In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2415

United States of America,

Plaintiff-Appellee,

v.

Stanley Mayberry,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:99CR30022-015--David R. Herndon, Judge.

Argued November 13, 2001--Decided November 30, 2001



  Before Flaum, Chief Judge, and Bauer and
Evans, Circuit Judges.

  Flaum, Chief Judge. Stanley Mayberry
pleaded guilty to conspiracy to
distribute cocaine base in violation of
21 U.S.C. sec.sec. 846 and 841(a)(1). He
was sentenced to 194 months’
imprisonment, 5 years’ supervised
release, a $1,750 fine, and a $100
special assessment. Mayberry appeals,
claiming that the district court erred:
first, when it adjusted upward for
obstruction of justice pursuant to
U.S.S.G. sec. 3C1.1; and second, when it
refused to adjust downward for acceptance
of responsibility pursuant to U.S.S.G.
sec. 3E1.1. We affirm.

I.   Background

  In January 1997, local and federal law
enforcement agencies began investigating
crack cocaine distribution in Centralia,
Illinois. During the continuing
investigation, authorities discovered
that Mayberry and others had been selling
crack cocaine from the time the
investigation started until March 1999.
Subsequently, Mayberry was arrested and
charged with conspiracy to distribute and
conspiracy to possess with intent to
distribute more than fifty grams of
cocaine base. After Mayberry’s arrest,
one of his co-defendants, Donyell
Coleman, told federal agents that
Mayberry had sold narcotics. After being
informed of Coleman’s statement, Mayberry
admitted his involvement in the
conspiracy.

  In February 2001, Mayberry agreed to
plead guilty in exchange for the
government’s promise to recommend a
three-level sentence reduction for
acceptance of responsibility. Despite the
plea agreement, however, the government
argued against the reduction at the
sentencing hearing because it contended
that Mayberry had obstructed justice by
physically attacking co-defendant
Coleman. Special Agent Stonecipher
testified that Coleman told him that
Mayberry had punched him in the face and
threatened to "send somebody down from
Chicago to take care of [his] brother and
his cousin." In response, Mayberry’s
attorney proffered that Mayberry would
deny the attack, but would admit that "he
did get into some argument with Mr.
Coleman . . . revolv[ing] around the fact
that Mr. Coleman was trying to place
blame or . . . allegations against [him],
and [he] was mad about it."

  The district court concluded that the
evidence of the attack was "credible and
reasonable" and that "the defendant did
willfully obstruct and impede, or attempt
to impede, the administration of
justice." Accordingly, the district court
adjusted Mayberry’s base offense level
upward two levels for obstruction of
justice. The district court then held
that Mayberry was not entitled to a
reduction for acceptance of
responsibility because "when you go after
a snitch either because . . . you’re mad
at him because he’s given information, or
you’re trying to make sure he learns a
lesson so he won’t give any further
information, . . . it flies in the face
of an acceptance of responsibility."

II.    Discussion

A.    Standard of Review

  We review de novo whether the district
court properly interpreted the sentencing
guidelines, United States v. Johnson, 227
F.3d 807, 812 (7th Cir. 2000), cert.
denied, 121 S. Ct. 1967 (2001), but
review the district court’s underlying
factual findings for clear error. United
States v. McGiffen, 267 F.3d 581, 591
(7th Cir. 2001). Under the clear error
standard, the reviewing court will
reverse only when it "is left with the
definite and firm conviction that a
mistake has been committed." United
States v. United States Gypsum Co., 333
U.S. 364, 395 (1948); United States v.
Ewing, 129 F.3d 430, 433-34 (7th Cir.
1997). The district court’s
determinations regarding obstruction of
justice under U.S.S.G. sec. 3C1.1 and
acceptance of responsibility under
U.S.S.G. sec. 3E1.1 are factual
determinations reviewed for clear error.
United States v. Stokes, 211 F.3d 1039,
1044 (7th Cir. 2000); United States v.
Simmons, 218 F.3d 692, 696 (7th Cir.
2000), cert. denied, 531 U.S. 1097
(2001).

B.   Obstruction of Justice

  The sentencing guidelines require a
court to adjust upward two levels the
defendant’s base offense level if the
"defendant willfully obstructed or
impeded . . . the administration of
justice during the course of the
investigation, prosecution, or
sentencing." U.S. Sentencing Guidelines
Manual sec. 3C1.1; see also Ewing, 129
F.3d at 434. Such an adjustment applies
when the defendant "threaten[s],
intimidat[es], or otherwise unlawfully
influenc[es] a co-defendant." U.S.
Sentencing Guidelines Manual sec. 3C1.1,
cmt. n.4; see also Johnson, 227 F.3d at
815. To receive the two-level adjustment,
the defendant need not have been
successful in his attempt to obstruct
justice; the attempt itself is
sufficient. Ewing, 129 F.3d at 435.

