United States v. Masi ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4673
DOMINIC MASI,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Anderson.
G. Ross Anderson, Jr., District Judge.
(CR-95-492)
Argued: December 5, 1997
Decided: February 24, 1998
Before WILLIAMS, Circuit Judge, WILSON, Chief United States
District Judge for the Western District of Virginia, sitting by
designation, and MORGAN, United States District Judge for the
Eastern District of Virginia, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Robert Isaac Kalina, New York, New York, for Appel-
lant. Arthur Bradley Parham, OFFICE OF THE UNITED STATES
ATTORNEY, Greenville, South Carolina, for Appellee. ON BRIEF:
J. Rene Josey, United States Attorney, E. Jean Howard, Assistant
United States Attorney, Greenville, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
On April 9, 1996, a jury found Dominic Masi guilty of conspiracy
to possess with intent to distribute marijuana in violation of 21
U.S.C.A. §§ 841(a)(1) and 846 (West 1981 & Supp. 1997). On
August 27, 1996, the district court sentenced Masi to 63 months
imprisonment, ordered three years of supervised release, and imposed
a $10,000 fine and a $50 special assessment. Masi appeals both his
conviction and sentence. He argues that the district court erroneously
admitted evidence obtained in violation of his Fourth Amendment
rights, erroneously removed the issue of the existence of a conspiracy
from the jury's consideration, erroneously denied his Motion for
Judgment of Acquittal based upon the insufficiency of the Govern-
ment's evidence, and failed properly to instruct the jury regarding
witness credibility. As to his sentence, Masi contends that the district
court erroneously computed his base offense level and failed to grant
him a two-level reduction for acceptance of responsibility. For the
reasons stated below, we affirm Masi's conviction and sentence.
I.
Taken in the light most favorable to the Government, see United
States v. Burgos, 94 F.3d 849, 854 (4th Cir. 1996) (en banc), cert.
denied, 117 S. Ct. 1087 (1997), the evidence at Masi's trial estab-
lished the following facts. For several months prior to June 2, 1995,
Michael Luca and Steven Ostuni negotiated with Jerry Nixon and
Rickey Pruitt for the purchase of a large quantity of marijuana. Unbe-
knownst to Luca and Ostuni, Pruitt was a South Carolina Law
Enforcement Division (SLED) agent and Nixon was his confidential
informant, and the marijuana transaction was part of a "reverse sting"
operation conducted by SLED. During the course of these negotia-
tions, Luca contacted Masi, a twenty-year associate, about funding the
transaction. Masi agreed and subsequently traveled to South Carolina
2
from New Jersey on June 2, 1995, to participate in the transaction.
That same day Ostuni and Luca traveled from Atlanta, Georgia, to
Anderson, South Carolina, to meet with Nixon and Pruitt to purchase
approximately two hundred pounds of marijuana.
To facilitate the transaction, Luca rented room 113 at the Howard
Johnson Motel in Anderson. When Luca and Ostuni arrived at the
motel, Luca paged Nixon to let him know where the transaction
would be conducted. Ostuni then paged Masi, who was en route from
New Jersey, to notify him of the meeting place. By mid-afternoon,
Luca, Ostuni, Nixon, Pruitt, and Masi were all present in room 113.
Before the transaction could begin, Nixon said he needed to see some
money. Masi then went to his car and returned with a box and a bag,
each containing approximately $50,000 in cash. Fifty thousand dollars
represented payment to Ostuni for marijuana that Ostuni had
"fronted" Masi in a prior transaction, while the other $47,000 was
shown to Nixon as "good faith" money towards the instant transac-
tion. Neither Luca nor Ostuni brought any money to the transaction.1
Luca, Ostuni, Nixon, and Pruitt then departed the motel to go to a
nearby warehouse where the marijuana was stored. Luca gave Masi
permission to remain in the motel room while they went to see the
marijuana. At the warehouse, Nixon and Pruitt showed Luca and
Ostuni burlap sacks containing approximately 200 pounds of mari-
juana. As Ostuni opened the bag and placed his hand inside, Pruitt
arrested both Luca and Ostuni. Shortly thereafter, Luca gave his con-
sent to search the motel room. Pruitt then radioed this information to
the SLED agents located at the motel. Led by SLED Agent Harrison,
the agents entered room 113 and seized currency totaling $109,185.
