United States v. Jose Isaias Maza

___________

No. 95-1273
___________

United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Jose Isaias Maza, also known *
as Joe, *
*
Defendant - Appellant. *

___________ Appeals from the United States
District Court for the
No. 95-1932 District of Minnesota.
___________

United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Richard Anthony Leiphardt, *
also known as Tony, *
*
Defendant - Appellant. *

___________

No. 95-1933
___________

United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Jeffrey Douglas Walker, *
*
Defendant - Appellant. *
 ___________

No. 95-2138
___________

United States of America, *
*
Plaintiff - Appellant, *
*
v. *
*
Richard Anthony Leiphardt, *
also known as Tony; Jeffrey *
Douglas Walker, *
*
Defendants - Appellees. *

_____________

Submitted: February 14, 1996

Filed: August 27, 1996
_____________

Before McMILLIAN, LAY, and HANSEN, Circuit Judges.
_____________

HANSEN, Circuit Judge.

Jose Isaias Maza, Richard Anthony Leiphardt, and Jeffrey Douglas
Walker appeal from their convictions on drug charges pursuant to 21 U.S.C.
§§ 841(a)(1) and 846. Maza and Walker also contend the district court
erred in calculating their sentences. The government cross appeals,
seeking remand and resentencing of Leiphardt under the Sentencing Guideline
provisions for d-methamphetamine. We affirm on the appeals and reverse and
remand for resentencing on the cross appeal.

I.

This case involves a conspiracy to sell large quantities of
methamphetamine in central Minnesota. Viewed in the light most

2
favorable to the jury's verdict, see United States v. Cunningham, 83 F.3d
218, 222 (8th Cir. 1996), the evidence reveals the following facts.

In approximately 1990, one Michael Huggett, then a resident of
California, began purchasing methamphetamine from Wesley Arnold of Pomona,
California. Arnold's source for the methamphetamine was Richard Anthony
Leiphardt, also known as Tony. Huggett originally purchased a few ounces
of methamphetamine at a time and mailed the drugs to Minnesota for
distribution. The quantity of methamphetamine eventually increased to
approximately one-half pound per shipment. When Huggett moved to
Minnesota, Arnold began mailing the methamphetamine to Huggett.

In January 1991, law enforcement officers intercepted a package
containing one-half pound of methamphetamine sent from Arnold to Huggett.
Huggett was arrested but was acquitted on the charges. Not long after his
acquittal, Huggett resumed his drug dealings. To avoid detection by law
enforcement officers, he solicited Peter Verdon to transport the
methamphetamine from California to Minnesota.

At first, Verdon dealt with Arnold, who had purchased the drugs from
Leiphardt, but Verdon eventually went around Arnold and obtained the
methamphetamine directly from Leiphardt. In the summer of 1992, when
Verdon went to California to purchase methamphetamine for Huggett, Arnold
and Leiphardt met him at Arnold's residence. They told Verdon they wanted
to deal with him, rather than Huggett, because Huggett was not paying his
bills. Verdon purchased a pound of methamphetamine, and thereafter Huggett
became Verdon's customer, and Verdon was no longer a courier for Huggett.

Under Verdon's management, the methamphetamine business grew, with
Verdon eventually purchasing five pounds of methamphetamine

3
from his California suppliers every six to eight weeks. Arnold paid
Leiphardt $8,500 per pound of methamphetamine and, in turn, sold it to
Verdon for $15,000 per pound.

After a period of time, Leiphardt increased the price he was charging
Arnold for the drugs to $11,500 per pound. Arnold responded by finding a
new supplier, Jose Isaias Maza. Maza charged Arnold only $7,500 per pound,
and Arnold and Maza split the profits generated from selling the
methamphetamine to Verdon. Not surprisingly, since the laws of economics
apply to both legal and illegal enterprises, Leiphardt then reduced his
prices. From that point on, Arnold purchased methamphetamine from both
Maza and Leiphardt. Sometimes the methamphetamine Arnold sold to Verdon
had been supplied in part by Maza and in part by Leiphardt. For example,
Verdon met Arnold and Leiphardt in Las Vegas in January 1993 and bought
four pounds of methamphetamine, two from Leiphardt and two from Arnold
supplied by Maza.

