320 F.3d 42
KITTERY MOTORCYCLE, INC., Plaintiff, Appellant,v.G. Steven ROWE, Attorney General of the State of Maine, Defendant, Appellee.
No. 02-1666.
United States Court of Appeals, First Circuit.
Heard November 7, 2002.
Decided February 13, 2003.

COPYRIGHT MATERIAL OMITTED Barry A. Bachrach, with whom Christine S. Collins and Bowditch & Dewey, LLP, were on brief, for appellant.
Christopher C. Taub, Assistant Attorney General, with whom G. Steven Rowe, Attorney General for the State of Maine, and Paul Stern, Deputy Attorney General, were on brief, for appellee.
Bruce C. Gerrity, with whom Michael Kaplan and Preti Flaherty Beliveau Pachios & Haley, LLC, were on brief, for amicus curiae Maine Auto Dealers Association, Inc., in support of appellee.
Before LIPEZ, Circuit Judge, COFFIN and STAHL, Senior Circuit Judges.
LIPEZ, Circuit Judge.

1
This appeal requires us to revisit the constitutional propriety of a state's Sunday closing laws. Appellant Kittery Motorcycle, Inc. ("Kittery") is a motorcycle dealership located in Kittery, Maine, near the New Hampshire border. Kittery claims that Maine's Sunday closing laws, Me.Rev. Stat. Ann. tit. 17, §§ 3203-3204 (West Supp.2002), violate the United States Constitution's guarantees of equal protection and due process because, as a result of numerous exemptions enacted over the past half century, these laws authorize the sale of everything on Sundays except motor vehicles (defined to include motorcycles under Maine law). Kittery claims that, as a consequence, it loses substantial business to dealerships in New Hampshire, a state that permits the sale of motorcycles on Sunday.

2
While Sunday closing laws may be vestiges of a bygone era, we conclude that the laws at issue are not constitutionally infirm. Just as the district court rejected Kittery's challenge to Maine's Sunday closing laws, so do we.

I.
A. Maine's Sunday Closing Laws

3
Maine's general Sunday closing law opens with the following pronouncement: "No person, firm or corporation may, on the Lord's Day ... keep open a place of business to the public, except for works of necessity, emergency or charity."1 Me. Rev.Stat. Ann. tit. 17, § 3204 (West Supp. 2002). The statute is criminal in nature. First-time offenders "shall be punished by a fine of not more than $100 or by imprisonment for 30 days, or by both." Id. The penalties increase substantially for repeat offenders. Id.

4
Over the years, the Maine legislature has exempted dozens of different businesses from the law's application. As of 2002, the law exempted such diverse businesses as seasonal dairy stands, ship chandleries, textile plants, bowling alleys, and real estate brokers. Id. Another exemption applies to retail stores that employ no more than five persons. Id. Likewise, retail stores that have "no more than 5000 square feet of interior customer selling space" may open on Sundays. Id. Finally, a 1990 amendment carved out an exemption that practically swallowed the rule — retail stores larger than 5000 square feet may open on Sundays provided that they do not require their employees to work that day.2 Id.

5
However, section 3203 is explicit in its prohibition of motor vehicle sales:

6
Except as provided in section 3203-A,3 any person who carries on or engages in the business of buying, selling, exchanging, dealing or trading in new or used motor vehicles; or who opens any place of business or lot in which that person attempts to or does engage in the business of buying, selling, exchanging, dealing or trading in new or used motor vehicles; or who does buy, sell, exchange, deal or trade in new or used motor vehicles as a business on the first day of the week, commonly known and designated as Sunday, is a disorderly person.

7
Me.Rev.Stat. Ann. tit. 17, § 3203 (West Supp.2002). Under Maine law, a motorcycle is considered a "motor vehicle." Me. Rev.Stat. Ann. tit. 29-A, § 101(38) (West 1996 & Supp.2002). A person convicted of violating section 3203 is subject to a fine of no more than $100, imprisonment for not more than ten days, or both. Me.Rev.Stat. Ann. tit. 17, § 3203 (West Supp.2002). As with section 3204, the penalties increase substantially for repeat offenders. See id. § 3203 ("[T]he 3rd or each subsequent offense must be punished by a fine of not more than $750 or by imprisonment for not more than 6 months, or by both.").

B. Proceedings Below

8
Kittery filed suit in the United States District Court for the District of Maine on August 10, 2001, seeking a declaratory judgment that sections 3203 and 3204 are "unconstitutional to the extent they prohibit motorcycle dealers from selling motorcycles in Maine on Sundays." In the alternative, Kittery sought a declaration that its dealership could legally operate on Sundays pursuant to the 1990 amendment to section 3204 (the exemption for retail stores larger than 5000 square feet).

9
Following limited discovery, both sides moved for summary judgment. Kittery assailed the closing laws on a number of fronts. First, it argued that sections 3203 and 3204 violate the United States Constitution's guarantees of equal protection and due process in that they single out motor vehicle dealerships for closure while permitting every other business to remain open on Sundays. Next Kittery argued that, assuming arguendo that the state could constitutionally proscribe Sunday motor vehicle sales, the state had no rational basis for classifying motorcycles as "motor vehicles." Kittery maintained that motorcycles are more akin to recreational vehicles — such as all-terrain vehicles and snowmobiles — whose sale on Sundays is not proscribed. Finally, Kittery argued that sections 3203 and 3204 are unconstitutionally vague and that the 1990 amendment to section 3204 impliedly repealed section 3203.

10
In a thoughtful opinion, the district court expressed frustration with the seemingly "illogical" nature of the statutory scheme. Ultimately, however, the district court held that Kittery's arguments must fail in light of the constitutional presumption that "absent some reason to infer antipathy, ... judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted." Kittery Motorcycle, Inc. v. Rowe, 201 F.Supp.2d 189, 194 (D.Me.2002) (quoting F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 314, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)). Judgment for the defendant was entered accordingly, and this appeal ensued. "Where, as here, summary judgment has been granted, the court of appeals reviews the matter de novo, regarding the record and all reasonable inferences therefrom in the light most hospitable to the party who lost below." Grant's Dairy — Maine, LLC v. Comm'r of Me. Dep't of Agric., Food & Rural Res., 232 F.3d 8, 14 (1st Cir.2000).

II.

11
A. The Equal Protection and Due Process Claims

12
As explained above, Kittery claims that Maine's Sunday closing laws violate constitutional guarantees of equal protection and substantive due process.4 In making its claims, Kittery does not argue that an equal protection analysis differs in any way from a due process analysis. Indeed, the parties have, by and large, framed their arguments almost solely in terms of equal protection. Accordingly, we will analyze Kittery's claims solely in terms of equal protection. See Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 470 n. 20, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981) (remarking that if statute does not violate equal protection, "it follows a fortiori that [it] does not violate the Fourteenth Amendment's Due Process Clause"); Montalvo-Huertas v. Rivera-Cruz, 885 F.2d 971, 976 n. 7 (1st Cir.1989) (noting that "the type and kind of scrutiny applied, and the result, would be no different on either theory").

13
The Supreme Court has developed a tripartite rubric for evaluating equal protection challenges to legislation. When a statute burdens certain "fundamental rights" — e.g., voting rights or the right to interstate travel — a reviewing court will strictly scrutinize that statute, upholding it only if the government can clearly demonstrate a compelling interest incapable of being served by less intrusive means. See, e.g., Atty. Gen. of N.Y. v. Soto-Lopez, 476 U.S. 898, 906, 106 S.Ct. 2317, 90 L.Ed.2d 899 (1986) (right to interstate travel); Storer v. Brown, 415 U.S. 724, 756, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974) (Brennan, J., dissenting) (voting rights). Likewise, a reviewing court will apply strict scrutiny if a legislative distinction is based on a "suspect" classification such as race or national origin. See, e.g., Shaw v. Reno, 509 U.S. 630, 643-45, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) (racial classifications). By the same token, the Supreme Court has identified other classifications, such as illegitimacy, which are less "suspect" and thus subject to a less exacting level of scrutiny, often characterized as "intermediate" scrutiny. In such cases, the government must demonstrate at a minimum that the challenged classification is "substantially related to an important government objective." Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 100 L.Ed.2d 465 (1988).

14
All other regulations, including the statute under review in this case, are subject to the third and least exacting tier of scrutiny — rational basis: "Social and economic legislation ... that does not employ suspect classifications or impinge on fundamental rights must be upheld ... when the legislative means are rationally related to a legitimate government purpose." Hodel v. Indiana, 452 U.S. 314, 331, 101 S.Ct. 2376, 69 L.Ed.2d 40 (1981). The parties do not dispute that Kittery's equal protection challenge to Maine's Sunday closing laws entails this lowest level of scrutiny. Kittery maintains, however, that even under this rational basis test, Maine's Sunday closing laws are unconstitutional as applied to automobile and motorcycle dealerships.

15
Kittery faces an uphill battle. Under the rational basis test, the classifications in Maine's Sunday closing laws "come[] to us bearing a strong presumption of validity," Beach Communications, 508 U.S. at 314, 113 S.Ct. 2096. As another court has noted, "[e]ven foolish and misdirected provisions" will be upheld under this test. Craigmiles v. Giles, 312 F.3d 220, 223-24 (6th Cir.2002). Kittery's task is made all the more difficult because the state, in order to defeat Kittery's claim, need only articulate some "reasonably conceivable set of facts" that could establish a rational relationship between the challenged laws and the government's legitimate ends. Montalvo-Huertas, 885 F.2d at 978. These proffered facts "need not be supported by an exquisite evidentiary record." Craigmiles, 312 F.3d at 224. Indeed, they need not be supported by any evidentiary record at all. See Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) ("A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification."); Beach Communications, 508 U.S. at 315, 113 S.Ct. 2096 ("[A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data."). With these general constraints in mind, we now turn to the particulars of this case.

16
Kittery first attacks the Sunday closing laws as they apply to motor vehicle dealerships, asserting that the myriad accumulated exceptions to the laws "have rendered the scheme arbitrary and illogical." Thus, according to Kittery, the closing laws "no longer bear a retional relationship to the statute's purported purpose[]," the promotion of Sunday as a day of rest and relaxation. We soundly rejected an identical argument in Montalvo-Huertas. In that case, a convenience store owner filed suit in the district court in Puerto Rico, challenging the commonwealth's Sunday closing laws as unconstitutional. Montalvo-Huertas, 885 F.2d at 973. Following an evidentiary hearing, the district court enjoined enforcement of the closing laws. Id. at 974. In defending the injunction on appeal, the plaintiff made the same argument Kittery now espouses, "complaining that the Closing Law's coverage is so spotty, and its exemptions so prevalent, that it has become ineffectual, hence irrational." Id. at 980. We rejected that contention, noting that

17
the legislature need not approach goals on an all-or-nothing basis: "reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.... The legislature may select one phase of one field and apply a remedy there, neglecting the others."

