                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             OCT 14 1999
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                       No. 99-6017
                                                          (W.D. Okla.)
 RICKY LYNN, a/k/a Rickey Lynn,                      (D.Ct. No. CR-98-97-T)

          Defendant-Appellant.
                        ____________________________

                                ORDER AND JUDGMENT *


Before BRORBY, EBEL, and LUCERO, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant Ricky (a/k/a Rickey) Lynn appeals his sentence following his


      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
guilty plea and conviction. Specifically, Mr. Lynn appeals the quantity of cocaine

the district court attributed to him in calculating his sentence under U.S.S.G

§ 1B1.3. We exercise our jurisdiction under 28 U.S.C. § 1291 and affirm.



                                   BACKGROUND

      Mr. Lynn pled guilty to maintaining a place for the purpose of distributing

and using a controlled substance. In the presentencing report, the government

found Mr. Lynn accountable for a total of 183.16 grams of cocaine, including

fourteen grams attributable to a 1997 incident and 168 grams involving sales at

Mr. Lynn’s home in early 1998. Mr. Lynn objected to the total quantity of

cocaine attributed to him in the presentencing report. 1



      At Mr. Lynn’s sentencing hearing, the government presented testimony of

three individuals to support the amount of cocaine reflected in the presentencing

report. The first witness, Dennis Reed, testified that in 1997, he took a trip with

Mr. Lynn, who transported George Mitchell, a dealer selling crack cocaine. Mr.

Reed testified Mr. Lynn received one ounce (twenty-eight grams) of cocaine in

compensation for driving Mr. Mitchell. Mr. Reed further stated he could identify


      1
         Mr. Lynn does not contest the quantity of the .42 and .74 grams of cocaine he
sold to an informant.


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an ounce of cocaine merely by sight based on his long-time experience with

cocaine.



      Federal Bureau of Investigation Special Agent Nicholas Manns testified he

corroborated Mr. Reed’s testimony by making Mr. Reed take him to and identify

the apartment of Mr. Mitchell, which he did. Agent Manns also testified he

believed Mr. Mitchell did not possess a driver’s license, and that Mr. Reed’s

testimony on transporting Mr. Mitchell corresponded with statements of other

witnesses who similarly transported him and received a quantity of at least one-

half ounce of cocaine in compensation. In addition, Agent Manns testified Mr.

Reed’s testimony conformed with the statements of other cocaine dealers involved

in the case, who explained they rode as passengers and let someone else drive in

order to avoid suspicion in the event of a police stop. Agent Manns also stated

the fourteen grams of cocaine attributed to Mr. Lynn in the presentencing report

was a conservative estimate in light of Mr. Reed’s testimony that Mr. Lynn

actually received twenty-eight grams of cocaine from Mr. Mitchell for

transporting him.



      As to the 168 grams involving sales at Mr. Lynn’s home in early 1998, the

government presented the testimony of John Nunn, who stated he traveled to Elk


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City for two months, from January to February of 1998, for the purpose of selling

cocaine at the home of Regina Evans, a neighbor of Mr. Lynn’s. Prior to

presenting his testimony, Mr. Nunn told agents he saw another cocaine seller,

known as “Bruce,” sell cocaine at Mr. Lynn’s home twice a week during those

two months. However, Mr. Nunn’s hearing testimony differed from his statement

because he said he saw Bruce sell cocaine at Mr. Lynn’s home “several times,”

“eight to ten times,”or “most likely ... more.” In order to clarify the number of

cocaine selling incidents, the government on redirect examination asked the

following questions:

      Q. Mr. Nunn, earlier you said you thought you went to Rickey
      Lynn’s house probably eight or [ten] times. Could you tell us how
      many times a week you would go?

      A. About two times a week, sir.

      Q. Okay. Do you recall that you had an interview with Special
      Agent Manns here of the FBI?

      A. Yes, sir.

      Q. And do you remember that you told him that it was approximately
      two times a week during that two-month period?

      A. Yes, sir.


      Based on his experience selling drugs, Mr. Nunn testified he could identify

quantities of cocaine by sight and the amount of cocaine he saw Bruce sell at Mr.

Lynn’s house ranged between one-half to one ounce (i.e., fourteen to twenty-eight

                                         -4-
grams). On cross-examination, he admitted the amounts he saw and believed to

be one-half ounce could at times total only eleven or twelve grams.



      According to Agent Manns, Mr. Nunn’s testimony corresponded with

statements of other dealers, including George Mitchell, who told him they always

brought a minimum of one-half ounce of cocaine to sell in Elk City. Agent

Manns also testified that another witness, Vicky Edmondson, corroborated Mr.

Nunn’s testimony because she saw Bruce with an ounce of cocaine on at least one

prior occasion and also purchased $100 to $200 amounts from him on numerous

occasions. Agent Manns testified, based on his investigation, attributing only

one-half ounce of cocaine to Mr. Lynn for each sale in January and February of

1998 resulted in a very conservative estimate of the drugs sold at Mr. Lynn’s

home by Bruce.



