                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT




      ___________                     *
                                      *
      No. 06-1845                     *
      ___________                     *
                                      *
United States of America,             *
                                      *
      Appellee,                       *
                                      *
      v.                              *
                                      *
Victor Hugo Guel-Contreras,           *
                                      *
      Appellant.                      *
                                      *
                                      *     Appeals from the United States
      ___________                     *     District Court for the
                                      *     Northern District of Iowa.
      No. 06-2165                     *
      ___________                     *
                                      *
United States of America,             *
                                      *
      Appellee,                       *
                                      *
      v.                              *
                                      *
Sergio Ramirez-Gomez,                 *
                                      *
      Appellant.                      *
                                      *
                                      *
                                      *
                                ________________

                          Submitted: October 17, 2006
                              Filed: November 16, 2006

                                ________________

Before WOLLMAN, RILEY and GRUENDER, Circuit Judges.
                        ________________

GRUENDER, Circuit Judge.

        Victor Hugo Guel-Contreras appeals his conviction for conspiracy to distribute
cocaine in violation of 21 U.S.C. §§ 841(a)(1), 846. Guel-Contreras challenges the
district court’s1 denial of his motions to suppress, for judgment of acquittal and for
a new trial. Sergio Ramirez-Gomez pled guilty to distribution of cocaine and
possession of a fraudulent immigration document, in violation of 21 U.S.C.
§ 841(a)(1) and 18 U.S.C. § 1546(a). Ramirez-Gomez challenges his sentence. We
reject their arguments and affirm Guel-Contreras’s conviction and Ramirez-Gomez’s
sentence.

I.    BACKGROUND

       Sergio Ramirez-Gomez is the uncle and was the roommate of Victor Hugo
Guel-Contreras. Both are citizens of Mexico, and both entered this country illegally.
In early 2005, officers with the Iowa Division of Narcotics Enforcement (“DNE”)
received information regarding a cocaine dealer in the Postville, Iowa, area named
“Crazy,” later determined to be Juan Jose Gonzalez-Orosco. On January 21, 2005,
DNE Special Agent Daryl Simmons arranged to and did purchase one ounce of
cocaine from Gonzalez-Orosco. On February 1, 2005, Special Agent Simmons made

      1
      The Honorable Linda R. Reade, United States District Judge for the
Northern District of Iowa.

                                         -2-
arrangements with Gonzalez-Orosco for a second sale. This time Special Agent
Simmons purchased four ounces of cocaine from Gonzalez-Orosco’s co-conspirator,
Ramirez-Gomez.

       A third sale was arranged for the night of February 15, 2005. Shortly after
midnight when Ramirez-Gomez arrived at a pre-determined location, Special Agent
Simmons approached Ramirez-Gomez’s vehicle. Ramirez-Gomez was in the driver’s
seat, and Guel-Contreras was in the passenger seat. Upon Special Agent Simmons’s
request, Ramirez-Gomez showed him the cocaine, at which time Special Agent
Simmons signaled awaiting officers. Ramirez-Gomez and Guel-Contreras were
subsequently arrested. The officers found 189.2 grams of cocaine on Ramirez-
Gomez’s person and 0.25 grams of cocaine wrapped in a twenty-dollar bill on Guel-
Contreras’s person.

       Following the arrests, officers took Guel-Contreras to a nearby hotel room
where Agent Michael Vail of the Bureau of Immigration and Customs Enforcement
(“ICE”) asked him background questions to determine his immigration status.
According to Agent Vail, who is fluent in Spanish, he then read Guel-Contreras his
Miranda rights in Spanish, and Guel-Contreras agreed to answer Agent Vail’s
questions regarding the drug deal. Agent Vail also testified that Guel-Contreras
signed a Spanish-language Justice Department Advisory of Rights form, which he left
in Guel-Contreras’s possession and never retrieved from him. Guel-Contreras denies
ever receiving the warnings or signing the waiver. Guel-Contreras also denies telling
Agent Vail that Ramirez-Gomez gave him the cocaine found on his person.

       ICE Agent Chris Cantrell interviewed Ramirez-Gomez in a separate hotel
room. Agent Cantrell gave Ramirez-Gomez his Miranda rights in Spanish, and
Ramirez-Gomez agreed to answer his questions. Ramirez-Gomez told Agent Cantrell
that his nephew was there to act as a “lookout” during the drug deal and that he had
paid his nephew for his participation by giving him a small amount of cocaine. A

                                        -3-
consent search was later executed at the residence shared by Ramirez-Gomez and
Guel-Contreras during which officers seized an additional 22.5 grams of cocaine from
under Ramirez-Gomez’s mattress.

