UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 02-4876
MICHAEL SHIRLEY, a/k/a Winston
Freeman,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-99-69)
Submitted: December 29, 2003
Decided: February 17, 2004
Before WILKINS, Chief Judge, and LUTTIG and
WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Geoffrey W. Hosford, HOSFORD & HOSFORD, P.L.L.C., Wilming-
ton, North Carolina, for Appellant. Anna Mills Wagoner, United
States Attorney, Sandra J. Hairston, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
2 UNITED STATES v. SHIRLEY
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In 1999, Michael Shirley was convicted of conspiracy to distribute
cocaine and crack cocaine, in violation of 21 U.S.C. § 846 (2000)
(Count One), and illegal reentry into the United States after deporta-
tion, in violation of 8 U.S.C. § 1326(a) (2000) (Count Two). The dis-
trict court initially sentenced Shirley to life in prison on Count One
and a concurrent 240 months in prison on Count Two. On appeal, this
court determined that, under Apprendi v. New Jersey, 530 U.S. 466
(2000), it was plain error for the court to sentence Shirley to life in
prison under 21 U.S.C.A. § 841(b)(1)(C) (West 1999 & Supp. 2003).
We affirmed Shirley’s convictions and remanded for resentencing.
On remand, the district court sentenced Shirley to 318 months in
prison on Count One and a concurrent twenty-four months in prison
on Count Two. Shirley appeals, alleging that the district court erred
by denying him a reduction in his offense level for acceptance of
responsibility and in determining the drug quantity attributable to him
as relevant conduct.
Shirley contends that the district court erred in refusing to grant
him a sentence reduction for acceptance of responsibility under U.S.
Sentencing Guidelines Manual § 3E1.1 (2001). We review for clear
error a district court’s factual finding that a defendant has not
accepted responsibility for his criminal conduct. United States v.
Ruhe, 191 F.3d 376, 388 (4th Cir. 1999). Because the sentencing
court "is in a unique position to evaluate a defendant’s acceptance of
responsibility," the guidelines specifically provide that the court’s
determination "is entitled to great deference on review." USSG
§ 3E1.1, cmt. n.5.
One factor the court must consider is whether the defendant "truth-
fully admit(s) the conduct comprising the offenses of conviction."
UNITED STATES v. SHIRLEY 3
USSG § 3E1.1, cmt. n.1(a). The commentary further states that "this
adjustment is not intended to apply to a defendant who puts the gov-
ernment to its burden of proof at trial by denying the essential factual
elements of guilt, is convicted, and only then admits guilt and
expresses remorse." USSG § 3E1.1, cmt. n.2.
Shirley would not admit the conduct that comprised the elements
of the offense in Count One at the guilty plea hearing, resulting in
rejection of his guilty plea and requiring the court to order a trial and
the government to prove its case at trial. Furthermore, he continued
to deny his participation in a conspiracy with his codefendants as late
as his second sentencing hearing and expressed remorse for the first
time at his second sentencing hearing. Under these circumstances, we
conclude that the district court did not clearly err in refusing to grant
a reduction for acceptance of responsibility.
Shirley also argues that the district court erred when it determined
the drug quantity attributable to him as relevant conduct, because he
claims that the court made no findings about the scope of his agree-
ment with his codefendants or the reasonable foreseeability of their
actions. The district court’s determination of the drug quantity attrib-
utable to a defendant is a factual finding that we review for clear
error. United States v. Randall, 171 F.3d 195, 210 (4th Cir. 1999). In
determining drug quantity, a district court must consider whether the
government established the amount by a preponderance of the evi-
dence. United States v. Cook, 76 F.3d 596, 604 (4th Cir. 1996). "A
defendant convicted of conspiracy should be sentenced not only on
the basis of his conduct, but also on the basis of conduct of cocon-
spirators in furtherance of the conspiracy that was known to the
defendant or reasonably foreseeable to him." United States v. Wil-
liams, 986 F.2d 86, 90 (4th Cir. 1993) (emphasis in original).
At the sentencing hearing, the district court expressly found that
the quantity of drugs attributed to Shirley was within the scope of the
agreement and was reasonably foreseeable to him. We find that the
district court did not clearly err in its determination.
For these reasons, Shirley’s sentence is affirmed. We dispense with
oral argument because the facts and legal contentions are adequately
4 UNITED STATES v. SHIRLEY
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED