In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3255

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANTHONY L. BOOKER,

Defendant-Appellant.



Appeal from the United States District Court
for the Southern District of Illinois.
No. 99 CR 30238--William D. Stiehl, Judge.


Argued January 19, 2001--Decided April 24, 2001



      Before FLAUM, Chief Judge, and POSNER and RIPPLE,
Circuit Judges.

      RIPPLE, Circuit Judge. Anthony Lamar Booker
pleaded guilty to one count of possession of
cocaine base ("crack") with intent to distribute
within 1,000 feet of a public housing facility,
in violation of 21 U.S.C. sec.sec. 841(a)(1) and
860, and to one count of being a felon in
possession of a weapon in violation of 18 U.S.C.
sec. 922(g)(1). The district court sentenced Mr.
Booker to 168 months’ imprisonment, and Mr.
Booker now appeals several aspects of his
sentence. For the reasons set forth in the
following opinion, we affirm the judgment of the
district court.

I
BACKGROUND
A. Facts

      This case began with several anonymous phone
calls made to the Metropolitan Enforcement Group
of Southwestern Illinois ("MEGSI"), a division of
the East St. Louis, Illinois, police department.
The anonymous callers alleged that drugs were
being sold out of a house located at 1015 Bond
Avenue in East St. Louis ("the house" or "the
drug house")./1 MEGSI Agent Tony Mino contacted
a confidential informant who told Agent Mino that
he would assist him in conducting controlled drug
buys from the house. The informant also told
Agent Mino that Mr. Booker and another man named
Doug were the individuals selling drugs from the
house.

      The Government’s informant conducted three
controlled buys. The first occurred on November
2, 1999. The informant went to the drug house in
order to purchase $100 worth of crack. The
informant walked into the house and saw Mr.
Booker; Mr. Booker sold him 1.4 grams of crack.
While the informant was in the house, he saw a
firearm that he thought was an AK-47 on the couch
next to Mr. Booker.

      The second controlled buy took place
approximately seven hours later on November 2.
The informant again went back to the drug house
to purchase $100 worth of crack, and Mr. Booker
sold the informant 1.5 grams of crack. While
inside the house, the informant saw Doug as well
as three other individuals. The firearm that the
informant had seen earlier in the day still was
on the couch.

      The last controlled buy took place the next day,
November 3. The informant again went back to the
drug house and purchased 1.5 grams of crack from
Mr. Booker. While inside the house, the informant
saw Doug, Doug’s brother, and another man.
According to the informant, Doug had
approximately 4 ounces of crack out on a table
that he was "cutting up" into smaller, resale
portions. Tr.2 at I-18. The informant also saw
two firearms in the house. The weapon he thought
was an AK-47 was "in the corner" with Mr. Booker,
and another man was holding a gun that the
informant thought was a Tech Nine. Id.

      Following this third controlled buy, Agent Mino
obtained a search warrant for the house. As the
law enforcement officers executing the warrant
approached the house, they saw Mr. Booker
standing in front of it with two other people.
When Mr. Booker saw the officers, he started
running from the house and threw to the ground a
bag containing 1.5 grams of crack. Doug ran out
the back door of the house. Just outside the back
door of the house, the officers found a bag
containing 19 grams of crack. Inside the house,
the officers found a Norinco 9mm semiautomatic
firearm.

      Mr. Booker was eventually apprehended. He
voluntarily gave a statement to the police in
which he admitted that he had started selling
crack from the house for Doug about five days
prior to his arrest as a means of supplying his
own crack habit./2 He also admitted that he had
picked up one of the firearms in the house
because he thought it was ugly, and he wanted to
look at it. He further admitted that he had
thrown the bag containing the 1.5 grams of crack
as he was trying to evade the officers. Mr.
Booker acknowledged that Doug had run out the
back door. Although Mr. Booker claimed that
someone else also had run out that door, Agent
Mino testified at Mr. Booker’s sentencing hearing
that Doug was the only one.

B.   Earlier Proceedings

      Mr. Booker was charged by indictment with one
count of possession of crack with intent to
distribute within 1,000 feet of a public housing
facility and with one count of being a felon in
possession of a weapon. Mr. Booker pleaded guilty
to both counts without the benefit of a plea
agreement. The district court ordered that a
presentence report ("PSR") be prepared. The PSR
recommended that, pursuant to United States
Sentencing Guideline sec. 1B1.3, Mr. Booker’s
relevant conduct include 24.9 grams of crack: the
4.4 grams from the three controlled purchases,
the 1.5 grams Mr. Booker threw to the ground as
he attempted to avoid arrest, and the 19 grams
recovered near the back door of the house.
Accordingly, the PSR set Mr. Booker’s base
offense level at 28. See U.S.S.G. sec.
2D1.1(c)(6). The PSR recommended that this
offense level be increased two levels for
possession of a dangerous weapon during a drug
offense pursuant to sec. 2D1.1 (b)(1). Lastly,
the PSR suggested that Mr. Booker was not
entitled to a three-level reduction for
acceptance of responsibility pursuant to sec.
3E1.1(b) because he initially had refused to give
a statement to the probation department, had
contested his responsibility for the 19 grams
found by the back door, and had insisted that the
gun recovered from the house was not involved in
his drug sales./3

