United States v. Robert Abbott , 98 F. App'x 567 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3050
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
Robert L. Abbott, * [UNPUBLISHED]
*
Appellant. *
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Submitted: April 13, 2004
Filed: May 5, 2004
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Before LOKEN, Chief Judge, RICHARD S. ARNOLD and FAGG, Circuit Judges.
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PER CURIAM.
A jury convicted Robert L. Abbott of conspiracy to distribute five kilograms
or more of cocaine and of aiding and abetting the distribution of five kilograms or
more of cocaine. After a hearing, the district court* sentenced Abbott to 360 months
in prison. Abbott appeals his conviction and sentence, and we affirm.
*
The Honorable Nanette K. Laughrey, United States District Judge for the
Western District of Missouri.
Abbott first contends the district court committed error in denying his motion
for judgment of acquittal because the evidence was insufficient to convict him of
conspiracy to distribute cocaine. Viewing the evidence in the light most favorable
to the verdict and giving the verdict the benefit of all reasonable inferences, we
conclude a reasonable jury could find all the elements of the offense beyond a
reasonable doubt. United States v. Nambo-Barajas, 338 F.3d 956, 960 (8th Cir. 2003).
To convict Abbott of conspiracy to distribute cocaine, the government had to prove
there was an agreement to distribute cocaine, Abbott knew of the agreement, and
Abbott knowingly participated in the agreement. Id. at 960-61.
In this case, the evidence amply supports the conclusion that Abbott conspired
with Juan Guevara to distribute more than five kilograms of cocaine. Government
witnesses testified they bought cocaine directly and indirectly from Abbott and
Guevara, saw Abbott weigh out cocaine for distribution, and saw Guevara bringing
large amounts of cocaine to Abbott’s house. Witnesses also stated Abbott and
Geuvara traveled to Texas together to obtain better cocaine for their customers. They
both tested the cocaine’s quality and ordered one kilogram, then five kilograms from
a Colombian source. The jury’s decision to believe the witnesses’ testimony is
virtually unreviewable on appeal. United States v. Cuervo, 354 F.3d 969, 984 (8th
Cir. 2004). Further, the witnesses’ testimony was supported by exhibits of telephone,
travel, and hotel records. Because a reasonable jury could conclude beyond a
reasonable doubt that a conspiracy existed between Abbott and Guevara, the district
court properly denied Abbott’s motion for judgment of acquittal. Nambo-Barajas,
338 F.3d at 961.
Abbott next contends that in calculating the quantity of drugs attributable to
him for the purpose of determining his base offense level, the district court
erroneously found Abbott responsible for the distribution of fifty kilograms of
cocaine sold to one of the witnesses by Guevara. See U.S.S.G. § 2D1.1(c) (drug
quantity table). In the case of jointly undertaken criminal activity, a defendant is held
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responsible for “all reasonably foreseeable acts and omissions of others in furtherance
of the jointly undertaken criminal activity.” U.S.S.G. § 1B1.3. Thus, in a drug
conspiracy, the district court may consider amounts from drug transactions in which
the defendant was not directly involved if the transactions were part of the same
course of conduct or scheme. United States v. Atkins, 250 F.3d 1203, 1212 (8th Cir.
2001). Here, the district court did not commit clear error in finding Guevara’s sale
of fifty kilograms of cocaine was in furtherance of the conspiracy and reasonably
foreseeable to Abbott. See id. In addition to the general trial testimony about the
connection between Guevara and Abbot and their joint drug activity, the purchaser
testified he tested cocaine with Guevara outside Abbott’s house, then twice bought
cocaine from Guevara in the vicinity of Abbott’s house.
Abbott also asserts the district court should not have increased his base offense
level by three for being a manager or supervisor of criminal activity that involved five
or more participants or was otherwise extensive. See U.S.S.G. § 3B1.1(b). A
manager or supervisor need only have managed or supervised one other conspirator
in a single transaction. United States v. Zimmer, 299 F.3d 710, 724 (8th Cir. 2002).
The district court did not commit clear error in finding Abbott was a manager or
supervisor of a drug conspiracy that involved at least five participants. See id. at 723.
The evidence at trial showed there were five or more conspirators and Abbott acted
in a managerial role by being one of the principal suppliers, deciding where cocaine
sales would occur, directly supervising three men who recruited customers for him,
and fronting cocaine to his larger customers.
Abbott last asserts the district court should not have increased his offense level
by two for obstruction of justice under U.S.S.G. § 3C1.1. The obstruction of justice
enhancement applies to a defendant who commits perjury. Id. n.4(b). Contrary to all
of the government witnesses’ testimony, Abbott testified at trial and denied he had
any involvement in distributing drugs with the witnesses. Given the conflict between
Abbott’s testimony and the other evidence at trial, the district court found Abbott
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perjured himself. This finding is not clearly erroneous. United States v. Harris, 352
F.3d 362, 366 (8th Cir. 2003). The district court thus properly increased Abbott’s
sentence for obstruction of justice.
Accordingly, we affirm Abbott’s conviction and sentence.
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