United States v. Cervantes-Barberena , 21 F. App'x 512 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-2862
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United States of America, *
*
Appellee, *
*
v. * Appeal from the United States
* District Court for the
Arturo Cervantes-Barberena, * Southern District of Iowa
*
Appellee. * [UNPUBLISHED]
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Submitted: October 4, 2001
Filed: October 23, 2001
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Before McMILLIAN, MORRIS SHEPPARD ARNOLD, and BYE, Circuit Judges.
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PER CURIAM.
Arturo Cervantes-Barberena appeals from the final judgment entered in the
District Court1 for the Southern District of Iowa upon a jury verdict finding him guilty
of one count of conspiring to distribute cocaine, methamphetamine, and marijuana,
in violation of 21 U.S.C. § 846; two counts of using a communication facility to
facilitate the distribution of cocaine, in violation of 21 U.S.C. § 843(b); and one count
of attempting to possess cocaine with intent to distribute, in violation of 21 U.S.C.
1
The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
§ 846. The district court sentenced appellant to thirty years imprisonment and six
years supervised release. For reversal, appellant argues that the district court erred
in (1) determining the drug quantity for which he was responsible, (2) applying an
enhancement for possessing a firearm in connection with the drug offenses, and
(3) applying an enhancement for being the organizer or leader of criminal activity
involving five or more participants. For the reasons discussed below, we affirm the
judgment of the district court.
First, we conclude that the district court did not clearly err in determining
Cervantes-Barberena’s drug quantity. See United States v. Milton, 153 F.3d 891, 898
(8th Cir. 1998) (court may rely upon estimates that have sufficient accuracy, and its
drug-quantity determinations are reviewed for clear error), cert. denied,
525 U.S. 1165 (1999). The court credited the testimony of the government witnesses,
see United States v. Lowrimore, 923 F.2d 590, 594 (8th Cir.) (sentencing court may
rely on trial testimony), cert. denied, 500 U.S. 919 (1991), and such credibility
determinations are rarely disturbed on appeal, see Anderson v. City of Bessemer City,
470 U.S. 564, 575 (1985) (findings based on credibility determinations are virtually
never clear error). We are unpersuaded that they should be disturbed in this case.
Second, we are satisfied that the district court did not clearly err in applying the
firearm enhancement. See Brown v. United States, 169 F.3d 531, 532 (8th Cir. 1999)
(standard of review; government must show weapon was present and it was not
clearly improbable that weapon had nexus with criminal activity). The court again
credited the testimony of the government witnesses, this time regarding an incident
in which Cervantes-Barberena struck a subordinate in the face with a pistol to collect
a drug debt, and threatened to shoot him if he did not pay. See United States v.
Brown, 148 F.3d 1003, 1009 (8th Cir. 1998) (sufficient nexus where, inter alia,
defendant once pistol-whipped subordinate), cert. denied, 525 U.S. 1169 (1999).
Again, we are unpersuaded that the court’s credibility determinations should be
disturbed.
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Finally, we conclude that the district court did not clearly err in applying the
role enhancement. See United States v. Johnson, 47 F.3d 272, 277 (8th Cir. 1995)
(standard of review). Based on its crediting of the government witnesses’ testimony,
which we will not disturb, the court found that there were at least five participants,
and that Cervantes-Barberena organized or led some of them. These findings are
supported by the record: Cervantes-Barberena’s organizational or leadership role
does not appear to be in doubt, and there was testimony suggesting as many as ten
participants in the criminal activity.
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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