                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             DEC 21 1998
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 97-6422
                                                          (W.D. Okla.)
 CHARLES ALBERT STANFIEL, III,                        (D.Ct. No. 97-CR-102)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before SEYMOUR, BRORBY, and BRISCOE, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.



      Mr. Stanfiel entered a guilty plea to the charge of manufacturing


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
methamphetamine and received a sentence, inter alia, of 360 months. Mr.

Stanfiel appeals the findings of the sentencing court which gave rise to his

sentence. We affirm the judgment and sentence of the district court.



      This case arose when law enforcement agents executed a search warrant

and discovered a methamphetamine laboratory operated by Mr. Stanfiel and

assisted therein by his fourteen-year-old daughter.



      Mr. Stanfiel originally received an indictment of one count of

manufacturing methamphetamine and two delivery counts. Mr. Stanfiel thereafter

entered into a written plea agreement, dropping the two delivery counts in

exchange for his guilty plea to the manufacturing count. Mr. Stanfiel, pursuant to

his plea agreement, entered the appropriate guilty plea.



      A sentencing hearing was held to resolve Mr. Stanfiel’s objections to the

pre-sentence report. The sentencing court heard testimony from three witnesses

for the Government and from Mr. Stanfiel. As could be expected, the testimony

of the Government’s witnesses and Mr. Stanfiel conflicted. The sentencing court

credited the testimony of the Government witness, finding Mr. Stanfiel’s

testimony to be untruthful. The sentencing court further found: (1) Mr. Stanfiel


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should be charged with the equivalent of forty-eight ounces of actual

methamphetamine (yielding a base offense level of 36); (2) Mr. Stanfiel knew of

the presence of firearms that were lying in plain view on tables in the lab, and

ready for quick use (warranting a two-point increase in the offense level); (3) the

Government failed to prove Mr. Stanfiel had a leadership role; (4) Mr. Stanfiel

used his fourteen-year-old daughter and her fourteen-year-old friend to participate

in the lab; and (5) Mr. Stanfiel injected both his daughter (so they would be

“closer”) and her friend with methamphetamine on several occasions (which

increased the offense level by two points). The sentencing court denied Mr.

Stanfiel a reduction of acceptance of responsibility and added two points to the

base offense level for obstruction of justice based on Mr. Stanfiel’s specified

perjurious testimony at the sentencing hearing. The resulting offense level totaled

42 with a criminal history category of I, which collectively produced a guideline

sentencing range of 360 months to life. The court imposed the minimum sentence

of 360 months.



      Mr. Stanfiel appeals these sentencing determinations, asserting the trial

court erred: (1) in calculating the amount of methamphetamine for the purpose of

setting the base offense level; (2) in enhancing the base offense level two points

for possession of a firearm; and (3) in refusing to award him three points for


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acceptance of responsibility and enhancing the base offense level two points for

obstruction of justice.



                          The Amount of Methamphetamine

      The sentencing court made the following written findings concerning the

amount of methamphetamine involved in the crime:

      The amount of methamphetamine found during searches of the labs
      in Bethany and McClain County was stipulated to be 135.9 grams of
      actual methamphetamine. The Court also heard testimony from
      Ricky Wallgren, who testified about 55 ounces of approximate 89
      percent pure methamphetamine produced by him and the defendant,
      which the Court found yielded an equivalent of approximately 48
      ounces of actual methamphetamine.


      Mr. Stanfiel asserts the trial court erred in calculating the amount of

methamphetamine. Specifically, Mr. Stanfiel argues the sentencing court erred in

relying on the testimony of Mr. Wallgren. Mr. Stanfiel argues Mr. Wallgren’s

“testimony was shot through with contradiction and because the Trial Court

specifically stated it was going to use a conservative basis for accepting his

testimony, the Court should be bound by this self imposed requirement.” Mr.

Stanfiel continues this argument by asserting “[t]he government did not prove the

quantity of methamphetamine by a preponderance of the evidence, and ... the

evidence did not meet a minimum indicia of reliability.”



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      A short review of the testimony at issue brings this contention into sharp

focus. Mr. Wallgren, who previously pled guilty to manufacturing

methamphetamine, testified pursuant to a plea agreement that he maintained a

meth lab, and that Mr. Stanfiel, on six occasions between November 1996 and

March 1997, participated with him in this manufacturing process. Mr. Wallgren

personally presided at each “cook,” and testified in detail about the method of

manufacture and quantities produced. The sentencing court found Mr. Wallgren’s

testimony credible, not only on the basis of the content of the testimony, but by

the observation of his demeanor while testifying.