       A grand jury returned an indictment charging Ramirez-Gomez, Guel-Contreras
and Gonzalez-Orosco with conspiracy to distribute cocaine, in violation of 21 U.S.C.
§§ 841(a)(1), 846.2 The indictment further charged Ramirez-Gomez with distribution
of cocaine in violation of 21 U.S.C. § 841(a)(1) and both he and Guel-Contreras with
possession of a fraudulent immigration document in violation of 18 U.S.C. § 1546(a).
Prior to trial, Guel-Contreras filed a motion to suppress the statements he made to law
enforcement following his arrest on the grounds that they were obtained in violation
of his Miranda rights. An evidentiary hearing on the motion to suppress was held,
after which the magistrate judge recommended that it be denied. The district court
adopted the magistrate’s report and recommendation and denied the motion.

        Ramirez-Gomez pled guilty to distribution of cocaine and possession of a
fraudulent immigration document. Ramirez-Gomez was given use immunity to testify
at the trial of his nephew, Guel-Contreras. During his nephew’s trial, Ramirez-Gomez
testified that, contrary to his prior statements, he did not give Guel-Contreras any
cocaine on the night of February 15, 2005, and that Guel-Contreras had no
involvement in the drug deal that night. The Government then called Agent Cantrell
as an impeachment witness who recounted Ramirez-Gomez’s statements as they were
originally given to him. Guel-Contreras testified in his own defense consistent with
Ramirez-Gomez’s testimony. The jury convicted Guel-Contreras of possession of
a fraudulent immigration document, which he did not contest at trial, and conspiracy
to distribute cocaine. Subsequently Guel-Contreras filed motions for judgment of
acquittal and a new trial with respect to the conspiracy charge, both of which the
district court denied. On March 17, 2006, the district court sentenced Guel-Contreras
to 33 months’ imprisonment.

      2
       Gonzalez-Orosco pled guilty and did not appeal.


                                         -4-
       Ramirez-Gomez’s sentencing was held on April 21, 2006. Ramirez-Gomez
objected to the pre-sentencing report’s recommendation that a U.S.S.G. § 3C1.1
obstruction of justice enhancement apply and that a U.S.S.G. § 3E1.1 acceptance of
responsibility reduction not apply. After a hearing, the district court determined that
Ramirez-Gomez committed perjury at Guel-Contreras’s trial and found that, as a
result, the obstruction of justice enhancement would apply and the acceptance of
responsibility reduction would not. The district court sentenced Ramirez-Gomez to
77 months’ imprisonment.

      On appeal, Guel-Contreras challenges the district court’s denial of his motions
to suppress, for judgment of acquittal and for a new trial with respect to the
conspiracy conviction. Ramirez-Gomez challenges his sentence.

II.   DISCUSSION

      A. Victor Hugo Guel-Contreras’s Conviction

      Where a district court denies a motion to suppress statements, we review its
factual findings for clear error. United States v. Black Bear, 422 F.3d 658, 661 (8th
Cir. 2005). Guel-Contreras contends that the district court erred in denying his
motion to suppress the statements he made to Agent Vail because Guel-Contreras’s
testimony at the suppression hearing was credible and Agent Vail’s was not.

      At the suppression hearing, Agent Vail testified that he read Guel-Contreras
his Miranda rights in Spanish, that Guel-Contreras signed a Spanish-language Justice
Department Advisory of Rights form, and then Guel-Contreras made his statements.
Agent Vail was unable to produce the signed waiver form because he had left it with
Guel-Contreras on the night of the arrest, which he admitted was a mistake. Guel-
Contreras testified that he did not receive Miranda rights or sign a waiver before
making the incriminating statements.




                                         -5-
       After the suppression hearing, the district court found that “Agent Vail’s
testimony was credible and defendant’s was not.” Guel-Contreras challenges this
finding but does not point to any reason why the district court’s credibility finding
amounts to clear error. He merely argues that his own self-serving testimony was
more credible than Agent Vail’s. “[C]redibility is a determination for the trier-of-fact,
and its assessment is virtually unassailable on appeal.” United States v. Rodriguez,
414 F.3d 837, 845 (8th Cir. 2005). Without judging the credibility of the witnesses
who testified at the suppression hearing, a task best left to the district court, we
believe that the district court’s findings are supported by the record and thus are not
clearly erroneous. We therefore affirm the denial of Guel-Contreras’s motion to
suppress.

       We review de novo the denial of a motion for judgment of acquittal. United
States v. Rice, 449 F.3d 887, 892 (8th Cir. 2006). “We will overturn a jury verdict
based upon insufficiency of the evidence only if it is clear that no reasonable jury
could have found guilt beyond a reasonable doubt.” Id. In evaluating the evidence’s
sufficiency, we view the evidence in the light most favorable to the Government,
resolving evidentiary conflicts in favor of the Government and accepting all
reasonable inferences drawn from the evidence that support the jury’s verdict. Id.
Under this stringent standard, a verdict will only be overturned in “rare cases.” Id.

