                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 11-3056
                                    ___________

United States of America,                *
                                         *
      Plaintiff-Appellee,                *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of South Dakota.
James Michael Wilbourn,                  *
                                         * [UNPUBLISHED]
      Defendant-Appellant.               *
                                    ___________

                              Submitted: March 16, 2012
                                 Filed: June 1, 2012
                                  ___________

Before MURPHY, BRIGHT, and GRUENDER, Circuit Judges.
                            ___________

PER CURIAM.

      A jury convicted James Michael Wilbourn of conspiracy to distribute 50 grams
or more of crack cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district
court1 sentenced Wilbourn to 41 months (3 years and 5 months) in prison. Wilbourn
moved for a judgment of acquittal and for a new trial, both of which the district court
denied. The district court determined, however, that the conspiracy involved a lower
quantity of drugs than found by the jury, and imposed a guideline sentence based on
this lower drug quantity. Wilbourn appeals the district court’s denial of his motion


      1
       The Honorable Karen E. Schreier, Chief Judge, United States District Court for
the District of South Dakota.
for acquittal, motion for a new trial, and contends the court’s determination of the
lower drug quantity was excessive. We reject these contentions and affirm.


      At trial, several witnesses and officers testified to the events surrounding the
alleged conspiracy. Andre Gilbert, a co-conspirator who pled guilty, testified he met
Wilbourn during the summer of 2008, but did not begin selling crack cocaine directly
to Wilbourn until December 2008. When they met, Gilbert was selling crack cocaine
out of Delacey Williams’s house by providing it to Williams, who in turn provided the
crack cocaine to others, including Wilbourn. On two occasions in July 2009, Gilbert
fronted Wilbourn $200 to $300 worth of crack cocaine in exchange for Wilbourn’s car
keys because Wilbourn had insufficient cash.


      One witness testified that along with getting his crack cocaine, Wilbourn acted
as the doorman, directed buyers to the place of pickup, and kept an eye out for the
police. According to this witness, Wilbourn was likely being paid in drugs in
exchange for his services. Another witness testified that Wilbourn and Gilbert did
favors for each other involving drugs. The witness once saw Wilbourn get a package,
go outside, and return with money. The witness recalled an occasion when Gilbert got
into an argument with a buyer and when the argument got heated, Wilbourn stepped
in and struck the buyer with his fist, ending the argument.


      Detective Thomas Schmitz testified that he set up a controlled buy with a
confidential informant on July 20, 2009. At Schmitz’s direction, the informant was
to purchase $100 worth of crack. Schmitz testified that a $100 rock of crack cocaine
usually weighs between half a gram and a gram.


      The informant testified that on July 20, 2009, she went to a home, known as one
of Gilbert’s places of distribution. There, she encountered Gilbert and Wilbourn.
Wilbourn sold the informant $100 worth of crack cocaine.             An undercover
microphone recorded their conversation and revealed the following statements from
Wilbourn: “I really know what the f*** I’m talking about, you know what I’m

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saying? I gave this mother f*** some dope and some money. Says I’ll have your
money when I get back. Bitch ain’t got my money. Don’t make me take your shit.”
Brad Johnson, a forensic specialist for the Sioux Falls police department, testified that
the crack cocaine obtained during the controlled buy yielded 0.87 grams of cocaine.


      The district court denied Wilbourn’s motion for a judgment of acquittal and for
a new trial. However, it determined that Wilbourn’s conduct involved a lower
quantity of drug than the quantity found by the jury, and ordered that the presentence
report (PSR) be updated to reflect a lower quantity of 4.87 grams—0.87 grams from
the controlled buy and 4 grams which Gilbert fronted Wilbourn.


      Wilbourn raises three principal issues on appeal. On the merits, Wilbourn
attacks the sufficiency of the evidence and asserts the trial court erred in failing to
grant a judgment of acquittal or to grant a new trial. Wilbourn further asserts that the
trial evidence supports only a drug quantity of 0.87 grams.


                                           A.


      On Wilbourn’s motion for judgment of acquittal, “[t]his court reviews the
sufficiency of the evidence de novo, viewing the evidence in the light most favorable
to the government, with all reasonable inferences and credibility determinations made
in support of the jury’s verdict.” United States v. Kelly, 436 F.3d 992, 996 (8th Cir.
2006). A verdict will be overturned “only if no reasonable jury could have found [the
defendant] guilty beyond a reasonable doubt” United States v. Gray, 369 F.3d 1024,
1028 (8th Cir. 2004). To prove a defendant was involved in a conspiracy to distribute
crack cocaine, the government must show (1) there was a conspiracy to distribute
crack cocaine, (2) the defendant knew of the conspiracy, and (3) he intentionally
joined the conspiracy. United States v. Jiminez, 487 F.3d 1140, 1146 (8th Cir. 2007)
(citation omitted).