At one point, Leiphardt telephoned Verdon, seeking to become Verdon's
sole supplier. The two agreed that Leiphardt would fly to the Minneapolis-
St. Paul Airport, where Verdon would pick him up. According to plan,
Verdon picked up Leiphardt at the airport on July 10, 1993, and the two
drove to Cosmos, Minnesota. They then drove to a motel in Sioux Falls,
South Dakota, where they met Jeffrey Walker, an associate of Leiphardt who
had transported the methamphetamine from California in Leiphardt's red
pickup truck. Leiphardt and Verdon removed the spare tire from the pickup
truck and brought it into the motel room. There, they removed from the
tire approximately three pounds of methamphetamine, which Verdon purchased.
Leiphardt and Verdon discussed using a storage locker in Sioux Falls to
store methamphetamine in the future.

A few weeks later, Verdon and Leiphardt again met in Sioux Falls.
As before, Walker couriered the methamphetamine -- this time approximately
ten pounds -- from California in Leiphardt's

4
pickup truck. Verdon purchased about five pounds of the methamphetamine.
He also returned to Leiphardt some methamphetamine that lacked potency.
Verdon had purchased the "bad batch" of methamphetamine from Arnold, who
had received it from Maza. Leiphardt took the methamphetamine and told
Verdon he would return it to Arnold. (Leiphardt never did give the drugs
to Arnold.) About three weeks later, Verdon purchased another five pounds
of methamphetamine from Leiphardt.

Around the time of this last transaction, Maza contacted Verdon,
seeking to deal directly with him. Verdon and Maza arranged to meet in
Nevada, where Verdon exchanged a 1968 Corvette and cash for approximately
five pounds of methamphetamine. Still owing on the drugs, Verdon
subsequently gave Maza a 1974 Corvette as additional payment.

On January 11, 1994, Verdon and his wife flew to Las Vegas. He
telephoned Maza several times, charging the calls on his telephone credit
card. He and his wife drove a rented car to San Bernadino, California,
where he was to purchase five pounds of methamphetamine from Maza. En
route, he called to tell Maza he was on his way. Maza gave Verdon the
number for Maza's pager. When Verdon arrived in San Bernadino, he stopped
to page Maza from a pay phone. Maza called Verdon back and arranged the
meeting place.

Verdon and his wife checked into a hotel. A few hours later, he went
to the appointed place, where Ismael Avila delivered a box wrapped as a
wedding gift. Verdon gave Avila five envelopes, each containing $10,000
cash. Verdon took the package back to his motel and unwrapped it. It
contained five pounds of methamphetamine. Verdon and his wife later
checked out of the hotel and went to a restaurant. When they left the
restaurant, police officers approached them, searched the trunk of the car,
and upon discovering the methamphetamine, arrested Verdon.

5
 Verdon was interviewed in San Bernadino by special agents of the
Minnesota Bureau of Criminal Apprehension (MBCA) and by a local police
officer. He told the officers he had another source named "Tony," who was
later identified as Richard Anthony Leiphardt, from whom he had purchased
multi-pound quantities of methamphetamine. He also explained that an
associate of Tony's (Jeffrey Walker) transported the methamphetamine to
Sioux Falls in Leiphardt's red pickup truck. At the conclusion of the
interview, the officers released Verdon and told him he should contact an
agent with the MBCA if he wished to cooperate in the investigation.

Verdon contacted the agent on January 22, 1994, advising him that
Leiphardt had called and was on his way to Verdon's residence. Based on
past experience, Verdon expected that Leiphardt had methamphetamine in
Sioux Falls. The agent asked Verdon to delay the deal for a few days to
give the agent time to plan for it. The agent called an officer of the
Cosmos Police Department and asked the officer to conduct a surveillance
on Verdon's home.