      We review the sentencing court’s determination of the quantity of drugs

attributable to the defendant for clear error, and we cannot disturb this finding

unless it has no support in the record or unless we are firmly convinced an error

has been made. See United States v. Morales, 108 F.3d 1213, 1225 (10th Cir.

1997). We find no such error. The credibility of any witness is for the trial court

to determine, and such a decision is not for an appellate court to make. See

United States v. Gobey, 12 F.3d 964, 967 (10th Cir. 1993). The testimony

reviewed above adequately supports the trial court’s factual determination.




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                              Possession of a Firearm

      The sentencing court made the following written findings of fact

concerning the firearm enhancement:

             Wallgren also testified about the presence of weapons at the
      lab in McClain County. The Court found that firearms were
      possessed close to the manufacturing facility, were in plain view and
      ready for quick use. The defendant knew that the firearms were
      there, because testimony was given that the weapons were sitting on
      the tables in the lab. The evidence met the requirements for two
      additional points pursuant to [U.S.S.G.] §2D1.1(b)(1).

Mr. Stanfiel argues “the guns in question were specifically removed from the drug

activity and were not connected therewith.”



      Once again, a review of the applicable testimony brings the issue into sharp

focus. The transcript reveals the sentencing court accurately set forth Mr.

Wallgren’s testimony. He testified the handguns were lying in plain view on

tables in the garage where the manufacturing of methamphetamine took place. In

fact, Mr. Wallgren testified, in part, as follows:

           Q. All right. What happened to the guns while you were
      manufacturing methamphetamine?

             A. They just laid around there, just laid around there on the
      tables and what have you. And Bryan Callahan, I believe, and
      Charles [Mr. Stanfiel] kept switching the .38 back and forth. And
      then when I left down there, well, him [sic] and Charles then had the
      .40 caliber Glock and the .38 Smith and Wesson.



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      We review the trial court’s factual findings for clear error and its legal

interpretation of sentencing guidelines de novo. See United States v. Johnson, 42

F.3d 1312, 1320 (10th Cir. 1994), cert. denied, 514 U.S. 1055 (1995). The record

is more than ample to support the sentencing court’s factual findings in regard to

the handgun, and thus, its sentencing determination is correct. See U.S.S.G.

§ 2D1.1(b)(1).



    Denial of Acceptance of Responsibility, and Enhancement for Perjury

      The sentencing court, after hearing the evidence adduced at the sentencing

hearing, made the following written findings:

             The defendant testified in his own behalf. The Court found
      that he obstructed justice in giving false testimony under oath
      concerning material facts: 1) the defendant stated that he never
      injected methamphetamine in Tiffany or “Angela”; 2) the defendant
      testified that he was unaware of guns in the lab; 3) he denied that
      Tiffany ever assisted in the manufacture of methamphetamine. The
      Court found that these statements concerning material issues were
      made deliberately and with knowledge of their falsity, not through
      faulty memory, mistake or inadvertence. Three points previously
      subtracted from the defendant’s adjusted offense level ... were not
      allowed by the Court based on the defendant’s perjurious testimony.
      Two points were added for obstruction of justice ....


      Mr. Stanfiel argues he agreed to fully cooperate before even being charged

with any crime and did fully cooperate. He asserts he was honest, candid, and

forthcoming and demonstrated his acceptance of responsibility “by immediately


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entering a plea, admitting his crime, and cooperating.” He further argues his

sincere remorse should be rewarded for saving the Government the trouble and

expense of trial.



      A defendant is not entitled to an adjustment for acceptance of responsibility

merely because he pleads guilty. See United States v. McMahon, 91 F.3d 1394,

1397 (10th Cir.), cert. denied, 117 S. Ct. 533 (1996). It is the defendant’s

obligation to clearly demonstrate his acceptance of responsibility. The false

denial of relevant conduct is inconsistent with his acceptance of responsibility.

See United States v. Anderson, 15 F.3d 979, 981 (10th Cir.), cert. denied, 511

U.S. 1057 (1994).



      The district court has broad discretion in awarding a reduction of sentence

for acceptance of responsibility, and its decision will not be disturbed on appeal

absent clearly erroneous findings. See United States v. Gassaway, 81 F.3d 920,

922 (10th Cir. 1996). A review of the sentencing transcript shows more than

enough evidence for the sentencing court to believe Mr. Stanfiel testified falsely.

Mr. Wallgren’s testimony, if believed, is more than sufficient for this purpose.

The sentencing court believed Mr. Wallgren’s testimony and we have no reason or

basis in law to upset this determination.


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The judgment and sentence of the district court is AFFIRMED.



                              Entered by the Court:


                              WADE BRORBY
                              United States Circuit Judge




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