18
Id. at 981 (quoting Williamson v. Lee Optical Inc., 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955)); see also City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976) (per curiam) ("States are accorded wide latitude in the regulation of their local economies under their police powers, and rational distinctions may be made with substantially less than mathematical exactitude."). In considering the plaintiff's argument, we stated: "To uphold the Closing Law, it is enough if each exemption is rationally related to some legitimate legislative aim, and if the exemptions, collectively, do not erode the rationality of the legislative scheme as a whole." Montalvo-Huertas, 885 F.2d at 981 (original emphasis). We then "inspected the exemptions one by one" and were "satisfied they [did] not defeat the Closing Law's constitutionality."5 Id.

19
Apparently recognizing the precedential hurdle of Montalvo-Huertas, Kittery does not argue that each and every one of section 3204's listed exemptions fails to have a rational basis. Nor does Kittery argue that the promotion of Sunday as a day of rest is an illegitimate government purpose. Rather, Kittery tries to circumvent Montalvo-Huertas by arguing that Maine's Sunday closing laws, in effect, single out motor vehicle sales for prohibition. Kittery points out that the provisions of sections 3203 and 3204, read together, permit any retail business to open on Sundays except for motor vehicle dealerships. See Me.Rev.Stat. Ann. tit. 17, §§ 3203-3204 (West Supp.2002). This singling out of motor vehicle sales, according to Kittery, is utterly irrational.6 In reply, the state claims that the legislature could have reasonably assumed that sales commissions form a substantial portion of the compensation of most motor vehicle salespersons. The legislature could have therefore reasonably concluded that motor vehicle salespersons would feel compelled to work on Sundays in order to earn commissions, regardless of whether their employers actually required them to work, thereby undermining the state's legitimate goal of promoting Sunday as a day of rest. Kittery responds by pointing out that real estate brokers and motor home salespersons can work on Sundays, see Me.Rev. Stat. Ann. tit. 17, §§ 3203-A, 3204 (West Supp.2002), even though they typically work on a commission basis. Thus, Kittery maintains, it is arbitrary and irrational for the state to treat motor vehicle dealers any differently.

20
The difficulty with Kittery's response is twofold. First, it assumes that there must be a precise, mathematical fit between the classification and the legitimate government purpose the classification serves — an altogether insupportable assumption given the unexacting nature of rational basis review. See Dukes, 427 U.S. at 303, 96 S.Ct. 2513; Montalvo-Huertas, 885 F.2d at 980. Second, as the state argues, the legislature could have reasonably concluded that the people of Maine are more fundamentally in need of shelter and housing than simple transportation, thereby justifying an exemption for the sale of homes, including motor homes. Or the legislature could have reasonably determined that it would be impractical to enforce a Sunday prohibition on home sales because much of a real estate broker's work takes place in the properties being shown (thus making the policing of such a prohibition overly burdensome).7 Or the legislature could have reasonably concluded that motor homes are used almost exclusively for recreational purposes (i.e., no one drives a motor home to work), and that the Sunday sale of motor homes therefore actually promotes Sunday as a day of rest, relaxation, and recreation.8 Regardless of the underlying justifications and rationales, this court is not the forum in which to weigh their respective merits. Suffice it to say that they are not so spurious as to render the statute "palpably arbitrary." Nordlinger v. Hahn, 505 U.S. 1, 18, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992). Thus Kittery's attack against Maine's Sunday closing scheme — as it applies to motor vehicle dealerships — must fail.9

21
In addition to challenging the state's decision to treat motor vehicle dealerships differently from other retail establishments, Kittery also challenges the state's decision to classify motorcycles as motor vehicles.10 See Me.Rev.Stat. Ann. tit. 29-A, § 101(38) (West 1996 & Supp. 2002). According to Kittery, "motorcycles are recreational vehicles, and as such are similarly situated with other recreational vehicles and equipment that can be sold on Sundays." Hence, Kittery maintains, the legislature's decision to classify motorcycles as motor vehicles is "arbitrary and irrational." We disagree.

22
In its brief, Kittery states that, "[i]n Maine, one purchases a motorcycle not as a mode of transportation, but as a form of recreation akin to snowmobiles, boats, motor homes, jet skis, or all-terrain vehicles." In support of this pronouncement, Kittery points us to affidavits and deposition testimony of Kittery's vice-president and its general manager. With all due respect to Kittery and its staff, reasonable minds can differ, and the legislature could have reasonably concluded that, weather permitting, many people in Maine would use motorcycles as a mode of general transportation (for example, to go to and from work or school). And the legislature could have just as reasonably concluded that not many people in Maine would use snowmobiles, boats, motor homes, jet skis, or all-terrain vehicles for such routine transportation purposes. Buttressing this conclusion is the fact that motorcycles, like other motor vehicles, can be operated on roads and highways, whereas all-terrain vehicles and snowmobiles cannot. See Me.Rev.Stat. Ann. tit. 12, §§ 7827, 7857 (West 1994 & Supp.2002). Similarly, motorcycle operators, like motor vehicle operators, must be licensed, whereas operators of all-terrain vehicles and snowmobiles need not. Id. §§ 7823, 7853.

23
In sum, we are not led to the inescapable conclusion that the legislature acted irrationally when it chose to classify motorcycles as motor vehicles rather than recreational vehicles. We agree with the observation of amicus that "[n]o doubt, the Legislature could have treated motorcycles the way it treats recreational (off road) vehicles for Sundays sales purposes." To Kittery's detriment, however, the legislature chose not to, and we will not disturb that decision.

B. Kittery's Other Arguments

24
Before the district court, Kittery advanced two other arguments — that sections 3203 and 3204 are unconstitutionally vague, and that the 1990 amendment to section 3204 impliedly repealed section 3203. The district court, finding that Kittery was "wrong and so clearly wrong on these issues," disposed of these arguments in a footnote. Kittery Motorcycle, 201 F.Supp.2d at 191 n. 1. We agree that these arguments may be easily dispatched.

25
First, as for the void-for-vagueness argument, the Due Process Clause of the Fourteenth Amendment "requires that statutes or regulations be sufficiently specific to provide fair notice of what they proscribe." Brasslett v. Cota, 761 F.2d 827, 838 (1st Cir.1985). The statute must "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Love v. Butler, 952 F.2d 10, 14 (1st Cir.1991); see also United States v. Marquardo, 149 F.3d 36, 41 (1st Cir.1998). We cannot imagine how the text of section 3203 could be more plain: "any person who carries on or engages in the business of buying, selling, exchanging, dealing or trading in new or used motor vehicles ... on the first day of the week, commonly known and designated as Sunday, is a disorderly person." Me.Rev.Stat. Ann. tit. 17, § 3203 (West Supp.2002). The statute indicates with sufficient intelligibility and definiteness what conduct is prohibited, and we cannot discern any way in which the statute lends itself to arbitrary or discriminatory enforcement.

26
Kittery also argues that the prohibitions of section 3203 were impliedly repealed by the 1990 amendment to section 3204. We reject this argument as well. "Courts do not lightly assume that one statute has implicitly repealed another." Greenless v. Almond, 277 F.3d 601, 608 (1st Cir.2002); see United States v. Will, 449 U.S. 200, 221, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980) ("As a general rule, repeals by implication are not favored."); State v. London, 156 Me. 123, 162 A.2d 150, 152 (1960) ("It is well settled that a repeal by implication is not favored and will not be upheld in doubtful cases.").

27
Given our reluctance to find an implied repeal, if we can reasonably read the two statutes consonantly, we will. See Rhode Island v. Narragansett Indian Tribe, 19 F.3d 685, 703 (1st Cir.1994) ("In other words, so long as the two statutes, fairly construed, are capable of coexistence, courts should regard each as effective."). The most straightforward and obvious way to read the two statutes in tandem is to treat section 3203 as a narrowly focused prohibition on Sunday motor vehicle sales, and to regard section 3204 as a law of general application, applicable to every kind of business. Thus, retailers who qualify under 3204 may open on Sunday, but they may not sell motor vehicles pursuant to section 3203.11 See Radzanower v. Touche Ross & Co., 426 U.S. 148, 153, 96 S.Ct. 1989, 48 L.Ed.2d 540 (1976) ("It is a basic principle of statutory construction that a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum."). We therefore conclude that section 3203 governs the sale of motor vehicles on Sunday, notwithstanding the 1990 amendment to section 3204.12

III.

28
For the foregoing reasons, the judgment of the district court is AFFIRMED. Costs to appellee.

29
It is so ordered.

Notes:

1
 "The Lord's Day includes the time between 12 o'clock on Saturday night and 12 o'clock on Sunday night." Me.Rev.Stat. Ann. tit. 17, § 3201 (West 1983)

2
 The amendment began in the Maine legislature as an "Initiated Bill."See 1989 Me. I.B. 3; see also Me. Const. art. IV, pt. 3, § 18 (providing for direct initiative of legislation). The Maine electorate approved the proposed amendment at the general election held on November 6, 1990.

3
 Section 3203-A exempts "motor homes" from the purview of section 3203. Me.Rev. Stat. Ann. tit. 17, § 3203-A (West Supp.2002)

4
 See U.S. Const. amend. XIV, § 1 ("No State shall ... deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction equal protection of the law.").

5
 While we considered each of the statutory exemptions inMontalvo-Huertas, we did not explicitly address each and every one in our opinion. "In the interests of brevity, we discuss[ed] only those exceptions which [had] drawn [plaintiff's] heaviest fire." Montalvo-Huertas, 885 F.2d at 981. For example, we concluded that an exemption for businesses in the Old San Juan tourist zone "could reasonably be found to promote the public weal by sustaining an important local industry, one whose clientele are in Puerto Rico to play, not work-and to whom the `day of rest' concept does not apply." Id.

