                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                  No. 02-3817/4093
                                   ___________


United States of America,               *
                                        *
            Cross-Appellant/Appellee, *
                                        *      Appeal from the United States
      v.                                *      District Court for the Northern
                                        *      District of Iowa.
Gabriel Aguilar-Portillo, also known as *
Gabbie,                                 *
                                        *
            Appellant/Cross-Appellee. *

                                    ___________

                              Submitted: May 13, 2003

                                   Filed: July 1, 2003
                                    ___________

Before MORRIS SHEPPARD ARNOLD, HANSEN, and SMITH, Circuit Judges.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Following a jury trial, Gabriel Aguilar-Portillo was convicted of conspiring to
distribute and to possess with intent to distribute methamphetamine, and of
distributing and possessing methamphetamine with intent to distribute it, in violation
of 21 U.S.C. § 846 and § 841(a)(1). He appeals the district court's denials of his post-
conviction motions for acquittal due to insufficient evidence and for a new trial based
on the weight of the evidence. The government cross-appeals the district court's
decision not to enhance Mr. Aguilar-Portillo's sentence for obstruction of justice and
the court's determination to depart downward on account of his "cultural
assimilation." We affirm the district court's denials of Mr. Aguilar Portillo's post-
conviction motions and its decision not to enhance his sentence for obstruction, but
we reverse the district court's decision to depart downward.

                                           I.
       We turn first to Mr. Aguilar-Portillo's motion for acquittal due to insufficient
evidence. "We review the denial of a motion for acquittal by viewing the evidence
in the light most favorable to the verdict, giving the government the benefit of all
reasonable inferences to be drawn from the evidence." United States v. Davis, 103
F.3d 660, 667 (8th Cir. 1996), cert. denied 520 U.S. 1258 (1997). "We will uphold
the conviction against a challenge to the sufficiency of the evidence unless 'a
reasonable factfinder must have entertained a reasonable doubt about the
government's proof of one of the offense's essential elements.' " Id. (quoting United
States v. Ivey, 915 F.2d 380, 383 (8th Cir. 1990)).

        To prove a conspiracy like the one with which Mr. Aguilar-Portillo was
charged, the government must prove that two or more persons reached an agreement
to distribute or possess with intent to distribute methamphetamine, that the defendant
voluntarily and intentionally joined the agreement, and that at the time that the
defendant joined the agreement he knew its essential purpose. See United States v.
Holloway, 128 F.3d 1254, 1257 (8th Cir. 1997). At trial, several co-conspirators
testified to the details of a conspiracy to distribute methamphetamine and to
Mr. Aguilar-Portillo's involvement in it. Though we recognize that a reasonable mind
could entertain concerns about "the reliability and consistency of these accounts"
because these co-conspirators testified in exchange for leniency from the government,
see United States v. Aguayo-Delgado, 220 F.3d 926, 935 (8th Cir. 2000), cert. denied,
531 U.S. 1026 (2000), this testimony more than suffices to sustain a conviction for
conspiracy to distribute methamphetamine.

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        To prove a case of distributing methamphetamine in violation of 21 U.S.C.
§ 841(a)(1), the government must show that the defendant "knowingly sold or
otherwise transferred methamphetamine." See United States v. Rogers, 91 F.3d 53,
57 (8th Cir. 1996). The government produced evidence that a car registered to
Mr. Aguilar-Portillo was observed outside a house where two pounds of
methamphetamine were purchased, and the seller testified that he received the
methamphetamine for the sale from Mr. Aguilar-Portillo. While we recognize that
Mr. Aguilar-Portillo testified that he had nothing to do with any drugs, we note that
"[i]t is not the province of this Court to reweigh evidence or judge the credibility of
witnesses when reviewing the sufficiency of the evidence on appeal." United States
v. Buford, 108 F.3d 151, 153 (8th Cir. 1997) (internal quotations omitted). Taking
the evidence in the light most favorable to the government, we conclude that a
reasonable jury could have found that Mr. Aguilar-Portillo had distributed
methamphetamine.

