United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-2454
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United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Eastern
v. * District of Missouri.
*
Willie Lee Smith, * [UNPUBLISHED]
*
Appellant. *
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Submitted: April 11, 2001
Filed: April 18, 2001
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Before BOWMAN and FAGG, Circuit Judges, and CARMAN,* Judge.
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PER CURIAM.
The Government indicted Willie Lee Smith on two counts of conspiracy to
possess with intent to distribute and manufacture five grams or more of cocaine base,
and one count of possession with intent to distribute cocaine. Before trial, the
Government notified Smith that given his earlier criminal convictions for felony drug
offenses, he would be subject to enhanced statutory maximum sentences of life
imprisonment on the conspiracy charges under 21 U.S.C. § 841(b)(1)(B) and thirty
*
The Honorable Gregory W. Carman, Chief Judge, United States Court of
International Trade, sitting by designation.
years on the possession charge under § 841(b)(1)(C). A jury found Smith guilty of all
charges. In its verdict, the jury specifically found the Government established beyond
a reasonable doubt that the amount of cocaine base involved in each of the conspiracy
offenses was five grams or more. Based on these drug amounts and Smith's earlier
convictions for felony drug offenses, the statutory maximum sentence on each
conspiracy count was life imprisonment. See 21 U.S.C. § 841(b)(1)(B)(iii). After
receiving the testimony of three witnesses at sentencing, the district court** found Smith
was responsible for 1.5 kilograms of cocaine base "which [Smith] and others under his
direction distributed over a long period of time," and imposed enhancements for
obstruction of justice and Smith's role in the offense. The court then sentenced Smith
to the statutory maximums of life imprisonment on the two conspiracy counts and 360
months on the possession count.
On appeal, Smith argues the district court's factual findings supporting the drug-
quantity determination and the enhancements violated Apprendi v. New Jersey, 120 S.
Ct. 2348 (2000), because they were not found beyond a reasonable doubt by the jury.
Apprendi holds, "Other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt." See 120 S. Ct. at 2362-63. Here, the
jury found beyond a reasonable doubt the facts necessary to increase Smith's statutory
maximum sentence to life imprisonment: the drug quantity finding of five grams or
more of cocaine base. See 21 U.S.C. § 841(b)(1)(B)(iii). Because Smith's indictment
alleged the conspiracies involved five grams or more of cocaine base and the jury made
a special finding that Smith's conspiracy offenses involved five grams or more of
cocaine base, Smith's sentence does not violate Apprendi. See United States v.
Shepherd, 219 F.3d 766, 769 (8th Cir. 2000), cert. denied, 121 S. Ct. 1208 (2001).
**
The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.
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Smith also asserts the district court committed error in holding Smith responsible
for 1.5 kilograms of cocaine base. See U.S.S.G. § 2D1.1. Smith argues the district
court should not have believed the testimony of three unreliable witnesses and did not
make specific findings about "what drug quantities from what witness testimony it
incorporated into its calculation." The district court found, "The testimony of others
is believable and persuasive that [Smith] is responsible for bringing in large quantities
of crack cocaine into Missouri through others and that [Smith] organized others in
distributing large quantities in excess of 1.5 kilograms to others." Witness credibility
is an issue for the sentencing judge that is virtually unreviewable on appeal. See United
States v. Moss, 138 F.3d 742, 745 (8th Cir. 1998). The district court's assessment of
witness credibility is evident, and thus the district court did not violate Federal Rule of
Criminal Procedure 32(c)(1). See id. We conclude the district court's drug quantity
finding is not clearly erroneous.
Last, we decline to consider Smith's pro se brief because Smith is represented
by counsel, see United States v. Peck, 161 F.3d 1171, 1174 n.2 (8th Cir. 1998), and
because the brief cites no legal authorities, see Fed. R. App. P. 28(a)(9)(A); Molasky
v. Principal Mutual Life Ins. Co., 149 F.3d 881, 885 (8th Cir. 1998); United States v.
Gonzales, 90 F.3d 1363, 1369-70 (8th Cir. 1996).
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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