                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          NOV 21 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-6434
                                                    (D.C. No. 99-CR-59-A)
    ALBERT EARL BOLDEN, JR.,                             (W.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before HENRY , ANDERSON , and BRISCOE , Circuit Judges.




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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
      Defendant Albert Earl Bolden, Jr. was indicted and convicted on eight

counts, including one count of conspiracy to distribute cocaine base (crack

cocaine), 21 U.S.C. § 846, one count of maintaining a place for the purpose of

distributing crack cocaine, 21 U.S.C. § 856(a)(1), four counts of distributing

crack cocaine, 21 U.S.C. § 841(a)(1), one count of being a felon in possession of

a firearm, 18 U.S.C. § 922(g)(1), and one count of aiding and abetting the

distribution of crack cocaine, 18 U.S.C. § 841(a)(1), 18 U.S.C. § 2. He was

sentenced to 360 months in prison to be followed by six years of supervised

release. On appeal, defendant complains that there was insufficient evidence to

support his conviction, and that the district court erred in its drug quantity

calculation and in its finding of obstruction of justice in determining his sentence

under the United States Sentencing Guidelines. We have jurisdiction pursuant to

28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.


                                   I. Background

      In 1996, the FBI began a long-term investigation of crack cocaine sales

in the Elk City and Clinton, Oklahoma, areas. By August of 1998, the FBI

began to focus the investigation on two individuals thought to be dealing in

crack cocaine–the defendant and Gary Bolden, defendant’s brother. Based on

information acquired by several crack cocaine users, the FBI and local authorities

executed a search warrant at defendant’s residence. Neither defendant nor his

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wife were in the residence, but the police found crack cocaine, a .380 automatic

pistol and ammunition, and what they thought to be a drug ledger, containing

the names of known and suspected crack cocaine users linked to varying

amounts of money.

      At that time, the police already had obtained evidence from a controlled

buy of crack cocaine from defendant on August 31, 1998, but to develop

the strength of its case, the FBI decided to set up more controlled buys

from defendant and his brother. The FBI ultimately convinced defendant’s

brother-in-law to make two controlled buys, which were done in January and

February of 1999.

      Based on evidence obtained against him, defendant’s brother Gary also

agreed to participate as an informant for the FBI, making controlled buys from

other suspected dealers in the area. When asked to make a controlled buy from

defendant, Gary Bolden initially agreed but ultimately told his brother about the

undercover operation against him. This led to the end of the investigation as well

as to several arrests.

      At trial, the government put on numerous witnesses, including crack

cocaine users who bought routinely from defendant, as well as those who bought

crack cocaine while being monitored. At the end of the government’s case,

defendant made a motion for judgment of acquittal, which was denied. Both


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defendant and his wife took the stand, where they denied knowing several of the

witnesses and denied knowledge of any criminal wrongdoing whatsoever. The

jury returned guilty verdicts on all counts.

      At three separate sentencing hearings, defendant lodged a number of

objections to the pre-sentence report. Following those hearings, the government

urged the court to attribute 840.0679 grams of crack cocaine to defendant for

purposes of the drug quantity computation under the Sentencing Guidelines.

In his sentencing memorandum, defendant argued that, based on the evidence at

trial, the amount of crack cocaine attributed to him should instead be 385.1631

grams. 1 The district court agreed with defendant and adopted a drug quantity

calculation of 380.88 grams, dropping defendant’s base offense level from

36 to 34. The district court then increased defendant’s base offense by two levels

each for obstruction of justice and possession of a firearm. Defendant now

appeals, arguing his guilty verdict is not supported by sufficient evidence and

that the district court erred in overruling his objections concerning the court’s

drug computation and its obstruction of justice sentence enhancement.




1
      In the alternative, the defendant argued that    no amounts of crack cocaine
should be attributed to him based on     Apprendi v. New Jersey, 530 U.S. 466
(2000). That argument has been dropped in this appeal.

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                           II. Sufficiency of the Evidence

       We review de novo the district court’s ruling on a motion for judgment of

acquittal and the sufficiency of the evidence to support the judgment.        United

States v. McKissick , 204 F.3d 1282, 1289 (10th Cir. 2000). We inquire “‘only

whether taking the evidence – both direct and circumstantial, together with the

reasonable inferences to be drawn therefrom – in the light most favorable to the

government, a reasonable jury could find the defendant guilty beyond a

reasonable doubt.’”    Id. (quoting United States v. Hanzlicek , 187 F.3d 1228, 1239

(10th Cir. 1999)). The scope of our review is limited; we “‘may neither weigh

conflicting evidence nor consider the credibility of witnesses.’”        Id. (quoting

United States v. Pappert , 112 F.3d 1073, 1077 (10th Cir. 1997)). “Defendants

challenging a conviction on sufficiency of the evidence grounds face a difficult

standard of review as we reverse only if no rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.”          United States v.

Spring , 80 F.3d 1450, 1459 (10th Cir. 1996) (further quotations and internal

citation omitted).

       In addition to the physical evidence of crack cocaine and paraphernalia

produced from the search of defendant’s residence, the government also produced

taped audio evidence of three controlled buys of crack cocaine from defendant, all

witnessed under standard procedures by law enforcement authorities who testified

                                            -5-
as to their roles in the undercover work. The government also produced fourteen

other witnesses, all of whom testified as to either buying crack or helping

defendant sell crack cocaine, often on numerous occasions, either in the street or

in his place of residence. Likewise, the government produced a firearm found

during the search of defendant’s chest of drawers. Although defendant denied

any knowledge of the weapon, one witness testified that he traded a .380 handgun,

which he specifically identified as the handgun in evidence, to defendant for

crack cocaine. Another witness testified she had seen defendant with a pistol on

numerous occasions, and that she had personally traded other guns to defendant

for crack cocaine.