      Finally, both Mr. Reed and Mr. Nunn testified they entered plea agreements

with the government concerning their own involvement in cocaine sales. While

Mr. Reed hoped “to get something out of testifying” against Mr. Lynn, he also

stated he was not certain of getting any downward departure or a lesser sentence.

Mr. Nunn testified the government did not make any promise of a reward for his

testifying against Mr. Lynn.


                                        -5-
                                   DISCUSSION

      On appeal, Mr. Lynn contends the government did not sufficiently prove

the drug quantities attributed to him by a preponderance of evidence.

Specifically, Mr. Lynn contends Mr. Reed’s testimony was incredible because he:

(1) first told agents the quantity given to Mr. Lynn by Mr. Mitchell totaled

fourteen grams, but later testified it was twenty-eight grams; (2) could only

identify the year and not an approximate date of their car trip with Mr. Mitchell;

(3) experienced a history of felony convictions; and (4) hoped to obtain a lenient

sentence by testifying against him. As to Mr. Nunn’s testimony, Mr. Lynn claims

it was similarly unreliable because his initial statement – on seeing Bruce sell

cocaine twice a week for two months – conflicted with his later testimony he saw

Bruce sell cocaine only eight to ten times. Mr. Lynn also contests the one-half

ounce of cocaine attributed to each of Bruce’s sales, arguing this amount is based

merely on Mr. Nunn’s own estimates and does not reflect Mr. Nunn’s testimony

that, at times, the amount could have totaled only eleven or twelve grams of

cocaine.



      We begin with an examination of the standards we must apply. We review

the district court’s factual findings regarding the quantity of drugs for which Mr.

Lynn is held responsible for clear error. United States v. Hooks, 65 F.3d 850, 854


                                         -6-
(10th Cir. 1995), cert. denied, 516 U.S. 1083 (1996). We will not disturb the

district court’s factual findings unless they are unsupported by the record or, after

reviewing all the evidence, we are firmly convinced an error occurred. Id.

Because credibility determinations are for the district court, we will not

reexamine the witnesses’ credibility on appeal. Id. It is the government’s burden

to prove the quantity of drugs for sentencing purposes by a preponderance of the

evidence. Id. “The district court may estimate the quantity of drugs involved

provided the information underlying the estimate possesses sufficient indicia of

reliability to support its probable accuracy.” Id. (quotation marks and citation

omitted).



      With these standards in mind, we conclude the district court did not err in

finding the government sufficiently proved the drug quantities attributable to Mr.

Lynn by a preponderance of evidence. Mr. Reed clearly testified Mr. Lynn

received twenty-eight grams of cocaine from Mr. Mitchell for transporting him.

Agent Manns clarified the fourteen grams of cocaine cited in the presentencing

report came from his own assumption of the quantity transported and not from

Mr. Reed, who did not discuss the cocaine’s weight in his interview. Even though

the district court knew Mr. Reed could not identify the approximate date of the

car trip with Mr. Mitchell, had a history of felony convictions, and entered a plea


                                         -7-
bargain with the government, it nevertheless found him a credible witness after

observing his testimony and demeanor during direct and cross-examination. We

will not reexamine this credibility determination on appeal and are not otherwise

convinced the district court erred in relying on Mr. Reed’s testimony.



      The district court also credited the testimony of Mr. Nunn. While Mr.

Nunn generally referred to seeing Bruce sell cocaine at Mr. Lynn’s house several

times or eight to ten times, he nevertheless clearly stated, when specifically asked

by agents and again at the hearing, that he saw Bruce sell cocaine twice a week

for two months – or sixteen times. As to Mr. Nunn’s estimates of the amount

sold, he plainly testified it ranged from one-half ounce (fourteen grams) to one

ounce (twenty-eight grams), even though he admitted on cross-examination that

what he saw as one-half ounce, at times, may have consisted of only eleven or

twelve grams. Similarly, Agent Manns testified other dealers involved in selling

cocaine in the area typically sold cocaine in units of one-half to one ounce. Based

on this testimony, the district court found Mr. Lynn responsible for at least 168

grams of cocaine sold in his home. As Agent Manns stated, 168 grams is a

conservative estimate, given 224 to 448 grams of cocaine could have been

attributed to Mr. Lynn (i.e., sixteen sales times fourteen grams (one-half ounce)

equals 224 total grams; sixteen sales times twenty-eight grams (one ounce) equals


                                         -8-
448 total grams). Moreover, if calculated at eleven grams instead of one-half

ounce, as insisted by Mr. Lynn, the amount of cocaine would still exceed 168

grams, resulting in a total of 176 grams sold (i.e., eleven grams times sixteen

incidents equals 176 total grams). Thus, the district court’s estimate of the

quantity of drugs involved is supported by a sufficient indicia of reliability to

support its probable accuracy. For these reasons, we conclude the district court

did not err in calculating the quantity of cocaine attributed to Mr. Lynn in

determining his sentence under U.S.S.G. § 1B1.3.



      Accordingly, the district court’s judgment is AFFIRMED.



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge




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