibility. The probation officer filed a detailed


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response, rejecting McFadden’s arguments as to drug quantities and acceptance of

responsibility, but reducing the leadership enhancement to 3 points under

§ 3B1.1(b). This resulted in a recommended offense level of 41.   1
                                                                      Prior to

sentencing, McFadden withdrew his objections to drug quantities in the PSR.

      McFadden was sentenced in all three cases on October 15, 1998. After

hearing one government witness and arguments from both the government and

McFadden, the court overruled McFadden’s remaining objections and adopted the

recommendation of the PSR for the Ohio and Oklahoma cases. Within the

guideline range of 324-405 months’ imprisonment, the court imposed 360 months

for each count, to run concurrently. In the California case, within the statutory

range of 5 to 40 years, the court imposed a concurrent sentence of 30 years.



                                   DISCUSSION

      Because it is undisputed that the California case is not subject to the

Sentencing Guidelines, we consider McFadden’s appeal (which raises only issues

related to the Sentencing Guidelines) to be limited to his sentences in the other

two cases.



      1
        The Addendum to the PSR at one place lists an offense level of 40. This is
inconsistent with the calculations in the PSR, and at sentencing, the probation
officer confirmed that the Addendum was erroneous and that the recommended
offense level was 41. See App. at 81-82.

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A. Aggravating Role

       McFadden contends that the district court improperly enhanced his offense

level under USSG § 3B1.1,     2
                                  which provides as follows:

       Based on the defendant’s role in the offense, increase the offense
       level as follows:

       (a)      If the defendant was an organizer or leader of a criminal
                activity that involved five or more participants or was
                otherwise extensive, increase by 4 levels.

       (b)      If the defendant was a manager or supervisor (but not an
                organizer or leader) and the criminal activity involved five or
                more participants or was otherwise extensive, increase by 3
                levels.

       (c)      If the defendant was an organizer, leader, manager, or
                supervisor in any criminal activity other than described in (a)
                or (b), increase by 2 levels.

McFadden’s offense level was increased by 3 levels under § 3B1.1(b). At

sentencing he asked for a 2-level enhancement under § 3B1.1(c), arguing that the

government had not shown that the criminal activity involved five or more

participants.    See App. at 67. The court concluded both that five or more

participants were involved and that the criminal activity was “otherwise

extensive.” McFadden does not contest this conclusion on appeal; he argues only




       All USSG references are to the 1997 guidelines, which were used in this
       2

case. See PSR at 14 ¶ 61.

                                             -5-
that at sentencing there was no sufficiently reliable evidence that he exercised

direct control over any other person, and that therefore he was not shown to be a

manager or supervisor.   3
                              In other words, on appeal, McFadden is arguing that

§ 3B1.1 does not apply at all.

       The terms “manager” and “supervisor” apply only to those defendants who

“exercised some degree of control over others involved in the commission of the

offense” of conviction, or were “responsible for organizing others for the purpose

of carrying out the crime.”      United States v. Roberts , 14 F.3d 502, 523 (10th Cir.

1993). The government need show only that a defendant exercised leadership

control over at least one other person.     See United States v. Cruz Camacho   , 137

F.3d 1220, 1224 (10th Cir. 1998). At sentencing the government presented

testimony from Adrian Satchell that he delivered cocaine and collected money for

McFadden, shuttling between Oklahoma and Chicago, Detroit, and Minneapolis.

Satchell testified that McFadden told him exact amounts of money to collect, how

to handle partial payments, what phone numbers to call, what highways to use, a

time of day to leave, and a time of day to return, and that McFadden reprimanded

him on the occasions that he did not follow these orders in every particular.



       3
        McFadden made a similar argument in his objections to the PSR. See PSR
at 24 (“Counsel [for McFadden] asserts the government failed to show by a
preponderance of the evidence that the defendant was a[] . . . manager or
supervisor of any criminal activity.”).

                                             -6-
Satchell testified that McFadden also supervised numerous other persons, some of

which he named but others he did not.

      McFadden’s argues that Satchell was not a sufficiently reliable witness to

carry the government’s burden of proof. He points out that Satchell completely

avoided criminal charges by testifying, and that Satchell’s testimony contained

various inconsistencies. However, the court was presumably well aware of these

facts, and it nevertheless found Satchell to be “an extremely credible witness.”