       Based on the testimony which the jury was entitled to credit, we also conclude
that a reasonable jury could have convicted Mr. Aguilar-Portillo of possessing
methamphetamine with intent to distribute it in violation of § 841, and conspiring to
do so in violation of §846 as well.

                                           II.
       We consider next the district court's decision not to grant a new trial, which we
will affirm "absent a clear and manifest abuse of discretion." United States v. Jiminez-
Perez, 238 F.3d 970, 974 (8th Cir. 2001). A new trial should be granted based on the
weight of the evidence "only if the evidence weighs heavily enough against the
verdict that a miscarriage of justice may have occurred." Id. (internal quotations
omitted). In light of the evidence cited above, we cannot conclude that a miscarriage
of justice occurred here with respect to either of Mr. Aguilar-Portillo's convictions.
We thus affirm the district court's denial of his motion for a new trial.



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                                          III.
       We turn next to the district court's decision not to enhance Mr. Aguilar-
Portillo's sentence for obstruction of justice and its decision to depart downward on
account of his "cultural assimilation." We consider first the lack of an obstruction
enhancement. We review the factual findings underlying the district court's decision
not to enhance the sentence for obstruction for clear error, while the "application of
the sentencing guidelines to those facts is subject to de novo review." United States
v. Esparza, 291 F.3d 1052, 1054 (8th Cir. 2002).

       At trial, Mr. Aguilar-Portillo denied that he participated in any conspiracy to
distribute methamphetamine and denied several other material matters. A defendant
is subject to an obstruction-of-justice enhancement under the United States
Sentencing Guidelines, see U.S.S.G. § 3C1.1, "if he testifies falsely under oath in
regard to a material matter and does so willfully rather than out of confusion or
mistake." United States v. Chadwick, 44 F.3d 713, 715 (8th Cir. 1995) (per curiam)
(citing United States v. Dunnigan, 507 U.S. 87 (1993)). "If a defendant objects to an
obstruction of justice enhancement based on perjury, the district court 'must review
the evidence and make independent findings' that the defendant willfully gave false
testimony concerning a material matter in the case." Esparza, 291 F.3d at 1055
(quoting Dunnigan, 507 U.S. at 95). The district court refused to make such a
finding here, noting, among other things, several contradictions in various witnesses'
testimony, a probable lie by one of the prosecution's witnesses, the fact that the jury
deliberated for a day and a half, the fact that Mr. Aguilar-Portillo did not look
evasive, and the fact that he merely made unembellished denials.

      The government contends that an enhancement for obstruction was warranted
because Mr. Aguilar-Portillo's denials pertained to material matters, were not caused
by "confusion, mistake, or faulty memory," and, because they were contrary to the
jury verdict, were necessarily false. The government argues that the district court
erroneously created a so-called "exculpatory no" exception to obstruction

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enhancements for false testimony, pointing to statements by the district court at the
sentencing hearing such as "I don't know what [Mr. Aguilar-Portillo] might have said,
but he--if he was making an outright fabrication in addition to what he had--just a
plain no he said here, then I would certainly be having a problem."

       The "exculpatory no" exception enjoyed a long pedigree as a judicially-created
exception to the prohibitions of the False Statements Act, 18 U.S.C. § 1001. See
Brogan v. United States, 522 U.S. 398, 401 (1998) (citing cases). "The central feature
of this doctrine [was] that a simple denial of guilt does not come within the statute."
Id. But the Supreme Court in Brogan rejected this exception, concluding that a
simple denial of guilt could be a false statement under the Act. See id. at 402, 408.

       Although we agree with the government that there can be no such thing as an
"exculpatory no" defense when the question before the district court is whether the
defendant has obstructed justice, since a simple denial of guilt can be as perjurious
as any other false statement as long the defendant willfully intended to provide false
testimony, see Dunnigan, 507 U.S. at 94, we disagree with the government's
characterization of the district court's determination here. Our careful examination
of the transcript of the sentencing hearing leads us to conclude that the district court
was merely of the view that Mr. Aguilar-Portillo's "no's" were not perjurious, not that
a simple denial of guilt without more was not perjurious as a matter of law. In other
words, we think that the district court believed that the government did not prove by
a preponderance of the evidence that Mr. Aguilar-Portillo was lying.