While conducting the surveillance, the officer saw a red Toyota
pickup truck with California license plates stop at Verdon's residence.
The truck was registered to Leiphardt. Having been instructed to obtain
the identities of the people in the truck, the officer stopped the truck
for having too high a bumper.1 The driver identified himself as Walker,
and the passenger identified himself as Leiphardt. After obtaining the
identities of the occupants of the truck, the officer allowed them to
proceed, without conducting a search. Leiphardt and Walker left without
meeting with Verdon.

1
See Minn. Stat. Ann. § 169.73(4) (West Supp. 1996) (setting
the maximum bumper height for a pickup truck at 25 inches from
bottom of bumper to the ground, and declaring a violation to be a
misdemeanor).

6
 The next morning, officers in Sioux Falls, South Dakota, located
Leiphardt's pickup truck outside of a motel. They began watching the
vehicle. It was determined that if the vehicle went south or west, it
should be stopped. If the vehicle traveled east, however, they would allow
it to proceed, for a drug deal with Verdon might transpire.

When the truck began travelling west, a state trooper stopped the
vehicle for failure to signal a lane change, for speeding, and for failure
to affix a front license plate as required under California law. The
trooper asked Leiphardt if there were any weapons in the vehicle.
Leiphardt responded affirmatively. At the trooper's request, Leiphardt
revealed in a duffel bag a loaded .380 semi-automatic handgun, a 12 gauge
assault-style shotgun, a 9 millimeter semi-automatic handgun, and large
quantities of ammunition. Under South Dakota law, it is unlawful to
possess a loaded weapon in a vehicle. S.D. Codified Laws §§ 22-14-9, 22-6-
2 (1988). The trooper arrested Leiphardt and Walker, and proceeded to
search the vehicle.

Several items were seized, including two pagers, which Walker had
purchased under a false name, an address book, which contained a telephone
number for a storage facility in Sioux Falls, and a hotel receipt revealing
that Walker had rented a motel room under a false name on January 21, 1994.
Further investigation revealed that Walker had rented a storage locker in
Sioux Falls, also under the false name.

The government charged Leiphardt, Walker, Maza, and Avila, as well
as thirteen other defendants, in a seventeen-count Superseding Indictment.
All of the defendants were named in Count I, which charged conspiracy to
distribute and to possess with intent to distribute methamphetamine. Maza
and Avila were also named in Count X, which charged distribution of
approximately 3.87 pounds of methamphetamine. Leiphardt and Walker filed
motions to suppress

7
the evidence obtained as a result of the vehicle stops. Adopting the
2
United States magistrate judge's report and recommendation, which was
issued after a motions hearing, the district court denied the motions.

The case proceeded to trial on Counts I and X with four defendants:
Leiphardt, Walker, Maza, and Avila. A jury found Leiphardt, Walker, and
Maza guilty as charged. Avila was acquitted. Maza was sentenced as a
career offender, receiving a sentence of 360 months (30 years) of
imprisonment. Leiphardt and Walker were each sentenced to 120 months (10
years) of imprisonment. All three defendants appeal their convictions.
Walker and Maza also appeal their sentences. The government cross appeals
as to Leiphardt's sentence.

II.

A. DENIAL OF MOTIONS TO SUPPRESS

Leiphardt and Walker argue the district court erred in denying their
motions to suppress evidence stemming from the vehicle stops in Cosmos,
Minnesota, and Sioux Falls, South Dakota. "We must affirm the district
court's denial of the motion[s] to suppress unless it is not supported by
substantial evidence on the record; it reflects an erroneous view of the
applicable law; or upon review of the entire record, [we] are left with the
definite and firm conviction that a mistake has been made." United States
v. Heath, 58 F.3d 1271, 1275 (8th Cir.) (internal quotations omitted),
cert. denied, 116 S. Ct. 240 (1995).

Appellants first argue that the lower court erred in finding that
traffic violations provided legitimate bases to stop the

2
The Honorable J. Earl Cudd, United States Magistrate Judge
for the District of Minnesota.

8
pickup truck in Cosmos, Minnesota and in Sioux Falls, South Dakota. They
argue that the traffic violations were mere pretext, because the real
reasons related to the investigation of criminal activity. Further, it is
argued that because the alleged investigative stops were not supported by
reasonable suspicion, they were in violation of the Fourth Amendment
guarantee against unreasonable seizures.