During the search Masi denied any knowledge of who had rented the
room or owned the money. The currency, along with the statements
made by Masi, were admitted as evidence against Masi in his trial.
Masi, Luca, and Ostuni were indicted by a grand jury on June 27,
1995, for (1) conspiracy to possess with intent to distribute mari-
juana, see 21 U.S.C.A. §§ 841(a)(1) and 846 (West 1981 & Supp.
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1 The evidence revealed that Luca had $70 and that Ostuni had approxi-
mately $3000 of pocket money. All agreed, however, that Masi was
responsible for bringing the money for the marijuana purchase.
3
1997), and (2) possession with intent to distribute marijuana, see 21
U.S.C.A. § 841(a)(1) (West 1981). The Government also sought for-
feiture of approximately $109,185.00 in United States currency. See
21 U.S.C.A. § 853(a) (West Supp. 1997). Prior to trial, the Govern-
ment dismissed the criminal forfeiture charges against all three defen-
dants. Luca and Ostuni pleaded guilty to the conspiracy charge and
subsequently testified for the Government in Masi's trial.
After a two-day trial, a federal jury found Masi guilty of conspiracy
on April 9, 1996. The district court, with the Government's consent,
dismissed the possession-with-intent-to-distribute charge. At sentenc-
ing, the district court attributed 95 kilograms (approximately 200
pounds) of marijuana to Masi, resulting in a base offense level of 24.
See U.S. Sentencing Guidelines Manual § 2D1.1(c)(8) (1995). The
district court ruled that Masi was not eligible for an adjustment for
acceptance of responsibility. The court sentenced him to 63 months
imprisonment to be followed by 3 years supervised release, and
imposed a $10,000 fine and a $50 special assessment. Masi appeals.
II.
Masi appeals his conviction on numerous grounds. First, Masi con-
tends that his conviction must be reversed because the district court
erroneously denied his motion to suppress evidence obtained as the
direct result of the police officers' illegal search of the motel room in
which he was arrested. Next, Masi argues that the district court erro-
neously removed one of the elements of the crime from the jury's
consideration when the court effectively stated during the trial that it
believed that a conspiracy existed. Masi also asserts that the district
court failed adequately to instruct the jury regarding the testimony of
law enforcement officers. Finally, Masi challenges the sufficiency of
the evidence supporting his conviction. We address each argument in
turn.
A.
Masi contends that the district court erroneously denied his motion
to suppress currency seized and statements made by himself as a
direct result of the warrantless search of room 113 of the Howard
Johnson Motel.
4
To assert a Fourth Amendment challenge to the Government's use
of evidence obtained during the search of the motel room, Masi must
establish that he had "a legitimate expectation of privacy" in the motel
room.2 See Rakas v. Illinois , 439 U.S. 128, 148-49 (1978); United
States v. Al-Talib, 55 F.3d 923, 930 (4th Cir. 1995) ("It is well-
established that a criminal defendant does not have standing to contest
the search of a third party unless he can show he had a reasonable
expectation of privacy in the area searched or the property seized.").
"A subjective expectation of privacy is legitimate if it is one that soci-
ety is prepared to recognize as reasonable." Minnesota v. Olson, 495
U.S. 91, 95-96 (1990) (internal quotation marks omitted) (citing
Rakas v. Illinois, 439 U.S. at 143-44, n.12 (quoting Katz v. United
States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring))). The
defendant has the burden of showing that he has a reasonable expecta-
tion of privacy in the area searched. See Rawlings v. Kentucky, 448
U.S. 98, 104 (1980).