      Mr. Booker objected to each of these
recommendations. The district court, however,
overruled Mr. Booker’s objections and adopted the
PSR’s recommendations. The court held that the 19
grams of crack found by the back door of the
house were part of the illegal drug sales Mr.
Booker and Doug jointly undertook and thus
constituted relevant conduct within the meaning
of sec. 1B1.3(a)(1)(B). The court also concluded
that the firearm recovered from the house was
there for the protection of the individuals who
were selling drugs from the house; therefore, its
presence during Mr. Booker’s drug sales to the
informant was sufficient to warrant the two-level
enhancement for possession of a dangerous weapon
during a drug offense. Finally, the district
court refused to reduce Mr. Booker’s sentence for
acceptance of responsibility because Mr. Booker
had contested the fact that he was responsible
for the 19 grams of crack recovered from behind
the house and had denied that the gun was
connected to his illegal drug trafficking. Based
on these determinations, the court set Mr.
Booker’s offense level at 32, which, when coupled
with his criminal history category of IV,
produced a guideline range of 168 to 210 months.
The court sentenced Mr. Booker to 168 months’
imprisonment.

II
DISCUSSION

      Mr. Booker appeals the district court’s
inclusion of the 19 grams found by the back door
of the house as part of his relevant conduct, the
court’s imposition of the two-level enhancement
for possession of a dangerous weapon during a
drug offense, and the court’s refusal to grant a
reduction for acceptance of responsibility. We
examine each of his arguments.

A.   Relevant Conduct

      The 19 grams of crack found near the back door
of the drug house were included as part of Mr.
Booker’s relevant conduct pursuant to U.S.S.G.
sec. 1B1.3(a)(1)(B). The district court held that
Mr. Booker and Doug jointly undertook an illegal
activity, the sale of crack. The district court
believed that the 19 grams found behind the house
belonged to Doug and that it was foreseeable to
Mr. Booker that those 19 grams would end up in
his hands for resale. On appeal, Mr. Booker
insists that the 19 grams did not belong to him
and must have belonged to one of the other
individuals who frequented the drug house. We
review a district court’s calculation of the
quantity of drugs attributable to a defendant for
clear error. See United States v. Berthiaume, 233
F.3d 1000, 1002 (7th Cir. 2000).

      The Sentencing Guidelines direct that, in the
case of a jointly undertaken criminal activity, a
defendant’s offense level should take account of
the reasonably foreseeable acts and omissions of
other offenders taken in furtherance of the joint
activity. See U.S.S.G. sec. 1B1.3(a)(1)(B). "A
’jointly undertaken criminal activity’ is a
criminal plan, scheme, endeavor, or enterprise
undertaken by the defendant in concert with
others, whether or not charged as a conspiracy."
Id. at cmt. n.2. Section 1B1.3(a)(1)(B) requires
the sentencing court to determine the scope of
the criminal activity the defendant agreed to
undertake jointly, then to determine whether the
acts or omissions of the other participants were
foreseeable to the defendant. See id.; see also
United States v. Thomas, 199 F.3d 950, 953 (7th
Cir. 1999). If the conduct was both part of the
jointly undertaken activity and foreseeable to
the defendant, the court must include it as part
of the defendant’s relevant conduct. See U.S.S.G.
sec. 1B1.3(a)(1)(B), cmt. n.2 ("With respect to
offenses involving contraband (including
controlled substances), the defendant is
accountable for all quantities of contraband with
which he was directly involved and, in the case
of a jointly undertaken criminal activity, all
reasonably foreseeable quantities of contraband
that were within the scope of the criminal
activity that he jointly undertook.").

      The district court concluded in this case that
Mr. Booker and Doug jointly undertook the
criminal activity of selling crack. This
conclusion was well-supported in light of Mr.
Booker’s own admission that he had been selling
crack for Doug for almost a week prior to his
arrest. Thus, the 19 grams found by the back door
of the house are attributable to Mr. Booker if
they were a foreseeable part of the joint
undertaking./4 We do not believe the district
court clearly erred in concluding that they were.
Mr. Booker sat in the room with Doug as Doug cut
up approximately 4 ounces of crack into smaller
portions for resale. Those 4 ounces were roughly
equivalent to 116 grams. Mr. Booker’s admitted
relationship with Doug, his repeated presence at
the house with Doug over a two-day period, and
his presence in the room while Doug prepared
resale portions of crack support the district
court’s conclusion that Mr. Booker must have
expected that some or all of the resale portions
Doug was preparing would end up in his hands to
sell. Therefore, the district court did not
clearly err in attributing to Mr. Booker the 19
grams found by the back door.