The district court correctly concluded that probable cause to suspect
that a traffic violation had occurred was sufficient legal basis for both
stops, regardless of any other motives the stopping officers may have had.
Whren v. United States, 116 S. Ct. 1769, 1774 (1996). See also United
States v. Bloomfield, 40 F.3d 910, 915 (8th Cir. 1994) (en banc) ("Any
traffic violation, however minor, provides probable cause for a traffic
stop."), cert. denied, 115 S. Ct. 1970 (1995); United States v. Cummins,
920 F.2d 498, 501 (8th Cir. 1990) (holding that we look to whether the
officer was legally authorized to make the stop, not to the officer's
intent), cert. denied, 502 U.S. 962 (1991). As the Supreme Court recently
explained,

"the fact that the officer does not have the state of mind
which is hypothecated by the reasons which provide the legal
justification for the officer's action does not invalidate the
action taken as long as the circumstances, viewed objectively,
justify that action." . . . Subjective intentions play no role
in ordinary, probable-cause Fourth Amendment analysis.

Whren, 116 S. Ct. at 1774 (quoting Scott v. United States, 436 U.S. 128,
138 (1978)). Thus, the district court correctly applied the law.

Pointing to the government's failure to call as witnesses the
officers who actually made the stops, Leiphardt and Walker argue the
government failed to prove that the legal justifications for the traffic
stops existed. We disagree. "[T]he trial court may accept hearsay
evidence at a suppression hearing if the court is

9
satisfied that the statements were made and that there is nothing to raise
serious doubt about their truthfulness." United States v. Boyce, 797 F.2d
691, 693 (8th Cir. 1986). An agent from the MBCA who was assigned to the
case testified at the suppression hearing that the pickup truck had been
stopped in Cosmos for an equipment violation and in Sioux Falls for failing
to have a front license plate as required in California, for failing to
signal, and for speeding. Appellants took advantage of their right to
cross examine the agent, and the district court found the agent's testimony
credible. Because the Appellants have not pointed us to anything that
would cast serious doubt on this finding, we decline to question the
district court's finding. Heath, 58 F.3d at 1275 ("A district court's
determination as to the credibility of a witness is virtually unreviewable
on appeal.").

We further conclude that the evidence obtained as a result of the
Sioux Falls, South Dakota, stop was properly admitted. During the stop,
the officer asked the defendants whether there were any guns in the pickup
truck. The defendants revealed loaded firearms in the vehicle, in
violation of South Dakota Codified Laws § 22-14-9. The officer then
lawfully arrested the defendants. See S.D. Codified Laws 23A-3-2
(authorizing warrantless arrests for public offenses committed in an
officer's presence). Once the occupants of the vehicle were arrested, a
search of the passenger compartment of a vehicle was permissible. New York
v. Belton, 453 U.S. 454, 460 (1981); United States v. Riedesel, 987 F.2d
1383, 1388 (8th Cir. 1993). Viewing this course of events, we find nothing
improper in the vehicle stop, the warrantless arrest, or the search
incident to the arrest.

In a related claim, Leiphardt also contends he was denied a fair
trial because the guns seized when he was arrested in Sioux Falls were
admitted as evidence at the trial absent proof of any connection to the
crime charged. We review the admission of the firearms only for plain
error, because no objection was lodged at

10
the trial. (Trial Tr. 149-54.); Fed. R. Crim. P. 52(b) (plain error
standard). Firearms are generally considered tools of the drug trade.
United States v. Schubel, 912 F.2d 952, 956 (8th Cir. 1990). As such, the
presence of firearms in Leiphardt's vehicle was relevant to his
participation in the conspiracy to distribute methamphetamine and did not
prejudice his right to a fair trial. The district court therefore did not
commit error, much less plain error, in admitting the guns. See United
States v. Norton, 846 F.2d 521, 525 (8th Cir. 1988) (standard of review).

