In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2963

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LAWRENCE E. SIMMONS, JR.,

Defendant-Appellant.



Appeal from the United States District Court
for the Southern District of Illinois.
No. 98 CR 30155--William L. Beatty, Judge.


Argued February 18, 2000--Decided JUNE 27,
2000



  Before Posner, Chief Judge and Bauer and
Manion, Circuit Judges.

  Bauer, Circuit Judge. Lawrence E.
Simmons, Jr. ("Simmons") appeals the
sentence he received after pleading
guilty to a series of drug and firearm
offenses. He challenges the quantity of
cocaine used by the District Court in
calculating his base offense level under
the Sentencing Guidelines, the disparity
between his sentence and his co-
conspirator’s sentence, and the limited
reduction he received for acceptance of
responsibility, claiming he should have
received an additional level. Having
reviewed the sentence and the evidence
and finding no error, we affirm the
District Court.

I.   BACKGROUND

  On September 23, 1998, Simmons was
charged in seven counts of an eleven
count indictment. The charges against him
included conspiracy to distribute cocaine
and crack cocaine, possession with intent
to distribute cocaine and crack cocaine,
being a felon in possession of a firearm
and four counts of distributing crack
cocaine. He was indicted along with his
co-conspirator, Sandra Michelle Dixon
("Dixon").

  The charges arose out of the activities
of an "organization" run by Simmons.
Simmons bought quantities of powder
cocaine and later converted it to crack
cocaine for sale when he or one of his
aides received an order. The group
operated out of motels, moving from one
to another whenever they felt the
authorities were "on" to them. Their luck
ran out on August 25, 1998,
appropriately, at the Trails End Motel.
The group was arrested, and drug
paraphernalia, more than $500.00 in cash,
and a .38 caliber pistol were seized.

  Dixon accepted a plea agreement from the
government and pleaded guilty to the
charges against her. In exchange for her
cooperation and testimony, the government
agreed not to seek an enhanced sentence
against Dixon pursuant to 21 U.S.C.
sec.851. She was sentenced to 108 months
imprisonment.

  The government did file an information
charging prior offenses against Simmons,
subjecting him to the enhanced penalty
provisions of 21 U.S.C. sec.841(b). And,
although he made a written statement
implicating himself in the conspiracy
shortly after his arrest, Simmons did not
plead guilty until April 6, 1999, the day
his trial was scheduled to begin, after
five previous continuances were granted
upon defense requests. There was no plea
agreement between Simmons and the
government.

  Detective Clark of the St. Clair County
Sheriff’s Department testified for the
government at Simmons’ sentencing
hearing. The government also submitted 14
written statements from various
individuals, including the defendant,
Dixon and some of their customers. After
considering all of the evidence and the
findings in the Presentence Investigation
Report, the District Court made findings
of relevant conduct, including the
attribution of 72.66 grams of cocaine to
Simmons, and determined his offense level
to be 32. It granted Simmons a two level
reduction (out of a possible three) for
acceptance of responsibility since he had
pleaded guilty, and sentenced him to a
term of 240 months imprisonment on the
drug charges and a concurrent term of 120
months on the firearms charge. Simmons
was also ordered to pay a fine of
$2,450.00 and a special assessment of
$700.00.

II.   DISCUSSION

  A. Calculation of Drug Amounts for
Sentencing

  On appeal, Simmons challenges the
District Court’s determination that he
was responsible for 72.66 grams of
cocaine. He argues that the District
Court credited "unreliable" evidence when
calculating the quantity of cocaine for
which is he is accountable under the
Sentencing Guidelines. We review the
District Court’s drug quantity
determination for clear error, United
States v. Johnson, 

, 537 (7th
Cir. 2000); United States v. Branch, 

, 933 (7th Cir. 1999), and will
affirm the District Court’s decision
unless, after reviewing all of the
evidence, "we are left with the firm
conviction that a mistake has been
committed." 

.

  Simmons’ principal complaint is that the
District Court erred in relying on the
written statement of Aramy Carter
("Carter") to support the amount of
cocaine attributable to him. Carter’s
statement was used by the court to
attribute 42.52 grams of crack cocaine
(approximately 58% of the total relevant
conduct) to Simmons. He contends
thatCarter’s statement strains
credibility and is unreliable because
Carter did not testify in open court.