Relying upon the Supreme Court's holding in Minnesota v. Olson,
Masi contends that he had a legitimate expectation of privacy in the
motel room. In Olson, the Supreme Court held that an overnight guest
in another's home has a legitimate expectation of privacy in the
dwelling. 495 U.S. at 100. As the Supreme Court reasoned in Olson,
our society acknowledges that an individual often stays and sleeps in
the homes of others when traveling "precisely because it provides him
with privacy, a place where he and his possessions will not be dis-
turbed by anyone but his host and those his host allows inside." Id.
at 99. The Court recognized that "[w]e are at our most vulnerable
when we are asleep because we cannot monitor our own safety or the
security of our belongings." Id.The circumstances of Masi's presence in room 113 of the Howard
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2 While commonly referred to as"standing," the Supreme Court has
explained that the issue of standing in a Fourth Amendment claim col-
lapses into the merits of the claim. See Rakas v. Illinois, 439 U.S. 128,
139 (1978). In Rakas, the Court "abandoned a separate inquiry into a
defendant's ``standing' to contest an allegedly illegal search in favor of
an inquiry that focused directly on the substance of the defendant's claim
that he or she possessed a ``legitimate expectation of privacy' in the area
searched." Rawlings v. Kentucky, 448 U.S. 98, 104 (1980).
5
Johnson Motel are vastly different from those of the defendant in
Olson. Masi was not an overnight guest in the motel room. Compare
Stone v. California, 376 U.S. 483, 490 (1964) (holding that an over-
night guest "living" in a hotel room, like"a tenant of a house, or the
occupant of a room in a boarding house," has a legitimate expectation
of privacy in the hotel room) (citations omitted). He did not have any
luggage, and he did not stay or plan to stay overnight. Masi did not
pay any portion of the room rental bill. Cf. United States v. Kitchens,
114 F.3d 29, 32 (4th Cir. 1997) (defendants had no legitimate expec-
tation of privacy in rented hotel room after "check-out time" when no
further rental payment had been made). In fact, Masi had to request
permission to remain in the room. Masi's sole purpose for being in
the motel room was to conduct an illegal marijuana transaction and
to that end, he was simply waiting momentarily in the room for his
co-conspirators to return. While Masi may have had a subjective
expectation of privacy in the room, it was not a reasonable expecta-
tion of privacy "rooted in ``understandings that are recognized and
permitted by society.'" Olson, 495 U.S. at 100 (quoting Rakas v.
Illinois, 439 U.S. at 144, n.12 (1978)); see also id. at 99 (determining
that an "overnight guest" has a legitimate expectation of privacy, in
part, because he is engaging in a "longstanding social custom that
serves functions recognized as valuable by society"); cf. Bonner v.
Anderson, 81 F.3d 472, 475 (4th Cir. 1996) (concluding that a "fre-
quent visitor" of neighbor's residence for purpose of visiting and
assisting her elderly neighbor established an expectation of privacy in
the residence that is "recognized and permitted by society"). Accord-
ingly, we conclude that Masi, a mere casual visitor whose presence
was for the sole purpose of conducting an illegal transaction, cannot
invoke the protections of the Fourth Amendment. See United States
v. Maddox, 944 F.2d 1223, 1234 (6th Cir. 1991) (holding that a
"purely transient party guest" had no reasonable expectation of pri-
vacy in his host's home); United States v. Grandstaff, 813 F.2d 1353,
1357 (9th Cir. 1987) (holding that "mere presence in the hotel room
of another is not enough" to establish a legitimate expectation of pri-
vacy in one's surroundings).3
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3 Even if Masi had a legitimate expectation of privacy in the motel
room, the district court found that the SLED Agents did not enter the
room until after Luca had consented to the search. Because that finding
is not clearly erroneous, we hold that Luca's consent validated the
6
B.
Masi argues that his conviction should be reversed because the dis-
trict court impermissibly invaded the jury's province by stating the
existence of a conspiracy -- the first element of the crime charged.4
To determine whether the district court's comment constituted
error, we must consider the remark in the context in which it was
made. During the direct examination of Luca, the Government asked
Luca how much money Masi brought to the motel room. The follow-
ing exchange ensued:
Luca: I was told there was $50,000 -- -- --
Defense counsel: Objection, Your Honor. May we know who told
him and when?
