                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-3089
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
     v.                                * District Court for the
                                       * District of Nebraska.
Derek D. Dabney,                       *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: March 9, 2004
                                Filed: May 20, 2004
                                 ___________

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

RILEY, Circuit Judge.

       Derek Dabney (Dabney) appeals his conviction and sentence for conspiracy to
distribute methamphetamine. See 21 U.S.C. §§ 841(a)(1), 841(b)(1), 846. We affirm.

I.      BACKGROUND
        The government charged Dabney with conspiracy to distribute 500 grams or
more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1) and 846.
At trial, the jury heard the testimony of eight government witnesses, each of whom
testified Dabney distributed methamphetamine. Testifying on his own behalf,
Dabney admitted using methamphetamine, staying at a house where
methamphetamine was distributed, knowing the government witnesses, and using
methamphetamine with some of the government witnesses. Dabney denied
distributing methamphetamine. A jury convicted Dabney of conspiracy to distribute
methamphetamine, but attributed less than 50 grams of methamphetamine to him.

       At sentencing, Dabney sought a two-level downward adjustment for acceptance
of responsibility. Dabney also moved for a downward departure, arguing his criminal
history category was overstated. The district court1 denied the downward adjustment
and the downward departure. Finding Dabney responsible for distributing 577.5
grams of methamphetamine, the district court sentenced Dabney to 192 months
imprisonment.

       Dabney appeals his conviction and sentence. First, Dabney proposes the
credibility of the government witnesses was so tainted that his conviction is not
supported by sufficient evidence. Second, Dabney contends the district court clearly
erred in finding him responsible for 577.5 grams of methamphetamine, arguing the
district court misjudged the credibility of the witnesses, and improperly attributed to
Dabney methamphetamine the jury was unwilling to attribute to him. Finally, Dabney
maintains the district court erred in failing to grant him a two-level adjustment for
acceptance of responsibility or a downward departure for an overstated criminal
history category.

II.    DISCUSSION
       A.    Sufficiency of the Evidence
       Dabney argues insufficient evidence supports his conviction for conspiracy to
distribute methamphetamine. Dabney “confronts a high hurdle with this argument,
as we must employ a very strict standard of review on this issue.” United States v.


      1
       The Honorable Thomas M. Shanahan, United States District Judge for the
District of Nebraska.

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Cook, 356 F.3d 913, 917 (8th Cir. 2004). We review “the evidence in the light most
favorable to the government, resolving evidentiary conflicts in favor of the
government, and accepting all reasonable inferences drawn from the evidence that
support the jury’s verdict.” Id. (quoting United States v. Sanders, 341 F.3d 809, 815
(8th Cir. 2003)). We will reverse only if no reasonable jury could have found Dabney
guilty. Id. The government had to prove there was an agreement to distribute
methamphetamine, an agreement known to Dabney in which he intentionally joined.
Id. The government can prove conspiracy with direct or circumstantial evidence. Id.

       Dabney’s sufficiency argument revolves around the credibility of the witnesses
who testified at trial.2 Dabney argues his testimony was credible, and the testimony
of the government witnesses was incredible. He contends the jury should not have
believed the government witnesses, because some or all of them were untruthful, had
prior convictions, had cooperation or non-prosecution agreements with the
government, and had substantial methamphetamine use that affected their memories.
Dabney argues “the cooperating witnesses were allowed to put their drug-addled
memory into testimony and masquerade it as truth.” Dabney notes the jury rejected
the government’s theory that Dabney distributed over three kilograms of
methamphetamine. The jury heard testimony from three police officers, eight
witnesses who said Dabney distributed methamphetamine, and Dabney himself. By
attributing less than 50 grams of methamphetamine to Dabney, the jury apparently
disbelieved portions of the testimony of the eight witnesses and of Dabney. Dabney
believes the jury did not go far enough in rejecting the testimony of the government
witnesses.

     Dabney’s argument on appeal resounds like a closing argument to a jury.
Dabney partially succeeded in attacking the conspiracy charge, as the jury found


      2
       Dabney apparently concedes the testimony from the government witnesses, if
credible, established the required elements of conspiracy.

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Dabney distributed less than 50 grams of methamphetamine, while the district court,
at sentencing, held him responsible for 577.5 grams. Both findings were substantially
less than the government’s theory that Dabney distributed over three kilograms of
methamphetamine. At trial, Dabney admitted staying at a house where
methamphetamine was distributed, knowing the government witnesses, having a
serious methamphetamine addiction, and using methamphetamine with some of the
government witnesses. The government’s witnesses painted a clear picture of Dabney
distributing methamphetamine as part of a larger conspiracy. Our review of the
record convinces us sufficient evidence supports the conviction. Regardless of how
we feel reading the record, we are utterly unable to judge the credibility of trial
witnesses, including Dabney’s. It is axiomatic that we do not review questions
involving the credibility of witnesses, but leave credibility questions to the jury. See,
e.g., United States v. Hill, 249 F.3d 707, 714 (8th Cir. 2001) (“Witness credibility is
within the province of the jury, which we are not allowed to review.”) (citing Burks
v. United States, 437 U.S. 1, 16-17 (1978)). Unwilling to usurp the jury’s unique role
in judging the credibility of witnesses, we conclude Dabney’s conviction for
distributing methamphetamine is supported by sufficient evidence.

