                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 11-2618
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                  Juan Daniel Lugo

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                  for the Southern District of Iowa – Davenport
                                 ____________

                          Submitted: September 20, 2012
                             Filed: January 8, 2013
                                 ____________

Before MELLOY, SMITH, and SHEPHERD, Circuit Judges.
                           ____________

MELLOY, Circuit Judge.

      Juan Daniel Lugo pleaded guilty to conspiring to manufacture, distribute, and
possess with intent to distribute, methamphetamine and marijuana in violation of
21 U.S.C. §§ 846 and 841(a)(1). The district court1 sentenced him to a prison term

      1
       The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
of 240 months. Because the district court did not clearly err in determining the
identity of the substance for sentencing purposes, we affirm.

                                         I.

       On February 17, 2010, a grand jury indicted Lugo and three coconspirators for
violating 21 U.S.C. §§ 846 and 841(a)(1). Lugo subsequently pleaded guilty and
entered into a plea agreement.2 The presentence investigation report (PSR)
recommended a total offense level of 39. This recommendation was based on a base
offense level of 38 for the quantity of drugs, a four-level increase for Lugo's
aggravating role as the leader and organizer of the conspiracy, and a three-level
reduction for Lugo's acceptance of responsibility.

       At his sentencing hearing, Lugo objected to the PSR on several grounds.
Relevant to this appeal is Lugo's contention that the district court mischaracterized
the methamphetamine as "actual" methamphetamine (or "ice"3), as opposed to a
mixture containing methamphetamine. The district court, acknowledging the often
difficult task of determining drug quantity, reduced Lugo's base offense level from
38 to 36. The court stated:

      The process of determining drug quantity is always – always difficult
      because memories often fade, there is difficulty in recalling exactly
      when the change was made from methamphetamine mixture to ice, all
      those kinds of issues.



      2
       As part of Lugo's plea agreement, the government agreed to dismiss two
additional counts of the indictment relating to the distribution of drugs.
      3
      The U.S. Sentencing Commission Guidelines Manual ("Sentencing
Guidelines") defines "ice" as "a mixture or substance containing d-methamphetamine
hydrochloride of at least 80% purity." U.S.S.G. § 2D1.1(c) n.(C).

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      Here the ice alone easily gets him to a level 36. . . . [I]t would take 19 or
      20 ounces of ice just to get to a level 36. It would take probably 60
      ounces of ice alone to get to a level 38. This is the most conservative
      estimate I’ve ever made, but I am going to find a level 36 and I can
      justify that very easily based on the ice alone, not to mention the
      marijuana or the other methamphetamine without attributing the 17
      ounces to Mr. Lugo.

The district court denied Lugo's other objections to the PSR4 and, based on the
adjusted total offense level of 37 (including the same four-level increase and three-
level reduction, respectively), sentenced Lugo to 240 months' imprisonment.5

       Lugo subsequently appealed his 240-month sentence, arguing that the district
court clearly erred in finding that the drug involved in the conspiracy was "ice" and
not a mixture containing methamphetamine. Specifically, Lugo contends that the
government failed to meet its burden with respect to proving the purity of the
methamphetamine because it did not conduct any testing on the seized substances.
The government, however, claims that the Sentencing Guidelines do not require that
purity be proved with "absolutely certainty," and that "direct evidence of the visual
characteristics of a drug," as well as circumstantial evidence and expert testimony, are
all that is required for proof.

       This Court submitted Lugo's case without argument on March 12, 2012, but
subsequently vacated that submission on April 24 and ordered supplemental briefing
on three issues: (1) "whether it is clear error for the district court to sentence on the
basis of 'ice' methamphetamine despite the government's failure to test whether the

      4
       Lugo also objected to the PSR on the grounds that (1) the quantity of drugs
was overstated, (2) he did not play an aggravating role in the offense, and (3) his
criminal history category was computed incorrectly.
      5
       The advisory sentencing range based on Lugo's offense level and criminal
history category is 235–293 months' imprisonment.

                                          -3-
seized methamphetamine is in fact 'a mixture or substance containing
d-methamphetamine hydrochloride of at least 80% purity'"; (2) "whether the analysis
may be different depending on whether there was an actual seizure of
methamphetamine"; and (3) whether United States v. Stewart, 122 F.3d 625, 628 (8th
Cir. 1997), and United States v. Whitehead, 487 F.3d 1068, 1072 (8th Cir. 2007),
control this issue. We then heard oral arguments from the parties regarding Lugo's
appeal and the issues listed above. We now affirm.

                                           II.

                                           A.

