United States v. Mark Caster ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 97-2422
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Mark Wayne Caster, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 7, 1997
Filed: December 5, 1997
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Before WOLLMAN, LOKEN, and HANSEN, Circuit Judges.
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PER CURIAM.
Mark Wayne Caster appeals the sentence of 108 months imprisonment and four
years supervised release imposed on him by the district court1 after he pleaded guilty
to a drug offense. We affirm.
1
The Honorable Elsijane Trimble Roy, United States District Judge for the
Eastern District of Arkansas.
After a confidential informant’s (CI) second purchase of crack cocaine from
Caster and his co-defendant, Arkansas law enforcement officers executed a warrant at
the residence where the transactions occurred, seizing an additional quantity of crack
cocaine from the residence and $1,201 from Caster’s shoe. The money was later
forfeited as prior drug proceeds in an Arkansas state proceeding pursuant to Ark. Code
Ann. § 5-64-505(a)(6) (Michie 1993) (all proceeds traceable to exchange for controlled
substances are subject to forfeiture), and Caster did not contest the money’s forfeiture
or appeal the forfeiture order. Pursuant to a written plea agreement, Caster later
pleaded guilty to aiding and abetting in possessing crack cocaine with intent to
distribute, in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2.
At sentencing, Caster objected to the conversion of the money found in his
shoe—as prior drug proceeds—into the equivalent amount of cocaine base, which
raised his quantity of cocaine base by 12 grams. Caster testified that the money came
from a combination of gambling winnings and Social Security payments, not from drug
sales. Caster’s co-defendant testified that he and Caster had not made any drug sales
on the date they were arrested, and that no money had been exchanged during the first
transaction with the CI the day prior to their arrest. The government entered into
evidence the state court order of forfeiture. The district court specifically found that
Caster’s testimony regarding the money was not credible, and concluded that the
money was properly treated as drug proceeds based on the unappealed order of
forfeiture. The court sentenced Caster based on a drug quantity that included the
converted money.
On appeal, Caster argues the district court’s drug-quantity determination was
against the weight of the evidence. The district court found Caster’s account of the
source of the money to be not credible, and we review this finding with great deference.
See United States v. Adipietro, 983 F.2d 1468, 1472 (8th Cir. 1993) (district court’s
findings as to credibility of witness in making drug-quantity determination are virtually
unreviewable on appeal). We affirm this finding, and conclude that the district court
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did not clearly err in converting the money found on Caster upon his arrest into the
equivalent quantity of cocaine base, based on the forfeiture order. See U.S. Sentencing
Guidelines Manual § 2D1.1, comment. (n.12) (1995) (court may approximate quantity
of controlled substance by considering street price, financial records, or other relevant
information); United States v. Ortiz-Martinez, 1 F.3d 662, 675 (8th Cir.) (approving
extrapolation of drug quantities from amount of seized drug proceeds divided by drug’s
average price per unit), cert. denied, 510 U.S. 936 (1993).
Accordingly, we affirm.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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