                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 23 2009

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



                                                    No. 07-50377
 UNITED STATES OF AMERICA,
                                                    D.C. No. CR-05-00801-GHK
              Plaintiff - Appellee,

 v.                                                 MEMORANDUM *

 LEORN DINKINS, JR.,

              Defendant - Appellant.




                   Appeal from the United States District Court
                      for the Central District of California
                    George H. King, District Judge, Presiding

                     Argued and Submitted November 3, 2009
                              Pasadena, California

Before: SCHROEDER, SILER,** and IKUTA, Circuit Judges.




      *      This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

      **     The Honorable Eugene E. Siler, Jr., Senior United States Circuit
Judge for the Sixth Circuit, sitting by designation.

                                         -1-
      Based on three drug transactions, Defendant Leorn Dinkins was charged with

three counts of distributing cocaine base, commonly known as crack, in violation of

21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), and (b)(1)(B)(iii). Two counts charged him

with distributing 50 or more grams of cocaine base, and one count charged him with

distributing between five and 50 grams of cocaine base. Dinkins pled guilty to all

three counts, with the quantity of cocaine base to be determined at a bench trial.

      The district court heard evidence at the bench trial from a DEA forensic chemist

and a defense expert regarding the different initial and subsequent weights of the

drugs. The drugs obtained in two transactions were initially recorded as weighing in

excess of 50 grams, while the drugs from all three transactions weighed less than 50

grams when reweighed. Dinkins argued that he distributed between five and 50 grams

on all three counts consistent with the reweighs, rather than 50 or more grams on two

of the counts based on the initial weight of the drugs. The district court found both

experts credible and relied on Dinkins’ statements at the time of the sale to find the

initial, larger weight accurate and to conclude beyond a reasonable doubt that Dinkins

distributed 50 or more grams of cocaine base in two of the transactions. Based on this

finding, the district court sentenced Dinkins to the mandatory statutory minimum of

240 months’ incarceration.




                                          -2-
      We review the sufficiency of the evidence supporting Dinkins’ responsibility

for 50 or more grams of cocaine base de novo, because he sufficiently preserved this

issue for review. See United States v. Atkinson, 990 F.2d 501, 503 (9th Cir. 1993)

(holding a motion for acquittal was not necessary at a bench trial because the fact that

the defendant did not change his plea to guilty was sufficient to seek acquittal). We

review the evidence in the light most favorable to the prosecution to determine

whether any rational factfinder could have found Dinkins distributed 50 or more

grams of cocaine base. See United States v. Bishop, 959 F.2d 820, 829 (9th Cir. 1992)

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Because we conclude the

district court did not err in finding beyond a reasonable doubt that Dinkins distributed

50 or more grams, we need not decide whether it could have made this finding by a

preponderance of the evidence.

      Dinkins’ own statements and the testimony of chemist Terry Caldwell regarding

the quantity of cocaine base provide a reasonable basis for the district court to have

concluded that Dinkins distributed 50 or more grams of cocaine base. Dinkins twice

claimed to sell two ounces (approximately 56.7 grams) of cocaine base. The district

court found these statements credible in light of the fact that Dinkins previously

insisted on being paid for less than two ounces because that was all he had available.

The district court also noted that “shorting” would be a dangerous and unsuccessful



                                          -3-
business practice.   We give special deference to the district court’s credibility

determinations, United States v. Haswood, 350 F.3d 1024, 1028 (9th Cir. 2003), and

conclude that this evidence was sufficient to hold Dinkins accountable for distributing

50 or more grams of cocaine base. These weights were corroborated by Caldwell’s

analysis. Finally, cases such as United States v. Gonzalez, 528 F.3d 1207, 1215 (9th

Cir. 2008), are inapposite because they deal with a district court’s approximation of

drug quantities from circumstantial evidence, which was not at issue in this case.

      AFFIRMED.




                                          -4-
