                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                     ______

                                        No. 07-4027
                                          ______

                            UNITED STATES OF AMERICA


                                              v.

                                     LOUIS STILLIS,
                                           Appellant
                                        ______

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. Crim. No. 04-00680-3)
                        District Judge: Honorable Jan E. DuBois
                                         ______

                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                     June 24, 2011

          Before: BARRY, AMBRO, and VAN ANTWERPEN, Circuit Judges

                                   (Filed: July 13, 2011)
                                           ______

                               OPINION OF THE COURT
                                       ______

VAN ANTWERPEN, Circuit Judge.

       After a jury trial, Louis Stillis was found guilty of conspiracy to distribute more

than five kilograms of cocaine and substantive cocaine distribution offenses.

Additionally, after a bench trial, Stillis was found guilty of possession of a firearm by a
convicted felon. The District Court sentenced Stillis to a concurrent 235-month sentence.

Stillis appeals the District Court’s denial of his motion for judgment of acquittal or new

trial as well as the District Court’s refusal at sentencing to grant a downward departure

for acceptance of responsibility. For the reasons below, we will affirm.

                                              I.

       On April 13, 2005, a Grand Jury in the Eastern District of Pennsylvania returned a

Fifty-Three Count Superseding Indictment against Stillis and eight other co-defendants.1

Count One charged all defendants with conspiracy to distribute more than five kilograms

of cocaine in Philadelphia and Delaware Counties from July 2003 through October 2004,

in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). Additionally, Stillis was charged

with distribution of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C),

distribution of cocaine within 1,000 feet of a school in violation of 21 U.S.C. §§

841(b)(1)(C) and 860(a), and aiding and abetting distribution of cocaine in violation of 21

U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2. Finally, Count 53 charged Stillis

with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).

       The Superseding Indictment alleged that defendant Tyrone Smith obtained large

quantities of cocaine and distributed it to defendant William Green, who in turn

redistributed it to Stillis. Stillis then distributed the cocaine to buyers and other members

of the conspiracy. The co-conspirators then sold the cocaine to street-level buyers,

repackaged and transported cocaine, and collected money from drug sales. Stillis and his


1
 Five co-defendants pled guilty. Stillis and three co-defendants – Tyrone Trader, Jamal
Rideout, and Larry Davis – were convicted at trial.
                                              2
co-conspirators operated in the Toby Farms neighborhood of Delaware County,

Pennsylvania.

       On January 3, 2007, Stillis and three other co-defendants proceeded to jury trial.

On January 16, 2007, at the conclusion of the Government’s case, Stillis orally moved for

judgment of acquittal under Federal Rule of Criminal Procedure 29. The District Court

denied the motion. On January 18, 2007, the jury found Stillis guilty on all counts.

       Count 53, which charged Stillis with possession of a firearm by a convicted felon,

was severed from the drug conspiracy and distribution charges. On January 19, 2007,

Stillis waived his right to a jury trial. After a bench trial, the District Court convicted

Stillis on Count 53.

       On February 14, 2007, Stillis moved for judgment of acquittal or, alternatively, for

a new trial under Federal Rules of Criminal Procedure 29 and 33, generally arguing that

the evidence was insufficient to support the jury’s verdict on Count One. On March 28,

2007, Stillis filed the First Supplement to his motion, arguing that the evidence was

insufficient to sustain his Count 53 conviction. On May 23, 2007, Stillis filed a Second

Supplement, arguing that the evidence was insufficient to sustain the jury’s verdict on

Count One because the evidence did not show that the conspiracy involved more than

five kilograms of cocaine. On July 16, 2007, the District Court denied Stillis’ motions as

to Count One in a written order. United States v. Stillis, No. 04-680-06, 2007 U.S. Dist.

LEXIS 51511 (E.D. Pa. July 16, 2007). After a hearing held on July 25, 2007, the

District Court denied Stillis’ motion as to Count 53.



                                               3
       The District Court sentenced Stillis on October 5, 2007. Stillis argued for a two-

level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, but the

District Court denied the reduction. The District Court sentenced Stillis to 235 months’

incarceration on Counts One, 16, 20, and 23, to be served concurrently with 120 months’

incarceration on Count 53. Stillis timely appealed on October 11, 2007.2

                                            II.