B. 404(b) EVIDENCE

During the trial, the prosecutor asked Arnold why he had initially
believed Leiphardt could supply methamphetamine. Arnold answered that
Leiphardt had sold marijuana in approximately 1987. Leiphardt objected and
moved for a mistrial, on the basis that the testimony was inadmissible
under Federal Rule of Evidence 404(b),3 and even if the evidence met any
of the exceptions of Rule 404(b), it was still inadmissible because the
prosecutor had failed to provide Leiphardt the requisite pretrial notice.
The prosecutor responded that the testimony was offered for the purpose of
showing why Arnold went to Leiphardt to obtain methamphetamine and
explained the information had not been available in time to provide notice,
because Arnold had pled guilty only two days before. The district court
denied Leiphardt's motion for a mistrial; however,

3
Rule 404(b) states:

Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order
to show action in conformity therewith. It may,
however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or
accident, provided that upon request by the accused,
the prosecution in a criminal case shall provide
reasonable notice in advance of trial, or during trial
if the court excuses pretrial notice on good cause
shown, of the general nature of any such evidence it
intends to introduce at trial.

11
the court struck the testimony and instructed the jury to disregard it,
reasoning that the evidence's relevancy was questionable and it had come
in without advance notice to the defendants.

We afford the district court broad discretion in determining whether
a defendant has been so prejudiced that a mistrial is warranted. United
States v. Robinson, 774 F.2d 261, 277 (8th Cir. 1985). "The admission of
allegedly prejudicial testimony is ordinarily cured by an instruction to
the jury to disregard the testimony." United States v. Nelson, 984 F.2d
894, 897 (8th Cir.), cert. denied, 508 U.S. 966 (1993). In those
circumstances, we will reverse only if the verdict was substantially swayed
in spite of the instruction; that is, we will reverse when, considering the
testimony in the context of the entire trial and the strength of the
government's evidence regarding the defendant's guilt, the allegedly
prejudicial testimony was not harmless error. Id.

Assuming, without deciding, that the testimony was inadmissible under
Rule 404(b), we find no abuse of discretion in the district court's denial
of Leiphardt's motion for a mistrial. The district court struck the
allegedly improper testimony and instructed the jury to disregard it. We
assume the jury followed this instruction. United States v. Karam, 37 F.3d
1280, 1288 (8th Cir. 1994), cert. denied, El Hani v. United States, 115 S.
Ct. 1113 (1995). Moreover, we do not believe the statement at issue here
could have substantially swayed the jury in reaching its verdict. The
testimony was elicited on the third day of a trial that lasted more than
two weeks, and the government submitted powerful evidence of Leiphardt's
guilt. We therefore hold that the district court did not abuse its
discretion in denying Leiphardt's motion for a mistrial.

Maza brings a similar argument, contending the district court erred
by denying his motion for a mistrial based upon two statements made by
codefendant Ismael Avila concerning Maza's prior

12
convictions. Avila testified that he had lied, at Maza's request, in an
affidavit he had prepared when the two codefendants were in jail in
California. On cross examination, Maza's counsel asked Avila whether Maza
had ever threatened either Avila or his family. Avila described a
conversation he had had with Maza, stating:

He said, don't take it like a threat, but I have got people up
there that, you know, will do things for me. I am looking at
20 years. I got two priors.

(Trial Tr. at 1800-01.) Maza's counsel did not object to this testimony.
When Avila's counsel questioned Avila on re-direct, Avila said that the
idea of preparing an affidavit came up when Maza stated, "[Y]ou going to
have to help me. I got priors." (Id. at 1812.) Maza's counsel then
objected and moved for a mistrial. The district court denied the motion
because Maza's counsel had elicited the testimony initially and had not
objected to it.

We find no abuse of discretion in the district court's denial of
Maza's motion. Avila's attorney had previously informed Maza's attorney
of how Avila would testify on his reasons for allegedly lying in preparing
the affidavit. Notwithstanding this, Maza's attorney elicited the first
statement at issue here, thus opening the door into this area of inquiry,
and then failed to raise an objection. The second statement, elicited by
Avila's attorney on redirect, simply reiterated Maza's alleged threat,
including a reference to his "priors." The statement did not provide any
additional, specific information about the prior convictions. Considering
that Maza's counsel elicited the first statement and did not object to it,
and that the second statement did not provide any additional information,
we conclude that the evidence was admissible. Furthermore, because the
prior convictions of Maza were never again referred to in this lengthy
trial and the government's evidence against Maza was overwhelming, the
reference to "priors" could not have substantially swayed the jury.

