United States v. Everette Simmons

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-3885
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Everette Simmons, *
* [UNPUBLISHED]
Appellant. *
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Submitted: December 16, 2010
Filed: December 21, 2010
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Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.
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PER CURIAM.
A jury found Everette Simmons guilty of conspiracy to distribute and possess
with the intent to distribute cocaine, in violation of 21 U.S.C. § 846. The district
court1 sentenced him within the calculated advisory Guidelines range to 110 months
in prison and 4 years of supervised release. His counsel has filed a brief under Anders
v. California, 386 U.S. 738 (1967), in which he seeks to withdraw and challenges the
government witnesses’ credibility in light of their cooperation agreements. In his pro
se brief, Simmons challenges the district court’s drug-quantity determination and
1
The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.
imposition of enhancements under U.S.S.G. § 3B1.1(b) (manager or supervisor of
criminal activity) and U.S.S.G. § 3C1.1 (obstruction of justice).
We conclude that there was sufficient evidence to support Simmons’s
conviction. See United States v. Birdine, 515 F.3d 842, 844 (8th Cir. 2008) (this court
reviews sufficiency of evidence in light most favorable to government, resolving
evidentiary conflicts in favor of government, and accepting all reasonable inferences
that support jury’s verdict); see also United States v. Hernandez, 569 F.3d 893, 896
(8th Cir. 2009) (government must prove there was agreement to distribute drugs, and
defendant knew of conspiracy and intentionally joined it), cert. denied, 130 S. Ct.
1308 (2010). Assessing how the cooperation agreements affected the witnesses’
credibility, as well as resolving any inconsistencies in the testimony, were
determinations within the exclusive province of the jury. See United States v. Jones,
559 F.3d 831, 835 (8th Cir. 2009) (verdict may be based solely on testimony of
conspirators and cooperating witnesses; deciding credibility and resolving conflicting
testimony are within jury’s province, and appellate court does not review questions
involving witness credibility).
As to Simmons’s pro se arguments, we conclude that a preponderance of
evidence supports the district court’s finding attributing at least 500 grams of cocaine
to Simmons. See United States v. Plancarte-Vazquez, 450 F.3d 848, 852-53 (8th Cir.
2006) (standard of review; when calculating drug quantity in context of drug-
trafficking conspiracy, sentencing court may consider all transactions known or
reasonably foreseeable to defendant that were made in furtherance of conspiracy;
affirming district court’s drug-quantity determination based on testimony of co-
conspirator that defendant and other co-conspirator supplied her with pound quantities
of drugs over course of conspiracy). We further conclude that the district court did
not clearly err in assessing the 2-level increase for obstructing justice upon finding,
based on personal recollection and assessment of Simmons’s trial testimony, that
Simmons testified falsely, see United States v. Williams, 557 F.3d 556, 560-61 (8th
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Cir.) (standard of review), cert. denied, 130 S. Ct. 237 (2009); and did not clearly err
in assessing the 3-level increase for being a manager or supervisor of a conspiracy,
because there were more than 5 participants and Simmons directed the actions of at
least 3 participants, see United States v. Mesner, 377 F.3d 849, 851-52 (8th Cir. 2004)
(standard of review).
Finally, having reviewed the record independently under Penson v. Ohio, 488
U.S. 75, 80 (1988), we find no nonfrivolous issue for appeal. Accordingly, we grant
counsel leave to withdraw, and we affirm the judgment of the district court.
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