       B.     Sentencing Issues
       Dabney also attacks the district court’s sentencing decisions, arguing the
district court’s methamphetamine quantity calculation was clearly erroneous, and the
district court erroneously denied Dabney an acceptance of responsibility adjustment
and downward departure. “The correct application of the guidelines is a question of
law subject to de novo review, while a factual determination of the sentencing court
is reviewed under a clearly erroneous standard.” United States v. Tirado, 313 F.3d
437, 440 (8th Cir. 2002) (citation omitted).

            1.    Drug Quantity Calculation
     Dabney’s appeal of the district court’s drug quantity calculation for sentencing
resembles his unsuccessful attack on the jury’s conviction. Dabney attacks the

                                          -4-
district court for failing to judge properly the credibility of the witnesses who testified
at trial. Dabney also argues the district court improperly ignored the jury’s verdict,
as the district court attributed 577.5 grams of methamphetamine to Dabney, which is
substantially more than the jury attributed to him (i.e., less than 50 grams). As we
already discussed, we have no desire to reverse the district court based on its alleged
failure to judge properly the credibility of witnesses.

       We also reject Dabney’s argument that the jury’s finding he distributed less
than 50 grams of methamphetamine somehow precludes the district court’s finding
attributing 577.5 grams of methamphetamine to Dabney. Applying a preponderance
of the evidence standard for the government’s burden of proof as opposed to the
jury’s application of a beyond a reasonable doubt standard, the district court may
consider even acquitted conduct when attributing drugs to a defendant convicted of
a drug conspiracy. See, e.g., Tirado, 313 F.3d at 440; United States v. Woods, 270
F.3d 728, 730 (8th Cir. 2001); United States v. Madrid, 224 F.3d 757, 762-63 (8th
Cir. 2000). Because our review of the record does not “definitely and firmly
convince[] us that a mistake has been made,” United States v. Titlbach, 300 F.3d 919,
923 (8th Cir. 2002), we conclude the district court’s drug quantity calculation was not
clearly erroneous.

             2.     Acceptance of Responsibility
       When a “defendant clearly demonstrates acceptance of responsibility for his
offense,” he is entitled to a two-level downward adjustment to his offense level.
U.S.S.G. § 3E1.1(a) (2002). The acceptance of responsibility “adjustment is not
intended to apply to a defendant who puts the government to its burden of proof at
trial by denying the essential factual elements of guilt.” Id. cmt. n.2. However,
conviction alone “does not automatically preclude” an acceptance of responsibility
adjustment, because “[i]n rare situations a defendant may clearly demonstrate an
acceptance of responsibility for his criminal conduct even though he exercises his
constitutional right to a trial.” Id. For example, a defendant may force a “trial to

                                           -5-
assert and preserve issues that do not relate to factual guilt.” Id. Regardless, “a
determination that a defendant has accepted responsibility will be based primarily
upon pre-trial statements and conduct.” Id. Finally, because “[t]he sentencing judge
is in a unique position to evaluate a defendant’s acceptance of responsibility,” the
district court’s decision to deny an acceptance of responsibility adjustment “is entitled
to great deference on review.” See id. cmt. n.5.

        The record indicates Dabney did not raise issues not related to factual guilt, but
rather contested his guilt to the offense for which he was charged and tried. Dabney
is still contesting his guilt on appeal, arguing he has never been involved in a
conspiracy to distribute methamphetamine. As the record hardly paints a picture of
Dabney clearly demonstrating an acceptance of responsibility for conspiring to
distribute methamphetamine, we will not ignore the great deference afforded to the
district court. Acceptance of responsibility means accepting things as they are, not
as a defendant wishes them to be. The district court’s decision to deny Dabney an
acceptance of responsibility adjustment was not clearly erroneous.

              3.    Downward Departure
       Dabney contends the district court erroneously failed to grant him a downward
departure, arguing his criminal history category significantly overrepresents the
seriousness of his criminal history. See U.S.S.G. § 4A1.3. “A district court’s refusal
to grant a downward departure is generally unreviewable on appeal, unless the district
court had an unconstitutional motive or erroneously believed that it was without
authority to grant the departure.” United States v. Gonzalez-Lopez, 335 F.3d 793,
799 (8th Cir. 2003).

      At sentencing, the district court said, “I certainly realize that I have the
authority to depart downward in certain circumstances.” In refusing to depart
downward, the district court recounted Dabney’s criminal history: “He’s had two
assault and battery charges, two driving under the influence, a drug possession charge

                                           -6-
that resulted in six months, and there are myriad other run-ins with law enforcement,
which to me at least indicate a deliberate disregard for the law. I conclude that the
criminal history category of V does not overrepresent the defendant’s criminal history
category.” We conclude the district court understood its authority to depart
downward, but decided against departing downward based on Dabney’s criminal
history.3 Therefore, the district court’s decision is unreviewable.

III.   CONCLUSION
       For the foregoing reasons, we affirm Dabney’s conviction and sentence.
                       ______________________________




       3
       Dabney argues section 4A1.3 contemplates downward departures for
defendants in his position. While acknowledging his recidivism has added to his
criminal history, Dabney argues the district court failed to realize Dabney’s prior
offenses were not serious. Dabney misses the point. Although the Guidelines
consider the seriousness of the prior offenses, the Guidelines also send a strong
message to criminals convicted of crimes–get off drugs and stop committing crimes.

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