13
Accordingly, the district court's decision to deny Maza's motion for a
mistrial was not an abuse of discretion.

C. JURY INSTRUCTIONS

Leiphardt and Walker argue the district court erred by refusing to
instruct the jury on multiple conspiracies. The "issue of whether the
defense produced sufficient evidence to sustain a particular instruction,
such as a multiple conspiracy instruction, is generally a question of law
subject to de novo review." United States v. Jackson, 67 F.3d 1359, 1367
(8th Cir. 1995), cert. denied, 116 S. Ct. 1684 (1996). If the evidence
sufficiently supports only a theory of a single conspiracy, a district
court does not err by refusing to give multiple conspiracy instructions.
Id. We find no error here.

"A single conspiracy is composed of individuals sharing common
purposes or objectives under one general agreement." United States v.
Davis, 882 F.2d 1334, 1342 (8th Cir. 1989), cert. denied, 494 U.S. 1027
(1990). In a conspiracy case, the government must prove there was an
agreement among the defendants to achieve some illegal purpose and that
each defendant "knowingly contributed efforts in furtherance of [the
conspiracy]." United States v. Lewis, 759 F.2d 1316, 1352 (8th Cir.)
(internal quotation and alteration omitted), cert. denied, 474 U.S. 994
(1985). The fact that various defendants entered the conspiracy at
different times and performed different functions does not convert a single
conspiracy to multiple conspiracies. United States v. Baker, 855 F.2d
1353, 1357 (8th Cir. 1988), cert. denied, 490 U.S. 1069 (1989). In a drug
case, the fact that different individual defendants contributed a portion
of the total drugs to suppliers or participated in numerous separate
transactions does not convert a single conspiracy to multiple conspiracies.
United States v. Spector, 793 F.2d 932, 935 (8th Cir. 1986), cert. denied,
479 U.S. 1031 (1987). Furthermore, the fact that coconspirators may
change

14
roles in the conspiracy or even depart from the conspiracy may signal only
that the single conspiracy has moved to a new phase. Davis, 882 F.2d at
1342.

After careful review, we conclude that this record does not
sufficiently support the defendants' theory of multiple conspiracies; it
supports a single conspiracy to sell a large quantity of methamphetamine
in central Minnesota. Initially, Verdon obtained the methamphetamine from
Arnold, who in turn obtained it from either Leiphardt or Maza. Both Maza
and Leiphardt knew of each other's business with Arnold, and in fact, on
at least one occasion, Arnold purchased the methamphetamine in part from
Leiphardt and in part from Maza. Moreover, Leiphardt took back a "bad
batch" of methamphetamine that Maza had supplied. When Leiphardt
eventually began to sell the drugs directly to Verdon, Walker became
involved in the conspiracy, transporting the drugs from California to South
Dakota and using a false name to obtain a motel room, pagers, and a storage
locker. Because this record does not support a theory of multiple
conspiracies, the district court did not err in refusing to instruct the
jury on multiple conspiracies.

D. SUFFICIENCY OF THE EVIDENCE

In a similar vein, Leiphardt and Walker challenge the district
court's denial of their motions for acquittal, arguing that the evidence
is insufficient to support the verdicts against them because there is a
fatal variance between the single conspiracy charged and the proof offered
at trial. To prevail on this argument, the defendants must establish that
a variance existed and that the variance affected their substantial rights.
United States v. Rabins, 63 F.3d 721, 724 (8th Cir. 1995), cert. denied,
116 S. Ct. 1031 (1996). Hence, the issue is whether the evidence is
sufficient to demonstrate a single overall conspiracy to distribute
methamphetamine, and whether the defendants knowingly joined the

15
conspiracy and participated in furthering its objectives. Id. Once the
government has established the existence of a conspiracy, even slight
evidence connecting a particular defendant to the conspiracy is sufficient
to prove the defendant's involvement in the conspiracy. United States v.
Scott, 64 F.3d 377, 380 (1995).