  The government presented only one live
witness at the sentencing hearing. That
witness, Detective Clark of the St. Clair
County Sheriff’s Department, testified to
the investigation into the defendant’s
organization and the controlled buys of
cocaine made between May, 1998 and
August, 1998. He also testified to the
statements taken from the defendant, his
co-conspirator Sandra Dixon, and seven
customers.

  Aramy Carter was one of the customers
whose statements were presented to the
District Court./1 In his statement,
Carter said that he had seen Simmons
"with   ounce 3 to 4 times and each time
[Simmons] would rock it up when we got
ready to smoke it." Converted into grams,
Carter’s statement says that he saw
Simmons with 42.52 grams to 56.7 grams of
cocaine.

  Simmons admits selling cocaine to
Carter. Indeed, his own statement says
that he sold Carter "some 20s rock [$20
worth] of crack cocaine." The government
argues that this admission bolsters the
credibility of Carter’s statement because
it shows a relationship between the two
men and explains how Carter could have
seen Simmons with those amounts of
cocaine on those occasions. Simmons,
however, combines the two statements and
argues that they demonstrate the
unreliability of Carter’s statement. He
posits that if the 42.52 grams are
attributable to him, and a $20.00 piece
of crack cocaine equals 0.2 grams (as the
Presentence Investigation Report tells us
it does), that must mean he sold Carter
crack cocaine 212.6 times, or
approximately two and a half to three and
a half times every day during the two to
three months they had known each other.

  The argument, presented in this manner
by Simmons, does suggest that Carter’s
statement is implausible and thus
unreliable. But, Simmons’ argument
misreads Carter’s statement: Carter did
not say that Simmons sold him that amount
of cocaine, he merely said that he saw
Simmons with that amount of cocaine.
Simmons’ reading, we think, perverts the
meaning of Carter’s statement and we
decline to read it in the manner he
suggests.

  We are further persuaded as to the
reliability of Carter’s statement by the
corroboration found in the statements of
the other customers and associates of
Simmons. Carter said that, on occasion
when he was with Simmons, Simmons would
get "beeped" and then leave, carrying his
cocaine in a black bag. This is similar
to the defendant’s own statement wherein
he told of being paged by his customers
and either having them come to him at the
motel or going to them to complete the
drug transaction.

  Similarly, there was a significant
amount of other evidence regarding the
quantity of drugs attributable to the
defendant. Detective Clark testified that
23 grams of cocaine were purchased from
Simmons and his aides during the
controlled buys, 3.5 grams of cocaine
base was seized from Simmons during a
traffic stop on May 29, 1998, and 3.6
grams of cocaine base was sold by Simmons
on June 12, 1998. Phillip Stanley’s
statement said that on 30 occasions he
purchased crack cocaine from Simmons in
$50.00 quantities, totaling approximately
18 grams. Marion Stallings’ statement
admitted that she purchased $50.00
quantities of cocaine three times (1.5
grams) from one of Simmons’ aides. Lizzie
Smith’s statement said she purchased 2
ounces of crack from Simmons on one
occasion and 2 and   ounces on other
occasions. Mark Wieter’s statement told
of buying $100.00 of crack cocaine (1
gram) from a Simmons associate. And,
finally, Cheryl Helfritch’s statement
said she bought crack cocaine from
Simmons on 15 occasions, in dollar
amounts of $50.00 and $20.00
(approximately 3 grams).

  The Presentence Investigation Report
attributed 84.5 grams of cocaine to
Simmons. That amount did not even include
the 42.52 grams attributable to Simmons
by Carter’s statement. Thus, even if we
were to discount Carter’s statement,
there is more than ample evidence on
which to affirm the sentence. United
States v. Carmack, 

, 1276
(7th Cir. 1996) ("we may affirm a
sentence on any ground found in the
record, regardless of the rationale
employed by the district court."). Since
there are supported findings of more than
50 grams in the record,/2 we affirm the
District Court’s finding.

  As to his claim that Carter’s statement
is unreliable because he did not testify
personally at the sentencing hearing,
there is no requirement that a sentencing
court consider only the testimony of non-
hearsay witnesses. See 18 U.S.C.
sec.3661. Indeed, the District Court may
"consider a wide range of information so
long as it has a sufficient indicia of
reliability to support its probable
accuracy." 