6
 Kittery does not allege any animus or improper motive on the part of the legislature in singling out motor vehicle dealershipsSee Romer v. Evans, 517 U.S. 620, 634, 116 S.Ct. 1620, 134 L.Ed.2d 855 (1996) ("[I]f the constitutional conception of `equal protection of the laws' means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."). Indeed, the Maine Auto Dealers Association, "an association of franchised new car and truck dealers with approximately 150 members located throughout the State of Maine," has filed an amicus brief in support of the state. The Association, on behalf its members, was the original sponsor of section 3203 and over the years has "repeatedly lobbied against attempts to amend, repeal or water down" the statute. Amicus Br. at 1.

7
 In contrast, one need only drive past the dealership's fixed location to determine whether the closing law is being violated

8
 The state quotes much of the legislative history in support of its proffered justifications. While we appreciate the thoroughness of the state's brief, we feel obliged to point out that, under rational basis review, it is "`constitutionally irrelevant [what] reasoning in fact underlay the legislative decision.'"U.S.R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980) (quoting Flemming v. Nestor, 363 U.S. 603, 612, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960)).

9
 The state also claims that the Sunday closing laws are rationally related to other legitimate state interests — e.g., reducing overhead costs in an inelastic market and providing a day in which consumers can browse without being bothered by salespersons. Having determined that the closing laws are rationally related to the state's legitimate interest in the promotion of Sunday as a day of rest, we need not consider these other arguments

10
 "`Motorcycle' means a motor vehicle that has a seat or a saddle for the use of the rider and is designed to travel with not more than 3 wheels in ground contact." Me.Rev.Stat. Ann. tit. 29-A, § 101(38) (West 1996 & Supp.2002)

11
 The record reflects that this is precisely what the plaintiff has done in the past — remain open on Sundays for the sale of other merchandise, but not motorcycles

12
 Although the statutory provisions themselves refute any argument for implied repeal, we note that the legislative activity subsequent to the 1990 amendment confirms the unmistakable import of the statutes. In 1995 the Maine Legislature refused to enact a bill which would have expressly repealed section 3203,see An Act to Permit Motor Vehicle Dealerships to Operate on Sundays, L.D. 109, 117th Leg., 1st Sess. (Me.1995) (unenacted), and in 2001 refused to enact a bill which would have exempted the sale of motorcycles from section 3203, see An Act to Permit the Sale of Motorcycles on Sunday, L.D. 68, 120th Leg., 1st Sess. (Me.2001) (unenacted). The floor debates around this latter bill — which was cosponsored by Kittery's representative on Kittery's behalf — make clear that no one thought that the 1990 amendment had impliedly repealed section 3203. See 120 Me. Legis. Rec. H-489 (Apr. 25, 2001) ("As it is, six days [of the week] you are able to buy the motorcycle.") (statement of Rep. Thomas); id. H-491 ("I guess I just can't understand why we, as a government, have to hang on to this one little vestige of what somebody called the blue laws and not allow this one individual [Kittery] to stay open and run his business and try to make a sale or two.") (statement of Rep. Morrison).


123 Wn.2d 885 (1994)
872 P.2d 1087
THE STATE OF WASHINGTON, Respondent,
v.
LEONICIO GARZA, Petitioner.
No. 60724-9.
The Supreme Court of Washington, En Banc.
May 19, 1994.
Carl G. Sonderman, for petitioner.
Dennis DeFelice, Prosecuting Attorney, and Steve Cox and Ann Marie DiLembo, Deputies, for respondent.
ANDERSEN, C.J.

FACTS OF CASE
The Defendant, who pleaded guilty to the crime of first degree rape, challenges his exceptional sentence; his present *886 claim is that the trial court's findings in support of the sentence are not supported by the record. We affirm.
The presentence investigation report and the transcribed statement of a participant in the crime[1] show that on the afternoon of August 7, 1991, Defendant Leonicio (Leo) Garza, his sister Gloria Garza, Leo's nephew and Gloria's son Robert Eriksson, along with another young woman, drove to the home of the female victim in order to "scare" or "take care of" her.
Before reaching the victim's home, the Garzas and the others stopped at a store where Leo Garza allegedly shoplifted some duct tape and possibly a can of gold spray paint, a razor and some scissors.
The four then drove to the victim's residence. There they enticed her to come out of her home and over to their car, saying someone wanted to talk to her. As she looked into the car the victim was pushed into the back seat. Her hands were bound and her eyes covered with duct tape. The victim was told that if she screamed she would be killed. Although her eyes were covered, the victim had partial vision out of one eye. The victim was then driven to a remote area of Franklin County. She was pushed out of the car and onto the ground, and was again told not to scream. She was then stripped of her clothing. Her head hair was cut off, her pubic hair was shaved, and gold paint was sprayed on her breasts. This was done by Leo and Gloria Garza. The victim was then pushed against the car and raped anally and vaginally by Leo Garza. Robert Eriksson also raped the victim when he was encouraged to do so by his mother, Gloria Garza. The victim was then kicked in the vaginal area by Gloria Garza. Gloria and Leo Garza then made a "tail" by wrapping a coat hanger around a table knife and attaching a scarf to the end of it; this "tail" was inserted into the victim's rectum by Gloria and Leo.
*887 The attackers then left the victim and drove from the area. The victim, still bound, gagged and naked, managed to walk to a residence where she received help.
Leo Garza was eventually charged with first degree rape on December 17, 1991.[2]
Leo Garza pleaded guilty to first degree rape.[3] The validity of his guilty plea is not challenged. In exchange for Leo Garza's guilty plea, the prosecuting attorney agreed to recommend a sentence within the standard range (the prosecutor recommended the top end of the range). Neither of the Garzas admitted being a principal, both claiming to be mere accomplices. Gloria Garza acknowledged that she "knowingly aided another in kidnapping victim and in aiding another to have sexual intercourse by forcible compulsion." Leo Garza acknowledged that he "assisted in the kidnapping of another and was an accomplice to her rape."
At sentencing, the trial court considered the statement of Defendant on plea of guilty and the information contained in the presentence report. That report sets forth what it refers to as the "official" version of the offense, essentially relating the facts set forth above, as well as the Defendant's version of the offense. The Defendant's version, as stated in the presentence report, is as follows:
Leo Garza ... states that he was asked to accompany Gloria Garza, Robert Erickson [sic] and another female subject to [Franklin County] "to scare somebody". He states that he drove the vehicle and that the victim was picked up in [Franklin County] and taken out to a[n] isolated area. He also stated that he did not participate in the rape of the victim, nor did he *888 see anything that happened even though the rape of the victim took place on the hood of the vehicle while Garza was seated inside. Garza states that after the incident was over he got out of the car and told the victim that there was a farm house down the road before [sic]. This information is not in any of the reports taken by the police. When queried about the victim's state when Garza talked to her, he stated that she had duct tape on her face, her hands were tied behind her and she was naked.
The presentence report further states:
The offender (Garza) refuses to admit to participation in any of the events of the rape and humiliation of the victim. This is in contrast to the police reports and victim's statement.... He shows no outward sign of remorse or empathy for the victim.
Robbie Erickson [sic], in a taped statement, identified Leo Garza as the person who raped the victim, anally and vaginally and helped insert the device in her rectum. Another statement, from an acquaintance, reported that Garza "bragged" about what he did to the victim.
The Defendant did not specifically challenge any of the information contained in the presentence report, nor did he at any time request an evidentiary hearing to controvert any of the information contained in the report. His sister, Gloria Garza, had been sentenced 2 weeks earlier by the same sentencing judge and had received an exceptional sentence; she was sentenced to 176 percent of the top of the standard range.
The trial court entered findings of fact in support of Leo Garza's exceptional sentence. Those findings reflect the information contained in that part of the presentence report which was based on the victim's statements and police reports. The trial court specifically found that the victim was raped vaginally and anally by Leo Garza, and then concluded that
defendant Leo Garza manifested extreme and deliberate cruelty to the victim ... which constitutes a substantial and compelling reason for the imposition of an exceptional sentence.
The trial court then sentenced Leo Garza to 200 months, 176 percent of the top of the standard range.
*889 The Defendant appealed the exceptional sentence to the Court of Appeals on the grounds that the trial court's findings were not supported by the record and that the sentence was clearly excessive. The Court of Appeals, in an unpublished opinion, affirmed his exceptional sentence.
Leo Garza petitioned this court for review on the ground that the exceptional sentence was not supported by the record before the trial court. We granted review.
One issue is dispositive of this appeal.

ISSUE
Did the sentencing court err in considering facts contrary to Defendant's version of the crime, without first holding an evidentiary hearing, when it determined that an exceptional sentence was warranted?

DECISION
CONCLUSION. A sentencing court is not required to hold an evidentiary hearing where the defendant does not specifically object to factual statements made in a presentence report and does not request an evidentiary hearing to challenge disputed statements.
[1] Generally, in reviewing the appropriateness of an exceptional sentence, an appellate court answers the following three questions under the indicated standards of review:
1. Are the reasons given supported by evidence in the record? As to this, the standard of review is "clearly erroneous".
2. Do the reasons justify a departure from the standard range? The standard of review on this is as a "matter of law".
3. Is the sentence clearly [too excessive or] too lenient? The standard of review on this last question is "abuse of discretion".
(Footnotes omitted.) State v. Allert, 117 Wn.2d 156, 163, 815 P.2d 752 (1991).[4]
We need address only the first question in the present case.
Defendant Leo Garza's claim here is that the evidence properly considered by the trial court did not support the reasons for the exceptional sentence. He argues that the *890 presentence investigation report showed two interpretations of the facts. Because his version of the crime differed from the victim's version and that set forth in police reports, Defendant argues that the trial court was prohibited from considering any fact not contained in Defendant's version of the crime.
The Sentencing Reform Act of 1981 (SRA), RCW 9.94A, provides:
In determining any sentence, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing. Acknowledgement includes not objecting to information stated in the presentence reports. Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point. The facts shall be deemed proved at the hearing by a preponderance of the evidence.
(Italics ours.) RCW 9.94A.370(2) (part). No objection was ever made by the Defendant to any of the information contained in the presentence report and the trial court therefore properly deemed that information to be acknowledged by the Defendant.
The Superior Court Criminal Rules also are pertinent. CrR 7.1(c) requires defense counsel and the prosecuting attorney to notify opposing counsel and the court, at least 3 days before the sentencing hearing, of any part of the presentence report that will be controverted by the production of evidence. No such notice was given here.
[2] In short, in order to dispute any of the information presented for consideration at a sentencing hearing, a defendant must make a timely and specific challenge.[5]
Defendant Leo Garza did not challenge any of the information contained in the presentence report; nor did he request an evidentiary hearing at which he could controvert information contained in the report. The victim was present at the time of sentencing and could have testified had facts contained in the presentence report been appropriately *891 challenged or an evidentiary hearing requested. Leo Garza's sister and codefendant, Gloria Garza, had received an exceptional sentence based on the same facts and a similar plea just 2 weeks earlier, so his own exceptional sentence can hardly have come as a surprise to him.
By failing to object to the information contained in the presentence report or to demand an evidentiary hearing to refute that information, this Defendant acknowledged that he was unable to controvert the facts set forth in the report.
Under these circumstances, the sentencing court had a right to and did properly consider the information contained in the presentence report in determining Defendant Garza's sentence. Accordingly, the findings of fact entered by the sentencing court in support of Leo Garza's exceptional sentence are supported by the record, as are its conclusions of law. Because we hold Defendant Leo Garza's sentence to be supported by the record, we need not decide whether the sentence would be justified on other grounds.
Affirmed.
UTTER, BRACHTENBACH, DOLLIVER, DURHAM, SMITH, GUY, JOHNSON, and MADSEN, JJ., concur.
NOTES
[1]  The statement of the accomplice is included in the appendix to Defendant's brief and to his petition for review. It is not clear whether this statement was before the trial court at the time of sentencing, but it was referenced in the presentence report.
[2]  RCW 9A.44.040(1)(b), (c), the statute under which Garza was charged, provides:

"(1) A person is guilty of rape in the first degree when such person engages in sexual intercourse with another person by forcible compulsion where the perpetrator or an accessory:
"...
"(b) Kidnaps the victim; or
"(c) Inflicts serious physical injury; ..."
[3]  Gloria Garza also pleaded guilty to first degree rape. She appealed her exceptional sentence and her appeal was consolidated in the Court of Appeals with that of Leo Garza. The facts relating to Ms. Garza are taken from the unpublished opinion of the Court of Appeals; she did not petition for review.
[4]  See also RCW 9.94A.210(4); State v. Nguyen, 68 Wn. App. 906, 917, 847 P.2d 936, review denied, 122 Wn.2d 1008 (1993).
[5]  See State v. Mail, 121 Wn.2d 707, 712, 854 P.2d 1042 (1993); State v. Handley, 115 Wn.2d 275, 282-83, 796 P.2d 1266 (1990).


                                                  MANDATE

THE STATE OF TEXAS

TO THE 131ST JUDICIAL DISTRICT COURT OF BEXAR COUNTY, GREETINGS:

Before our Court of Appeals for the Fourth District of Texas on October 22, 2014, the cause upon appeal to
revise or reverse your judgment between

In the Interest of J.F., Minor Child, Appellant

V.

No. 04-14-00316-CV and Tr. Ct. No. 2012-PA-02694

was determined, and therein our said Court of Appeals made its order in these words:

      In accordance with this court’s opinion of this date, the judgment of the
trial court is AFFIRMED.
WHEREFORE, WE COMMAND YOU to observe the order of our said Court of Appeals for the Fourth
District of Texas, in this behalf and in all things have the order duly recognized, obeyed, and executed.

WITNESS the Hon. Sandee Bryan Marion, Chief Justice of the Court of Appeals for the Fourth District of
Texas, with the seal of the Court affixed and the City of San Antonio on February 27, 2015.

                                                           KEITH E. HOTTLE, CLERK

                                                           ____________________________
                                                           Cynthia A. Martinez
                                                           Deputy Clerk, Ext. 53853
                                            BILL OF COSTS

       TEXAS COURT OF APPEALS, FOURTH DISTRICT, AT SAN ANTONIO

                                       No. 04-14-00316-CV

                                In the Interest of J.F., Minor Child

                                                   v.

        (NO. 2012-PA-02694 IN 131ST JUDICIAL DISTRICT COURT OF BEXAR COUNTY)

TYPE OF FEE                  CHARGES        PAID          BY
CLERK'S RECORD                    $276.00   INDIGENT
FILING                            $195.00   INDIGENT      N/A

       Balance of costs owing to the Fourth Court of Appeals, San Antonio, Texas: 0.00

       Court costs in this cause shall be paid as per the Judgment issued by this Court.

     I, KEITH E. HOTTLE, CLERK OF THE FOURTH COURT OF APPEALS OF THE STATE OF
TEXAS, do hereby certify that the above and foregoing is a true and correct copy of the cost bill of
THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS, showing the charges and
payments, in the above numbered and styled cause, as the same appears of record in this office.

      IN TESTIMONY WHEREOF, witness my hand and the Seal of the COURT OF APPEALS for
the Fourth District of Texas, this February 27, 2015.

                                                        KEITH E. HOTTLE, CLERK

                                                        ____________________________
                                                        Cynthia A. Martinez
                                                        Deputy Clerk, Ext. 53853


521 S.E.2d 212 (1999)
239 Ga. App. 301
SLEDGE
v.
The STATE.
No. A99A1014.
Court of Appeals of Georgia.
July 23, 1999.
*213 Trauffer & Associates, Harry L. Trauffer, Marietta, Lawrence J. Zimmerman, for appellant.
Tommy K. Floyd, District Attorney, Sandra A. Graves, Assistant District Attorney, for appellee.
McMURRAY, Presiding Judge.
After the denial of his motion to suppress cocaine discovered in the vehicle he was driving, defendant consented to a bench trial and was found guilty of a single count of trafficking in cocaine. He appeals from the judgment of conviction, contending the trial court erred in concluding a valid consent search occurred and further erred in concluding the police had probable cause of any suspicious activity to detain him.
Only the arresting officers testified at defendant's suppression hearing. Viewed in the light most favorable to the trial court's determination, their evidence authorized the following material facts: Uniformed Butts County Sheriff's Deputy Mark C. Whitwell and his partner (and brother), Deputy Scott *214 Whitwell, were on traffic patrol on Interstate 75 on May 21, 1998, when they observed a van driven by defendant. Defendant attempted to change lanes from the middle lane to the slow lane without the use of a turn signal. One quarter width of the vehicle went into the slow lane, causing the traffic around defendant to brake and slow in an effort to avoid him. Defendant then went into the left lane with approximately one quarter vehicle width and returned to the center lane. Concerned that defendant might be under the influence of something that would render defendant a less safe driver, the deputies initiated a traffic stop of defendant's van. Deputy Scott Whitwell spoke with defendant at the driver's window. When Deputy Scott Whitwell was asking for the driver's license, defendant was "looking up at [Deputy Scott Whitwell], but ... had extended his right arm down and was pushing a box away from him, ... towards the van's passenger seat." It appeared to be a shoe box; something large enough to contain a weapon. Defendant was very nervous and apprehensive and was slow to identify the person to whom the vehicle was registered. While defendant searched for registration papers, Deputy Scott Whitwell informed Deputy Mark Whitwell that defendant was "hiding a box." Deputy Mark Whitwell asked defendant for permission to search the box, because the deputy was worried due to the fact that defendant tried to hide the box, was nervous, and remained focused on the box. Defendant gave permission, saying "`Yes, Sir,' an affirmative reply that [Deputy Mark Whitwell] could search the box." Defendant was not threatened and did not appear to be under the influence of alcohol or any other drug. Inside the box, Deputy Mark Whitwell found an opaque plastic bag, the contents of which, while unknown, did not seem threatening. But underneath this was a small, clear plastic bag containing suspected cocaine. Deputy Mark Whitwell signaled his partner, and Deputy Scott Whitwell put defendant "on the ground to his knees and cuffed him...." According to the videotape of this traffic stop, less than three minutes elapsed between the initial encounter and defendant's formal arrest. Held:
1. Defendant first contends the trial court erred in denying the motion to suppress because his consent to search the box containing suspected cocaine was the product of an illegal detention, relying on Rogers v. State, 206 Ga.App. 654, 657(2), 426 S.E.2d 209. We disagree.
(a) In a consent search, the burden is on the State to demonstrate that the consent was voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact for the trial court to be determined from all the circumstances. Code v. State, 234 Ga. 90, 93(III), 214 S.E.2d 873. Where, as here, the evidence is uncontradicted and no question regarding the credibility of witnesses is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review. Vansant v. State, 264 Ga. 319, 320(1), 443 S.E.2d 474.
(b) The test to determine whether a temporary traffic stop has evolved into a custodial arrest is whether a reasonable person in the detainee's position would have thought the detention would not be temporary. Sutton v. State, 223 Ga.App. 721, 722(1), 478 S.E.2d 910, citing Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317. In Rogers, this Court reversed the denial of a suppression motion, concluding "that when [the investigating officer] retained appellant's license [while questioning him on matters unrelated to any possible traffic, parking, or loitering violations], the encounter matured into an investigative stop," from which that defendant could not reasonably have believed himself free to leave, and so coerced his consent to search. 206 Ga.App. at 657-658(2), 426 S.E.2d 209, supra.
In the case sub judice, the initial traffic stop of defendant's vehicle was not pretextual but was authorized by the apparent violation of OCGA § 40-6-48, committed in the officers' presence. State v. Holcomb, 219 Ga.App. 231, 232, 464 S.E.2d 651. Roadside questioning at a routine traffic stop does not, in and of itself, constitute custodial interrogation. Lebrun v. State, 255 Ga. 406, 407(3), 339 S.E.2d 227. An officer conducting a routine traffic stop may request and examine a driver's license and vehicle registration *215 and run a computer check on the documents. Rogers v. State, 206 Ga.App. at 657(1), 426 S.E.2d 209, supra. The fact that an officer retains a detainee's license for a short period during the course of an investigation does not necessarily mean that detainee is in custody, even if, at that point, the detainee could have been arrested for some violation of state law. Crum v. State, 194 Ga.App. 271, 272, 390 S.E.2d 295. Here, Deputy Scott Whitwell had not yet completed the license check on defendant during the three-minute episode, before Deputy Mark Whitwell obtained consent to search the shoe box defendant had attempted to hide. A reasonable person not under the influence of any drug or intoxicant to the extent he was rendered a less safe driver would have thought the traffic stop for weaving across the roadway was only temporary. Sutton v. State, 223 Ga.App. at 724(1), 478 S.E.2d 910, supra. Consequently, the trial court in the case sub judice correctly concluded under the totality of the circumstances that defendant's consent was not the impermissible result of an unauthorized custodial detention.
2. Next, defendant contends the denial of his suppression motion was error because the officers had neither probable cause nor reasonable suspicion to search the box for contraband or weapons. But a valid consent to search eliminates the need for probable cause to support, a warrant or for reasonable suspicion to conduct a limited search for weapons. McDaniel v. State, 227 Ga.App. 364, 366(2), 489 S.E.2d 112; Boggs v. State, 194 Ga.App. 264, 390 S.E.2d 423. Thus assuming, but not deciding, the deputies did not harbor a reasonable suspicion that the shoebox defendant nervously kept eying contained either a weapon or contraband, his valid consent to examine that box rendered irrelevant the alleged absence of such probable cause or reasonable suspicion of wrongdoing.
Judgment affirmed.
ANDREWS, P.J., and RUFFIN, J., concur.


