(caption unavailable)

* Local Rule 47.5.1 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens
on the legal profession." Pursuant to that rule, the court has determined
that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 92-3660
Summary Calendar
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ARTHUR MITCHELL,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
CR 91 098 A
_________________________
July 16, 1993
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
Arthur Mitchell appeals his conviction of, and sentence for,
conspiring to possess cocaine with intent to distribute in
violation of 21 U.S.C. § 846. We affirm the conviction but vacate
the sentence and remand for resentencing.

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I.
In March 1991, Drug Enforcement Administration ("DEA") agent
Tommy Johnson negotiated with Alfred Simmons to purchase seven
ounces of cocaine. They agreed to meet at a gasoline station in
Harahan, Louisiana. When Johnson arrived, Simmons asked Johnson to
follow him to a residence owned by Daniel Dempsey. An individual,
later identified as Gregory Fontenberry, was waiting on the corner
outside the residence. Simmons informed Johnson that Gregory was
his source's brother and usually held the "dope" but did not on
this occasion. Simmons and Gregory then made a telephone call to
Jerome Fontenberry, and Simmons told Johnson that Jerome would be
arriving shortly with the cocaine.
When Jerome arrived, he was introduced to Johnson and informed
Johnson that his source would be arriving soon. A red Ford Taurus
then pulled up in front of the house and honked several times.
Jerome stated that this was his "man" and asked Simmons and Johnson
to wait in the house while he got the cocaine. Fontenberry then
approached the driver of the Taurus, later identified as Mitchell,
a/k/a Bigelow, who handed him a package containing nine ounces of
cocaine, which Simmons cut into a seven-ounce and a two-ounce
package.
While Simmons was separating the cocaine, Johnson and Jerome
Fontenberry went outside to get the money for the cocaine from
Johnson's car. Johnson gave the prearranged arrest signal, and
Jerome Fontenberry was arrested. Mitchell watched Jerome being
arrested, but he eluded capture. During the subsequent car chase,

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agent J. D. Roberts was involved in a serious traffic accident when
he hit a telephone pole in an attempt to avoid hitting another
agent's car. The abandoned Taurus was found at an automobile body
shop. Several times, including a rental receipt in the name of
Connie Mitchell and a jean jacket with a laundry tag in the name of
A. Mitchell, were found in the Taurus. Mitchell was arrested in
January 1992.
Mitchell was convicted of one count of conspiracy to possess
cocaine with intent to distribute. Over his objections, the
district court denied him the two-level decrease for acceptance of
responsibility; gave him a four-level increase for being an
organizer or leader of the conspiracy; and gave him a two-level
increase for obstruction of justice. Mitchell was sentenced to 137
months' imprisonment, five years' supervised release, and a $50
special assessment.
II.
A.
Mitchell argues that he was denied a fair trial because the
prosecutor committed three acts of misconduct. Specifically, he
argues that during the opening argument, the prosecutor improperly
suggested that DEA agent Woodfork knew Mitchell prior to the March
1991 transaction because Woodfork had over twenty years of law
enforcement experience; that during his direct examination of
Woodfork the prosecutor implied that Woodfork knew Mitchell because
of his law enforcement experience; and that during the closing

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argument the prosecutor suggested that defense counsel had
manufactured evidence.
To warrant a new trial, the alleged prosecutorial misconduct
"must be so pronounced and persistent that it permeates the entire
atmosphere of the trial." United States v. Stewart, 879 F.2d 1268,
1271 (5th Cir.) (internal quotations and citations omitted), cert.
denied, 493 U.S. 899 (1989). On appeal, we determine whether the
conduct was improper and then whether it prejudicially affected the
substantive rights of the defendant. United States v. Parker, 877
F.2d 327, 332 (5th Cir.), cert. denied, 493 U.S. 877 (1989).
If the conduct was improper, the defendant is not entitled to
relief unless the misconduct casts serious doubt upon the correct-
ness of the jury's verdict. United States v. Carter, 953 F.2d
1449, 1457 (5th Cir. 1992). To make that determination, we
consider (1) the magnitude of the prejudicial effect of the
statements; (2) the efficacy of any cautionary instructions; and
(3) the strength of the evidence of guilt. Id.
B.
Mitchell's first two allegations of prosecutorial misconduct
are related. At trial, Mitchell objected to the portion of the
prosecutor's opening argument summarizing Woodfork's anticipated
testimony. Specifically, he objected to the following statement:
Well, you are going to hear from Special Agent Woodfork,
this is a man with many years of law enforcement experi-
ence. Special Agent Woodfork is now assigned in the
Seattle, Washington area, but he was born and raised in
New Orleans. He knew him, he knew Arthur Mitchell. He

