Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1988)

MEMORANDUM^** 

James W. Hightower appeals his sentence imposed under the United States Sentencing Guidelines ("Guidelines"), following a guilty plea for conspiracy to manufacture and possess with intent to distribute a controlled substance, in violation of 21 U.S.C. § 846 and 841(a) (1). Hightower contends that the district court erred by refusing to grant a two level reduction to his base offense level for acceptance of responsibility. We have jurisdiction under 28 U.S.C. § 1291 and affirm the sentence.

Whether an adjustment for acceptance of responsibility is appropriate is a factual finding and we review for clear error. United States v. Gonzalez, 897 F.2d 1018, 1019 (9th Cir. 1990). The defendant must "clearly demonstrate [ ] a recognition and affirmative acceptance of personal responsibility for his criminal conduct." U.S.S.G. Sec. 3E1.1(a); see United States v. Smith, 905 F.2d 1296, 1301 (9th Cir. 1990).

Here, Hightower admitted to possessing approximately three ounces of methamphetamine and discussing the manufacture of methamphetamine with an undercover agent in July, 1988. He admitted to purchasing chemicals to be used in the manufacture of the methamphetamine in August, 1988. With respect to the events occurring on November 10, 1988, Hightower denied any involvement in the manufacturing activity and connection with the 132 grams of methamphetamine recovered at the arrest site. Hightower maintained that on the day of his arrest, he was merely watching television and did not participate in the illegal manufacturing. Nevertheless, government agents observed Hightower moving "hurriedly" in the vicinity of the methamphetamine manufacturing laboratory immediately before his arrest. A confidential informant identified Hightower as the "cook" or person manufacturing methamphetamine. Moreover, the arresting officer testified that Hightower's clothing reeked of odors linked to the manufacture of methamphetamine and that his clothes were stained and burned apparently by manufacturing chemicals.

Although Hightower admitted certain acts, he is not automatically entitled to a reduction for an acceptance of responsibility. See United States v. Corley, 909 F.2d 359, 362 (9th Cir. 1990) (denying reduction for acceptance of responsibility where defendant accepted responsibility for his acts but minimized his role in the offense). Hightower denied and minimized his involvement in manufacturing methamphetamine despite overwhelming evidence of his larger role. The district court concluded that Hightower's story was incredible and "the flat-out denial, and the testimony that I have heard ... would be totally contrary to the acceptance of responsibility...." (RT 8/29/89 at 77). The evidence supports this finding and it is not clearly erroneous. See Gonzalez, 897 F.2d at 1020.

AFFIRMED.