                                                [DO NOT PUBLISH]




           IN THE UNITED STATES COURT OF APPEALS
                                                     FILED
                 FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                   ________________________   ELEVENTH CIRCUIT
                                               FEBRUARY 19, 2008
                                               THOMAS K. KAHN
                         No. 07-13024
                                                    CLERK
                     Non-Argument Calendar
                   ________________________

             D. C. Docket No. 06-00160-CR-ORL-28DAB

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

                             versus

DERRICK DANTE CLARK,

                                          Defendant-Appellant.
                   ________________________

                         No. 07-13070
                     Non-Argument Calendar
                   ________________________

             D. C. Docket No. 06-00160-CR-ORL-19JGG

UNITED STATES OF AMERICA,


                                           Plaintiff-Appellee,

                             versus
ALICIA MARIE RIEDEL,

                                                          Defendant-Appellant.


                            ________________________

                    Appeals from the United States District Court
                         for the Middle District of Florida
                          _________________________

                                 (February 19, 2008)

Before DUBINA, BLACK and PRYOR, Circuit Judges.

PER CURIAM:

      Appellants Alicia Riedel and Derrick Clark both appeal their convictions

and sentences for conspiracy to possess with intent to distribute and distribution of

50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 846 and

841(b)(1)(A)(iii), and possession with intent to distribute and distribution of 50

grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(A)(iii). The district court sentenced Riedel to 121 months imprisonment and

Clark to 240 months imprisonment.

      Riedel argues that she was entrapped and that the evidence was insufficient

for the jury to find beyond a reasonable doubt that she was predisposed to sell

drugs. She also argues that the district court erred in its application of the

Sentencing Guidelines by applying an obstruction-of-justice enhancement under

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U.S.S.G. § 3C1.1, declining to adjust her sentence for acceptance of responsibility

under U.S.S.G. § 3E1.1, and not granting her safety-valve relief under U.S.S.G.

§§ 5C1.2 and 2D1.1(b)(9). Furthermore, she argues for the first time in her reply

brief that the recent crack cocaine amendments to the Sentencing Guidelines

should apply to her sentence. Clark argues that the evidence did not support

finding that the offense involved crack cocaine, and Riedel adopts this argument.

I.    Entrapment

      After the jury returned the guilty verdict, Riedel renewed her motion for

acquittal on this issue, which preserved it for appeal. United States v. Allison, 616

F.2d 779, 784 (5th Cir. 1980). Because entrapment is generally a jury question,

review of an entrapment claim is, as a matter of law, a sufficiency-of-the-evidence

inquiry. United States v. Miller, 71 F.3d 813, 815 (11th Cir. 1996). We review a

jury’s rejection of an entrapment defense de novo, viewing all of the evidence and

inferences in favor of the government. United States v. Francis, 131 F.3d 1452,

1456 (11th Cir. 1997). “[W]e cannot overturn the jury’s verdict if any reasonable

construction of the evidence would allow the jury to find the defendant guilty

beyond a reasonable doubt.” Id. If a defendant testifies, the jury may conclude

that the opposite of the testimony is true and use the statement as substantive




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evidence of the defendant’s guilt. United States v. Brown, 53 F.3d 312, 314 (11th

Cir. 1995).

      There are two elements in a valid entrapment defense: “(1) government

inducement of the crime, and (2) defendant’s lack of predisposition to commit the

crime prior to the inducement.” Francis, 131 F.3d at 1455-56. “Once the

defendant has produced evidence of inducement, the government must prove

beyond a reasonable doubt that the defendant was predisposed to commit the crime

absent the government’s role in assisting such commission.” Id. at 1456.

“Predisposition is a fact intensive inquiry into the defendant’s readiness and

willingness to engage in the crime absent any contact with the government’s

officers or agents.” Id. Predisposition may be demonstrated by the following:

(1) the defendant’s ready commission of the charged crime; (2) evidence that the

defendant had the opportunity to back out of the illegal transaction, but failed to do

so; and (3) the jury’s consideration of defendant’s demeanor and credibility.

Miller, 71 F.3d at 816.

      Because we conclude from the record that there was sufficient evidence for

the jury to conclude that Riedel was predisposed to sell drugs, we affirm her

convictions. See Miller, 71 F.3d at 816-17.

II.   Application of the Sentencing Guidelines



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      After United States v. Booker, 543 U.S. 220, 125 S. Ct 738 (2005), we

established a two-part process for district courts to use in calculating sentences.

United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005). First, the district court

must consult and correctly calculate the range recommended by the Sentencing

Guidelines. Second, the district court must fashion a reasonable sentence by

considering the factors enumerated in 18 U.S.C. § 3553(a). Id. Here, Riedel only

challenges aspects of the sentencing court’s guidelines calculations.

      A.     Obstruction of Justice

      Under U.S.S.G. § 3C1.1, if the defendant willfully obstructs the

administration of justice with respect to the prosecution of the instant offense and

the obstructive conduct related to the defendant’s offense of conviction, the district

court should increase the offense level by two levels. U.S.S.G. § 3C1.1. A

defendant qualifies for the obstruction of justice enhancement when she “testifies

untruthfully concerning a material fact during the course of judicial proceedings.”

United States v. Wallace, 904 F.2d 603, 604 (11th Cir. 1990) (citing U.S.S.G.

§ 3C1.1, comment. (n.1)).

