                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 04a0123n.06
                            Filed: November 23, 2004

                                          Case No. 03-5110

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

 UNITED STATES OF AMERICA,                               )
                                                         )
         Plaintiff-Appellee,                             )
                                                         )       ON APPEAL FROM THE
                 v.                                      )       UNITED STATES DISTRICT
                                                         )       COURT FOR THE EASTERN
 DOUGLAS BLOCHER,                                        )       DISTRICT OF KENTUCKY
                                                         )
         Defendant-Appellant.                            )
                                                         )
 _______________________________________                 )
                                                         )
                                                         )

BEFORE: SUHRHEINRICH, BATCHELDER, and COLE, Circuit Judges.

        ALICE M. BATCHELDER, Circuit Judge. Douglas Blocher appeals from his conviction

and sentence for knowingly attempting to possess with intent to distribute approximately 200 pounds

of marijuana in violation of 21 U.S.C. § 846. In March 2002, Blocher was charged with attempting

to possess with intent to distribute the marijuana. Prior to trial, the district court held an evidentiary

hearing on Blocher’s motion to dismiss the indictment based on his allegation that the government

had agreed to forego prosecution if he cooperated with law enforcement. The district court denied

the motion, and Blocher subsequently entered a conditional guilty plea. The district court thereafter

sentenced Blocher to 120 months imprisonment.

        On appeal, Blocher argues that: (1) the United States breached an agreement to forego

prosecution in exchange for cooperation with law enforcement; (2) the district court improperly
denied him a sentencing reduction for acceptance of responsibility; (3) the district court improperly

enhanced his offense level for obstruction of justice; and (4) the district court imposed an excessive

fine. For the reasons set forth below, we will AFFIRM the district court.

       We review a district court’s “factual determination regarding the content of an agreement

not to prosecute” for clear error. United States v. Butler, 297 F.3d 505, 512 (6th Cir. 2002), cert.

denied, 123 S. Ct. 2074 (2003). During the evidentiary hearing on Blocher’s motion to dismiss the

indictment, Blocher testified that Agent Brett Price had agreed that Blocher would not be prosecuted

if he cooperated with the government. The district court concluded that this testimony was not

credible. The district court also discredited Blocher’s testimony that he was “afraid” during his

interactions with law enforcement, as well as his assertion that he signed numerous documents

without reading them or having the documents explained to him. By contrast, the district court

found that Agent Price’s testimony was credible. Agent Price denied Blocher’s version of the

alleged “agreement,” and testified that the only agreement between the parties was that Blocher’s

cooperation would be made known to the United States Attorney.

       Blocher has not established that the district court erred when it concluded that there was no

agreement to forego prosecution. The district court has the unique ability to weigh the witness’

credibility at trial, and we are required to show great deference to the trial court’s determinations

regarding the credibility of witnesses. See Anderson v. City of Bessemer City, N.C., 470 U.S. 564,

575 (1985); Fed. R. Civ. Pro. 52(a) (“Findings of fact [] shall not be set aside unless clearly

erroneous, and due regard shall be given to the opportunity of the trial court to judge of the

credibility of the witnesses.”). When a district court’s finding is based on the decision to credit the

testimony of a witness, who has told a coherent and plausible story that is internally consistent and


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not contradicted by extrinsic evidence, that finding can virtually never be clear error. Anderson, 470

U.S. at 575. Agent Price’s testimony that the “agreement” was merely to advise the United States

Attorney of Blocher’s cooperation was coherent and plausible, and was not contradicted by any

extrinsic evidence. The record reflects that Agent Price did in fact discuss Blocher with the

prosecutor, and Blocher has not established that Agent Price failed to inform the prosecutor of his

level of cooperation.

       We also conclude that the district court properly denied Blocher a sentencing reduction for

acceptance of responsibility. Section 3E1.1 of the Sentencing Guidelines provides for a two or three

level reduction in a defendant’s offense level if the defendant clearly demonstrates an affirmative

acceptance of personal responsibility for his criminal conduct. See U.S.S.G. § 3E1.1. It is Blocher’s

burden to demonstrate by a preponderance of the evidence that he is entitled to a reduction for

acceptance of responsibility. See United States v. Guthrie, 144 F.3d 1006, 1012 (6th Cir. 1998).