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knew who he was and he knew him by his nickname as well,
Bigelow.
At trial, Mitchell argued that the prosecutor was attempting
to imply that Woodfork knew Mitchell through his law enforcement
activities and therefore was attempting to imply a connection
between Mitchell and unidentified prior bad acts. The district
court overruled the objection.
Mitchell also objected to the prosecutor's direct examination
of Woodfork, arguing that the prosecutor was making the same
improper inference by asking Woodfork whether he knew Mitchell
prior to the March 1991 transaction immediately after questioning
him about his law enforcement experience. The district court
apparently overruled the objection, and it instructed the prosecu-
tor to frame his question to Woodfork to make it plain that he was
not attempting to imply a connection between Woodfork's law
enforcement experience and his prior knowledge of Mitchell. In
response, the prosecutor elicited testimony from Woodfork that he
had been born and raised in New Orleans and therefore knew a lot of
people in the area.
As Mitchell concedes, the only issue at trial was whether
Arthur Mitchell was the driver of the red Ford Taurus. Therefore,
the district court did not commit reversible error by allowing the
prosecutor's argument that Woodfork knew Mitchell prior to March
1991 and the questions regarding Woodfork's prior knowledge of
Mitchell. The prosecutor was building a foundation for Woodfork's
identification of Mitchell. Additionally, on cross-examination
Mitchell elicited testimony from Woodfork that he had never

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arrested Mitchell or had him under extensive surveillance. The
district court's rulings regarding the prosecutor's opening
argument and questioning of Woodfork do not rise to the level of
reversible error.
C.
Mitchell also argues that the prosecutor made an improper
rebuttal argument implying that defense counsel had manufactured
evidence. In response to defense counsel's argument that there was
a fingerprint on sunglasses found in the abandoned red Taurus which
the government did not check, the prosecutor stated,
For all we know, this is great fingerprints they are
talking about. Yes, I just point one on here right now.
they could have put that on it. It could be finger-
prints[.]
The district court sustained Mitchell's objection and immediately
instructed the jury to disregard the argument because there was no
evidence to suggest that defense counsel had put the fingerprint on
the sunglasses.
Assuming that this comment was improper, Mitchell has not
demonstrated that this isolated improper comment was prejudicial.
The district court immediately instructed the jury to disregard the
comment, and the evidence of guilt was strong. Johnson, Woodfork,
and Jerome Fontenberry identified Mitchell as the driver of the red
Taurus; Johnson testified that Fontenberry referred to the driver
as his "man," and Fontenberry testified that Mitchell gave him the
cocaine; Woodfork testified that Mitchell handed Fontenberry a
package; and a jacket with a name "A. Mitchell" and a rental