35 So.3d 942 (2010)
Elvis HERNANDEZ, Appellant,
v.
CITY OF MIAMI and Florida Department of Transportation, Appellees.
No. 3D09-1320.
District Court of Appeal of Florida, Third District.
April 14, 2010.
Rehearing and Rehearing En Banc Denied June 16, 2010.
*943 Theodore Dempster, for appellant.
Julie O. Bru, City Attorney, and Richard S. Otruba and John A. Greco, Assistant City Attorneys, for appellee, City of Miami; and Lydecker, Lee, Berga, & De Zayas, Onier Llopiz, and Joan Carlos Wizel, Miami, for appellee, Florida Department of Transportation.
Before RAMIREZ, C.J., and COPE and GERSTEN, JJ.
PER CURIAM.
Elvis Hernandez appeals from the trial court's order striking sham pleadings and dismissing a personal injury claim with prejudice. We reverse.
Hernandez sued the City of Miami ("the City") and Florida Department of Transportation ("DOT") for injuries sustained after falling into a defective storm drain on a City sidewalk. Hernandez's complaint alleged injuries to his left leg and back, and that he suffered exacerbation of a pre-existing condition.
DOT moved to strike sham pleadings. DOT alleged fraud because there were discrepancies in Hernandez's answers to interrogatories and during deposition testimony regarding his injuries. The trial court struck the pleadings and dismissed the case with prejudice. This appealed followed.
Hernandez asserts that the trial court abused its discretion in dismissing his claim. DOT and the City contend that the trial court did not abuse its discretion in dismissing Hernandez's claim for fraud on the court. We agree with Hernandez and reverse.
A trial court has the inherent authority to dismiss an action as a sanction when the plaintiff has perpetuated a fraud on the court. However, this power should be exercised cautiously, sparingly, and only upon a clear showing of fraud on the court. Ramey v. Haverty Furniture Cos., 993 So.2d 1014, 1018 (Fla. 2d DCA 2008). Fraud on the court occurs where there is clear and convincing evidence "that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system's ability impartially to adjudicate a matter by improperly influencing the trier or unfairly hampering the presentation of the opposing party's claim or defense." 993 So.2d at 1018 (quoting Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989)).
A trial court's decision on whether to dismiss a case for fraud on the court is reviewed under a narrow abuse of discretion standard. See Cherubino v. Fenstersheib & Fox, P.A., 925 So.2d 1066 (Fla. 4th DCA 2006). For the trial court to properly exercise its discretion, there must be an evidentiary basis to dismiss the case. See Ramey, 993 So.2d at 1018.
Here, the trial court did not have a clear and convincing evidentiary basis to dismiss the case for fraud on the court. Therefore, we find that the trial court abused its discretion in striking the pleadings and dismissing with prejudice Hernandez's claim. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.


182 Ariz. 246 (1994)
895 P.2d 1009
STATE of Arizona, Appellee,
v.
Sharon Lee TARANGO, Appellant.
No. 1 CA-CR 93-0457.
Court of Appeals of Arizona, Division 1, Department C.
November 22, 1994.
Review Granted May 23, 1995.
*247 Grant Woods, Atty. Gen. by Paul J. McMurdie, Chief Counsel, Crim. Appeals Section, and Monica D. Beerling, Asst. Atty. Gen., Phoenix, for appellee.
Dean W. Trebesch, Maricopa County Public Defender by Paul J. Prato, Deputy Public Defender, Phoenix, for appellant.

OPINION
WEISBERG, Judge.
Sharon Lee Tarango ("defendant") appeals her convictions and sentences on one count of sale of a narcotic drug and two counts of possession of narcotic drugs for sale, as enhanced by two prior felony convictions. We affirm the convictions but issue this opinion to clarify that, under the applicable statute, former Ariz. Rev. Stat. Ann. ("A.R.S.") section 13-604(D) (1989), defendant is eligible for release after serving two-thirds of her prison sentences.
FACTUAL BACKGROUND
We view the evidence at trial in the light most favorable to sustaining the verdicts, resolving all reasonable inferences against defendant. State v. Atwood, 171 Ariz. 576, *248 596, 832 P.2d 593, 613 (1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1058, 122 L.Ed.2d 364 (1993).
On December 9, 1992, an undercover police officer visited a West Phoenix house that had been identified as the site of drug transactions. Defendant answered the back door and the officer asked to purchase cocaine. The officer gave defendant $20 and she invited him inside. He waited in a utility room while defendant went into the kitchen area. Inside the utility room were four other people who were preparing or injecting drugs that appeared to be heroin or cocaine.
Defendant soon returned from the kitchen and handed the officer two plastic bags containing cocaine rocks. The officer also observed defendant make a similar transfer to another man who had entered the house. A criminalist testified that the plastic bags sold to the officer contained 360 milligrams of cocaine in a usable condition.
Two days after the undercover purchase, police searched the house pursuant to a warrant. Defendant initially was arrested in the northwest bedroom, where she had been sleeping, although she subsequently was found outside the house, wearing handcuffs placed on her by police. A search of the house revealed powder cocaine, rock cocaine, and heroin in the northwest and west bedrooms, bathroom, and kitchen. The house had no electricity and was unfurnished.
An investigating detective testified that the powder cocaine had a street value of $1,600, the rock cocaine had a street value of $1,060, and the heroin had a street value of $1,500 to $1,800. Inside the house, police also observed items, such as spoons or bottle caps, commonly used to "cook" heroin before injection; pipes used to smoke rock cocaine; baking soda that could be used as a bonding agent for rock cocaine; and plastic bags that could be used to package rock cocaine for sale. Based upon these facts, the detective testified that, in his opinion, the narcotics were possessed for sale.
Police questioned defendant after her arrest. She stated that she was unemployed and admitted that she used narcotics, although she denied having done so during the preceding week. The investigating officer observed needle marks on both her arms.
At trial, defendant denied that she either sold drugs to the undercover officer or that she possessed drugs at the time of the search of the house. She claimed that she lived elsewhere, but admitted that she had spent the two previous nights at the house. She also admitted that she knew drugs were in the house and that she had access to those drugs.
The jury found defendant guilty of all three charges. Based upon defendant's admission to two prior felony convictions, the judge imposed an enhanced, presumptive term of 15.75 years imprisonment on each count. He ordered the sentences to be served concurrently. Defendant filed a timely notice of appeal. She raises the following issues:
1. The trial court erred in denying her motion for judgment of acquittal on the charges of possession of narcotic drugs for sale;
2. The trial court erred in admitting testimony regarding a complaint of drug trafficking in the house where she was arrested; and
3. The trial court erred in failing to specify that she would be entitled to parole eligibility after serving two-thirds of her sentences.
DISCUSSION
DENIAL OF JUDGMENT OF ACQUITTAL
Defendant first argues that the trial court erred in denying her motion for judgment of acquittal on the charges of possession of narcotic drugs for sale. She maintains that the evidence merely showed that she was present at a house where drugs were discovered, but that such fact alone will not support her convictions. A judgment of acquittal is appropriate when there is "no substantial evidence to warrant a conviction." Rule 20, Arizona Rules of Criminal Procedure ("Rule(s)"); State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990). "Substantial evidence is more than a mere scintilla and is *249 such proof that `reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.'" Id., quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). Defendant emphasizes testimony by police that she had neither narcotics nor money on her person at the time of her arrest. She also points out that the trial record does not reveal the precise location of the narcotics found in the room where she was arrested.
The state responds that defendant was charged with possessing heroin and cocaine for sale. To prove that defendant constructively possessed these narcotics, the state was required to show that she exercised dominion and control over them. State v. Villalobos Alvarez, 155 Ariz. 244, 245, 745 P.2d 991, 992 (App. 1987). Constructive possession may be shown by circumstantial evidence. Id.; State v. Donovan, 116 Ariz. 209, 212, 568 P.2d 1107, 1110 (App. 1977); State v. Ballinger, 19 Ariz. App. 32, 35, 504 P.2d 955, 958 (1973). We conclude that sufficient evidence supported her convictions.
Defendant was present at the time the search occurred. See Donovan, 116 Ariz. at 213, 568 P.2d at 1111 (defendant's presence in house when police arrived supported inference of constructive possession of marijuana). Although she contended that she did not live in the house, she admitted spending the two previous nights there. See State v. Jenson, 114 Ariz. 492, 493, 562 P.2d 372, 373 (1977) (constructive possession of marijuana supported in part by defendant's periodic residence in home where it was discovered). The state was not required to show that defendant exclusively controlled the place where the narcotics were found. State v. Villavicencio, 108 Ariz. 518, 520, 502 P.2d 1337, 1339 (1972).
Further, defendant admitted using narcotics that she purchased at the house. See State v. Nadler, 129 Ariz. 19, 22, 628 P.2d 56, 59 (App. 1981) (defendant's prior use of marijuana and cocaine in car supported inference of possession of drugs found there). In addition, the fact that defendant was found outside the house after being handcuffed inside supported an inference of flight that, in turn, suggested that she possessed the narcotics discovered by police. State v. Laurino, 108 Ariz. 82, 83, 492 P.2d 1189, 1190 (1972).
Defendant's argument rests upon the premise that she could have been convicted only for possessing the cocaine and heroin discovered in the bedroom where she had been sleeping. The indictment and instructions to the jury, however, were not so limited. The detective's observations when he purchased cocaine from defendant provided substantial evidence that she had access to the heroin and cocaine later found throughout the house. Defendant even admitted to police that she knew drugs were present in the house and that she had access to them. This evidence permitted an inference that defendant possessed these narcotics. Nadler, 129 Ariz. at 22, 628 P.2d at 59.
Defendant also claims that, even if the evidence was sufficient to establish her possession of narcotic drugs, it was insufficient to establish possession for sale. We again disagree. Testimony that defendant sold cocaine to an undercover officer two days prior to her arrest supported the inference that the cocaine found in the house was intended for sale. Cf. Ballinger, 19 Ariz. App. at 35, 504 P.2d at 959 (defendant's presence in house on previous day supported inference that he possessed narcotics seized when police returned with search warrant). In addition, the inference of possession for sale was supported by the quantity of the narcotics seized and the presence of packaging materials. State v. Olson, 134 Ariz. 114, 118, 654 P.2d 48, 52 (App. 1982). Moreover, the fact that the house was without electricity or furniture strongly suggested that it was being used primarily to sell narcotics, and only incidentally as a residence. We therefore find that the trial court did not err in denying defendant's motion for judgment of acquittal.
REFERENCE TO COMPLAINT OF DRUG ACTIVITY
During direct examination, an investigating officer testified that police obtained a search warrant for the house because of "a *250 complaint that ... established [that] this location was involved in some sort of illegal activity due to a high amount of traffic." Defendant's hearsay objection was overruled.
On appeal, defendant concedes that the statement was not hearsay because it was not offered for the truth of the matter asserted, but contends that the answer was nevertheless inadmissible because it was irrelevant to the issues at trial. See State v. Simms, 176 Ariz. 538, 540-41, 863 P.2d 257, 259-60 (App. 1993) (noting that the reason why undercover officers contacted defendant was not at issue and "strongly" disapproving introduction of such evidence "under the guise of completing the story of the crime"). Because the objection below was based only on hearsay grounds, defendant has waived any objection based on relevance. Nevertheless, we must determine if admitting the witness' answer constituted fundamental error. See State v. Romanosky, 162 Ariz. 217, 222-23, 782 P.2d 693, 698-99 (1989). We find no fundamental error because the answer caused defendant no discernible harm. The undercover officer who made the drug purchase testified, without objection, that he had received information that narcotics were being sold at the house. This fact was never disputed by defendant, who even admitted purchasing drugs there. Therefore, the trial court did not commit reversible error.
SENTENCING
Defendant contends that she must be resentenced because the trial court did not specify that she was eligible for parole after serving two-thirds of her concurrent 15.75 year sentences. The state responds that resentencing is unnecessary because defendant must serve her prison terms without the possibility of parole.
This dispute is rooted in sentencing provisions found in the former versions of two applicable statutes.[1] Former A.R.S. section 13-3408(B) defines and prescribes penalties for, inter alia, possession of a narcotic drug for sale and sale of a narcotic drug. Both offenses are class 2 felonies. Pursuant to former A.R.S. section 13-3408(D), a person convicted of either offense
is not eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from confinement on any other basis until the person has served the sentence imposed by the court.
Former A.R.S. section 13-604, on the other hand, sets out penalties for dangerous and repetitive offenses, with subsection (D) specifying an enhanced sentencing range for a class 2 felony committed by a person with two prior felony convictions. The subsection further provides that the person convicted "shall not be eligible for suspension or commutation of sentence, probation, pardon or parole, work furlough or release from confinement on any other basis ... until not less than two-thirds of the sentence imposed by the court has been served." Moreover, former A.R.S. section 13-604(K) provides:

The penalties prescribed by this section shall be substituted for the penalties otherwise authorized by law if the previous conviction ... is charged in the indictment or information and admitted or found by the trier of fact.
(Emphasis added.)[2]
In interpreting statutes, our primary duty is to determine and give effect to the legislature's intent. Chaparral Development v. RMED Intern., Inc., 170 Ariz. 309, 311, 823 P.2d 1317, 1319 (App. 1991). We first look to the wording of the statute. Id.; State v. Jannamon, 169 Ariz. 435, 438, 819 P.2d 1021, 1024 (App. 1991). If the language is plain and unambiguous, then no construction is necessary and our duty is to apply that language. Chaparral, 170 Ariz. at 311, 823 P.2d at 1319.
Applying these rules of construction, we agree with defendant that, since the penalties in former A.R.S. section 13-604 are to be "substituted for the penalties otherwise authorized by law," the provisions of subsection (D), including the provision regarding *251 parole eligibility, must control her sentences. This unambiguous, mandatory directive requires that the sentencing provisions governing repetitive offenses must apply when, as in this case, an allegation of prior convictions is made by the state and admitted by defendant at trial. In reaching this conclusion, we do no more than follow the clear directive of former A.R.S. section 13-604 that its provisions shall prevail when in conflict with other statutory provisions. Thus, by choosing to apply the enhancement penalty of former A.R.S. section 13-604, the state was bound to follow the balance of its terms as well.
In reaching our conclusion, we knowingly depart from the analysis of State v. Behl, 160 Ariz. 527, 774 P.2d 831 (App. 1989). In Behl, a different panel of this Court considered an argument analogous to the one presented here. The defendant had been convicted of a dangerous sexual assault. The sexual assault statute generally precluded release from confinement "until the sentence imposed by the court has been served." See former A.R.S. section 13-1406(B). The defendant contended that the "flat time" sentencing provision in the sexual assault statute did not apply because the provision governing dangerous offenses in former A.R.S. section 13-604(G) provided for parole eligibility after two-thirds of the sentence was served.
The Behl court determined that the sexual assault statute and former A.R.S. section 13-604(G) were in "irreconcilable conflict," and that the language of the sexual assault statute controlled because it was more recently enacted and more specific. 160 Ariz. at 530, 774 P.2d at 834. In reaching this conclusion, the Behl court quoted former A.R.S. section 13-604(K) but did not analyze its effect on the perceived conflict. We, however, conclude that this subsection, by directing that penalties in former A.R.S. section 13-604 be "substituted" for those specified elsewhere, provides the means of reconciling the apparent conflict between it and the other statutes. As a result, we are able to fulfill our duty to "construe seemingly conflicting statutes in harmony when possible." Baker v. Gardner, 160 Ariz. 98, 101, 770 P.2d 766, 769 (1988). Conversely, were we to ignore the express language of former A.R.S. section 13-604(K), we would violate our duty to avoid rendering statutory language superfluous, void, contradictory, or insignificant. State v. Garza Rodriguez, 164 Ariz. 107, 112, 791 P.2d 633, 638 (1990); Blum v. State, 171 Ariz. 201, 205, 829 P.2d 1247, 1251 (App. 1992).
We also note that the decision in Behl was influenced by a perceived anomaly that is not present in this case. In Behl, the court believed that a defendant who committed sexual assault not alleged to be dangerous, and hence not subject to former A.R.S. section 13-604, would be ineligible for parole, while a dangerous offender sentenced under former A.R.S. section 13-604(G) would be eligible for release after serving two-thirds of his sentence. The court concluded that "the legislature did not intend this absurd result." 160 Ariz. at 529, 774 P.2d at 833. The Behl court, however, failed to consider that the enhancement provision for dangerous offenses, though providing an opportunity for release, also lengthened the applicable sentencing range. The legislature thereby ensured that a dangerous offender sentenced to the presumptive term would serve at least as much time in prison as a defendant sentenced to the presumptive term for a non-dangerous offense. Also, for defendants with two or more prior felony convictions, A.R.S. section 604(D) increases by two to four times the original sentence authorized. Therefore, although the instant defendant will be eligible for release after serving 10.5 years of her 15.75-year sentence, that term of imprisonment will still exceed the "flat" seven-year presumptive sentence that former A.R.S. section 13-3408(B) mandates for a first-time offender. There is nothing absurd in this result. We therefore find that former A.R.S. section 13-604(D) controls and that defendant is eligible for release after serving two-thirds of her sentences.
We further note that the state somehow advocates the partial application of former A.R.S. section 13-604(D) by supporting the imposition of prison terms within its enhanced sentencing range while arguing against the application of the release eligibility provision found in the same subsection. Although the state offers no explanation for this inconsistency, we believe that such partial *252 application could be explained only by construing the release eligibility language as something other than a "penalty ... authorized by law," and therefore not governed by former A.R.S. section 13-604(K). We reject such a construction.
Former A.R.S. section 13-604 punished repetitive or dangerous offenses both by enhancing the range of prison sentences and by prohibiting release until a defendant completes not less than two-thirds of his or her sentence. See former A.R.S. sections 13-604(B), (D), (G). Therefore, within the framework of the statute, the release eligibility provision is as much a "penalty" as is the provision requiring increased prison terms.
Although we agree with defendant's construction of the sentencing statutes, we disagree with her claim that remand is required. The trial judge is not required to inform the defendant about parole eligibility at the time of sentencing. Rule 26.10(b) and comment ("The explanation of the sentence should include the... length and order of sentences if there are more than one, and whether the new sentence is to be tacked onto or served concurrently with a sentence which the defendant is then serving."). In addition, the sentencing minute entry correctly set out the applicable statute, former A.R.S. section 13-604, which governs parole eligibility. No modification is necessary.
CONCLUSION
Pursuant to A.R.S. section 13-4035, we have reviewed the entire record on appeal. We find no fundamental error. Accordingly, defendant's convictions and sentences are affirmed.
EHRLICH, P.J., concurs.
VOSS, Judge, dissenting.
I disagree with the majority opinion only insofar as it diverges from Behl and holds that the general sentencing guidelines of former A.R.S. section 13-604(D) prevail over the specific sentencing guidelines of former A.R.S. section 13-3408(D). Accordingly, I do not believe defendant is eligible for parole after two-thirds of her sentence is served.
In Behl, this court first attempted to harmonize former A.R.S. section 13-1406(B), which prohibited early release from prison in instances of sexual assault, with former A.R.S. section 13-604(G), which generally provided for early release through parole. 160 Ariz. at 529-30, 774 P.2d at 833-34. Notwithstanding former A.R.S. 13-604(K), which provided that penalties in that section be "substituted for the penalties otherwise authorized by law[,]" the court in Behl determined that the statutes were in irreconcilable conflict. Id. at 530, 774 P.2d at 834. Because they could not be harmonized, the court held that former A.R.S. section 13-1406(B), the more recent statute that specifically prohibited early release in instances of sexual assault, prevailed over the general sentencing guidelines of former A.R.S. section 13-604(G). Id.
The present case mirrors Behl. Because former A.R.S. section 13-3408(D) entirely prohibits early release from prison for certain drug offenses, whereas former A.R.S. section 13-604(D) generally provides for early release through parole, a conflict arises. As in Behl, former A.R.S. section 13-604(K) fails to harmonize these conflicting statutes to effectuate the intent of the legislature. Therefore, an irreconcilable conflict exists.
It is well-established that when an irreconcilable conflict arises between two statutes, "the more recent, specific statute governs over the older, more general statute." Lemons v. Superior Court of Gila County, 141 Ariz. 502, 505, 687 P.2d 1257, 1260 (1984); see also Pima County v. Heinfeld, 134 Ariz. 133, 134-36, 654 P.2d 281, 282-84 (1982); Webb v. Dixon, 104 Ariz. 473, 475-76, 455 P.2d 447, 449-50 (1969); Behl, 160 Ariz. at 530, 774 P.2d at 834. Here, former A.R.S. section 13-604(D) applies to felonies in general. It was enacted in 1977 and amended in 1978. On the other hand, former A.R.S. section 13-3408(D) applies only to certain offenses involving narcotic drugs. It was enacted in 1987. Therefore, because former A.R.S. section 13-3408(D) is the more recent and more specific statute, it should govern.
Former A.R.S. section 13-3408(D) enumerates the applicable sentencing guideline: people convicted of certain narcotic drug offenses *253 must, without exception, serve the entire sentence imposed by the court. Accordingly, defendant is not eligible for parole.
Therefore, I respectfully dissent.
NOTES
[1]  Legislation effective in 1994 extensively revised A.R.S. sections 13-604 and 13-3408. 1993 Ariz.Sess.Laws, Ch. 255, §§ 7, 44.
[2]  This provision is currently codified as A.R.S. section 13-604(P).