We view the evidence in the light most favorable to the jury's
verdict, resolving all reasonable inferences in favor of the verdict.
Rabins, 63 F.3d at 724. We will uphold a jury verdict if there is an
interpretation of the evidence that would permit a reasonable jury to find
guilt beyond a reasonable doubt. United Sates v. Erdman, 953 F.2d 387, 389
(8th Cir.), cert. denied, 505 U.S. 1211 (1992). As we explained above, and
considering the evidence in the light most favorable to the verdict, the
evidence in this case abundantly supports the government's theory of a
single conspiracy. Furthermore, the government surpassed the threshold of
producing slight evidence connecting both Leiphardt and Walker to the
conspiracy.

Maza challenges his verdict too, contending the evidence was
insufficient to convict him because the witnesses who testified against him
(Arnold and Verdon) were unbelievable. This argument lacks merit.
Credibility determinations are in the jury's province, not that of the
reviewing court. Cunningham, 83 F.3d at 222. Further, "[a] conviction can
properly rest on the uncorroborated testimony of an accomplice if it is not
otherwise incredible or unsubstantial on its face." United States v.
Evans, 697 F.2d 240, 246 (8th Cir.), cert. denied, 460 U.S. 1086 (1983).
The jury evidently found Verdon's and Arnold's detailed explications of the
facts, which are bolstered by other substantial evidence in the record, to
be true. We cannot say their testimony is either incredible or
unsubstantial. Accordingly, the evidence is sufficient to support the
guilty verdict against Maza.

16
E. SENTENCING MAZA AS A CAREER OFFENDER

The Presentence Investigation Report for Maza reveals that he has two
prior convictions: a conviction in California for selling cocaine on August
13, 1985, and a conviction in Arizona on drug charges stemming from a sale
of cocaine on February 6, 1986. Accordingly, the district court sentenced
Maza as a career offender pursuant to the Sentencing Guidelines. United
States Sentencing Commission, Guidelines Manual, § 4B1.1 (Nov. 1994). Maza
claims this was error, arguing his prior convictions were related because
he entered into a single plea agreement for both convictions.

Persons who are convicted of a crime of violence or a controlled
substance offense and who have two prior felony convictions for either of
such crimes are sentenced as "career offenders." USSG § 4B1.1. Prior
felony convictions are counted separately for career offender purposes if
they "are counted separately under the provisions of § 4A1.1(a), (b), or
(c)." USSG § 4B1.2(3). Under section 4A1.2(a)(2), "prior sentences
imposed in related cases are to be treated as one sentence." "[P]rior
sentences are considered related if they resulted from offenses that (1)
occurred on the same occasion, (2) were part of a single common scheme or
plan, or (3) were consolidated for trial or sentencing." USSG § 4A1.2,
comment. (n.3).

We review de novo a district court's legal interpretation of Section
4A1.2(a)(2). United States v. Watson, 952 F.2d 982, 990 (8th Cir. 1991),
cert. denied, 503 U.S. 994 (1992). We review for clear error a district
court's determination of whether the government has proven that a
defendant's prior crimes were unrelated. United States v. Lublin, 981 F.2d
367, 371 (8th Cir. 1992).

The district court did not err in finding Maza's prior convictions
to be unrelated. First, the two crimes occurred on

17
different occasions, almost six months apart. Second, besides the distance
in time, the drug sales took place in different states and involved
different customers. We agree with the Second Circuit that, as a matter
of common sense, a single common scheme or plan involves "something more
than simply a repeated pattern of conduct." United States v. Chartier, 970
F.2d 1009, 1016 (2d Cir. 1992). We therefore see no error in the district
court's conclusion that the crimes were not part of a "single common scheme
or plan." Finally, the crimes were not "consolidated for trial or
sentencing," USSG § 4A1.2, comment. (n.3), because no formal order of
consolidation was issued and the cases proceeded to sentencing under
separate docket numbers. United States v. Klein, 13 F.3d 1182, 1185 (8th
Cir.), cert. denied, 114 S. Ct. 2722 (1994); United States v. McComber, 996
F.2d 946, 947 (8th Cir. 1993). The district court therefore properly
sentenced Maza as a career offender.