       Guel-Contreras contends that there was insufficient evidence to support the
verdict. To convict a defendant on a conspiracy charge, the jury is required to find
that: (1) an agreement existed among two or more people to accomplish an illegal
purpose; (2) the defendant knew of the conspiracy; and (3) the defendant knowingly
joined and participated in the conspiracy. United States v. Hayes, 391 F.3d 958, 961
(8th Cir. 2004). The defendant need not have expressly agreed to join the conspiracy,
but rather tacit agreement is sufficient. Id.



                                          -6-
       At trial, beyond establishing that Guel-Contreras was present at the scene of
a drug deal, testimony also established that he associated and lived with his uncle, a
drug dealer, and was an admitted cocaine user. Most importantly, the Government
presented evidence that Ramirez-Gomez told law enforcement officers that his
nephew was paid with cocaine to serve as a lookout during the drug deal. Viewing
the evidence in a light most favorable to the verdict, a reasonable jury could conclude
beyond a reasonable doubt that Guel-Contreras conspired to distribute cocaine. We
therefore affirm the district court’s denial of Guel-Contreras’s motion for judgment
of acquittal.

       We also affirm the district court’s denial of Guel-Contreras’s motion for a new
trial. We review a district court’s denial of a motion for a new trial for abuse of
discretion. Rice, 449 F.3d at 893. Motions for new trials are generally disfavored
and will be granted only where a “serious miscarriage of justice may have occurred.”
Id. In his brief, Guel-Contreras does not allege how a miscarriage of justice occurred.
Because he combines his arguments for judgment of acquittal and new trial, we
assume Guel-Contreras claims that a new trial is warranted because there was
insufficient evidence to support his conviction. We have addressed those arguments
above, and likewise find no abuse of discretion in the district court’s denial of Guel-
Contreras’s motion for a new trial.

      B.   Sergio Ramirez-Gomez’s Sentence

      A district court applying the U.S.S.G. § 3C1.1 obstruction of justice
enhancement for perjury must review the evidence and make a finding, by a
preponderance of the evidence,3 that the defendant gave “false testimony concerning


      3
       Ramirez-Gomez challenges the post-Booker use of the preponderance of
the evidence standard for fact-finding in sentencing. We have repeatedly upheld
the use of the preponderance standard in the context of advisory sentencing

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a material matter with the willful intent to provide false testimony, rather than as a
result of confusion, mistake, or faulty memory.” United States v. Ziesman, 409 F.3d
941, 956 (8th Cir. 2005). A district court must conduct an independent evaluation
and determine whether the defendant committed perjury. United States v. Garcia-
Gonon, 433 F.3d 587, 592 (8th Cir. 2006). “This determination is sufficient if the
court makes a finding of obstruction of, or impediment to, justice that encompasses
all of the factual predicates for a finding of perjury.” Id. (internal quotations
omitted). Whether Ramirez-Gomez committed perjury and in doing so obstructed
justice is a factual finding, and we will reverse the district court’s imposition of a
sentencing enhancement only upon a showing of clear error. Id.

       Ramirez-Gomez concedes that his testimony at Guel-Contreras’s trial was not
the result of confusion, but he argues that his contradictory statements to law
enforcement officers were the result of confusion. He contends that on the night of
his arrest his statement to law enforcement that Guel-Contreras was serving as a paid
lookout for the drug deal was the result of confusing questioning by two different
officers in both English and Spanish. He argues that his testimony at Guel-
Contreras’s trial denying his nephew’s involvement in the drug deal was the accurate
version of the events and not perjurious.

       “The district court is free to believe all, some, or none of the witness’s
testimony.” United States v. Portillo, 458 F.3d 828, 829 (8th Cir. 2006). Given the
district court’s superior position from which to judge credibility by having observed
the testimony of both Agent Cantrell and Ramirez-Gomez, we believe that the district
court did not clearly err in finding that Ramirez-Gomez committed perjury. The
district court also made sufficient findings to support the obstruction of justice
enhancement under § 3C1.1, which we therefore affirm.


guidelines. E.g., United States v. Garcia-Gonon, 433 F.3d 587, 593 (8th Cir.
2006).

                                         -8-
      Ramirez-Gomez also challenges the district court’s refusal to reduce his
guideline range for acceptance of responsibility. The commentary to U.S.S.G.
§ 3E1.1 expressly provides that the reduction is not warranted where a defendant is
assessed an enhancement for obstruction of justice pursuant to § 3C1.1, except in
“extraordinary cases.” U.S.S.G. § 3E1.1 app. n.4. We do not consider this to be an
extraordinary case within the meaning of the commentary. Therefore, in light of our
determination that the district court did not clearly err by giving the § 3C1.1
enhancement for obstruction of justice, we affirm the district court’s denial of the §
3E1.1 reduction.

III. CONCLUSION

    For the forgoing reasons, we affirm Guel-Contreras’s conviction and Ramirez-
Gomez’s sentence.




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