United States v. Danny W. Crosby ( 1996 )

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No. 96-1618NE
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the District
v. * of Nebraska.
*
Danny W. Crosby, * [PUBLISHED]
*
Appellant. *
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Submitted: September 13, 1996
Filed: September 27, 1996
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Before FAGG, LAY, and MURPHY, Circuit Judges.
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PER CURIAM.
Danny W. Crosby appeals his conviction and sentence for conspiracy
to distribute and possess with intent to distribute methamphetamine.
Unlike Crosby, we conclude there was ample evidence to support his
conviction. Crosby's coconspirators testified that Crosby financed trips
to pick up methamphetamine, received a share of the drugs, and had
conversations with them about selling methamphetamine. Also, a drug
enforcement agent testified that the amounts of methamphetamine Crosby
possessed were consistent with distribution rather than personal use. The
witnesses' credibility was for the jury to decide. United States v.
Reeves, 85 F.3d 203, 206 (8th Cir. 1996).
Challenging his sentence, Crosby first argues the district court
erroneously attributed to him certain amounts of methamphetamine that his
coconspirators purchased without Crosby's knowledge or delivered to Crosby
for Crosby's personal use only.
The district court did not commit clear error, however, because there was
evidence showing Crosby reasonably should have foreseen the total amount
of drugs purchased, and Crosby sold the drugs he received rather than using
them himself. United States v. Flores, 73 F.3d 826, 833 (8th Cir.), cert.
denied, 116 S. Ct. 2568 (1996).
Next, Crosby argues the district court improperly increased Crosby's
base offense level for obstruction of justice. See U.S.S.G. § 3C1.1
(1995). According to Crosby, the district court simply relied on the
jury's rejection of his testimony without making an express finding that
Crosby had committed perjury. Contrary to Crosby's view, the sentencing
transcript shows the district court expressly found that Crosby had lied
about his involvement in the drug conspiracy. Further, the district court
documented each element of the alleged perjury in keeping with the Supreme
Court's requirement in United States v. Dunnigan, 507 U.S. 87, 95 (1993).
We thus conclude the district court's finding that Crosby had testified
falsely was properly based on the court's independent evaluation of
Crosby's trial testimony. See United States v. Turk, 21 F.3d 309, 313 (8th
Cir. 1994). We do recommend, however, that sentencing judges make clear
they have evaluated the defendant's testimony in a light most favorable to
the defendant. See United States v. Willis, 940 F.2d 1136, 1140 (8th Cir.
1991) (citing § 3C1.1 n.1).
Additionally, the record supports the district court's determination
that Crosby was more than a minimal or minor participant in the conspiracy,
see U.S.S.G. § 3B1.2(a)-(b), and Crosby is not entitled to a decrease in
his base offense level merely because his coconspirators were the
ringleaders and received less severe sentences. United States v.
Rodamaker, 56 F.3d 898 (8th Cir. 1995); see Reeves, 83 F.3d at 207. Also,
the district court did not abuse its discretion in refusing to grant Crosby
a downward departure based on Crosby's difficult family circumstances at
the time he joined the conspiracy. See Koon v. United States,
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116 S. Ct. 2035, 2046 (1996). The Sentencing Guidelines discourage
downward departures based on family ties and responsibilities, see U.S.S.G.
§ 5H1.6, and the district court properly determined Crosby's situation was
not exceptional enough to warrant a departure, especially since Crosby
continued his criminal conduct after his family situation improved, see
Koon, 116 S. Ct. at 2045.
Having rejected Crosby's contentions, we affirm his conviction and
sentence.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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