The Court: This is conspiracy. Did somebody in the conspiracy tell
you how much money was there?
Luca: I just overheard the conversation.
The Court: All right, go right ahead.
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search. See Minnesota v. Olson, 495 U.S. 91, 99 (1990) (holding that an
overnight guest may not complain when his privacy is disturbed by "his
host and those his host allows inside" the home); see also Schneckloth
v. Bustamonte, 412 U.S. 218, 219 (1973) (a search conducted pursuant
to valid consent is an exception to the Fourth Amendment's warrant and
probable cause requirements). Accordingly, we affirm the district court's
subsequent holding that the search was proper and that all evidence
obtained as a result was admissible.
4 To prove conspiracy to possess marijuana with intent to distribute, the
Government must establish that: (1) an agreement to possess marijuana
with intent to distribute existed between two or more persons; (2) the
defendant knew of the conspiracy; and (3) the defendant knowingly and
voluntarily became a part of this conspiracy. See United States v. Burgos,
94 F.3d 849, 857 (4th Cir. 1996) (en banc), cert. denied, 117 S. Ct. 1087(1997).
7
Luca: That there was $50,000 in one pile, and approximately
$50,000 -- $49,000 or $50,000 in the other.
(J.A. at 170-71.) No further objection was made, either to Luca's
response or the district court's statement and ruling.
On appeal, however, Masi contends that the district court's state-
ments indicated a personal belief that a conspiracy existed between
the parties, thereby effectively relieving the Government of its burden
of proof of the first element of the crime charged. See United States
v. Gaudin, 115 S. Ct. 2310, 2320 (1995) ("The Constitution gives a
criminal defendant the right to have a jury determine, beyond a rea-
sonable doubt, his guilt of every element of the crime with which he
is charged."). We review Masi's claim for plain error. See United
States v. Cedelle, 89 F.3d 181, 184 (4th Cir. 1996) ("When a criminal
appellant asserts an error that occurred during proceedings before the
district court, but that was forfeited through a failure to timely object,
we may notice such error only if it is a ``[p]lain error[ ] or defect[ ]
affecting substantial rights.'" (quoting Fed. R. Crim. P. 52(b)) (alter-
ations in original)). To establish plain error, Masi must demonstrate
that (1) the asserted defect in the trial was, in fact, error; (2) the error
was plain; and (3) the error affected his substantial rights. See Fed.
R. Crim. P. 52(b); see also United States v. Olano, 507 U.S. 725, 732
(1993). "If all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if (4) the
error seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings." Johnson v. United States, 117 S. Ct. 1544, 1549
(1997) (internal quotation marks omitted) (alteration in original).
The district court's statements did not constitute error because,
contrary to Masi's assertions, the district court did not offer erroneous
or prejudicial comments on the evidence or improperly instruct the
jury. Defense counsel asked the district court to determine whether
the hearsay evidence was admissible. Under the Federal Rules of Evi-
dence, "[a] statement is not hearsay if . . .[t]he statement is offered
against a party and is . . . a statement by a coconspirator of a party
during the course and in furtherance of the conspiracy." Fed. R. Evid.
801(d)(2)(E). Before admitting evidence under Rule 801, a district
court must decide whether the Government has proven by a prepon-
derance of the evidence (1) that there was a conspiracy involving the
8
declarant and the party against whom admission of the evidence is
sought and (2) that the statement at issue was made during the course
and in furtherance of that conspiracy. See Bourjaily v. United States,
483 U.S. 171, 175 (1987); United States v. Capers, 61 F.3d 1100,
1105 (4th Cir. 1995).