                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT

                                       No. 18-4166

UNITED STATES OF AMERICA,

                     Plaintiff − Appellee,

              v.

GENESIS LEE WHITTED, JR., a/k/a Gen, a/k/a Juice Man,

                     Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. Malcolm J. Howard, Senior District Judge. (5:15-cr-00372-H-1)

Submitted: April 2, 2019                                          Decided: August 21, 2019

Before GREGORY, Chief Judge, and DIAZ and THACKER, Circuit Judges.

Affirmed by unpublished opinion. Judge Diaz wrote the opinion, in which Chief Judge
Gregory and Judge Thacker joined.

Rudolph A. Ashton, III, DUNN PITTMAN SKINNER & CUSHMAN, PLLC, New Bern,
North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P.
May-Parker, Assistant United States Attorney, Kristine L. Fritz, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.
DIAZ, Circuit Judge:

       Genesis Whitted, Jr. was convicted of conspiracy to distribute cocaine base in 2015.

He was sentenced to 35 years in prison, based in part on a history of drug-related conduct

that was not part of the charged offense. Whitted challenges this sentence on appeal. First,

he argues that his uncharged drug-related acts, some going back to 2008, weren’t relevant

to the 2015 conspiracy for sentencing purposes. Second, he argues that even if his

uncharged acts were relevant, they were based on unreliable evidence. Finally, he says

that the district court erred in refusing to grant him a two-level decrease in his offense level,

because he accepted responsibility for some of his offenses. For the reasons that follow,

we affirm.

                                               I.

                                               A.

       The FBI and local police had long suspected that Whitted was responsible for

several crimes in Fayetteville, North Carolina. They believed that Whitted, the leader of a

local Bloods gang, distributed large amounts of cocaine in Fayetteville. They also believed

that he and his associates regularly robbed drug dealers and prospective customers of drugs

and valuables.

       Around 2014, the FBI and Fayetteville police began working with several

cooperating witnesses to build a case against Whitted. Soon after, agents installed a camera

across from a car wash Whitted owned to monitor his daily activities. As the recordings

soon revealed, this was no ordinary car wash: Whitted used it primarily to distribute large

                                               2
quantities of drugs, mostly cocaine and cocaine base. A confidential informant later agreed

to take part in seven controlled purchases from Whitted.          Between November and

December of 2015, Whitted ultimately sold the informant 35 grams of cocaine base.

                                             B.

       In 2016, based on the controlled purchases, Whitted was charged in a superseding

indictment with conspiracy to distribute cocaine base, see 21 U.S.C. § 846; seven counts

of distributing cocaine base, see id. § 841(a)(1); and two counts of possessing a firearm in

furtherance of a drug trafficking crime, see 18 U.S.C. § 924(c)(1)(A).

       During Whitted’s first arraignment hearing, counsel said Whitted was willing to

plead guilty to the drug charges, but not the gun charges. As the hearing continued,

however, counsel grew increasingly concerned that Whitted wasn’t competent to make an

informed plea decision. Counsel also worried that Whitted’s family was improperly

pressuring him to go to trial. Out of caution, the court ordered a competency evaluation.

The evaluator deemed Whitted competent and found that he was exaggerating his

psychological symptoms. A cooperating witness later stated that Whitted had hoped to be

diagnosed with a mental illness in order to receive a lighter sentence.

       At Whitted’s second arraignment hearing, he pleaded not guilty to all counts. The

court, aware that he previously intended to plead guilty to the drug-related charges, asked

several times if he wanted to plead not guilty to every count. Each time, Whitted responded

in the affirmative.

       Leading up to the trial, Whitted made several attempts to influence witness

testimony. For example, he called an old associate and asked him to withdraw prior

                                             3
statements about Whitted’s past drug- and gun-related acts. The associate obliged. But

the call was monitored, and the associate later admitted that a letter repudiating his prior

statements was false.

       On the eve of trial, Whitted tried to accept a plea offer that the government had

tendered some months before. But the government pointed out that the offer had expired.

And while it wasn’t willing to give Whitted a plea deal as favorable as the previous one,

the government extended him two new offers. Whitted refused to accept them and the case

went to trial. At trial, Whitted’s attorney only disputed the gun-related counts and

conceded guilt on the drug-related counts. A jury found Whitted guilty on every count

except for one gun-related charge.

                                             C.

       Following the jury’s verdict, the probation office issued its presentence

investigation report (“PSR”). The PSR recommended a sentence based in part on twenty

or so unlawful acts between 2008 and 2015. Whitted had not been charged for these acts,

but the probation office determined they were relevant conduct under the United States

Sentencing Guidelines (“U.S.S.G.”). The government learned about these acts from

interviews with sixteen cooperating witnesses and police reports from three traffic stops.

The acts related to Whitted’s (1) drug trafficking operation, which included buying, selling,

manufacturing, and stealing drugs, mainly cocaine and cocaine base; and (2) armed

robberies of drugs dealers and prospective customers.

       For example, one cooperating witness sold Whitted cocaine base on numerous

occasions between 2008 and 2014. These sales totaled at least 1,645 grams of cocaine base

                                             4
(though the witness estimated the amount could be as high as 2,145 grams). Another

witness said he bought 510 grams of cocaine base from Whitted between 2011 and 2013.

And another said he saw Whitted cook at least 893 grams of cocaine base between 2014

and 2015. Whitted and his associates also committed eight robberies (all to steal drugs or

drug proceeds) between 2008 and 2015, at a pace of about one per year. In each robbery,

they threatened victims with firearms.

       Based on Whitted’s past acts, the PSR recommended holding him responsible for a

converted drug weight of 10,398.86 kilograms. 1 It also applied sentencing enhancements

based on Whitted’s use of physical restraint and his leadership role in the criminal

operation. See U.S.S.G. §§ 3A1.3, 3B1.1(a). It applied a criminal history of III based on

Whitted’s past criminal convictions and his commission of criminal acts between 2008 and

2013, while he was on probation for state offenses. See U.S.S.G. § 4A1.1(d). These

criminal acts were among the uncharged acts that were deemed relevant conduct and

treated as part of the instant offense for sentencing purposes. Finally, the PSR declined to

recommend an acceptance of responsibility adjustment. See U.S.S.G. § 3E1.1.

       The district court adopted the recommendations in the PSR. Although Whitted’s

guidelines range was life imprisonment, the court varied downward and sentenced him to

35 years in prison. Whitted timely appealed his sentence.

       1
         In all, the converted drug weight was based on 8984.3 grams of cocaine or cocaine
base, 3,628.8 grams of marijuana, and 42.525 grams of heroin. The PSR didn’t count drugs
and currency attributed to Whitted by witnesses where there was a possibility of double
counting or the drug amount was unascertainable.

                                             5
                                              II.

       We review the district court’s factual findings at sentencing for clear error and its

evidentiary decisions, including credibility determinations, for abuse of discretion. United

States v. Pineda, 770 F.3d 313, 318 (4th Cir. 2014) (citation omitted).

       Whitted first argues that the district court clearly erred by finding his uncharged

drug-related acts relevant to his charged 2015 drug trafficking conspiracy. He next asserts

that even if his past acts were relevant, the district court abused its discretion by crediting

the accounts of these acts provided by the government’s witnesses. He finally argues the

district court clearly erred by finding he didn’t accept responsibility for his drug-related

counts. We find none of his arguments persuasive.

                                              A.

       Under the sentencing guidelines, district courts may sentence defendants not only

for the conduct for which they were convicted, but for any conduct deemed “relevant” to

the counts of conviction. U.S.S.G. § 1B1.3. For offenses like the drug crimes Whitted was

convicted of, the guidelines define relevant conduct to include “all acts and omissions that

[are] part of the same course of conduct . . . as the offense of conviction.”               Id.

§ 1B1.3(a)(2).

       To determine whether Whitted’s past acts are part of the same course of conduct as

his 2015 drug trafficking conspiracy, we ask whether they are part of an ongoing,

identifiable pattern of criminal conduct. Id. § 1B1.3 cmt. n.5(B)(ii). Factors to consider

include (1) the degree of similarity between the offenses, (2) the regularity of the offenses,

                                              6
and (3) the time interval between them. Id. When one factor is lacking, there must be a

stronger presence of another to compensate. Id. For example, in United States v. Hodge,

a four-year gap between several uncharged cocaine sales and the charged offense of

cocaine possession was overcome by the fact that the defendant continuously sold cocaine

throughout the intervening period. 354 F.3d 305, 313–15, (4th Cir. 2004).

        Whitted argues the district court clearly erred by finding his uncharged drug-related

acts relevant to his charged 2015 drug trafficking conspiracy. His principal contention is

that the time interval between the uncharged and charged acts is too great. He also appears

to argue that the past acts didn’t occur regularly, and that they were dissimilar to the

charged conspiracy.

        The government doesn’t seriously dispute that the time interval is substantial. But

it argues that its investigation of Whitted, as well as its interviews with sixteen witnesses,

show that he engaged in an ongoing pattern of conduct from 2008 to his arrest. This scheme

involved regularly buying, selling, manufacturing, and stealing drugs (mainly cocaine),

often by violent means.