  On appeal, Mayberry asserts that he had
no reason to attack Coleman after already
confessing his role in the conspiracy and
also argues that the district court
should not have relied on Special Agent
Stonecipher’s hearsay testimony regarding
the alleged attack. Whether Mayberry
attacked Coleman is an issue of
credibility, and we give special
deference to the district court’s
credibility determinations. United States
v. White, 240 F.3d 656, 661 (7th Cir.
2001). The Federal Rules of Evidence do
not apply to sentencing hearings;
therefore, the district court was
entitled to rely on Stonecipher’s
testimony, despite it being hearsay.
Johnson, 227 F.3d at 813; United States
v. McClellan, 165 F.3d 535, 552 (7th Cir.
1999). A sentencing court may consider
hearsay evidence so long as it is
reliable and the defendant has the
opportunity to rebut it. United States v.
Payton, 198 F.3d 980, 983 (7th Cir.
1999). Stonecipher’s hearsay testimony
had the indicia of reliability because it
was corroborated by Mayberry’s admission
that he had an argument with Coleman
about Coleman’s proffer that Mayberry had
sold crack cocaine. Further, Mayberry
offered no evidence to rebut
Stonecipher’s testimony, despite having
the opportunity to do so. His attorney’s
denial of the attack does not constitute
evidence. See United States v. Purchess,
107 F.3d 1261, 1267 (7th Cir. 1997). It
follows, then, that the district court
did not clearly err by crediting
Stonecipher’s testimony.

  Mayberry next argues that even if he did
attack Coleman, he did not obstruct
justice because the attack occurred after
he had admitted his involvement in the
conspiracy. Thus, he contends, he could
not have interfered with "the
investigation, prosecution, or
sentencing." See U.S. Sentencing
Guidelines Manual sec. 3C1.1. This
argument, however, is unavailing because
Mayberry attacked Coleman before pleading
guilty. All that is required for
obstruction of justice is that the act
"could affect, to some reasonable
probability, the outcome of the judicial
process; the [act] does not have to
succeed in affecting the outcome." United
States v. Duncan, 230 F.3d 980, 988 (7th
Cir. 2000). It is possible that the
attack on Coleman could have influenced
Coleman to retract his statement, and
perhaps embolden Mayberry to go to trial
or to dispute relevant conduct.
Therefore, the district court did not
clearly err by concluding that Mayberry
had obstructed justice.

C.   Acceptance of Responsibility

  Mayberry further argues that the
district court erred in refusing to
adjust his sentence downward for
acceptance of responsibility. Typically,
a defendant who accepts responsibility
for his actions is entitled to a
reduction in his sentence, U.S.
Sentencing Guidelines Manual sec. 3E1.1;
Johnson, 227 F.3d at 815, but "[a]
defendant who has obstructed justice is
presumed not to have accepted
responsibility," United States v.
Buckley, 192 F.3d 708, 711 (7th Cir.
1999); U.S. Sentencing Guidelines Manuel
sec. 3E1.1, cmt. n.4 ("[Obstructing
justice] ordinarily indicates that the
defendant has not accepted responsibility
for his criminal conduct.").
Nevertheless, a defendant can rebut the
presumption in extraordinary cases. See
U.S. Sentencing Guidelines Manual sec.
3E1.1, cmt. n.4; Buckley, 192 F.3d at 711
(suggesting that reduction would be
appropriate if the defendant denied
possessing BB gun, but then "fessed up"
the next day); United States v.
Lallemand, 989 F.2d 936, 938 (7th Cir.
1993) (finding reduction appropriate when
the act constituting obstruction occurred
before arrest and the defendant
cooperated with the government after
arrest).

  Mayberry does not contend that this is
an extraordinary case in which a court
should apply adjustments for both
obstruction of justice and acceptance of
responsibility. Instead, he argues that,
because the district court erred in
concluding that he obstructed justice,
the court also erred in not granting him
a reduction for acceptance of
responsibility. But that argument lacks
support because the district court did
not err when it found that Mayberry
obstructed justice. See United States v.
Anderson, 259 F.3d 853, 862 (7th Cir.
2001) (affirming the denial of a
reduction for acceptance of
responsibility when the defendant did not
argue that his case was extraordinary and
when the district court properly applied
an obstruction of justice adjustment). In
any event, Mayberry is not entitled to a
reduction for acceptance of
responsibility because his attack on
Coleman "belied any sense of remorse that
should be attendant to an acceptance of
responsibility." Johnson, 227 F.3d at 816
(denying acceptance points because
defendant threatened witness after
pleading guilty); United States v.
Keeter, 130 F.3d 297, 299 (7th Cir. 1997)
(denying acceptance points because
defendant threatened to kill witness).

III.   Conclusion
  For the reasons stated above, we AFFIRM
the decision of the district court.