B.   Possession of a Dangerous Weapon

      Mr. Booker objects to the district court’s
enhancement of his sentence pursuant to its
determination that he possessed a dangerous
weapon in connection with a drug offense. See
U.S.S.G. sec. 2D1.1(b)(1). He argues that,
although he may have fleetingly touched the
firearm recovered from the house, the gun was not
in any way connected to his drug sales. We review
the district court’s determination that the
defendant possessed a weapon in connection with a
drug offense for clear error. See United States
v. Adams, 125 F.3d 586, 596 (7th Cir. 1997).

      The Sentencing Guidelines require a sentencing
court to increase a defendant’s offense level by
two levels if the defendant possessed a dangerous
weapon in connection with a drug offense. See
U.S.S.G. sec. 2D1.1(b)(1). "The adjustment should
be applied if the weapon was present, unless it
is clearly improbable that the weapon was
connected with the offense." Id. at cmt. n.3. The
Government bears the initial burden of
demonstrating that the defendant "possessed a
weapon in a place where drugs were present"; once
the Government meets its burden, the defendant
must demonstrate that it was clearly improbable
that the weapon was connected to the offense.
United States v. Grimm, 170 F.3d 760, 767 (7th
Cir. 1999).

      We have recognized consistently that guns found
in close proximity to illegal drugs are
presumptively considered to have been used in
connection with the drug offense. See United
States v. Johnson, 227 F.3d 807, 814 (7th Cir.
2000), petition for cert. filed (U.S. Feb. 12,
2001) (No. 00-8513); United States v. Zehm, 217
F.3d 506, 517 (7th Cir. 2000); Grimm, 170 F.3d at
767; Adams, 125 F.3d at 597; United States v.
Ewing, 979 F.2d 1234, 1238 (7th Cir. 1992). This
presumption follows from the prevalent role
firearms play in drug trafficking. "[D]rug
dealers often carry weapons to protect themselves
and their large amounts of drugs and cash."
United States v. Cantero, 995 F.2d 1407, 1412
(7th Cir. 1993).

      In this case, the Government’s informant saw a
gun on the couch next to Mr. Booker during his
first two purchases of crack from Mr. Booker.
During the informant’s third purchase, he saw a
gun near Mr. Booker as Doug was cutting up large
amounts of crack into smaller portions on a table
nearby. The gun’s proximity to Mr. Booker and to
the drugs during Mr. Booker’s sales to the
informant gave Mr. Booker the ability to use the
weapon in an instant if he felt his personal
safety or his illegal product was threatened. It
is this increased chance that firearms will be
used if they are present during drug trafficking
that the enhancement in sec. 2D1.1(b)(1) is
designed to address. See U.S.S.G. sec.
2D1.1(b)(1), cmt. n.3 ("The enhancement for
weapon possession reflects the increased danger
of violence when drug traffickers possess
weapons."). Given the presumption that arises as
a result of the proximity of the gun to Mr.
Booker and to the drugs during the controlled
buys, Mr. Booker has failed to demonstrate that
it is clearly improbable that the gun was used in
connection with the drug offense. Consequently,
the district court did not clearly err in
imposing sec. 2D1.1 (b)(1)’s two-level
enhancement.

C.   Acceptance of Responsibility

       Mr. Booker maintains that he should have
received a three-level reduction in his base
offense level for acceptance of responsibility
because he never challenged the facts underlying
his convictions; instead, he merely raised good
faith legal objections to the conclusions that
should be drawn from those facts. Mr. Booker also
points out that he voluntarily gave a statement
to the police shortly after his arrest, he
quickly informed the Government that he wished to
plead guilty, he assisted the Government by
providing information as to Doug’s whereabouts,
and he consistently admitted his guilt from the
time of his arrest to the time of his sentencing.
The district court, however, apparently did not
believe that Mr. Booker’s cooperation in these
instances was sufficient to outweigh his other
protests. The court concluded that Mr. Booker’s
objections to the inclusion of the 19 grams as
relevant conduct and to the imposition of the
weapon enhancement were denials of relevant
conduct that were incompatible with an acceptance
of responsibility. We review the district court’s
assessment for clear error. See United States v.
Williams, 202 F.3d 959, 961 (7th Cir. 2000).