        We too acknowledge the substantial time interval between Whitted’s charged acts

and most of the uncharged ones. But we agree with the government that the evidence of

similarity and regularity supports the district court’s decision to consider the uncharged

acts.

        In our view, the record shows a similarity between the charged and uncharged acts

because Whitted was at all times aiming to further his drug trafficking operation, using

similar methods, persons, and locations. Whitted’s uncharged acts primarily involved

                                              7
buying, selling, or manufacturing drugs. He generally shared in the profits of these drug

transactions, which all occurred in the Fayetteville area and usually involved cocaine or

cocaine base. And the purpose of the uncharged robberies was to steal drugs and drug

proceeds from dealers or prospective customers.

       As for regularity, Whitted conducted multiple drug transactions each year from

2008 to 2015. He likewise committed a drug-related robbery in almost every year between

2008 and 2015.

       Whitted’s long and unbroken chain of drug transactions and related robberies bore

significant similarities and served a common purpose. We are therefore satisfied that

Whitted’s uncharged acts form a single, ongoing course of conduct, even though they

extend back several years before the charged conspiracy.

                                              B.

       We next turn to Whitted’s two evidentiary challenges. He first contends that the

district court abused its discretion by finding the witnesses’ descriptions of his uncharged

acts sufficiently reliable. We disagree. The statements of two cooperating witnesses

established most of the drug weight that the PSR attributed to Whitted. One of the

witnesses testified at trial, and the other was prepared to do so. Their willingness to testify

supports the finding that they were reliable. And their statements were consistent with

each other (and with the statements of the fourteen other cooperating witnesses) in all

                                              8
material respects. Finally, their statements were consistent with the trial evidence, which

suggested that Whitted was an experienced drug manufacturer and dealer. 2

       Whitted’s second argument attacks the PSR’s drug calculation. He points us to

United States v. Bell, in which we warned that where drug calculations are “based only

upon ‘uncertain’ witness estimates, district courts should sentence at the low end of the

range to which the witness[es] testified.” 667 F.3d 431, 441 (4th Cir. 2011) (citation

omitted). But that’s precisely what the district court did here by adopting the PSR’s

recommendation. Whenever cooperating witnesses made imprecise estimates, the PSR

adopted the amount at the low end of the range. For example, one witness estimated that

Whitted sold him between 1,645 and 2,145 grams of cocaine base, and the PSR used the

smaller figure. Whitted misinterprets Bell when he suggests that it prohibits the use of

witness estimates about drug quantities altogether. We expressly noted that sentencing

courts may rely on “hearsay testimony of lay witnesses as to the quantities attributable to

a defendant.” Id.

       The district court therefore didn’t abuse its discretion by finding the cooperating

witnesses’ statements and drug estimates reliable. 3

       2
         Whitted also notes the evidence is hearsay, which he suggests is per se unreliable
for sentencing purposes. But sentencing courts aren’t bound by the rules of evidence.
U.S.S.G. § 6A1.3(a); United States v. Crawford, 734 F.3d 339, 342 (4th Cir. 2013)
(collecting cases).
       3
        Whitted’s remaining arguments each depend on the premise that his uncharged
conduct either is not relevant for sentencing purposes or was not established by reliable
evidence. Accordingly, we reject them for the same reasons given above. See U.S.S.G.
§ 1B1.3(a) (providing that unless otherwise specified, relevant conduct is to be used in
(Continued)
                                             9
                                             C.

       We finally consider Whitted’s assertion that he was entitled to a two-level reduction

in his offense level for acceptance of responsibility.         When a defendant clearly

demonstrates that he has accepted responsibility for his offenses, he is entitled to a two-

level decrease in his offense level. U.S.S.G. § 3E1.1(a). We review the district court’s

decision to deny this reduction for clear error. United States v. Kise, 369 F.3d 766, 771;

see also U.S.S.G. § 3E1.1 cmt. n.5 (“The sentencing judge is in a unique position to

evaluate a defendant's acceptance of responsibility. For this reason, the determination of

the sentencing judge is entitled to great deference on review.”). The commentary to the

guidelines directs district courts to consider several nonexclusive factors, including

whether the defendant admits to committing the offense of conviction and “any additional

relevant conduct.” U.S.S.G. § 3E1.1 cmt. n.1(A).

       Whitted argues that his is one of those “rare” cases where, despite having gone to

trial on both the drug and gun charges, he should nonetheless receive an acceptance of

responsibility adjustment for the drug counts. Id. § 3E1.1 cmt. n.2. He first argues that the

government and his family thwarted his efforts to enter an acceptable plea agreement.

Appellant’s Br. at 24–25. Second, Whitted argues that because his trial attorney conceded

guilt on the drug counts, he accepted responsibility for them. We find his arguments

unpersuasive.

applying sentencing adjustments and enhancements); United States v. Self, 132 F.3d 1039,
1043 (4th Cir. 1997) (“As a general matter, then, the term ‘offense’ refers to the offense of
conviction including relevant conduct within the meaning of § 1B1.3 . . . .”).

                                             10
       With respect to alleged government interference, Whitted points us to his first

arraignment hearing where he said he was willing to plead guilty to the drug-related

charges. Yet at his second arraignment hearing, he stated (more than once) that he wanted

to go to trial on both sets of charges. He also says he tried to accept a plea offer before his

trial began. This plea offer, however, had already expired. The government extended two

additional plea offers to Whitted. But he rejected both because they weren’t as favorable

as the earlier offer. It therefore isn’t clear to us how the government thwarted his efforts

to reach a plea agreement.

       As for the alleged familial interference, the district court did note that Whitted’s

family had been giving him detrimental legal advice (presumably to go to trial). But

beyond that, the record and Whitted’s briefs aren’t clear on how Whitted’s family

interfered with his decision making process. We therefore decline to reverse the district

court’s determination on this basis alone.

       Whitted’s next point is that his trial attorney conceded he was guilty of the drug

counts. He relies on United States v. Hargrove, in which we held that a district court wasn’t

barred from affording a defendant an acceptance of responsibility adjustment where he

pleaded guilty to his drug-related charges, but not his gun-related charges. 478 F.3d 195,

204–05 (4th Cir. 2007). But unlike Hargrove, Whitted went to trial on both his drug and

gun charges. Therefore, while Hargrove is instructive, it is not dispositive.

       We are satisfied that, under these circumstances, the district court did not clearly err

in refusing to grant Whitted a two-level reduction for acceptance of responsibility. Even

today, Whitted still challenges not just whether the uncharged conduct is legally relevant,

                                              11
but also the evidence establishing that the conduct occurred. He also attempted to alter

witness testimony before his trial. And he apparently tried to mislead the court about his

mental competence to get a lighter sentence. This is a far cry from accepting responsibility.

                                            III.

       For the reasons given, we affirm Whitted’s sentence. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

                                                                                AFFIRMED

                                             12


Matter of Anonymous (2018 NY Slip Op 08231)

Matter of Anonymous

2018 NY Slip Op 08231

Decided on November 29, 2018

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 29, 2018

[*1]In the Matter of ANONYMOUS, an Applicant for Admission to Practice as an Attorney and Counselor at Law.

Calendar Date: November 7, 2018

Before: Garry, P.J., Egan Jr., Devine, Clark and Aarons, JJ.

Monica A. Duffy, Attorney Grievance Committee for the Third Judicial Department, Albany (Lauren S. Cousineau of counsel), for Attorney Grievance Committee for the Third Judicial Department.
Mintzer Sarowitz Zeris Ledva & Meyers, LLP, New York City (Peter A. Frucchione of counsel), for respondent.

MEMORANDUM AND ORDER
Per Curiam.
Applicant, who is 42 years old, graduated from Marquette University School of Law in 2009 and was admitted to the practice of law in Wisconsin by diploma privilege that same year. In July 2016, the State Board of Law Examiners certified him for admission to this Court; two months later, applicant submitted an "Applicant's Affidavit as to Legal Practice" indicating that he had been engaged in the full-time practice of law for at least five of the seven years immediately preceding the date of his application, and he was deemed eligible for admission on motion (see Rules of Court of Appeals [22 NYCRR] §§ 520.7, 520.10). After completing its investigation of applicant, including an interview with him, the Committee on Character and Fitness recommended that he be admitted (see CPLR 9402; Rules of App Div, 3rd Dept [22 NYCRR] § 805.1).
As we are not satisfied that applicant "possesses the character and general fitness requisite for an attorney and counselor-at-law" (Judiciary Law § 90 [1] [b]), we decline to adopt the Committee's recommendation. The application reveals that applicant filed for chapter 7 bankruptcy in 2003, at which time $26,265 of his debt was discharged; $37,650, reflecting applicant's then outstanding student loan debt, survived bankruptcy. Presently, applicant's student loan debt exceeds $580,000 and a copy of his National Student Loan Debt Center file shows loan disbursements dating to 1995; since then, applicant has made a total of $2,770 in student loan payments. This is so notwithstanding his full-time employment as an attorney in Wisconsin for at least five years.
Applicant bears the burden of demonstrating that he possesses the character and general fitness requisite for admission (see Matter of Anonymous, 97 NY2d 332, 334 [2002]), and, prior to being sworn in as an attorney and counselor-at-law, he has a continuing obligation to provide any updated information relevant to his application. Applicant has satisfied neither prerequisite to admission, providing information before and during his interview — related to the status of his student loans and his intentions with respect thereto — that is inconsistent with information that he has submitted since his interview. When asked to explain these [*2]inconsistencies, applicant's responses have been cursory and cavalier. While we are cognizant of the present financial realities faced by virtually every applicant seeking admission to the bar, we cannot countenance applicant's apparent unwillingness to address his student loan obligations, and we are skeptical of his purported good faith intentions to satisfy them, particularly given his recent submissions to this Court (see Matter of Anonymous, 61 AD3d 1214 [2009]). In other words, our decision does not rest on the existence of applicant's student loan debt, but rather his indifference regarding it. Accordingly, we deny the application without prejudice to renewal at such time as applicant can submit proof demonstrating a relevant change in circumstances upon which we can conclude that he possesses the requisite character and fitness for admission to the bar in New York (see Matter of Anonymous, 67 AD3d 1248, 1249 [2009]).
Garry P.J., Egan Jr., Devine, Clark and Aarons, JJ., concur.
ORDERED that the application for admission is denied.


636 F.2d 1224
Local 37v.Sheetmetal Wrkrs. Intl. Assn.
80-1690
UNITED STATES COURT OF APPEALS Eighth Circuit
10/30/80
N.D.Iowa

1
DISMISSED**