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receipt in the name of "Connie Mitchell" were found in the car.
Mitchell is not entitled to a new trial.
III.
Mitchell also raises three sentencing guidelines claims. He
argues that the district court erred in finding that he did not
accept responsibility for his criminal activity; that he was a
leader or organizer of the conspiracy; and that he obstructed
justice.
The district court's finding are reviewed under the "clearly
erroneous" standard. United States v. Brigman, 953 F.2d 906, 908
(5th Cir. 1992) (acceptance of responsibility), petition for cert.
filed, Aug. 4, 1992 (No. 92-5417); United States v. Rodriguez, 897
F.2d 1324, 1325-26 (5th Cir. 1989), cert. denied, 498 U.S. 857
(1990) (aggravating role in the offense); United States v.
McDonald, 964 F.2d 390, 392 (5th Cir. 1992) (obstruction of
justice). Under this standard, "[i]f the district court's account
of the evidence is plausible in light of the record viewed in its
entirety, the court of appeals may not reverse it even though
convinced that had it been sitting as the trier of fact, it would
have weighed the evidence differently." Anderson v. City of
Bessemer City, 470 U.S. 564, 573-74 (1985).
A.
The defendant has the burden of establishing that he accepted
responsibility. United States v. Perez, 915 F.2d 947, 950 (5th

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Cir. 1990). The district court denied Mitchell the two-level
reduction because he refused to accept responsibility for related
conduct and because he denied the factual elements of the offense
and put the government to its burden of proof. The two-level
reduction "is not intended to apply to a defendant who puts the
government 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." U.S.S.G. § 3E1.1, comment. (n.2). The
district court did not clearly err by denying the reduction on this
basis.
Mitchell also asserts that the denial of the two-level
reduction violated his Fifth Amendment privilege against self-
incrimination. He argues that he declined to testify at trial to
protect himself from a possible enhancement as a leader or
organizer of the criminal activity. We need not address this
argument, as the district court's alternative finding adequately
supports the denial of the two-level reduction. See Williams v.
United States, 112 S. Ct. 1112, 1121 (1992) (if the district court
considers an erroneous sentencing factor, remand is required unless
the "error did not affect the district court's selection of the
sentence imposed"). We note, however, that awarding the two-level
decrease only if Mitchell admits all relevant conduct does not
violate the Fifth Amendment. United States v. Mourning, 914 F.2d
699, 705 (5th Cir. 1991); United States v. Krummel, No. 91-2519
(5th Cir. Mar. 23, 1992) (unpublished); United States v. Tarter,
No. 91-2383 (5th Cir. Nov. 18, 1991) (unpublished).

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C.
A defendant's base offense level may be increased four levels
if he "was an organizer or leader of a criminal activity that
involved five or more participants or was otherwise extensive."
U.S.S.G. § 3B1.1(a). In making this assessment the district court
should consider
(1) the exercise of decision-making authority; (2) the
nature of the participation in the commission of the
offense; (3) the recruitment of accomplices; (4) the
claimed right to a larger share in the fruits of the
crime; (5) the degree of participation in planning or
organizing the offense; (6) the nature and scope of the
illegal activity; (7) and the degree of control and
authority exercised over others.
Rodriguez, 897 F.2d at 1325-26; see U.S.S.G. § 3B1.1, comment.
(n.3).
The evidence indicated that the conspiracy involved at least
five individuals and that Mitchell was Jerome Fontenberry's cocaine
source. The finding that Mitchell was Fontenberry's source is not
clearly erroneous. But, although Mitchell argued that the evidence
did not establish any of the listed factors, the district court did
not consider these factors to determine that Mitchell was a leader
or organizer of the conspiracy. Therefore, the sentence must be
vacated and the case remanded for further factual development on
this issue. See United States v. Rivera, 898 F.2d 442, 446 (5th
Cir. 1990).
B.
Finally, a defendant's base offense level can be increased by
two levels if he "recklessly created a substantial risk of death or

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serious bodily injury to another person in the course of fleeing
from a law enforcement officer." U.S.S.G. § 3C1.2. Woodfork
approached the Taurus with his credentials and gun displayed and
ordered Mitchell to get out of the car. In response, Mitchell sped
away, and in the subsequent car chase Roberts was seriously
injured. This conduct created a substantial risk of bodily injury,
see United States v. Lee, 989 F.2d 180, 183 (5th Cir. 1993), and
the district court's finding was not clearly erroneous.
The judgment of conviction is AFFIRMED. The judgment of
sentence is VACATED, and this matter is REMANDED for resentencing.

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