UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 97-4594

JAMES W. PEYTON,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                             No. 97-4595

LOUIS E. PEYTON,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James R. Spencer, District Judge.
(CR-97-33)

Submitted: September 15, 1998

Decided: October 13, 1998

Before HAMILTON and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Lance D. Gardner, Fairfax, Virginia; James C. Clark, LAND,
CLARK, CARROLL, MENDELSON & BLAIR, P.C., Alexandria,
Virginia, for Appellants. Helen F. Fahey, United States Attorney,
Charles A. Beamon, Special Assistant United States Attorney, Alex-
andria, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

A jury convicted brothers Louis E. Peyton and James W. Peyton
of conspiracy to possess with intent to distribute and to distribute
1000 kilograms or more of marijuana and a detectable amount of
cocaine.1 The district court sentenced Louis Peyton to serve 151
months' imprisonment. The court sentenced James Peyton to serve
seventy-eight months' imprisonment. In these consolidated appeals,
both Appellants challenge their sentences by asserting that the district
court erroneously determined the amount of marijuana for which they
were held accountable. James Peyton also contends that the district
court erred by denying him a two-level sentencing reduction for
acceptance of responsibility. Finding no reversible error, we affirm.

During their joint trial, the Government presented numerous wit-
nesses, primarily co-conspirators, who provided overwhelming evi-
dence of Appellants' involvement in the acquisition and distribution
of massive amounts of marijuana and cocaine for more than a decade.
Following their convictions and based upon the evidence presented at
_________________________________________________________________
1 See 21 U.S.C. § 846 (1994). The jury also convicted Louis Peyton of
four counts of filing false tax returns, in violation of 26 U.S.C. § 7206(1)
(1994), but he does not challenge these convictions in this appeal.

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trial, the probation officer recommended that Louis Peyton was
responsible for 3375 kilograms of marijuana and 11,793.6 grams of
cocaine. The cocaine was converted to its equivalent in marijuana,
2358 kilograms, for a total of 5733 kilograms of marijuana. The pro-
bation officer recommended that James Peyton was accountable for
1020.6 kilograms of marijuana. During sentencing, Appellants
attacked the credibility of the Government's witnesses and argued
that the presentence report grossly over-represented the amount of
drugs involved in the distribution conspiracy. Specifically, Louis Pey-
ton suggested that he should not be held accountable for more than
400 to 700 kilograms of marijuana (the same amount for which
Stephen Hatcher, his primary co-conspirator and chief Government
witness, was held accountable). James Peyton argued that he should
only be held accountable for one-half the marijuana attributed to
Louis Peyton, since he was James Peyton's sole supplier of mari-
juana. Finding inconsistencies in some of the co-conspirators' testi-
mony, the court rejected the amount of marijuana attributable to each
Appellant and held Louis Peyton responsible for 640 kilograms of
marijuana, combined with the cocaine conversion of 2358 kilograms,
for a total of 2998 kilograms of marijuana. The court also reduced the
amount of marijuana attributable to James Peyton to 518 kilograms
of marijuana.

For sentencing purposes, the district court's factual determination
concerning the amount of drugs attributable to Appellants should be
upheld absent clear error.2 Appellants bear the burden of showing the
inaccuracy of those drug amounts.3 However, with unrecovered drugs,
the district court may estimate the amount of drugs attributable to
each Appellant for an accurate reflection of their involvement in the
drug trafficking conspiracy.

Here, the fact that the district court reduced the amount of mari-
juana attributable to Appellants totally belies their allegations that the
court accepted each witness's testimony at face value. In fact, the
court explicitly found that portions of Hatcher's testimony were
_________________________________________________________________
2 See United States v. Lamarr, 75 F.3d 964, 972 (4th Cir.), cert. denied,
___ U.S. ___, 65 U.S.L.W. 3309 (U.S. Oct. 21, 1996) (No. 95-9398);
United States v. D'Anjou, 16 F.3d 604, 614 (4th Cir. 1994).
3 See United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990).

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uncorroborated and used this as a basis for reducing Louis Peyton's
total drug accountability from 5733 to 2998 kilograms of marijuana.
The court's assessment of witness credibility is not subject to review.4
Therefore, since the court's weight determination for the unrecovered
drugs is supported by a preponderance of the evidence, we find no
clear error.5

Next, James Peyton challenges the district court's denial of a sen-
tence reduction for acceptance of responsibility. 6 He claims that he
was entitled to the reduction because during sentencing, he admitted
distributing between twenty-five to fifty pounds (or 11.34 to 22.68
kilograms) of marijuana. Peyton objected to the recommendation in
the presentence report to deny the sentencing reduction. The court's
silence on Peyton's objections is tantamount to a denial of the reduc-
tion, which we review for clear error.7

A defendant is entitled to a two-level reduction in offense level
under USSG § 3E1.1 if he clearly demonstrates acceptance of respon-
sibility for his offense. Here, Peyton did not accept responsibility for
his offense. He did not plead guilty to the charged offenses. He com-
pletely denied all involvement in the conspiracy to distribute cocaine
and attempted to downplay his involvement in distributing marijuana.
Further, Peyton refused to cooperate with the probation officer during
the preparation of his presentence report. Because Peyton's uncooper-
ative behavior and his refusal to fully disclose his involvement in the
drug trafficking conspiracy are inconsistent with acceptance of
responsibility, we find that the district court did not clearly err in
denying him the two-level reduction in offense level under USSG
§ 3E1.1.8
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4 See United States v. Saunders , 886 F.2d 56, 60 (4th Cir. 1989).

5 See United States v. Williams , 986 F.2d 86, 90 (4th Cir. 1993).
6 See U.S. Sentencing Guidelines Manual § 3E1.1 (1995).
7 See United States v. Strandquist , 993 F.2d 395, 401 (4th Cir. 1993).

8 See United States v. Beal, 960 F.2d 629, 632 (7th Cir. 1992) (holding
that sentencing court properly considered defendant's failure to cooper-
ate with probation office's investigation in denying reduction for accep-
tance of responsibility).

                    4
Accordingly, we affirm Appellants' sentences. 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

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