United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3810
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Kareem Damoe Lee, also known as Boo,*
* [UNPUBLISHED]
Defendant - Appellant. *
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Submitted: April 20, 2006
Filed: April 28, 2006
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Before LOKEN, Chief Judge, BOWMAN, and BYE, Circuit Judges.
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PER CURIAM.
Kareem Damoe Lee pleaded guilty to one count of conspiracy to distribute
more than fifty grams of cocaine base and more than 500 grams of cocaine salt
between June 2003 and August 2004. The district court1 sentenced him to 360 months
of imprisonment, followed by five years of supervised release. We affirm.
On appeal, Lee claims his constitutional rights were violated when the district
court engaged in fact-finding using the preponderance-of-the-evidence standard. We
1
The Honorable Linda R. Reade, United States District Court for the Northern
District of Iowa.
review this constitutional claim de novo. United States v. Wade, 435 F.3d 829, 831
(8th Cir. 2006). Lee's claim, however, is without merit because we have held judicial
fact-finding alone does not constitute a violation of a defendant's Sixth or Fifth
Amendment rights. United States v. Pirani, 406 F.3d 543, 551 n.4 (8th Cir. 2005) (en
banc) (finding no Sixth Amendment violation); United States v. Garcia-Gonon, 433
F.3d 587, 593 (8th Cir. 2006) (holding no Fifth Amendment error occurs when the
district court engages in judicial fact-finding). Additionally, no Fifth Amendment
violation occurred because Lee was aware of the maximum penalty under the statute,
and he was sentenced below the maximum. See United States v. Oates, 427 F.3d
1086, 1090 (8th Cir. 2005) (noting the Fifth Amendment requires a defendant to be
aware of the statutory maximum for the charged offenses).
Additionally, Lee claims the district court violated his Fifth Amendment rights
by sentencing him severely after invoking his Fifth Amendment right not to testify at
sentencing. See Mitchell v. United States, 526 U.S. 314, 326 (1999) (holding
defendants may assert the right to remain silent at sentencing). This issue, raised for
the first time on appeal, is reviewed for plain error. United States v. Boone, 437 F.3d
829, 840 (8th Cir. 2006). Although Lee is correct in asserting the district court is not
permitted to draw "adverse inferences" from the exercise of his right to remain silent,
United States v. Rodriguez, 116 F.3d 1225, 1226 (8th Cir. 1997), his bald assertions
the district court "developed an antagonistic attitude" following his refusal to testify
are insufficient to meet his burden of proving plain error.
We also reject Lee's contention he should have received a downward departure
for acceptance of responsibility. We give great deference to the district court's
determination of this factual issue and will only reverse for clear error. United States
v. Londondio, 420 F.3d 777, 789-80 (8th Cir. 2005). Although Lee's plea of guilty
"constitutes significant evidence of acceptance of responsibility, this evidence still
may be outweighed by conduct of the defendant that is inconsistent with such
acceptance." United States v. Long Soldier, 431 F.3d 1120, 1123 (8th Cir. 2005)
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(citing U.S.S.G. § 3E1.1 cmt. n.3). Despite pleading guilty, Lee vehemently denied
possessing any drug quantities above the minimums listed in the indictment, and he
denied possessing a firearm. As a result, the government was required to present
witnesses and other evidence to establish drug quantity and the presence of the
firearm. Further, the denials show Lee did not adequately accept responsibility for his
actions or express remorse for committing the crime, and the district court did not err
in refusing to apply the departure. See United States v. Card, 390 F.3d 592, 595 (8th
Cir. 2004) ("The pivotal issue is whether the defendant shows 'a recognition and
affirmative responsibility for the offense and sincere remorse.'") (quoting United
States v. Nguyen, 52 F.3d 192, 194 (8th Cir. 1995)).
Finally, we review Lee's sentence for reasonableness, noting his sentence within
the correctly-calculated Guideline range is presumptively reasonable. United States
v. Sebastian, 436 F.3d 913, 915 (8th Cir. 2006). Further, we are not persuaded his
sentence is unreasonable simply because the district court employed the
Congressionally-mandated 100:1 ratio between cocaine base and powder cocaine in
determining drug quantities. United States v. Cawthorn, 429 F.3d 793, 803 (8th Cir.
2005) (holding "sentencing within the Guidelines based on the crack-powder disparity
is not inherently unreasonable"). Because his sentence satisfies the factors found in
18 U.S.C. § 3553(a), we find it reasonable and affirm the district court.
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