While it is not imperative for a district court to state on the record
its reasons for making its evidentiary ruling, we have held that "it may
be advisable for the trial court to do so in order for an appellate court
to more easily assess the basis of the ruling." United States v. Blevins,
960 F.2d 1252, 1256 (4th Cir. 1992). This was clearly the context in
which the district court's statements were made. The court was
merely explaining the court's ruling to counsel, not making a conclu-
sive finding that the Government had proved the existence of a con-
spiracy beyond a reasonable doubt. Cf. United States v. David, 83
F.3d 638, 648 (4th Cir. 1996) (noticing the district court's plain error
in failing to instruct on an essential element of the crime because a
jury conceivably could have determined that the Government had not
proven that element).
While challenging the propriety of the district court's remark, Masi
completely ignores that his own attorney also acknowledged the exis-
tence of a conspiracy in the identical context later in the trial. During
the direct examination of SLED Agent Pruitt, the Government asked
Pruitt to recount a statement made by Ostuni after his arrest. Defense
counsel for Masi objected, stating that the statement was made "after
the conspiracy ended." (J.A. at 268.)
Finally, we note that in its subsequent charge to the jury, the dis-
trict court properly instructed the jury as to the elements of the crime
charged and the Government's burden of proof. The court further
instructed the jurors to disregard any comments made by the court
during the trial and not to assume that the court's comments indicated
that it had any opinion concerning the issues in the case. Accordingly,
we decline to hold that the district court's statement, when considered
in context, was error. Cf. United States v. Gravely, 840 F.2d 1156,
1164-65 (4th Cir. 1988) (finding that defendant was not denied a fair
trial when district court commented during its instructions, among
other things, that there was not much doubt that a conspiracy existed
9
when court prefaced comments with a statement that they were not
binding upon the jury and that they could disregard them).
C.
Masi next argues that the district court abused its discretion when
it refused to instruct the jury that the testimony of law enforcement
officers is not entitled to greater weight than that of other witnesses.5
A district court's denial of a requested jury instruction "``constitutes
reversible error only if the instruction: (1) was correct; (2) was not
substantially covered by the court's charge to the jury; and (3) dealt
with some point in the trial so important that failure to give the
requested instruction seriously impaired the defendant's ability to
conduct his defense.'" United States v. Guay , 108 F.3d 545, 550 (4th
Cir. 1997) (quoting United States v. Lewis, 53 F.3d 29, 32 (4th Cir.
1995)). While Masi's requested instruction was a correct statement of
the law, it was substantially covered by other instructions the court
gave to the jury. Specifically, the district court instructed the jury that
it should consider a witness's relationship to the Government or to the
defendant, as well as any biases, prejudices, or special interests the
witness may have in the outcome of the case, when weighing the wit-
ness's testimony. (J.A. at 389.) The district court's decision was not
reversible error.
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5 Masi requested the following instruction:
You have heard the testimony of law enforcement officials. The
fact that a witness may be employed by the Federal (or State)
Government as a law enforcement official does not mean that his
testimony is necessarily deserving of more or less consideration
or greater or lesser weight than that of an ordinary witness.
At the same time, it is quite legitimate for defense counsel to try
to attack the credibility of a law enforcement witness on the
grounds that his testimony may be colored by a personal or pro-
fessional interest in the outcome of the case.
It is your decision, after reviewing all the evidence, whether to
accept the testimony of the law enforcement witness and to give
to that testimony whatever weight, if any, you find it deserves.
(J.A. at 412A.)
10
D.
Finally, Masi urges us to reverse his conviction based upon the
insufficiency of the evidence. When reviewing a sufficiency-of-the-
evidence claim, we will sustain the jury's verdict"if there is substan-
tial evidence, taking the view most favorable to the Government, to
support it." Glasser v. United States, 315 U.S. 60, 80 (1942).
"[S]ubstantial evidence is evidence that a reasonable finder of fact
could accept as adequate and sufficient to support a conclusion of a
defendant's guilt beyond a reasonable doubt." United States v.
Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc), cert. denied, 117
S. Ct. 1087 (1997).
To prove conspiracy to possess marijuana with intent to distribute,
the Government must establish (1) an agreement to possess mari-
juana with intent to distribute existed between two or more persons;
(2) the defendant knew of the conspiracy; and (3) the defendant
knowingly and voluntarily became a part of this conspiracy. See id.
at 857. The "``gravamen of the crime of conspiracy is an agreement
to effectuate a criminal act.'" Id. (emphasis in original) (quoting
United States v. Laughman, 618 F.2d 1067, 1074 (4th Cir. 1980)).
Acknowledging the difficulty of proving the existence of a conspiracy
by direct evidence, we have held that "a conspiracy may be proved
wholly by circumstantial evidence . . . of a defendant's ``relationship
with other members of the conspiracy, the length of this association,
the defendant's attitude and conduct, and the nature of the conspir-
acy.'" Id. at 858 (quoting United States v. Collazo, 732 F.2d 1200,
1205 (4th Cir. 1984)) (alterations omitted). Moreover, a defendant's
claim that he did not understand the extent of the conspiracy in which
he willfully participated does not preclude a finding of guilt. See id.("Indeed contemporary drug conspiracies can contemplate only a
loosely-knit association of members linked only by their mutual inter-
est in sustaining the overall enterprise of catering to the ultimate
demands of a particular drug consumption market." (internal omis-
sions, quotation marks, and alterations omitted))."To sustain a con-
spiracy conviction, there need only be a showing that the defendant
knew of the conspiracy's purpose and some action indicating his par-
ticipation." United States v. Brooks, 957 F.2d 1138, 1147 (4th Cir.
1992) (citations and alterations omitted).
11
With these principles in mind, we have no trouble concluding that
there was sufficient evidence to convict Masi of conspiracy. Ostuni
and Luca had been negotiating the purchase of a large amount of mar-
ijuana from Nixon and Pruitt for several months, finally settling on
a purchase of two hundred pounds. Ostuni and Luca, however, lacked
the funds to make the purchase. As a result, Ostuni contacted Masi,
"his man up north," (J.A. at 261), in the hopes of enticing him to fund
the purchase. Masi, who had an established twenty-year working rela-
tionship with Ostuni, agreed to the transaction, and traveled to South
Carolina from New Jersey with over $100,000 in cash for the sole
purpose of purchasing the bargained-for marijuana. Masi brought the
cash into the motel room where he met with Ostuni, Luca, Nixon, and
Pruitt. Masi then gave $50,000 cash to Ostuni to show Pruitt as "good
faith" money that he was prepared to make the buy. Based on the
foregoing evidence, we readily conclude that a jury could reasonably
find that Masi was a willing and knowing participant in the conspir-
acy to purchase over two hundred pounds of marijuana.
III.
Masi also challenges his sentence. Specifically, he argues that the
district court erroneously determined his base offense level and failed
to grant him an "acceptance of responsibility" reduction.
A.
Masi contends that the district court erred in attributing two hun-
dred pounds of marijuana to him when computing his base offense
level.
The Government must establish by a preponderance of the evi-
dence that a particular amount of drugs may be attributed to a particu-
lar defendant for sentencing purposes. See United States v.
McDonald, 61 F.3d 248, 255 (4th Cir. 1995). The district court's fac-
tual findings as to the quantity of drugs attributable to a defendant
will be upheld absent clear error. See 18 U.S.C.A. § 3742(e) (West
Supp. 1997); United States v. Lamarr, 75 F.3d 964, 972 (4th Cir.),
cert. denied, 117 S. Ct. 358 (1996). In drug offenses where the defen-
dant is acting in concert with others, his relevant conduct includes all
of his own acts and reasonably foreseeable acts of others which were
12
part of the same course of conduct or common scheme or plan as the
offense of conviction. See U.S. Sentencing Guidelines Manual
§ 1B1.3(a)(1)(B) (1995); United States v. McHan, 101 F.3d 1027,
1043 (4th Cir. 1996), cert. denied, 117 S. Ct. 2468 (1997).