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      Trial testimony sufficiently shows a conspiracy existed. One could infer from
Gilbert’s testimony that an agreement existed between Gilbert and Williams to
distribute crack cocaine whereby Williams provided a location for the sales and
Gilbert provided the crack cocaine. See United States v. Delgado, 653 F.3d 729, 737
(8th Cir. 2011) (an agreement may be shown wholly by circumstantial evidence or by
inference from the parties’ actions).    Gilbert first used Williams’s home as a
distribution center, but over time expanded to other locations.


      Wilbourn’s knowledge of the conspiracy can be inferred by his statements
during the controlled drug buy where he expressly discussed providing drugs to
someone to sell. See United States v. Turner, 583 F.3d 1062, 1067 (8th Cir. 2009)
(absent direct proof of a conspiracy, jury is free to consider defendant’s statements
and actions, and may draw reasonable inferences about defendant’s state of mind).


      Finally, trial testimony allowed the jury to conclude that Wilbourn voluntarily
and intentionally joined the conspiracy. Wilbourn served as a middleman between
Gilbert and other drug buyers, thereby facilitating the crack cocaine distribution.
Wilbourn obtained crack cocaine from either Gilbert or someone Gilbert had supplied
and, in turn, provided, or appeared to provide, the crack cocaine to a third party.
Gilbert fronted drugs for Wilbourn on at least two occasions. As the doorman,
Wilbourn let in buyers, directed them through the homes and remained on the lookout
for the police. See United States v. Alexander, 408 F.3d 1003, 1008-09 (8th Cir.
2005) (defendant’s activities as lookout for a methamphetamine distributor was
evidence of participation in conspiracy). Wilbourn even intervened to end a buyer’s
argument with Gilbert by assaulting the buyer. Collectively, Wilbourn’s conduct
could be inferred as that of membership in a drug distribution conspiracy. See United
States v. Van Nguyen, 602 F.3d 886, 899 (8th Cir. 2010) (the jury is permitted to use
common sense to infer that defendant knew what she was doing).




                                         -4-
                                            B.


      Wilbourn’s motion for a new trial asserted insufficient evidence to support the
conviction as well as the sentence. The evidence supported the conviction. Trial
testimony shows Wilbourn was a member of the conspiracy to distribute crack cocaine
as early as December 2008. He knowingly and intentionally joined in the conspiracy
when he brokered deals for Gilbert and purchased crack cocaine directly from Gilbert.
By answering the door, directing buyers to the place of pick up, and being on the
lookout for police, Wilbourn was involved in and helped further the conspiracy.


      The evidence also supported the reduced drug quantity of 4.87 grams of crack
as a basis for the court’s imposition of a sentence of 41 months. Thus, the district
court did not err in denying a new trial.


                                            C.


      This court reviews drug quantity findings for clear error, as they are factual.
United States v. Hull, 646 F.3d 583, 587 (8th Cir. 2011). The trial court must find the
drug amount by a preponderance of the evidence standard. United States v. Webb, 545
F.3d 673, 677 (8th Cir. 2008). To do so, the court may look beyond trial testimony.
See United States v. Hill, 638 F.3d 589, 593 (8th Cir. 2011) (“The Sentencing
Guidelines permit district courts to approximate drug quantities . . . to establish[ ] the
relevant amount, and there is sufficient indicia of reliability to support its probable
accuracy.”) (quotations and citations omitted). The amount of drugs attributable to
a defendant in a conspiracy includes drugs purchased for personal use. United States
v. Jimenez-Villasenor, 270 F.3d 554, 562 (8th Cir. 2001).


      Wilbourn contends the drug quantity should have been 0.87 grams, the amount
sold during the controlled buy, instead of 4.87 grams. He argues the remaining 4
grams are based on Gilbert’s unsworn statement before trial and therefore unreliable.


                                            -5-
Wilbourn also argues the 4 grams were purchased from Gilbert before the existence
of a conspiracy, and therefore cannot be a part of the total drug quantity.


       The revised PSR states that the informant received 0.87 grams of crack cocaine
from Wilbourn. Gilbert’s trial testimony indicates he fronted $200 to $300 worth of
crack cocaine to Wilbourn on two separate occasions in July 2009. At $100 per gram,
this amounted to 4 grams. Trial evidence reflects that a conspiracy existed in late
2008 and Wilbourn joined the conspiracy as early as December 2008 when he
brokered deals for Gilbert. Thus, the district court did not clearly err in relying on this
testimony to conclude that 4.87 grams is the appropriate drug amount for sentencing.


       Accordingly, we affirm the conviction and sentence.
                         ______________________________




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