                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                 No. 07-1772
                                 ___________
United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Northern District of Iowa.
Montel Theopolis Jones, also known     *
as Hollywood,                          *
                                       *
            Appellant.                 *
                                 ___________

                              Submitted: February 14, 2008
                                 Filed: August 26, 2008
                                  ___________

Before BYE, RILEY, and MELLOY, Circuit Judges.
                            ___________

MELLOY, Circuit Judge.

        Appellant Montel Theopolis Jones pleaded guilty to a charge of distributing
cocaine base (crack cocaine) within 1000 feet of a protected location and now appeals
his sentence. He argues the district court1 erred in its drug-quantity determination and
in its denial of a reduction for acceptance of responsibility. We affirm.




      1
      The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
      The United States charged Jones with two counts of distributing crack cocaine
within 1000 feet of a protected location, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(B), and 860(a). The two counts alleged the sale of crack cocaine based on
separate controlled transactions in which Jones sold a total of 21.11 grams of crack
cocaine to a confidential informant. Jones pleaded guilty to the first count, and the
United States dismissed the second.

        At sentencing, the district court found Jones responsible for distributing over
500 but less than 1500 grams of crack cocaine based largely on the testimony of
Donald Harris, who pleaded guilty to trafficking crack cocaine, faced the possibility
of life imprisonment, and agreed to cooperate with the government. In objections to
the presentence investigation report, Jones denied any prior involvement with Harris
and sought to be sentenced only on the 21.11 grams involved in the controlled
transactions. The district court ultimately found Harris credible and found Jones’s
failure to admit any dealings with Harris to be a frivolous denial of relevant conduct.
As a result, the district court found Jones had not accepted responsibility, and the
district court denied a reduction for acceptance of responsibility.

       Determinations as to acceptance of responsibility and drug quantity are factual
findings that we review only for clear error. United States v. Winters, 416 F.3d 856,
860 (8th Cir. 2005) (“A district court’s factual determination on whether a defendant
has demonstrated acceptance of responsibility is entitled to great deference and should
be reversed only if it is so clearly erroneous as to be without foundation.”); United
States v. Houston, 338 F.3d 876, 878 (8th Cir. 2003) (“In reviewing the drug quantity
finding for clear error, we must affirm unless the entire record firmly convinces us that
a mistake has been made.”). We do not substitute our judgment for that of the district
court because the district court is in a better position to assess whether a defendant has
accepted responsibility and to assess the credibility of witnesses. United States v.
Quintana, 340 F.3d 700, 702 (8th Cir. 2003) (“It is . . . well established that in
sentencing matters a district court’s assessment of witness credibility is

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quintessentially a judgment call and virtually unassailable on appeal.”) (internal
citations omitted, alterations in original). Our review, then, is not to determine what
conclusion we might reach in the case were we to sit as the finders of fact, but to
determine whether the district court’s factual findings amount to clear error.

       As to Harris’s credibility, Harris was not a strong witness. He knew Jones only
by the nickname “Hollywood,” he failed to notice a large tattoo on Jones’s forearm
(even though he claimed to have purchased crack from Jones multiple times per week
for over two years), he was strongly motivated to testify in order to obtain leniency
in his own case, and his testimony as to drug transaction amounts and frequency was
confusing and often internally inconsistent. Ultimately, however, the government was
able to rehabilitate Harris on re-direct and clarify his testimony. Reliance on the
testimony of a witness as inconsistent as Harris to greatly enhance a sentence is
troubling. However, it ultimately is the call of the sentencing judge to weigh those
inconsistencies and make the factual finding of whether the witness is embellishing
to better his own situation or suffers from a bad memory or confusion.

       Here, we note that the district court also found a separate witness, Victor
Wright, to be credible. Wright’s testimony buttressed Harris’s credibility because,
although Wright did not testify as to quantities, his testimony clearly placed Jones in
transactions with Harris, as claimed by Harris and as denied by Jones. Further, the
district court only needed to find that Jones had sold over 500 grams of crack cocaine.
Harris’s testimony permitted the court to reach this threshold, even after the
application of substantial discounts regarding the frequency of transactions and
quantity of crack cocaine described by Harris. In summary, the evidence was
sufficient to support the quantity determination in this case such that the district court
did not commit clear error when it found Jones had sold more than 500 grams of crack
cocaine.




                                           -3-
       Similarly, the district court did not commit clear error when it found that
Jones’s express denial of any dealings with Harris was inconsistent with an acceptance
of responsibility. Jones argued that he merely stood mute and required the
government to prove related conduct. See U.S. Sentencing Guidelines Manual §
3E1.1, comment n.1(a) (2006) (“A defendant may remain silent in respect to relevant
conduct beyond the offense of conviction without affecting his ability to obtain a
reduction under this subsection.”). The district court rejected Jones’s argument. The
district court held that, through Jones’s objections to the presentence investigation
report, Jones denied entirely any association with Harris, effectively denying any drug
activity other than his sale of the 21.11 grams of crack cocaine involved in the
controlled transactions. The district court declared Jones’s position in this regard to
be “preposterous” and deemed Jones’s complete denial of any dealings with Harris to
be a false denial or frivolous contesting of relevant conduct. See id. (“[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.”).
Wright’s testimony, in combination with Harris’s testimony, provides sufficient
support for the district court’s determination.

      We affirm the judgment of the district court.
                      ______________________________




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