(internal quotation marks and citations
omitted). Hearsay is admissible at a
sentencing hearing as long as the
evidence is reliable and the defendant
has the opportunity to rebut it. United
States v. Payton, 

, 983 (7th
Cir. 1999).
  Simmons presented no evidence to counter
the Presentence Investigation Report. He
merely denied its, and the statement of
Carter’s, accuracy. That is not enough.
United States v. Westbrook, 

,
183 (7th Cir. 1993) (defendant
challenging amount of cocaine specified
in presentence investigation report must
present some evidence showing that the
amount specified is incorrect.). See also
United States v. Jones, 

, 996
(7th Cir. 2000).

  In the absence of any actual evidence
controverting the Presentence
Investigation Report, the testimony of
Detective Clark, and the statements of
the defendant, his co-conspirator and
their customers, we conclude that
thesentencing judge’s finding that
Simmons’ relevant conduct involved 72.66
grams of cocaine was not clearly
erroneous. Because this amount is well in
excess of the 50 grams required under the
prior offense statute, we affirm the
District Court’s findings of relevant
conduct and sentence.

  B.   Sentence Disparity

  Simmons next complains that the
attribution of the 42.52 grams of cocaine
from Carter’s statement to him but not to
his co-conspirator resulted in an unfair
sentencing disparity. The defendant urges
us to consider this a case of erroneous
factual finding by the District Court in
failing to attribute that amount of
cocaine to Dixon, but he again
misinterprets the issue before us. What
he is really claiming is a sentencing
disparity and we shall treat it as such
and quickly dispose of the argument.

  Our cases have consistently held that "a
disparity among co-defendants’ sentences
is not a valid basis to challenge a
guideline sentence otherwise correctly
calculated." United States v. Edwards,

, 1397-98 (7th Cir. 1991).
Furthermore, the fact that Dixon was an
assistant and not the leader of the
organization, the fact that Dixon pled
guilty pursuant to a plea agreement and
cooperated with law enforcement
authorities, and the fact that Dixon had
a lesser criminal history are factors
which we have held justify a disparity
between the sentences of co-defendants.
See United States v. Hall, et al., 

(7th Cir. May 16, 2000) and
United States v. Meza, 127 F.3d, 545,
549-50 (7th Cir. 1997).

  Simmons’ sentence was correctly
calculated. His sentence is affirmed.


  C.   Acceptance of Responsibility

  Simmons’ final argument is that he
should have received the full three level
reduction for acceptance of
responsibility because he pleaded guilty
to the charges against him. The District
Court only accorded him a two level
reduction. "The district court’s
acceptance of responsibility
determination under U.S.S.G. sec.3E1.1 is
a factual determination, and will be
overturned only if clearly erroneous."
United States v. Francis, 

,
807 (7th Cir. 1994).

  Here, there is no doubt that the court
did not err in denying Simmons the
additional reduction. Simmons attempted
to recant the written statement he gave
after his arrest. He did not notify the
government that he would enter a plea of
guilty until two weeks before his sixth
trial setting, and then only said he
would plead guilty if his final pre-trial
motion was denied. Because of his
conduct, the government prepared for
trial many times and jurors had to be
summoned and ready for trial on the day
he did finally plead. Hardly the
conservation of judicial resources
contemplated by the Sentencing
Guidelines. And hardly the conduct of a
defendant accepting full responsibility
for his actions.

  The mere fact that Simmons pleaded
guilty does not entitle him to a
reduction for acceptance of
responsibility. United States v. Branch,

, 937 (7th Cir. 1999). He
must demonstrate that he has accepted
full responsibility for his actions,
United States v. Buckley, 

,
711 (7th Cir. 1999). We do not think that
Simmons has met this burden. He delayed
pleading guilty until all other options
had been exhausted and attempted to
recant his statement. For those reasons,
we hold that the District Court did not
err in denying him a three level
reduction for responsibility.

III.   CONCLUSION

  For the foregoing reasons, the judgment
and sentence of the District Court are
affirmed.

AFFIRMED.

/1 Carter was arrested at the Trails End Motel with
Simmons and Dixon.
/2 Since the government filed an information charg-
ing a prior offense against Simmons, pursuant to
21 U.S.C. sec.sec. 850 and 851, once a finding of
50 grams is made, Simmons automatically receives
the statutory sentence of 20 years, minimum.