                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4592



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


ANTHONY DWIGHT JOYNER,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior
District Judge. (CR-04-22)


Submitted:   January 31, 2006          Decided:     February 24, 2006


Before WILKINSON, WILLIAMS, and TRAXLER, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


Frank W. Dunham, Jr., Federal Public Defender, Riley H. Ross, III,
Assistant Federal Public Defender, Kurt J. Mayer, Frances H. Pratt,
Research and Writing Attorneys, Norfolk, Virginia, for Appellant.
Paul J. McNulty, United States Attorney, Michael J. Elston,
William D. Muhr, Assistant United States Attorneys, Norfolk,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Anthony Dwight Joyner pled guilty to possession of 161.7

grams of cocaine base (crack) with intent to distribute (Count

One), and possession of 2316 grams of marijuana with intent to

distribute (Count Two), in violation of 21 U.S.C. § 841(a) (2000).

He was sentenced to concurrent terms of 221 months imprisonment on

each count. Joyner appeals his sentence, arguing that the district

court   clearly    erred    in   finding    that   he   had    not   accepted

responsibility for his criminal conduct, U.S. Sentencing Guidelines

Manual § 3E1.1 (2004), and erred by imposing a sentence in excess

of the five-year statutory maximum for Count Two.              We affirm the

sentence on Count One, but we vacate the sentence on Count Two and

remand for imposition of a sixty-month sentence on Count Two.

          Joyner    was     arrested   in    October    2003   after   police

conducting surveillance observed him make a suspected drug sale.

Before he was apprehended, Joyner led the police on a high-speed

chase, then fled his car, leaving his girlfriend, Tonya Glossin,

behind. Glossin cooperated with police, surrendered a handgun that

was in her purse, and consented to a search of the apartment she

shared with Joyner.        From the apartment, the officers recovered

161.7 grams of crack, 2316 grams of marijuana, $7000 in currency,

and evidence of drug trafficking.           Immediately after his arrest,

Joyner admitted that the drugs in Glossin’s apartment were his.

However, in a second interview the next day, he told police that he


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lived at another apartment he rented and knew Glossin only as a

friend.     He refused to discuss the drugs or money in Glossin’s

apartment.     Following his guilty plea, Joyner was interviewed by

the probation officer.       Joyner denied having access to the gun,

although he said he knew Glossin owned it.         Glossin had told police

that the gun was hers, but that Joyner had access to it.               Joyner

admitted that the drugs seized from Glossin’s apartment were his,

but refused to say whether the $7000 was his.

            To calculate Joyner’s base offense level, the probation

officer converted the $7000 found in the apartment to another 1764

grams of marijuana.      The total drug amount attributed to him was

3238.06     kilograms   of   marijuana       equivalent,   resulting     in    a

recommended base offense level of 34 under USSG § 2D1.1.                      The

probation     officer   recommended      a    two-level    enhancement        for

possession of a firearm, USSG § 2D1.1(b)(1), to which Joyner

objected, and a two-level adjustment for reckless endangerment

during flight, USSG § 3C1.2.

            At the sentencing hearing in May 2005, the district court

sustained Joyner’s objection to the firearm enhancement.               Despite

this ruling, the court later expressed skepticism about Joyner’s

statement regarding the firearm.         The court determined that Joyner

had not met his burden of affirmatively establishing that he had

accepted responsibility, noting that there were “several instances

where the Court believes he gave improper information to the


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police,     and    his    conduct    is     not   consistent      with     accepting

responsibility.”         The court’s elimination of the two-level weapon

enhancement reduced Joyner’s offense level to 36 and reduced the

advisory guideline range to 235-293 months.                    The court decided

against a downward departure to offset the discrepacy between

sentences for crack and cocaine offenses, as Joyner requested.

However, the court departed downward under USSG § 5K2.23, p.s.

(Discharged Terms of Imprisonment), and sentenced Joyner to a term

of 221 months imprisonment on each count, to run concurrently.