      As to the conspiracy charge, defendant argues that there was insufficient

evidence of any agreement between himself and others to distribute crack cocaine.

However, several witnesses, including defendant’s brother, testified that on many

occasions defendant would give the drug to them with the express or implied

understanding that it be further distributed. Usually, according to these

witnesses, this was done in exchange for cash or crack itself.

      Given their personal circumstances, these witnesses and their testimony

could certainly be eyed with some degree of caution by the jury. And, indeed, the

record reflects defense counsel spent a great deal of time on cross-examination,

as he does on appeal, pointing out their defects in character and possible bias.


                                         -6-
Nevertheless, as we have frequently stated, credibility determinations in these

cases are not the province of this court, but rather are “the exclusive task of the

fact trier.” United States v. Youngpeter , 986 F.2d 349, 352-53 (10th Cir. 1993).

We therefore conclude, after a thorough review of the record, that the evidence

was sufficient for any rational trier of fact to find the defendant guilty beyond

a reasonable doubt on each of the eight counts.


                                   III. Sentencing

      Defendant first argues that the district court erred when it calculated

amounts of crack cocaine attributable to him for purposes of sentencing. This

argument is without merit. After a lengthy discussion at the June 1, 2000

sentencing hearing regarding evidence of drug amounts, defense counsel was

directed to prepare a sentencing memorandum demonstrating drug amounts

properly attributable to defendant based on the testimony at trial. In that

memorandum, defendant vehemently argued against being placed at a base

offense level of 36, founded on the drug quantity calculation urged by the

government of 840.0679 grams of crack cocaine. Instead, defendant argued that

his offense level should be 34, based on the attribution to him of 385.1631 grams

of crack cocaine. This concession was tied to specific witness testimony,

including that of defendant’s brother, Gary, and was based on substantial

evidence in the record.

                                          -7-
      The district court subsequently directed the probation officer to amend the

pre-sentence report to reflect a quantity of crack cocaine based on the court’s own

findings of fact, including what defendant himself believed to be the proper

amount. Indeed, the district court ultimately attributed an amount of cocaine

slightly less than the defendant argued was properly tied to himself. To argue

now, as defendant does on appeal, that the amount he attributed to himself and

urged upon the district court is inaccurate and leads to reversible error is

disingenuous.   See United States v. Johnson , 183 F.3d 1175, 1178-79 n.2

(10th Cir. 1999) (party may not induce action by a court and later seek reversal

saying the requested action was error). Therefore, we find no error in the district

court’s calculation of the amount of crack cocaine attributable to defendant.

      Next, defendant argues the district court erred in enhancing his sentence by

two base levels for obstruction of justice pursuant to United States Sentencing

Guidelines Manual § 3C1.1. Defendant cites a number of cases, essentially

arguing that the district court failed to follow the proper procedure in applying

that section.

      In sentencing appeals, “[w]e review the district court’s factual findings

under the clearly erroneous standard and review its applications of the Sentencing

Guidelines de novo.”   United States v. Roberts , 185 F.3d 1125, 1144 (10th Cir.

1999). “In order to apply the § 3C1.1 enhancement, it is well settled that


                                          -8-
a sentencing court must make a specific finding – that is, one which is

independent of the jury verdict – that the defendant has perjured [himself].”

United States v. Massey , 48 F.3d 1560, 1573 (10th Cir. 1995) (citing      United

States v. Dunnigan , 507 U.S. 87, 95 (1993)). While it is a requirement in this

circuit that the perjurious statement be specifically identified or described,

see id. at 1573-74, the Supreme Court in      Dunnigan instructs us that a district

court’s determination of enhancement is sufficient if “the court makes a finding

of an obstruction of, or impediment to, justice that encompasses all of the factual

predicates for a finding of perjury.”    Dunnigan , 507 U.S. at 95. Thus, we have

stated that “once the perjurious testimony is identified,    Dunnigan then permits

fairly conclusory findings that such testimony was false, material, and given with

intent to commit perjury and we are able to meaningfully review those findings

against the record.”   Massey , 48 F.3d at 1574.

       In this case the district court stated:

       Counsel also objected to the two-level enhancement for obstruction
       of justice. . . . Testimony on a material matter which is known to be
       false and is not the result of some kind of mistake, bad memory, slip
       of the lip, or inadvertence is the kind of perjury that will cause an
       adjustment under the guidelines. The Court found that is what
       happened in this case and overruled the objection. The Court noted
       Mr. Bolden’s testimony denying any drug transactions is perjurious
       under that test. The Court in applying knowledge of the ways of the
       world and the application of common sense looked at the testimony
       denying knowledge that the weapon in this case was in the underwear
       drawer; that his wife put it there; or that Mr. Bolden was unaware the
       gun was there. The Court found the testimony too preposterous for

                                             -9-
      belief at least by a preponderance of the evidence. The Court found
      the same for the ammunition hanging in the bedroom.

Aplt. App., at 109-10. These findings satisfy us that the district court applied the

Sentencing Guidelines appropriately under the legal standards of this circuit.

Given the ample evidence we have read in the record against defendant, all of

which was denied under oath, we conclude that the district court’s findings of

obstruction of justice were not clearly erroneous.

      The judgment of the United States District Court for the Western District

of Oklahoma is AFFIRMED.


                                       Entered for the Court



                                       Stephen H. Anderson
                                       Circuit Judge




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