                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                        MAR 31 1999
                 UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                 TENTH CIRCUIT                               Clerk




 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                       No. 98-6322
 v.
                                                  (D.C. No. CR-97-73-A)
                                                    (W.D. Oklahoma)
 PEDRO AYALA TORRES, JR., also
 known as Pete Torres,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, 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(G). The cause is

therefore ordered submitted without oral argument.


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or 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.
      Mr. Pedro Ayala Torres, Jr., pled guilty to conspiring to distribute and to

possess with intent to distribute cocaine powder under 21 U.S.C. § 846, but

denied responsibility for cocaine base (crack). He contends the district court

abused its discretion in denying his motion to withdraw his guilty plea because

the court considered crack in his sentencing. He also argues the court improperly

calculated his sentence. 1 We affirm.

      Before accepting Mr. Torres’ guilty plea, the district court carefully

reviewed the plea agreement with him to confirm that he understood the

sentencing court’s discretion. As his counsel stated, “[Mr. Torres] does

understand that at sentencing all relevant conduct, which may involve other types

of substances, may be brought in even though he’s not pleading guilty to selling

them.” Rec. vol. 3 at 3. After reviewing his Presentence Report (PSR) but before

sentencing, Mr. Torres moved to withdraw his guilty plea. The district court

denied the motion and at sentencing included five kilograms of crack cocaine as

relevant conduct in calculating the base level offense. The court also denied a

downward adjustment for acceptance of responsibility, included an upward

adjustment for possession of firearms, and sentenced Mr. Torres to



      1
       Mr. Torres asserts that the government’s evidence was illegitimate when
proffered from witnesses who exchanged testimony for plea agreements or
leniency. This argument is meritless in light of United States v. Singleton, 165
F.3d 1297 (10th Cir. 1999) (en banc).

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360 months incarceration.

      Mr. Torres asserts he should be allowed to withdraw his plea as involuntary

and unknowing because he believed crack cocaine would not be included in his

sentence. We review the district court’s denial of a motion to withdraw a guilty

plea for abuse of discretion. See United States v. Graves, 106 F.3d 342, 343

(10th Cir. 1997). “Although ‘[o]ne who enters a guilty plea has no right to

withdraw it,’ United States v. Hickok, 907 F.2d 983, 985 (10th Cir.1990), a

district court may permit withdrawal of a plea prior to sentencing ‘upon a

showing by the defendant of any fair and just reason,’ Fed.R.Crim.P. 32(d).”

United States v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992) (additional citation

omitted). The defendant bears the burden of demonstrating a fair and just reason.

See id. at 1070-71.

      We review whether a plea is voluntary and knowing as a question of law

subject to de novo review. See United States v. Rhodes, 913 F.2d 839, 843 (10th

Cir. 1990). The defendant’s decision to plead must constitute a “deliberate,

intelligent choice.” Id. There is no indication that Mr. Torres’ plea was anything

but deliberate and intelligent. The district court’s meticulous questioning assured

no Rule 11 violations and Mr. Torres claims none. Nor does he profess innocence

to the powder cocaine offense to which he pled. Rather, he objects to the

inclusion of the crack, contending it’s a modification of his original plea. This is


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a meritless argument. The district court included the crack as relevant conduct, a

concept that Mr. Torres fully acknowledged in his Rule 11 proceeding and that

the guidelines wholly embrace in U.S.S.G. § 1B1.3(a)(1)(B), which states that the

base offense level shall be determined by “all reasonably foreseeable acts and

omissions of others in furtherance of the jointly undertaken criminal activity.”

Consequently, we hold Mr. Torres’ guilty plea to be voluntary and knowing,

defeating his rationale for withdrawal.

      Mr. Torres also challenges the credibility of the witnesses that link him to

the crack cocaine. We review for clear error a district court’s findings of fact

when calculating drug quantities that are used as other relevant conduct. See

United States v. Boyd, 901 F.2d 842, 845 (10th Cir. 1990). “[W]e accord

considerable deference to the district court’s credibility determinations in

sentencing proceedings.” United States v. Cook, 949 F.2d 289, 297 (10th Cir.

1991). After two separate witnesses corroborated that Mr. Torres watched his

cocaine being cooked up into crack, the district court found it foreseeable that he

knew the cocaine he sold was to be distributed as crack. With due deference to

the court, we determine no error in linking Mr. Torres with the relevant conduct.

      Mr. Torres next challenges two other sentencing issues, the denial of a

downward adjustment for acceptance of responsibility pursuant to § 3E1.1 and an

upward adjustment for possession of firearms under § 2D1.1(b)(1). In applying


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the sentencing guidelines, we review the district court’s factual findings for clear

error while reserving de novo review for issues of law. See United States v.

Roberts, 980 F.2d 645, 647 (10th Cir. 1992) (firearms); United States v. Hansen,

964 F.2d 1017, 1019-1020 (10th Cir. 1992) (acceptance of responsibility).

      The sentencing judge is entitled to great deference on review of its

determination regarding acceptance of responsiblity. See U.S.S.G. § 3E1.1

comment. n.5. To demonstrate acceptance of responsibility, a defendant need not

volunteer or affirmatively admit relevant conduct. “However, a defendant who

falsely denies, or frivolously contests, relevant conduct that the court determines

to be true has acted in a manner inconsistent with acceptance of responsibility.”

Id. at comment. n.1(a). In Mr. Torres’ misguided attempt to withdraw his plea,

his substantial effort to persuade the court of his lack of any knowledge of the

distribution of crack cocaine constituted a false denial of relevant conduct for

which the court has clearly found him responsible. Under the circumstances, we

agree with the district court that Mr. Torres is not entitled to a reduction for

acceptance of responsibility.

      For possession of a firearm, the guidelines permit an upward adjustment “if

the weapon was present, unless it is clearly improbable that the weapon was

connected with the offense.” § 2D1.1(b)(1) comment. n.3. The government has

the initial burden of proving possession. Roberts, 980 F.2d at 647. An


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enhancement is appropriate “for mere possession of a dangerous weapon even if

there is no evidence other than proximity to suggest the gun was connected to the

offense,” unless the defendant shows that a connection between the gun and the

offense was clearly improbable. Id.

      Mr. Torres first disputes the credibility of the two witnesses who testified

to seeing the gun during his drug transactions. Credibility is necessarily

determined by the district court, see United States v. Cook, 949 F.2d at 297, and

in light of the evidence here, the court properly found the gun present.

Alternatively, Mr. Torres argues that evidence of a gun traded for drugs and

placed in a glove compartment during a drug transaction does not warrant an

enhancement. We disagree. Under the guidelines, the mere presence and

possession of the gun justifies an enhancement, which is insufficiently rebutted by

Mr. Torres’ contentions that the law states otherwise. The district court properly

included the two-point enhancement for possession of a firearm.

      In sum, we AFFIRM the district court in all respects.

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Chief Judge




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