Submitted: February 12, 2013
Appeal from United States District Court for the Western District of Missouri - Kansas City
Before RILEY, Chief Judge, LOKEN and SHEPHERD, Circuit Judges.
LOKEN, Circuit Judge.
In October 2009, Edward Jefferson pleaded guilty to a charge that he possessed cocaine with intent to distribute in February 2008. In February 2010, Jefferson and four others were charged with conspiring to distribute five kilograms or more of cocaine between January 1, 2007, and the date of the indictment; Jefferson was also charged with using a communication facility to facilitate the distribution of the cocaine. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 843(b) and (d), and 846. When he failed to appear on the new charges, the district court granted a government motion to delay sentencing in the earlier case. Following a four-day trial in June 2011, a jury convicted Jefferson of the conspiracy and communication offenses. At a hearing held to determine and impose sentences for both convictions, the district court overruled Jefferson's objection to the Probation Officer's drug quantity calculation, resulting in an advisory guidelines range of 292 to 365 months in prison. The court sentenced Jefferson to 240 months on the conviction for possession with intent to distribute, the statutory maximum, 240 months for the cocaine conspiracy offense, and 48 months on the communication offense, all to be served concurrently. Jefferson appeals the convictions and sentences. His counsel's brief argued numerous issues. Jefferson raised additional issues in a lengthy pro se supplemental brief. We affirm.
I. Sufficiency of the Evidence and Sentencing Issues
At trial, the government's primary witness was Alejandro Corredor, the conspiracy's organizer and leader who testified pursuant to a plea agreement. Corredor testified that, in 2007, he was supplied ten to twenty-five kilograms of cocaine every two weeks and typically distributed five kilograms to Jefferson. In 2008, a new supplier provided Corredor twenty-five to forty kilograms of cocaine twice a month until the supplier's arrest in October. Corredor continued distributing "four to five" kilograms to Jefferson from each shipment. After October 2008, Corredor received three shipments of approximately forty-five kilograms of cocaine directly from a supplier in Mexico. Again, Corredor distributed "four to five" kilograms of each shipment to Jefferson. The government also introduced thirty-three recorded phone calls between Corredor and Jefferson. Corredor identified Jefferson as the speaker and testified that the calls were about cocaine transactions, explaining the use of code words and phrases that referred to drugs and nicknames that referred to Jefferson, his co-defendants, and other distributors.
The jury credited Corredor's testimony and convicted Jefferson of the conspiracy and communication offenses. Sentencing was conducted by the district judge who presided when Corredor testified at this trial and at an earlier trial in which others were convicted of conspiring to distribute cocaine for Corredor. The court expressly credited Corredor's trial testimony and earlier proffers in finding Jefferson personally responsible for distributing 150 kilograms or more of cocaine, resulting in a base offense level of 38, see U.S.S.G. § 2D1.1(c)(1), and an advisory range of 292-365 months. The court then imposed concurrent sentences of 240 months in prison for the cocaine possession offense and the conspiracy offense. What Jefferson and his attorney fail to acknowledge in raising a host of challenges to the conspiracy conviction on appeal is a basic reality -- if the evidence at sentencing, including Corredor's trial testimony, was sufficient to find that Jefferson personally distributed at least 50 kilograms of cocaine, his 240-month sentence was within the advisory guidelines range for the possession offense, to which he pleaded guilty, and the conspiracy conviction becomes of little or no significance to the total punishment imposed. Thus, we first take up this essential credibility issue.