At the sentencing hearing, SLED Agent Pruitt testified that Luca
and Ostuni, Masi's co-conspirators, had agreed to purchase in excess
of two hundred pounds of marijuana and that Masi's role in the con-
spiracy was to fund the transaction. Luca and Ostuni arrived at the
transaction empty-handed, obviously relying upon Masi to bring the
money necessary to purchase the drugs. Masi argues that the district
court erred when it attributed the two hundred pounds of marijuana
to him because the $47,000 he brought was clearly insufficient to pur-
chase two hundred pounds of marijuana, valued at approximately
$180,000. We disagree. First, SLED Agent Pruitt testified that "front-
ing" marijuana is common practice among drug dealers, as evidenced
by Ostuni's earlier dealings with Masi. Ostuni testified that he fully
intended to acquire the entire two hundred pounds of marijuana for
a $47,000 down payment using this practice. Based upon this history
of "fronting" marijuana between Masi and Ostuni, it was reasonably
foreseeable to Masi that he could obtain a significant amount of mari-
juana with the $47,000 he brought to the table. Second, it was also
reasonably foreseeable to Masi that Ostuni would apply the $50,000
repayment to the current deal for a total down payment of $97,000.
This was easily enough money to obtain two hundred pounds of mari-
juana. See United States v. McManus, 23 F.3d 878, 885 (4th Cir.
1994) (stating that in a drug conspiracy, the appropriate offense level
"is to be determined based upon all acts of the defendant, as well as
all reasonably foreseeable acts of others in furtherance of the conspir-
acy"). In light of the above, it was not clearly erroneous for the dis-
trict court to attribute the entire two hundred pounds of marijuana to
Masi at sentencing.
B.
Masi also argues that the district court erroneously denied him a
two-level adjustment for acceptance of responsibility. See U.S. Sen-
tencing Guidelines Manual, § 3E1.1 (1995).
5130 35 3 At the sentencing hearing, the district court stated:
13
The court observed Mr. Masi throughout the trial and since
the trial. And the court observed no conduct which would
qualify him for acceptance of responsibility under the
Guidelines. In fact, to the contrary. While he did not testify
at trial, I'm not penalizing him for not testifying, nor am I
penalizing him for going to trial. I just think from the total-
ity of the circumstances in this case that he did not show any
acceptance of responsibility.
(J.A. at 452.) Masi has correctly pointed out that standing trial does
not automatically preclude a defendant from consideration for a
reduction for acceptance of responsibility. U.S.S.G.§ 3E1.1, com-
ment. (n.2).6 Such a situation is"rare," however, and § 3E1.1 was "not
intended to apply to a defendant who puts the government to its bur-
den of proof at trial by denying the essential factual elements of guilt,
is convicted, and only then admits guilt and expresses remorse." Id.
"A sentencing judge is in a unique position to evaluate a defen-
dant's acceptance of responsibility. For this reason, the determination
of the sentencing judge is entitled to great deference on review."
U.S.S.G. § 3E1.1, comment. (n.5). After reviewing the record and
having the benefit of oral argument, we affirm the district court's sen-
tence. In short, Masi never, during his trial, sentencing, or on appeal,
admitted that he was part of a conspiracy to distribute marijuana.
Accordingly, we have no reason to set aside the district court's find-
ing that Masi has never accepted responsibility for his crimes and
therefore we agree that he is not entitled to a U.S.S.G. § 3E1.1 reduc-
tion. See United States v. Gordon, 895 F.2d 932, 936 (4th Cir. 1990)
("[A] defendant must first accept responsibility for all of his criminal
conduct.").
IV.
In conclusion, we affirm Masi's conviction and sentence for the
_________________________________________________________________
6 The Commission has acknowledged that a defendant may exercise his
right to a trial to make a constitutional challenge to a statute, for exam-
ple, yet still be entitled to an acceptance of responsibility reduction. See
U.S. Sentencing Guidelines Manual § 3E1.1, comment. (n.2) (1995).
14
reasons outlined above.
AFFIRMED
15