       On appeal, Stillis argues: (1) that the evidence was insufficient to prove beyond a

reasonable doubt that the conspiracy involved five or more kilograms of cocaine; (2) that

a new trial on Count 53 was required due to newly discovered evidence; and (3) that the

District Court clearly erred by denying his motion for a downward departure for

acceptance of responsibility. We will affirm the District Court in all respects.

                                             A.

       When reviewing a challenge to the sufficiency of the evidence, “[w]e must sustain

the verdict if, viewing the evidence in the light most favorable to the Government, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” United States v. Rawlins, 606 F.3d 73, 80 (3d Cir. 2010) (quotations

and citation omitted). “We apply a particularly deferential standard of review when

deciding whether a jury verdict rests on legally sufficient evidence.” United States v.

Dent, 149 F.3d 180, 187 (3d Cir. 1998).




2
 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
                                             4
       Count One of the Superseding Indictment charged Stillis with conspiracy to

distribute more than five kilograms of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(A). In response to the District Court’s interrogatory, the jury found beyond a

reasonable doubt that “the quantity of cocaine a defendant conspired to distribute was

five kilograms or more.” Supp. App. 1014. Stillis contends that the Government’s

evidence was insufficient to prove the conspiracy involved at least five kilograms of

cocaine. We disagree.

       The Government was required to prove that the drug distribution conspiracy

“involv[ed]” at least five kilograms of cocaine. 21 U.S.C. § 841(b). Reviewing the

evidence in the light most favorable to the Government, a rational trier of fact could have

reasonably inferred that the conspiracy involved more than five kilograms of cocaine.

The evidence at trial showed that Stillis routinely obtained cocaine from Green and that

7.5 kilograms was a conservative estimate of the cocaine Stillis obtained from Green. In

addition to Green, the evidence indicated that Stillis may have had another cocaine

supplier: Green testified that he never delivered more than a half-kilogram block of

cocaine to Stillis, but Donna and Richard Savage testified that Stillis hid a full-kilogram

block of cocaine in their residence. Moreover, the evidence showed that Stillis and his

co-conspirators diluted the cocaine for street-level sales. Thus the cocaine quantity Stillis

and the co-conspirators distributed exceeded the initial quantity Stillis and the co-

conspirators obtained. Finally, the Government submitted exhaustive evidence of street-

level cocaine sales which, in aggregate, could have led the jury reasonably to infer that



                                              5
the conspiracy involved more than five kilograms of cocaine. Therefore, we will affirm

Stillis’ Count One conviction.

                                              B.

       Stillis next argues that the District Court abused its discretion by denying his Rule

33 motion for a new trial on Count 53 based on newly discovered evidence. We reject

this argument.

       Count 53 charged Stillis with possession of a firearm as a convicted felon in

violation of 18 U.S.C. § 922(g)(1). The District Court convicted Stillis after a bench trial.

At the bench trial, Kenneth Wilson testified that on the night of April 22, 2004, Stillis

was in Toby Farms with him and two other men, Mumford, and Comid.3 Wilson had his

9-millimeter Lorcin handgun in his car. After the men heard a gunshot, Wilson walked to

a nearby convenience store. Wilson returned to the car as police began to arrive in the

area. The men fled and hid in the backyard of a home on Gideon Street occupied by

Richard and Donna Savage. Stillis told Wilson that he had taken Wilson’s gun from the

car and carried it with him. Stillis then hid the handgun in the Savages’ backyard,

intending to return and retrieve it the next day.

       In addition to Wilson’s testimony, Donna Savage testified that her young son

found the gun the next day, that she called the police, and that Officer Paden came to her

home to retrieve the gun. Officer Paden testified that he recovered the gun from Donna

Savage on April 22, 2004. Donna Savage also testified that she met Stillis by chance at a


3
  Wilson was charged in the same Superseding Indictment as Stillis but pled guilty prior
to trial.
                                              6
convenience store a few days later, and Stillis apologized to her because her son found

the gun. Richard Savage testified that he told Stillis that the police had come to his home

to retrieve the gun and that Stillis became angry and swore. Finally, Wilson identified

the gun, admitted it belonged to him, and stated that he had last seen it in his car on April

22, 2004. The District Court then found Stillis guilty.