       The government, for sentencing purposes, bears the burden to prove drug type
by a preponderance of the evidence. United States v. Thompson, 335 F.3d 782, 784
(8th Cir. 2003). We review a sentencing court's determination of drug type for clear
error, and "will reverse only if firmly convinced [that] a mistake has been made." Id.
(citing United States v. Maxwell, 25 F.3d 1389, 1397 (8th Cir. 1994)). Where only
"a small portion of the methamphetamine recovered during [an] investigation" is
tested for purity, "the testing evidence combined with the testimony of witnesses who
actively participated in the drug conspiracy [can] amply support[]" a sentencing
court's conclusion as to drug type for a quantity of drugs greater than the amount
seized. United States v. Fairchild, 189 F.3d 769, 778 (8th Cir. 1999). "When no
quantity has been recovered, the government may prove the purity of quantities
attributed to the defendant by circumstantial evidence, for example, a conspirator's
reliable testimony . . . or an expert's testimony as to the normal purity of
methamphetamine produced in a lab." United States v. Houston, 338 F.3d 876, 879
(8th Cir. 2003) (citations omitted). In relying on witness testimony as evidence of
purity, "[t]he finder of fact may accept the parts of a witness's testimony that it finds
credible while rejecting any portion it finds implausible or unreliable," United States
v. Boyce, 564 F.3d 911, 916 (8th Cir. 2009), and such "[f]indings about the

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credibility of witnesses are 'virtually unreviewable on appeal,'" id. (quoting United
States v. Gomez-Perez, 452 F.3d 739, 743 (8th Cir. 2006)).

                                           B.

       Several of our prior decisions are instructive on whether it was clear error for
the district court to find, absent testing for purity, that the methamphetamine was
properly categorized as "ice." In Stewart, the defendant argued that there was not
sufficient evidence to prove that the cocaine that he sold was "crack" cocaine.6 122
F.3d at 628. Specifically, the defendant argued that there must be evidence that the
substance contained cocaine hydrochloride and sodium bicarbonate. Id. We rejected
that argument because "the Sentencing Guidelines only state that crack cocaine is
'usually prepared by processing cocaine hydrochloride and sodium bicarbonate.'" Id.
(emphasis added) (quoting U.S.S.G. § 2D1.1(c) n.D). The Sentencing Guidelines
thus "do[] not require such evidence before the district court can conclude that a
substance is crack cocaine." Id. (emphasis added).

       A decade later, in Whitehead, we again considered whether it was clear error
for the district court to determine that a substance is "crack" cocaine absent laboratory
testing. 487 F.3d at 1072 (citing Stewart, 122 F.3d at 628). In that case, the
government presented testimony from an experienced narcotics agent regarding the
appearance of the seized substance and the conditions under which he found it. Id.
Specifically, the agent testified that he found the substance damp and in a microwave,
but that it later dried out and took on a rock-like form. Id. In finding no clear error
in the district court's identification of the drug as "crack," we reiterated that "the

      6
       Under the Sentencing Guidelines, "crack" cocaine carries with it a higher a
base offense level per unit mass than cocaine in a powder form. See U.S.S.G.
§ 2D1.1(c); see also Theus v. United States, 611 F.3d 441, 447 (8th Cir. 2010) ("[A]
crack cocaine conviction [will] yield a much higher sentence than a powder cocaine
conviction.").

                                          -5-
identity of a controlled substance can . . . be proved by circumstantial evidence and
opinion testimony." Id. (alteration in original) (quoting United States v. Covington,
133 F.3d 639, 644 (8th Cir. 1998) (internal quotation marks omitted)).

        The general principles underlying our decisions in Stewart and Whitehead
accord with the decisions of our sister circuits. See, e.g., United States v. Linton, 235
F.3d 328, 329–30 (7th Cir. 2000) (district court's determination of "crack" cocaine
supported by "direct evidence of the visual characteristics" of the substance and
testimony of veteran narcotics agent and forensic chemist); United States v. Jones,
159 F.3d 969, 981–83 (6th Cir. 1998) (testimony of forensic scientist and experienced
narcotics officer, coupled with knowledge of drug preparation, sufficient to satisfy
preponderance standard that substance was "crack" cocaine); see also United States
v. Verdin-Garcia, 516 F.3d 884, 896 (10th Cir. 2008) ("Narcotics need not be seized
or tested to be held against a defendant at sentencing. . . . Laboratory test results are
perhaps more persuasive evidence of amounts of purities than eyewitness testimony
. . . but [such testimony] is not unreliable as a matter of law.").

                                           C.

                                           1.

