                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-1793
                                   ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       *
      v.                               * Appeal from the United States District
                                       * Court for the Northern District of Iowa.
Alfredo Luna, also known as Bear,      *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: August 21, 2001

                                  Filed: September 7, 2001
                                   ___________

Before RILEY, ROSS, and BEAM, Circuit Judges.
                            ___________

ROSS, Circuit Judge.

       Alfredo Luna appeals from a judgment of the district court1 entered upon a jury
verdict finding him guilty of a drug conspiracy. We affirm.

       Luna was charged with conspiracy to distribute more than 1,000 grams of
methamphetamine and 500 grams of cocaine, in violation of 21 U.S.C. § 846, and with
using and carrying a firearm during and in relation to a drug trafficking crime, in
violation of 18 U.S.C. § 924(c). At trial, among other evidence, the government


      1
        The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
presented the testimony of several co-conspirators, who testified pursuant to plea
agreements. In particular, Matt Miller testified that he had received twenty pounds of
methamphetamine and three or four pounds of cocaine from Luna. Miller also testified
that Luna had an AR 15 rifle, which he threatened to use if Miller ever "snitched," and
during several drug transactions Luna had pointed a .9mm pistol with a laser sight at
him. Scott Windles testified that Luna had supplied him with five to eight pounds of
methamphetamine. In addition, Windles testified that he saw an AR 15 rifle at Luna's
home and that Luna had pointed a .9mm pistol at him during drug transactions. Luna
presented several witnesses and testified in his defense. After a three-day trial, the jury
convicted Luna of the conspiracy charge, but acquitted him of the § 924(c) weapons
charge. The district court denied his Fed. R. Crim. P. 33 motion for a new trial.

       At sentencing, the district court found that based on the trial testimony Luna was
responsible for more than 10,000 but less than 30,000 kilograms of marijuana
equivalent, resulting in a base offense level of 36. The court also imposed a two-level
enhancement for possessing a dangerous weapon under U.S.S.G. § 2D1.1(b). Based
on a total offense level of 38 and criminal history category of II, the sentencing range
was 262 to 327 months. The district court sentenced Luna to 262 months.

       Luna first argues that the district court abused its discretion in denying his Rule
33 motion for a new trial, asserting primarily that the government's witnesses lacked
credibility. Under Rule 33, a district court may grant a new trial "'only if the evidence
weighs heavily enough against the verdict that a miscarriage of justice may have
occurred.'" United States v. Lacey, 219 F.3d 779, 783 (8th Cir. 2000) (quoting United
States v. Brown, 956 F.2d 782, 786 (8th Cir. 1992)). "In making this determination,
the court need not view the evidence in the light most favorable to the government, but
may instead weigh the evidence and evaluate for itself the credibility of the witnesses."
Id. at 783-84. We will affirm the denial of a new trial unless it was "a clear and
manifest abuse of discretion." Id. at 784. Although, as Luna notes, "many of the
government witnesses were involved in illegal activity and testified in return for

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leniency," contrary to his assertion, "this does not render their testimony so suspicious
that the district court abused it's discretion in failing to rule that a miscarriage of justice
may have occurred." Brown, 956 F.2d at 786. In ruling on the Rule 33 motion, the
district court was in the best position to evaluate the witnesses' credibility and weigh
the evidence. See United States v. Misle Bus & Equip. Co., 967 F.2d 1227, 1232 (8th
Cir. 1992). After reviewing the record, we find the court did not abuse its discretion in
denying Luna's motion for a new trial.

       Luna next challenges his sentence. He argues that the court erred in finding that
he was accountable for more than 10,000 kilograms of marijuana equivalent and for
imposing the § 2D1.1(b) two-level weapons enhancement. We review the district
court's quantity and weapons findings for clear error. See United States v. Calderin-
Rodriguez, 244 F.3d 977, 987 (8th Cir. 2001). Luna concedes that a sentencing court
"may consider relevant information . . . provided that the information has sufficient
indicia of reliability to support its probable accuracy." U.S.S.G. § 6A1.3(a). However,
noting that the court's findings were primarily based on the testimony of Windles and
Miller, Luna argues since the jury must have disbelieved their testimony regarding the
§ 924(c) weapons charge, their testimony regarding quantity and weapons was
unreliable. His argument is without merit. "Juries can return inconsistent verdicts."
United States v. Madrid, 224 F.3d 757, 762 (8th Cir. 2000). "'A jury may acquit a
defendant as to one or more charges for any number of reasons, including an inclination
to be merciful, and yet come to the reasonable conclusion that the defendant was guilty
of other related charges.'" Id. (quoting United States v. Whatley, 133 F.3d 601, 606
(8th Cir.), cert. denied, 524 U.S. 940 (1998)). It is well established that "even acquitted
conduct can be considered when determining a sentence under the Sentencing
Guidelines, so long as that conduct has been proved, . . . by a preponderance of the
evidence." Id. It is also well established that in sentencing matters "a district court's
assessment of witness credibility is quintessentially a judgment call and virtually
unassailable on appeal." United States v. Causor-Serrato, 234 F.3d 384, 390 (8th Cir.
2000), cert. denied, 121 S. Ct. 2229 (2001).

                                             -3-
       In this case, we have no basis to reverse the district court's findings. To the
contrary, "it is clear from the sentencing transcript that those determinations were
cautious and well-supported." Calderin-Rodriguez, 244 F.3d at 988. At the scheduled
sentencing, the court announced because several months had passed since trial and that
the major sentencing issues "turned on the credibility of a couple of trial witnesses," it
would postpone sentencing until it had the opportunity to review the trial transcript.
It was only after reading and re-reading the relevant direct testimony twice and the
cross-examination three times that the district court made its determinations.

        In finding that Luna was responsible for between 10,000 and 30,000 kilograms
of marijuana equivalent, the court noted that Miller and Windles had testified to
"conservative estimates of drug quantity" and further noted that even if their estimates
were cut in half, the quantity of drugs would still result in a base offense level of 36.
In this case, "the district court acted well within its authority by reasonably estimating
drug quantity predicated on its assessment of the evidence." Causor-Serrato, 234 F.3d
at 389. Likewise, the district court did not clearly err in imposing the two-level §
2D1.1(b) weapons enhancement, which as the court noted,"should be applied if the
weapon was present, unless it is clearly improbable that the weapon was connected
with the offense." U.S.S.G. § 2D1.1, cmt. n.3. In assessing Miller's and Windles'
credibility, the court noted their testimony that Luna had an AR 15 rifle and .9 mm
pistol was corroborated by the testimony of two law enforcement officers.2 Police
Officer Mike Stark testified that when he investigated a March 1998 peace disturbance
call, he found Luna and several co-conspirators shooting guns along a road. Luna had
three semi-automatic guns in his hands, including a .9mm pistol. Stark also saw a laser
sight kit, which Luna admitted purchasing at a sporting goods store. Deputy Sheriff
Dave Drew testified that during a November 1998 warrant search of Luna's home
officers found an AR 15 rifle, two pistols, and a magazine clip. Although Luna asserts


      2
       We do not mean to suggest that corroboration is always necessary. See
Calderin-Rodriguez, 244 F.3d at 977.

                                           -4-
that he used the weapons for sporting purposes, the district court chose to credit the
testimony of Miller and Windles that Luna had used the weapons in connection with
the drug conspiracy, and we have no reason to disturb that finding.

      Accordingly, we affirm the district court's judgment.

      A true copy.

             Attest:

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




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