United States v. Skeets Dolphus , 387 F. App'x 675 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3574
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Skeets Dolphus, *
* [UNPUBLISHED]
Appellant. *
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Submitted: June 15, 2010
Filed: July 26, 2010
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Before LOKEN, ARNOLD, and GRUENDER, Circuit Judges.
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PER CURIAM
Skeets Dolphus appeals from his conviction by a jury of conspiring to distribute
or possess with intent to distribute methamphetamine, see 21 U.S.C. §§ 841(a)(1),
846, and from the sentence of 151 months' imprisonment that the district court1
imposed. We affirm.
1
The Honorable Karen E. Schreier, Chief Judge, United States District Court
for the District of South Dakota.
Mr. Dolphus contends that the evidence was insufficient to support the verdict,
but our careful examination of the record reveals that this contention is meritless. An
FBI agent testified that Mr. Dolphus admitted that he had dealt methamphetamine and
two co-conspirators testified that they had been part of Mr. Dolphus's scheme to
distribute the drug to others; other witnesses related instances in which Mr. Dolphus
sold them the drug. Mr. Dolphus insists that the key witnesses were not credible, and
his counsel cross-examined them at length about alleged inconsistencies in their
statements, their potential biases, and their incentives to fabricate their testimony. The
jury, however, chose to believe them, or some of them, and, there being nothing
inherently incredible or unreliable about what they said, their credibility was entirely
a matter for the jury. United States v. Crenshaw, 359 F.3d 977, 988 (8th Cir. 2004).
Mr. Dolphus's contention that the government deliberately used two of its
peremptory challenges to exclude Native Americans from the jury is equally
unavailing. The government did strike two Native Americans (possibly not the only
two on the panel), but the district court found that the government's asserted reasons
for the strikes were race-neutral: One venire member was thought, because of her
surname, to be a member of a family who had had frequent scrapes with the law; the
other had been a witness for the defense in a recent criminal trial. We agree with the
district court that these reasons are unrelated to race, and the district court's finding
that they were the real reasons for the strikes was not clear error. See United States
v. Maxwell, 473 F.3d 868, 871 (8th Cir. 2007), cert. denied, 550 U.S. 952 (2007).
Mr. Dolphus also maintains that the district court erred in failing to give three
of his proposed instructions. But the substance of two of them, instructions on "mere
presence" and the definition of a conspiracy, was included in the instructions that the
district court in fact gave the jury. A third, which would have directed the jury that
it would have to ignore the statements that Mr. Dolphus made to the FBI agent "unless
the government has proven beyond a reasonable doubt that the statements were
voluntarily made," is not an accurate statement of the law: The correct burden of
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proof is the preponderance of the evidence. See United States v. Brave Heart,
397 F.3d 1035, 1040 (8th Cir. 2005).
Mr. Dolphus raises a slightly more nettlesome point in his objection to the
district court's refusal to submit a special interrogatory to the jury asking it to
determine the amount of drugs involved in the conspiracy; instead, the district court
did that itself in fixing the sentence. Mr. Dolphus maintains that this procedure
violated Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), which requires a jury to
find any fact, except a prior conviction, that increases the penalty for a crime beyond
the statutory maximum for that crime. But here, Mr. Dolphus was charged with a
violation of 21 U.S.C. § 841(a)(1), without specifying the amount of drugs involved,
and we have held that in such circumstances the district court may find the amount of
drugs involved, and consider that amount when imposing sentence, so long as the
sentence that it fixes does not exceed the maximum that 21 U.S.C. § 841(b)(1)(C)
provides, which is twenty years. See United States v. Serrano-Lopez, 366 F.3d 628,
638 (8th Cir. 2004); United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.
2000). Mr. Dolphus was sentenced to 151 months.
Mr. Dolphus's final contention is that the district court incorrectly enhanced his
offense level because he was an organizer, leader, manager, or supervisor of the
conspiracy, see U.S.S.G. § 3B1.1(c), and incorrectly calculated the amount of drugs
for which he was responsible. We have examined the transcripts of both the trial and
the sentencing hearing very carefully, and conclude that those assignments of error are
baseless: The district court scrupulously reviewed the evidence presented at trial that
bore on these matters and there is certainly no clear error in its factual conclusions.
Affirmed.
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