         Subsequent to the filing of supplemental briefs, we decided United States v.
Walker, 688 F.3d 416 (8th Cir. 2012). In Walker, the defendants pleaded guilty to
conspiring to distribute methamphetamine, and their coconspirators testified at their
sentencing hearing. Id. at 419–20. Specifically, the defendants' coconspirators
"consistently identified the methamphetamine . . . as 'ice,'" and "distinguished the 'ice'
. . . from the anhydrous methamphetamine . . . based on its appearance, form, price,
and quality." Id. at 424. The defendants argued that the district court erred by
"crediting the testimony of [their] coconspirators because they did not have chemistry



                                           -6-
backgrounds or understand the definition of 'ice' under the Guidelines." Id. at 425.
We rejected this argument:

       That [the defendants] and their coconspirators did not have a scientific
       or technical understanding of the term "ice" is relevant to the district
       court's assessment of the reliability of their testimony as to drug identity
       or purity, but does not necessarily preclude the district court from
       finding the methamphetamine . . . was "ice."

Id.

       In finding no clear error in the district court's identification of the substance as
"ice," we noted "the flexible Guidelines approach of allowing the sentencing court
broad discretion to consider a wide range of relevant evidence from a variety of
sources as long as the evidence 'has sufficient indicia of reliability to support
probable accuracy.'" Id. at 423 (quoting United States v. Sicaros-Quintero, 557 F.3d
579, 582 (8th Cir. 2009)). Such evidence includes the source of the controlled
substance, the price generally obtained for the controlled substance, the substance's
appearance and form, and users and distributors' reports of the identity and quality of
the substance. Id. at 424.

                                            2.

       Lugo's case is indistinguishable from Walker, and thus Walker controls our
analysis. Here, Lugo's coconspirator testified regarding the physical characteristics
and appearance of the methamphetamine involved in the conspiracy. Specifically, the
sentencing court heard testimony from Tamera Scheper that the methamphetamine
from Lugo was "powdery and rocky and . . . clear" and "white," and that she sold
sixty-one ounces (61 oz.) of the substance between July 2008 and January 2009.
Scheper also testified that Lugo had referred to the substance as "ice," that she sold



                                           -7-
it to her customers as "ice," and that it was "much cleaner" than anhydrous
methamphetamine.

       We find no clear error in the district court's consideration of, and reliance on,
Scheper's testimony to determine that Lugo was dealing in "ice" and not a mixture of
substances containing methamphetamine. Scheper's testimony regarding the amount
and quality of methamphetamine that she received from Lugo is plainly within the
purview of evidence that the district court may consider when making a finding as to
the identification of a substance. See Walker, 688 F.3d at 423 (citing with approval
United States v. Cockerill, No. 99-4634, 2000 WL852608, at *2–3 (4th Cir. June 28,
2000) (coconspirator's testimony that the methamphetamine "was of very good
quality" is sufficient evidence for a sentencing court to conclude that the substance
was not a methamphetamine mixture)); see also Whitehead, 487 F.3d at 1072 ("[T]he
identity of a controlled substance . . . can be proved by circumstantial evidence and
opinion testimony." (second alteration in original) (quoting United States v.
Covington, 133 F.3d 639, 644 (8th Cir. 1998) (internal quotation marks omitted))).

                                            D.

       We now address, to the extent that they remain unanswered, the questions for
which the parties submitted supplemental briefs. First, as first set forth in Walker and
made clear in this opinion, it is not clear error for the district court to sentence on the
basis of "ice" methamphetamine despite the government's failure to test the purity of
the seized substance. See Walker, 688 F.3d at 425. Second, this analysis remains
unchanged even where, as here, there was an actual seizure of methamphetamine.
This Court in Walker, while recognizing the value of chemical testing, see id. n.4,
stated that "[t]he Guidelines do not require the government to establish the identity,
quantity, or purity of methamphetamine by laboratory analysis," id. at 423 (emphasis
added). See also id. ("[T]he Guidelines do not specify what evidence is required to
establish methamphetamine as 'ice' and . . . we have consistently rejected arguments

                                           -8-
demanding direct evidence of drug identity, quantity, or purity." (citing Whitehead,
487 F.3d at 1071–72)). Finally, Stewart and Whitehead, although dealing with
different types of drugs, present the same issue as Walker and this case. Those cases
thus control to the extent that they fill any gaps left by our decision in Walker.

                                         III.

       For the reasons set forth above, we find no clear error in the district court's
identification of the substance as "ice" methamphetamine. Accordingly, Lugo's
sentence is affirmed.
                       ______________________________




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