             A    sentencing      court    must    calculate      the    appropriate

guideline range and consider the range in conjunction with other

relevant factors under the guidelines and 18 U.S.C.A. § 3553(a)

(West 2000 & Supp. 2005), before imposing a sentence.                         United

States v. Booker, 543 U.S. 220 (2005); United States v. Hughes, 401

F.3d 540, 546 (4th Cir. 2005).              The sentence must be “within the

statutorily prescribed range and . . . reasonable.”                      Hughes, 401

F.3d at 546-47 (citations omitted).                  If the court imposes a

sentence outside the guideline range, it must state its reasons for

doing so.     Id. at 546.      The district court’s determination that a

defendant has failed to demonstrate acceptance of responsibility is

a factual finding reviewed for clear error. United States v. Ruhe,

191 F.3d 376, 388 (4th Cir. 1999).

            Application Note 1(a) to § 3E1.1 provides that the

sentencing       court   should     consider      whether   the    defendant     has


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truthfully admitted “the conduct comprising the offense(s) of

conviction, and truthfully admitt[ed] or not falsely den[ied] any

additional relevant conduct for which the defendant is accountable

under § 1B1.3 (Relevant Conduct).”       Application Note 1(a) also

advises that a defendant need not “volunteer, or affirmatively

admit, relevant conduct beyond the offense of conviction in order

to obtain reduction,” and “may remain silent in respect to relevant

conduct beyond the offense of conviction without affecting his

ability to obtain a reduction . . . .”        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.”    Id.

          Joyner argues that he did not deny that the $7000 was his

or that it was part of his drug activity because “he signed a

statement of facts that acknowledged the money was a component of

his intent to distribute.”*   Joyner points out that he pled guilty

to both counts of the indictment and, in his first post-arrest

statement, acknowledged that the drugs in Glossin’s apartment were

his. Joyner further contends that, because he was not charged with

possession of drug proceeds or money laundering, the $7000 was



     *
      The Statement of Facts stated that the police recovered crack
and marijuana from Glossin’s apartment, as well as “$7,000 in U.S.
currency, packaging material, scales, and various items used to
cook cocaine into crack.” The Statement of Facts also stated that
Joyner’s intent to distribute would be proved in part by the
presence of the money and other items.

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“only relevant conduct to the offenses charged rather than conduct

actually comprising those offenses.”        However, the $7000 was

treated as drug proceeds and used to calculate Joyner’s base

offense level.   It was thus relevant conduct that was part of the

offenses of conviction, not additional relevant conduct that went

beyond the offenses of conviction.     Consequently, Joyner could not

refuse to acknowledge his ownership of the money and yet claim that

he had truthfully admitted all the conduct that comprised the

offense of conviction under § 3E1.1. Moreover, despite his initial

admission that the drugs in the apartment were his, Joyner sought

to distance himself from both the drugs and the money in a second

interview with police, and later refused to discuss either one. We

conclude that the district court did not clearly err in finding

that Joyner had failed to demonstrate acceptance of responsibility.

          Although Joyner did not object in the district court to

the 221-month sentence imposed on Count Two, we agree with the

parties that the sentence exceeds the five-year statutory maximum

provided in 21 U.S.C. § 841(b)(1)(D) for offenses involving less

than fifty kilograms of marijuana.     The sentence thus constitutes

plain error, and warrants the exercise of our discretion to correct

it.   See United States v. Olano, 507 U.S. 725, 732-37 (1993)

(unpreserved error may be corrected only if error occurred, that

was plain, and that affects substantial rights, and if failure to

correct error would seriously affect the fairness, integrity, or


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public   reputation   of   judicial   proceedings);   United   States   v.

Mackins, 315 F.3d 399, 406 (4th Cir. 2003) (same).

           We therefore affirm the sentence imposed by the district

court on Count One.   We vacate the sentence on Count Two and remand

for the limited purpose of permitting the district court to impose

a sentence of sixty months on Count Two.        We dispense 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 IN PART,
                                         VACATED IN PART, AND REMANDED




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