       On May 8, 2007, the District Court held a hearing on Stillis’ motion for a new

trial. At the hearing, Stillis offered newly discovered evidence, calling Mumford as a

witness. Mumford testified that he did not recall either being in the backyard of a house

on Gideon Street with Wilson and Stillis or talking with Wilson and Stillis about hiding a

gun. Nevertheless, the District Court denied Stillis’ Rule 33 motion, determining that

Mumford’s testimony would probably not produce an acquittal at a new trial.

       “We will reverse a denial of a Rule 33 motion for a new trial based on newly

discovered evidence only if we conclude that the district court abused its discretion in

denying the motion.” United States v. Brown, 595 F.3d 498, 511 (3d Cir. 2010). A

defendant must meet five requirements before a district court may grant a new trial based

on newly discovered evidence:

       (a) the evidence must be in fact, newly discovered, i.e., discovered since the
       trial; (b) facts must be alleged from which the court may infer diligence on
       the part of the movant; (c) the evidence relied on, must not be merely
       cumulative or impeaching; (d) it must be material to the issued involved;
       and (e) it must be such, and of such nature, as that, on a new trial, the newly
       discovered evidence would probably produce an acquittal.

Id. (citation omitted). A defendant bears a “heavy burden” to prove each requirement.

Id. (citation omitted).


                                              7
       Stillis did not meet his heavy burden here. Mumford only testified that he did not

recall being in a yard on Gideon Street or having a conversation about hiding a gun.

Weighing Mumford’s equivocal testimony against the testimony of Kenneth Wilson,

Donna Savage, Richard Savage, and Officer Paden, Mumford’s testimony would not

“probably produce an acquittal” at a new trial. Id. Moreover, “[i]t is the job of the

district court . . . to decide whether the newly discovered evidence is credible, and, if so,

whether it would probably produce an acquittal if a new trial were held.” United States v.

Kelly, 539 F.3d 172, 188 (3d Cir. 2008) (quotations and citations omitted). Here, the

District Court exercised – but did not abuse – its discretion in determining that

Mumford’s testimony, even if credible, did not contradict the Government’s evidence and

therefore was unlikely to produce an acquittal. This was not an abuse of discretion.

Accordingly, we will affirm the District Court’s denial of Stillis’ motion for a new trial.

                                              C.

       Stillis’ final argument is that the District Court clearly erred at sentencing by

refusing to grant him a two-level downward adjustment for acceptance of responsibility

under United States Sentencing Guidelines § 3E1.1. We review the District Court’s

denial of a downward adjustment for acceptance of responsibility under a “clearly

erroneous” standard. United States v. Singh, 923 F.2d 1039, 1043 (3d Cir. 1991). We

give “great deference” to the District Court’s decision not to apply the two-level

reduction for acceptance of responsibility. U.S.S.G. § 3E1.1, Application Note 5; United

States v. Barr, 963 F.2d 641, 657 (3d Cir. 1992).



                                              8
       The District Court did not err by denying Stillis a downward departure. Primarily,

Stillis put the Government to its burden of proof at trial. Stillis did not admit his role in

the conspiracy, the quantity of cocaine the conspiracy involved, the substantive drug

distribution offenses, or his possession of a firearm. Although Stillis correctly points out

that conviction by trial does not automatically preclude a reduction for acceptance of

responsibility, a reduction in these circumstances is “rare.” U.S.S.G. § 3E1.1,

Application Note 2. This case is not one of those rare circumstances. Stillis did not

comply with any other Guidelines factors indicative of acceptance of responsibility. Id.

at Application Note 1(a)-(h). In short, the District Court did not clearly err by refusing to

grant Stillis a downward departure for acceptance of responsibility, and we will affirm.

                                             III.

       For the foregoing reasons, we affirm Stillis’ conviction and sentence.




                                               9