App. at 9. “Witness credibility at sentencing is a question for the district court,

and we find no reason to second-guess the court’s credibility assessments in this

case.” United States v. Browning , 61 F.3d 752, 754-55 (10th Cir. 1995) (citation

and footnote omitted). Especially given the fact that McFadden was given the

opportunity to cross-examine Satchell (which he did) and to present evidence of

his own (which he did not), we find no error in the district court’s reliance on

Satchell’s testimony. Even uncorroborated hearsay may be considered, so long as

a defendant has had an opportunity to rebut or explain the evidence,   see United

States v. Beaulieu , 893 F.2d 1177, 1179 (10th Cir. 1990), and this live testimony

was far from hearsay. Furthermore, although Satchell’s testimony may have

contained minor inconsistencies, it appears from the record to have been both

detailed and thorough. We therefore uphold the leadership enhancement.




                                           -7-
B. Acceptance of Responsibility

         McFadden also argues that the district court erred in refusing an offense

level reduction under USSG § 3E1.1 for acceptance of responsibility. We review

the district court’s decision only for clear error.   See United States v. Janusz , 135

F.3d 1319, 1325 (10th Cir. 1998). The district court’s decision “is entitled to

great deference” because “[t]he sentencing judge is in a unique position to

evaluate a defendant’s acceptance of responsibility.” USSG § 3E1.1, comment.

(n.5).

         The district court determined that although McFadden pleaded guilty to the

offenses for which he was sentenced, he “has continued to act inconsistent with

the acceptance of responsibility from the first indictment forward.” App. at

77-78. While the court indicated that McFadden’s guilty pleas were “a major

consideration,” id. at 78, it concluded that several factors outweighed the pleas.

These factors included (1) McFadden’s continuing criminal activity until his

arrest, despite outstanding indictments; (2) his unfounded and extensive

objections to drug quantities in the PSR, which “were withdrawn only after the

Defendant and Counsel realized it may affect their acceptance of responsibility,”

id. at 77; and (3) his unsupported, “continual objection” to his “role in the

offense,” id.




                                               -8-
       We find no clear error in the district court’s decision to deny the reduction.

A guilty plea alone does not entitle a defendant to a § 3E1.1 adjustment,       see

USSG § 3E1.1, comment. (n.3), and the three countervailing factors relied on by

the court were legally appropriate and were supported by the record. On appeal,

McFadden does not dispute that he continued his illegal activities right up to the

time he was arrested; this factor is referenced in the commentary to § 3E1.1.         See

id. , comment. (nn.1(b), 1(d)) (listing as “appropriate considerations” both

“voluntary termination or withdrawal from criminal conduct” and “voluntary

surrender to authorities promptly after commission of the offense”      ).

       Furthermore, the court was free to conclude, in view of the extensive

support in the PSR for the drug quantity calculations, that McFadden’s objections

to those drug quantities (although eventually withdrawn) constituted a false denial

of or frivolous contest to relevant conduct, “inconsistent with acceptance of

responsibility.”   Id. , comment. (n.1(a)). McFadden contends that withdrawing

these objections indicated acceptance of responsibility. He argues that he was

improperly punished for this action, because the district court concluded from the

fact of withdrawal and from the specific timing of the withdrawal that the

objections were not legitimate. However, even assuming that McFadden is

correct and that the withdrawal of the objections indicated some acceptance of

responsibility for those drug quantities, timeliness is a relevant factor under


                                            -9-
§ 3E1.1. See id. , comment. (n.1(h)). McFadden withdrew his objections only

after the probation officer had already filed a detailed response to the objections.

And, as the district court noted, McFadden’s objections had already raised the

possibility of “almost having a trial, a separate trial on relevant conduct.” App. at

77.

      Finally, the court was justified in concluding that McFadden had falsely

minimized his role in the offense. At sentencing, McFadden challenged the

factual basis for the leadership enhancement (i.e., the number of people involved

in the criminal activity), not simply a legal characterization of uncontested facts.

The record adequately supports the court’s determination that McFadden’s

arguments under USSG § 3B1.1(b) lacked factual basis.

      Accordingly, we find no clear error in the district court’s denial of a

reduction for acceptance of responsibility.

      AFFIRMED.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




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