The mere fact that Blocher pleaded guilty does not, however, automatically entitle him to the

reduction. See id. A district court may consider many factors to determine if such a reduction is

warranted, including whether the defendant has voluntarily ceased his criminal conduct. See United

States v. Childers, 86 F.3d 562, 563-64 (6th Cir. 1996). This court has held that the “voluntary

termination or withdrawal” factor means that criminal conduct that continues following an

acceptance of responsibility, especially when the conduct is of the same type as or related to the

underlying offense, is a significant consideration that will, in almost every instance, make a

downward adjustment inappropriate. See id.

       Blocher has not met his burden of establishing that he is entitled to a reduction for

acceptance of responsibility. Blocher tested positive for marijuana use while awaiting sentencing,


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which constitutes continued criminal conduct related to the underlying offense. Blocher also refused

to cooperate with the probation officer by providing financial information required to determine

Blocher’s ability to pay the fine imposed by the court. His failure to cooperate further supports the

denial of an adjustment for acceptance of responsibility. See U.S.S.G. § 3C1.1 cmt. n.5.

       The district court properly enhanced Blocher’s offense level for obstruction of justice. “A

deferential standard of review is appropriate in reviewing applications of § 3C1.1,” United States

v. Jackson-Randolph, 282 F.3d 369, 389 (6th Cir. 2002), and we review a district court’s decision

regarding a fact-bound application of the Guidelines only for clear error. Id. at 390. One means of

obstructing justice is “providing materially false information to a judge or magistrate.” U.S.S.G.

§ 3C1.1, cmt. n.4(f). Materially false information includes “information that, if believed, would tend

to influence or affect the issue under determination.” U.S.S.G. § 3C1.1, cmt. n. 6. Although the

district court must specify which statements were perjurious, see United States v. Nash, 175 F.3d

429, 438 (6th Cir. 1999), the court need not “recite the perjury line by line, so long as its findings

encompass the factual predicates necessary for a finding of perjury.” United States v. Sassanelli,

118 F.3d 495, 501 (6th Cir. 1997).

       The district court determined that Blocher perjured himself when he testified that he was

afraid during his interactions with the investigating agents and that he therefore did not read any of

the documents presented to him prior to signing them. The court also concluded that Blocher

perjured himself when he testified that the United States had agreed to forego prosecution if he

cooperated. Blocher also testified that he was “inadvertently” working for law enforcement, i.e.,

he was buying drugs in order to set up future purchases, so that he could alert the police of these

future transactions and thereby allow them to arrest the traffickers. The district court specifically


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determined that these false statements were given in an effort to convince the court to dismiss an

indictment that should not have been dismissed. Blocher’s testimony qualifies as “providing

materially false information” under U.S.G.G. § 3C1.1. The district court did not err when it applied

the enhancement for obstruction of justice.

       Finally, we conclude that the district court did not err when it imposed a $12,500 fine in this

case. We review for clear error a district court’s determination of a defendant’s ability to pay a fine.

United States v. Hickey, 917 F.2d 901, 906 (6th Cir. 1990). The burden is on the defendant to show

an inability to pay. Id. at 907. Because Blocher failed to provide the required financial information,

the district court was unable to determine that he could not pay the fine, and the court imposed the

minimum fine required by the Guidelines. The district court’s decision not to waive the fine is

discretionary, see U.S.S.G. § 5E1.2 (stating that “the court may impose a lesser fine or waive the

fine”) (emphasis added), and the court stated that if it could have waived the fine it would not have

done so. The fine was not excessive because Blocher failed to establish that he was unable to pay

the fine and because the fine was at the low end of the range required by the Guidelines.

       For the foregoing reasons, we AFFIRM the judgment of the district court.




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