UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 95-5972

STEVE SILVER,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, District Judge.
(CR-95-110)

Submitted: October 22, 1996

Decided: November 26, 1996

Before HALL, MURNAGHAN, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

J. Lee Carlton, Jr., Raleigh, North Carolina, for Appellant. Janice
McKenzie Cole, United States Attorney, Christine Blaise Hamilton,
Assistant United States Attorney, Raleigh, North Carolina, for Appel-
lee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit.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

PER CURIAM:

Steve Silver appeals his conviction and his 324-month sentence for
conspiring between January and May 1995 to possess crack cocaine
with intent to distribute, 21 U.S.C.A. § 846. He contests the district
court's refusal to give a lesser-included offense instruction, its deter-
mination of the amount of crack attributable to him for sentencing
purposes, USSG § 2D1.1,1 its failure to depart, and its denial of an
adjustment for acceptance of responsibility. USSG§ 3E1.1. Finding
no error, we affirm the conviction and sentence.

Silver sold 3.8 grams of crack to an undercover officer on January
20, 1995. Five days later, the agent bought .8 grams of crack from Sil-
ver and 7.1 grams of crack from Silver and Tracy Lynch together. All
the sales took place at a barn behind Lynch's father's house which
had been identified by investigators as a drug market. In May 1995,
Silver was charged with conspiracy to possess more than 50 grams of
crack with intent to distribute.

At Silver's trial, Tracy Lynch testified that Silver sold crack for
him on a daily basis for two years, provided transportation when
Lynch needed to get a new supply from his source, and acted as look-
out. Cleveland Lynch, Tracy's cousin, testified that he sold crack for
Tracy Lynch for a year before his arrest in May 1995, and that Silver
sold crack received from Tracy on a daily basis during that time. Sil-
ver testified that he bought three or four grams of crack from Tracy
Lynch for his own personal consumption in 1995, and sold very small
quantities on a few occasions. At the close of the evidence, Silver's
attorney requested a jury instruction on simple possession and on con-
spiracy to possess less than 50 grams of crack, both of which the dis-
trict court declined to give.

After Silver's conviction, the probation officer used Tracy and
Cleveland Lynch's trial testimony to calculate that Silver had person-
_________________________________________________________________
1 United States Sentencing Commission, Guidelines Manual (Nov.
1995). This issue is not raised separately, but underlies Silver's argu-
ments concerning jury instructions and acceptance of responsibility.

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ally distributed over 2 kilograms of crack, and to recommend a base
offense level of 38. At the sentencing hearing, Silver testified that he
had distributed only a small amount of crack2 and argued that the
Lynches were unreliable witnesses. However, the district court found
that the Lynches were more credible than Silver, in part because the
jury accepted their testimony in convicting Silver. The court also
found that Silver had not accepted responsibility for his conduct. Sil-
ver received a sentence of 324 months imprisonment.

We find first that the district court did not err in refusing the lesser-
included offense instruction. The quantity of drugs is not an element
of an offense under § 846 and § 841 and is not to be determined by
the jury. See United States v. Heater, 63 F.3d 311, 322 (4th Cir.
1995), cert. denied, ___ U.S. #6D6D 6D#, 64 U.S.L.W. 3485 (U.S. Jan. 16,
1996) (No. 95-7090); United States v. Engleman , 916 F.2d 182, 184
(4th Cir. 1990). Therefore, conspiracy to distribute less than 50 grams
of crack is not a lesser-included offense.

Silver also argues that he was entitled to an instruction on conspir-
acy to possess crack. Because Silver abandoned his initial request for
this instruction, we review his claim under the plain error standard.
United States v. Olano, 507 U.S. 725, 731-37 (1993). Silver relies on
United States v. Baker, 985 F.2d 1248 (4th Cir. 1993), cert. denied,
510 U.S. 1040 (1994). In Baker, this court found that the trial's
court's refusal to instruct the jury on conspiracy to possess was error
because the evidence could allow the jury to find the defendant guilty
of conspiring only to possess cocaine for his own use. Id. at 1258-60.
In this case, Silver twice distributed crack to an undercover officer
and two co-conspirators testified that he sold crack every day for a
year or more. On this evidence, the court's refusal to give the instruc-
tion was not plain error.

Concerning the amount of crack attributed to Silver, we defer to the
district court's assessment of the credibility of the government's wit-
nesses. United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
Based on their testimony, the court correctly determined the base
offense level. Silver also argues that the district court should have
_________________________________________________________________
2 In written objections to the presentence report, Silver admitted distrib-
uting 14.7 grams of crack.

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determined what amount he consumed and based the sentence only on
the amount distributed. However, Silver did not make this argument
to the district court and only plain error review is available for this
issue. Olano, 507 U.S. at 731. We find that the district court did not
plainly err in failing to determine and discount sua sponte the amount
of crack Silver consumed.

Although Silver did not request a downward departure, he now
requests resentencing so that the district court may consider a depar-
ture to correct the disparity between his sentence and Tracy Lynch's
66-month sentence. Lynch received a substantial assistance departure.
Disparity between the defendant's sentence and those of co-
defendants is not a permissible ground for departure. United States v.
Fonville, 5 F.3d 781, 783-84 (4th Cir. 1993), cert. denied, ___ U.S.
___, 62 U.S.L.W. 3754 (U.S. May 16, 1994) (No. 93-7612).

Finally, the district court did not clearly err in denying Silver an
adjustment for acceptance of responsibility. The adjustment is not
intended to apply to a defendant who denies his factual guilt at trial
and puts the government to its burden of proof. USSG§ 3E1.1, com-
ment. (n.2). Silver asserts that he was entitled to a reduction for
acceptance of responsibility because he admitted his participation in
the conspiracy but went to trial to prove that he was involved with
less than 50 grams of crack. While Silver arguably admitted the ele-
ments of guilt at trial, he never admitted his involvement with more
than 50 grams of crack, even at sentencing, although the district court
found that his relevant conduct consisted of at least 50 grams. The
adjustment does not apply when a defendant falsely denies relevant
conduct that the court determines to be true. USSG§ 3E1.1, com-
ment. (n.1(a)).

Accordingly, the conviction and the sentence are affirmed. We dis-
pense 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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