      Mr. Booker correctly asserts that a defendant
should not be denied a reduction for acceptance
of responsibility when he only challenges the
legal conclusion that should be drawn from facts
that he has admitted. See United States v.
Purchess, 107 F.3d 1261, 1266 (7th Cir. 1997).
However, a defendant also must admit, or not
falsely deny or frivolously contest, any relevant
conduct as it relates to the offense of
conviction to be eligible for an acceptance-of-
responsibility reduction. See U.S.S.G. sec.
3E1.1, cmt. n.1(a); see also United States v.
Sierra, 188 F.3d 798, 804 (7th Cir. 1999).
Although the Sentencing Guidelines do not require
the defendant affirmatively to volunteer
information about his relevant conduct, see
U.S.S.G. sec. 3E1.1, cmt. n.1(a), "[i]f a
defendant denies relevant conduct and the court
determines such conduct occurred, the defendant
cannot claim to have accepted responsibility for
his actions," United States v. Brown, 47 F.3d
198, 204 (7th Cir. 1995). See also Sierra, 188
F.3d at 804 ("A defendant does not accept
responsibility when he denies committing criminal
actions and relevant conduct which the district
court attributes to him.").

      Mr. Booker has done many of the things the
courts and the Guidelines expect a defendant to
do in order to demonstrate that he accepts
responsibility for his illegal conduct. See
U.S.S.G. sec. 3E1.1, cmt. n.1 (explaining that,
in determining whether to grant an acceptance-of-
responsibility reduction, the sentencing court
should consider, inter alia, whether the
defendant truthfully admitted the conduct
comprising the offense of conviction, whether he
provided voluntary assistance to the authorities,
and whether he manifested his acceptance of
responsibility in a timely manner). Indeed, Mr.
Booker’s cooperation with the Government makes
this issue a closer, and more sympathetic, one
than it otherwise might have been. However, the
timely entry of a guilty plea is not necessarily
sufficient to warrant an acceptance-of-
responsibility reduction. See id. at cmt. n.3 ("A
defendant who enters a guilty plea is not
entitled to an adjustment [for acceptance of
responsibility] as a matter of right."). Instead,
the defendant must demonstrate to the district
court’s satisfaction that he accepts
responsibility for his conduct in a moral sense.
See United States v. Fiore, 178 F.3d 917, 925
(7th Cir. 1999). "Unlike the district court
judge, we do not enjoy a front row seat from
which to assess [the defendant’s] statements and
demeanor." Williams, 202 F.3d at 961-62 (quoting
United States v. Cunningham, 103 F.3d 596, 598
(7th Cir. 1996)) (internal quotation marks
omitted). Because "[t]he sentencing judge is in a
unique position to evaluate a defendant’s
acceptance of responsibility," we give the
district court’s determination in this regard
"great deference." U.S.S.G. sec. 3E1.1, cmt. n.5;
see also Williams, 202 F.3d at 961.

      The objections Mr. Booker raised before the
district court essentially boil down to denials
of the facts comprising relevant conduct that the
district court ultimately attributed to him. Mr.
Booker denied the fact that the 19 grams found by
the back door belonged to Doug and were part of
their joint venture in crack distribution. He
also denied the fact that the firearms inside the
house were there to protect the drugs and the
individuals who were selling them, including
himself. Although a defendant is free to
challenge the Government’s proffer of relevant
evidence, doing so "exposes his denials to the
scrutiny of the court." Brown, 47 F.3d at 204. We
previously have held that a district court does
not err in refusing an acceptance-of-
responsibility reduction if it finds the
defendant’s denials meritless. See id. We are
bound by our prior precedent, as well as by the
great degree of deference we give to the
sentencing court in these matters, to conclude
that the district court did not clearly err in
refusing to grant Mr. Booker a reduction for
acceptance of responsibility.

Conclusion

      The district court committed no clear error in
attributing the 19 grams of crack found by the
back door of the house to Mr. Booker, in applying
the two-level enhancement for possession of a
weapon, or in denying a three-level reduction for
acceptance of responsibility. Accordingly, we
affirm the judgment of the district court.

AFFIRMED



/1 The house was within 1,000 feet of a public
housing facility.

/2 Doug apparently repaid Mr. Booker for his
services with crack and Absolut vodka rather than
with money.

/3 Mr. Booker’s offense level was also increased by
two levels because the drug transactions occurred
within 1,000 feet of a protected location. See
U.S.S.G. sec. 2D1.2(a)(1). Mr. Booker has not
challenged this enhancement on appeal.

/4 Mr. Booker suggests that there is insufficient
evidence to connect the 19 grams to Doug.
However, Mr. Booker admitted to Agent Mino that
Doug ran out the back door of the house when the
officers approached. Although Mr. Booker also
insisted that at least one other person ran out
the back door, Agent Mino testified at Mr.
Booker’s sentencing hearing that only one person
did so. It was within the district court’s
province to credit Agent Mino’s testimony over
Mr. Booker’s. Because there is support in the
record for the district court’s conclusion that
the 19 grams belonged to Doug, we are unable to
say that this finding is clearly erroneous.