F. SENTENCING LEIPHARDT FOR D-METHAMPHETAMINE

The government argues in its cross-appeal that the district court
clearly erred in finding the government failed to prove Leiphardt and
Walker had distributed d-methamphetamine and, accordingly, in sentencing
them under the lower guideline provisions for distribution of l-
methamphetamine. Both Leiphardt and Walker were sentenced to 120 months

18
pursuant to the mandatory minimum statute.4 The government does not seek
the resentencing

4
Offenses involving "100 grams or more of methamphetamine,
its salts, isomers, and salts of its isomers or 1 kilogram or
more of a mixture or substance containing a detectable amount of
methamphetamine, its salts, isomers, or salts of its isomers" are
subject to a 10-year mandatory minimum. 21 U.S.C.
§ 841(b)(1)(A)(viii). This mandatory minimum statute, unlike the
Sentencing Guidelines, does not differentiate between d-
methamphetamine and l-methamphetamine. When "a statutorily
required minimum sentence is greater than the maximum of the
applicable guideline range, the statutorily required minimum
sentence shall be the guideline sentence." USSG § 5G1.1(b). See
also United States v. Stoneking, 60 F.3d 399, 402 (8th Cir. 1995)
(en banc) (explaining that the Sentencing Commission cannot
override Congress), cert. denied, 116 S. Ct. 926 (1996).
Concluding that the statutory minimum of 120 months was greater
than the applicable Guideline range, the district court sentenced
both Leiphardt and Walker to 120 months of imprisonment.

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of Walker, as his 120-month sentence as imposed falls within the applicable
ordinary guideline range of 108 to 135 months for a conviction of an
offense involving this quantity of d-methamphetamine. The government does
seek the resentencing of Leiphardt, however, because his 120-month sentence
is below the applicable ordinary guideline range for offenses involving the
quantity of d-methamphetamine attributable to him.

Under the Sentencing Guidelines applicable to this case,5 a sentence
for d-methamphetamine is greater than a sentence for l-methamphetamine by
a factor of 25. See USSG § 2D1.1, n.10 (Drug Equivalency Table). A
district court must make a factual finding as to whether the
methamphetamine was d- or l-methamphetamine. United States v. Koonce, 884
F.2d 349, 352 (8th Cir. 1989). The government bears the burden of proving
by a preponderance of the evidence that the methamphetamine was d- not l-
methamphetamine. United States v. Jennings, 12 F.3d 836, 838 (8th Cir.
1994). We review the district court's finding for clear error. Id.

After careful review, we are firmly convinced that the district court
clearly erred in finding the government failed to meet its burden of proof
on this sentencing issue. Verdon's testimony linked two samples of
methamphetamine to Leiphardt and one of them to Walker. Laboratory testing
revealed that both

5
As of November 1, 1995, the distinction between
methamphetamine types has been eliminated, and l-methamphetamine
is now treated the same as d-methamphetamine. See USSG § 2D1.1.
Amendment number 518 explains that the change was made because
"l-methamphetamine is rarely seen and is not made intentionally,
but rather results from a botched attempt to produce d-
methamphetamine." USSG App. C at 423.

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samples were d-methamphetamine. Moreover, the government's expert
testified at the sentencing hearing that l-methamphetamine has little, if
any, of the stimulating effect to the central nervous system that d-
methamphetamine has. Because the government's case against Leiphardt
involved numerous multi-pound drug transactions over a period of time, and
because Verdon testified he had never received any complaints from his
customers about the methamphetamine he received from Leiphardt and Walker,
we are firmly convinced that the methamphetamine Leiphardt was dealing was
d-methamphetamine. As such, Leiphardt should be resentenced under the
guideline provisions for d-methamphetamine.

III.

For the reasons discussed above, we affirm the district court's
judgments on the defendants' appeals. We affirm Leiphardt's conviction but
vacate his sentence and remand for resentencing of Leiphardt on the
government's cross appeal.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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