      When a district court imposes an enhancement under the Guidelines for

obstruction of justice, we review the district court’s factual findings for clear error,

but review its application of the Guidelines to those facts de novo. United States v.



                                            5
Bradberry, 466 F.3d 1249, 1253 (11th Cir. 2006). “Where the district court must

make a particularized assessment of the credibility or demeanor of the defendant,

we accord special deference to the district court’s credibility determinations, and

we review for clear error. United States v. Amedeo, 370 F.3d 1305, 1318 (11th Cir.

2004).

         After viewing the record, including Riedel’s testimony, we conclude that it

was not a clear error for the judge to determine that Riedel had lied while

testifying. Accordingly, we affirm the district court’s sentencing enhancement for

obstruction of justice.

         B.    Acceptance of Responsibility

         Under U.S.S.G. § 3E1.1(a), a defendant’s offense level should be reduced by

two levels if she clearly demonstrates acceptance of responsibility. U.S.S.G.

§ 3E1.1(a). An adjustment is not warranted when the defendant falsely denied

relevant conduct. United States v. Coe, 79 F.3d 126, 127 (11th Cir. 1996) (citing

U.S.S.G. § 3E1.1, comment. (n.1)). “We review the district court’s determination

of acceptance of responsibility only for clear error.” Amedeo, 370 F.3d at 1320.

“A district court’s determination that a defendant is not entitled to acceptance of

responsibility will not be set aside unless the facts in the record clearly establish




                                            6
that a defendant has accepted personal responsibility.” Id. at 1320-21 (citation

omitted).

      Since the district court did not clearly err in finding that Riedel lied about

relevant conduct, an adjustment due to acceptance of responsibility was not

warranted. Thus, we conclude that it was not clear error for the district court to

deny an adjustment for acceptance of responsibility. Accordingly, we affirm the

district court’s denial of an adjustment for acceptance of responsibility.

      C.     Safety-Valve Relief

      We review the district court’s denial of safety-valve relief for clear error.

United States v. Camacho, 261 F.3d 1071, 1073 (11th Cir. 2001). Under U.S.S.G.

§ 5C1.2, a defendant qualifies for safety-valve relief if the district court finds,

among other things, that the following criterion was met:

      not later than the time of the sentencing hearing, the defendant has
      truthfully provided to the Government all information and evidence
      the defendant has concerning the offense or offenses that were part of
      the same course of conduct or of a common scheme or plan, but the
      fact that the defendant has no relevant or useful other information to
      provide or that the Government is already aware of the information
      shall not preclude a determination by the court that the defendant has
      complied with this requirement.

U.S.S.G. § 5C1.2(a)(5). If a defendant qualifies for safety-valve relief, the district

court must disregard the mandatory minimum sentence and sentence the defendant

based upon the applicable guideline range and the factors in 18 U.S.C. § 3553(a).

                                            7
United States v. Quirante, 486 F.3d 1273, 1275-76 (11th Cir. 2007). Thus, if the

defendant qualifies for safety-valve relief, the district court may sentence the

defendant below the mandatory minimum sentence. See id. If a defendant

qualifies for safety-valve relief, the district court should decrease the offense level

by two levels. U.S.S.G. § 2D1.1(b)(9) (2006). If the defendant lies, she must

make a complete and truthful proffer “[n]ot later than the time of the sentencing

hearing” to qualify for safety-valve relief. United States v. Brownlee, 204 F.3d

1302, 1304 (11th Cir. 2000).

         Because the judge had information that Riedel had not made a complete and

truthful proffer, we conclude that it was not clear error for the district court to deny

Riedel safety-valve relief. Accordingly, we affirm the denial of safety-valve relief.

         D.    Recent Crack Cocaine Amendments to the Sentencing Guidelines

         Issues not raised in a party’s initial brief are deemed waived, although raised

in supplemental briefs. United States v. Curtis, 380 F.3d 1308, 1310 (11th Cir.

2004).

         Because Riedel did not raise this issue in her initial brief, we deem it waived

and will not consider the argument.

III.     Involvement of Crack Cocaine




                                             8
       Neither Clark nor Riedel preserved this issue for appeal. Thus, we review

for plain error. United States v. Straub, 508 F.3d 1003, 1011 (11th Cir. 2007).

Plain error review “requires the petitioner to establish (1) that there was error (2)

that was plain; (3) that affected his substantial rights; and (4) that seriously affected

the fairness, integrity, or public reputation of the judicial proceeding.” Id. at 1008.

       Under 21 U.S.C. § 841(b)(1)(A)(iii), a defendant who was convicted of a

prior drug-related felony is subject to a mandatory minimum sentence of 20 years

imprisonment if the offense involved “50 grams or more of a mixture of substance

. . . which contains cocaine base.” Addressing materially similar language in 21

U.S.C. § 960(b), this court held in Munoz-Realpe that “cocaine base” should only

include “crack cocaine.” United States v. Munoz-Realpe, 21 F.3d 375, 377-79

(11th Cir. 1994). “‘Crack’ is the street name for a form of cocaine base, usually

prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually

appearing in a lumpy, rocklike form.” Id. at 377.

       Since several witnesses testified that the substance in question was crack

cocaine, the evidence supports a finding of “crack cocaine,” as opposed to a more

general finding of “cocaine base.” Accordingly, there was no error, much less

plain error.




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IV.   Conclusion

      Based on our review of the record and the parties’ briefs, we discern no

reversible error and therefore affirm Clark’s and Riedel’s convictions and

sentences.

      AFFIRMED.




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