Jefferson argues that the evidence at trial was insufficient to support his cocaine conspiracy conviction because the government failed to prove that he knew of and intentionally joined a conspiracy with Corredor to distribute more than five kilograms of cocaine. See United States v. Huggans, 650 F.3d 1210, 1222 (8th Cir. 2011) (elements of a conspiracy offense), cert. denied, 132 S.Ct. 1583 (2012). He further argues that the district court procedurally erred in determining drug quantity at sentencing by relying on the unreliable testimony of Corredor in overruling Jefferson's objection to the Probation Officer's testimony that Jefferson was responsible for distributing at least 154 kilograms of cocaine. We review the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the jury's verdict, resolving conflicts in the government's favor, and accepting all reasonable inferences that support the verdict. United States v. Miller, 698 F.3d 699, 702 (8th Cir. 2012), cert. denied, 133 S.Ct. 1296 (2013). We review the district court's drug quantity determination for clear error. United States v. Rodriguez, 711 F.3d 928, 938 (8th Cir. 2013).
Jefferson argues that only Corredor's testimony supports his conviction because the government presented no other evidence that Jefferson sold more than five kilograms of cocaine or participated in a conspiracy to distribute cocaine for Corredor. He urges us not to believe Corredor's testimony because of inconsistencies regarding the quantity of cocaine in his testimony; Corredor's checkered past; his admission that he lied to law enforcement in the past; his incentive to lie in the hope that he would receive a lesser sentence; and inconsistencies in the testimony of Corredor and his wife, Cindi Corredor, who testified that she observed about five drug or money transactions between Jefferson and her husband while Jefferson lived in one of her husband's residences.
"We have repeatedly upheld jury verdicts based solely on the testimony of co-conspirators and cooperating witnesses, noting that it is within the province of the jury to make credibility assessments and resolve conflicting testimony." United States v. Coleman, 525 F.3d 665, 666 (8th Cir.), cert denied, 555 U.S. 958 (2008). The jury's "conclusions on these issues are virtually unreviewable on appeal." United States v. Thompson, 560 F.3d 745, 749 (8th Cir.) (quotation omitted), cert. denied, 558 U.S. 923 (2009). Corredor's testimony directly supported the jury's verdict. Inconsistencies, potential bias, and Corredor's incentive to lie were well developed on cross-examination but rejected by the jury. We have no difficulty concluding the evidence was sufficient for a reasonable jury to find Jefferson guilty of conspiring to distribute at least five kilograms of cocaine. Corredor's testimony identifying Jefferson as the other party on recorded calls discussing cocaine transactions, together with testimony by law enforcement agents regarding the wiretap and their investigation, were sufficient evidence to support the conviction for using a communication facility to facilitate cocaine distribution.
Turning to the issue of drug quantity, Probation Officer Leigh Anne Wentworth, who prepared the Presentence Investigation Report (PSR), testified at the contested sentencing hearing. Based on her additional analysis of Corredor's trial testimony and earlier proffers, she reduced her estimate of the amount of cocaine distributed to Jefferson during the conspiracy period alleged in the indictment from 294 kilograms to 154 kilograms. After cross-examination and argument, the district court overruled Jefferson's objection to this amended drug quantity: "I largely believe the testimony of Alejandro Corredor. I heard him. He was quite detailed in some places of his testimony in terms of what he remembered. It is also consistent with other things that other people testified about." We overturn a finding of drug quantity "only if the entire record definitively and firmly convinces us that a mistake has been made." United States v. Quintana, 340 F.3d 700, 702 (8th Cir. 2003). Here, Jefferson's attack on Corredor's testimony is without merit; "in sentencing matters a district court's assessment of witness credibility is quintessentially a judgment call and virtually unassailable on appeal." Rodriguez, 711 F.3d at 938. There was no clear error in finding Jefferson responsible for more than 150 kilograms of cocaine.
Jefferson also argues that his sentence was substantively unreasonable because the district court completely discounted testimony at sentencing regarding Jefferson's character, his commitment to the community, and his positive impact on individuals in the community. We disagree. The district court expressly considered this evidence in granting a substantial downward variance. "In such cases it is nearly inconceivable that the court abused its discretion in not varying downward still further." United States v. Chaika, 695 F.3d 741, 746-47 (8th Cir. 2012). The district court did not abuse ...