       Citing cases from other jurisdictions and other contexts, see, e.g., United States
v. Reed, 264 F.3d 640, 648 (6th Cir. 2001), cert. denied 535 U.S. 962 (2002), the
government argues that the district court was not permitted to find that Mr. Aguilar-
Portillo did not willfully provide false testimony by his denials, because, for
sentencing purposes, a court must presume that the verdict is correct and that the
defendant is guilty. But we have explicitly rejected that contention. As we explained

                                          -5-
in United States v. Benson, 961 F.2d 707, 709 (8th Cir. 1992), "the enhancement may
not be based solely upon [the defendant's] failure to convince the jury of his
innocence" but rather "may be 'based on the experienced trial judge's express finding,
based on the judge's personal observations, that [the defendant] lied to the jury." Id.
at 709 (quoting United States v. Ogbeifun, 949 F.2d 1013, 1014 (8th Cir. 1991); see
also United States v. Gomez, 165 F.3d 650, 654-55 (8th Cir. 1999). Although the jury
adjudicates guilt, the district court is responsible for making findings relevant to the
matter of obstruction, and if the government does not convince the court that the
defendant willfully intended to provide false testimony, an enhancement for
obstruction because of false testimony is not warranted. See Dunnigan, 507 U.S. at
95; United States v. O'Dell, 204 F.3d 829, 836 (8th Cir. 2000). We discern no clear
error of fact or error of law in the district court's determination not to enhance
Mr. Aguilar-Portillo's sentence for obstruction.

       We now consider the district court's decision to depart downward on account
of Mr. Aguilar-Portillo's "cultural assimilation." The court relied on United States
v. Lipman, 133 F.3d 726, 729-731 (9th Cir. 1998), in which the court discussed the
propriety of departing downward for "cultural assimilation" when a defendant who
was convicted of illegal entry after deportation had lived for some time and
established himself in the United States. Here the district court, noting that
Mr. Aguilar-Portillo had lived in the United States since 1987 and had children here,
granted him a one-level downward departure for "cultural assimilation."

       We review de novo "the issue of whether a departure 'is not justified by the
facts of the case.' " See United States v. Aguilar-Lopez, 329 F.3d 960, 962 (8th Cir.
2003) (quoting 18 U.S.C. § 3742(e), as amended April 30, 2003). Even if we agreed
with the principle established in Lipman, we think that a departure was not
appropriate here. Under that case, "cultural assimilation" is "relevant to the character
of a defendant ... insofar as his culpability might be lessened if his motives were
familial or cultural rather than economic." See Lipman, 133 F.3d at 731. A

                                          -6-
downward departure for "cultural assimilation" could simply have no role in
sentences for drug crimes and was not properly afforded here.

                                            IV.
       Mr. Aguilar-Portillo argues that he is entitled to a new trial as a matter of law
because the district court declined to enhance his sentence for obstruction of justice.
We disagree, because considerations governing the two decisions, while interrelated,
are distinct: An enhancement for false testimony has to do with whether a district
court believes that the government proved that the defendant willfully intended to
deceive the fact-finder on a material matter, see O'Dell, 204 F.3d at 836; a new trial
is warranted if the district court believes that the jury verdict represents a miscarriage
of justice. A district court might well rationally believe that the defendant's guilt was
sufficiently ambiguous that an enhancement for obstruction was improper, but was
nevertheless supported by enough evidence to convince a reasonable person that the
defendant was guilty. Indeed, from our review of the record, we believe that the
district court properly so concluded here.

                                           V.
      Accordingly, the judgment of conviction is affirmed, the sentence is vacated,
and the case is remanded to the district court for resentencing in accordance with this
opinion.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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