                           United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT

                                     __________

                                     No. 98-2391

                                     __________

United States of America                  *
                                          *
             Plaintiff-Appellee,          *
                                          * Appeal from the United States
      v.                                  * District Court for the Eastern
                                          * District of Missouri
Randy Fields,                             *
                                          *
             Defendant-Appellant.         *

                                    ___________

                           Submitted: November 17, 1998
                              Filed: January 21, 1999


Before RICHARD S. ARNOLD and FAGG, Circuit Judges, and DAWSON1, District
Judge.
                            ___________
DAWSON, District Judge.

       Randy Fields pled guilty to one count of knowingly and intentionally
distributing cocaine base, a Schedule II controlled substance, in violation of Title 21,
U.S.C. § 841(a)(1), conditioned on his right to appeal the denial of his pretrial motion
to suppress identification testimony. Fields now appeals the denial of the pretrial
motion


      1
         The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas, sitting by designation.
and, in addition, contends that the district court erred in its application of § 4B1.2(a)
of the Sentencing Guidelines when it found that the defendant's 1992 Missouri state
court conviction, for unlawful use of a weapon, was a crime of violence. We affirm.

Factual Background
       A confidential informant was utilized by a drug task force officer to purchase
drugs in an area where drug trafficking was occurring. Following the drug buy, the
confidential informant was shown a series of approximately 175 mug shots, and she
identified defendant Fields as the one from whom she had purchased the drugs. She
made a subsequent identification of the defendant as the seller of the substance from
a photographic line-up prepared by the Missouri State Police. The defendant was
indicted by the Grand Jury on one count of knowingly and intentionally distributing
cocaine base, a Schedule II controlled substance, in violation of Title 21, U.S.C. §
841(a)(1).

       Following the arrest of the defendant, he filed a motion to suppress the
identification and contended that the identification process utilized was so
impermissibly suggestive as to give rise to a very substantial likelihood of irreparable
misidentification. Following two separate hearings on the motion, the district court
concluded that the identification procedure was appropriate and there was nothing in
the procedure utilized that was impermissibly suggestive.

Discussion
       When reviewing rulings on the motions, this Court must only reverse the
findings below if the findings were clearly erroneous. U.S. v. Johnson, 28 F.3d 1487,
1494 (8th Cir. 1994). A ruling is clearly erroneous if it is not supported by substantial
evidence, reflects an erroneous view of the law, or leaves a definite and firm
conviction that a mistake has been made. United States v. Eisenberg, 807 F.2d 1446,
1449-50 (8th Cir. 1986); U.S. v. Porter, 859 F.2d 83 (8th Cir. 1988). When the findings
by the district


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court are amply supported by the evidence, they should not be disturbed. See U.S. v.
Hernandez, 854 F.2d 295 (8th Cir. 1988). This Court must therefore evaluate the
identification evidence and determine if the District Court's findings are clearly
erroneous.

        All parties agree that the test used in evaluating the reliability of identification
testimony comes from the Supreme Court of the United States, as set out in Manson
v. Braithwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977). The
Court held that: (1) the court must consider whether the identification procedures were
impermissibly suggestive, and (2) if the procedures used were impermissibly
suggestive, the court must look to the totality of the circumstances to determine
whether the suggestive procedure created a "very substantial likelihood of irreparable
misidentification." The Supreme Court has held that even if the pretrial identification
procedure is unduly suggestive it will not be invalidated if under the totality of the
circumstances the procedure was reliable despite any suggestive or inappropriate
identification procedures. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401
(1972).

        The factors to be considered in the Court's analysis of the reliability of
identification testimony are the witness's opportunity to view the defendant at the time
of the crime, the witness's degree of attention at the time of the crime, the accuracy of
the witness's prior description, the witness's level of certainty at the line-up, and the
length of time between the crime and the line-up. U.S. v. Johnson, 56 F.3d 947, 954
(8th Cir. 1995) (quoting Manson, 432 U.S. at 114, 97 S.Ct. at 2253).

       The Magistrate found that the confidential informant had never seen Randy
Fields until she made the first drug buy on May 28, 1997. The confidential informant
was not given the name of any particular individual, and she was not shown a
photograph of Fields before she went to buy drugs. The confidential informant's
degree


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of attention was high because she was not a casual buyer in that her purpose in buying
the drugs was to later identify the suspect to the police for potential arrest. The district
court found that the period of time between the crime and the identification was about
15 to 20 minutes. Even assuming the procedure used was impermissibly suggestive,
which we do not, we nonetheless conclude that under the totality of the circumstances,
as set out in Johnson, supra, the procedure was reliable.
       We do not find that the identification procedures used were tainted by improper
or suggestive procedures and AFFIRM the decision of the United States District Court
Judge.

      The second issue involves the finding by the court that a 1992 state court
conviction constituted a violent felony for sentencing purposes under the career
offender provision of the Sentencing Guidelines.2

       The weapons charge was included within a three-count indictment filed in the
Circuit Court of Pemiscot County, Missouri, on August 6, 1991. Count One dealt with
burglary in the first degree while armed with a weapon and Count Two was the class
C felony of stealing certain firearms. Count Three of the indictment recited:

       The Prosecuting Attorney of the County of Pemiscot, State of Missouri,




       2
         The career offender guideline provides for enhanced penalties for defendants who
have previously been convicted of two or more "crimes of violence" or "controlled
substance offenses," and who are pending sentencing in federal court for a third crime of
violence or controlled substance offense. U.S.S.G. § 4B1.1. Appellant concedes that a
prior felony conviction for the offense of resisting arrest was a violent felony within the
meaning of the sentencing guidelines since it clearly had as an element of the offense the
threatened use of physical force against the person of another. The issue, then, becomes
whether Appellant's 1992 conviction for unlawful use of a weapon constituted a second
"violent felony" in order to place him within the parameters of the career criminal
guideline, U.S.S.G. § 4B1.1.


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      charges that the defendant, in violation of Section 571.030.1(4), RSMo.,
      committed the class D felony of unlawful use of a weapon, punishable
      upon conviction under Sections 558.011.1(4) and 570.111, RSMo., in
      that on or about June 16, 1991, in the County of Pemiscot, State of
      Missouri, the defendant knowingly exhibited, in the presence of one or
      more persons a pistol, a weapon readily capable of illegal use, in an angry
      or threatening manner.

        The defendant argued that the information that was filed did not meet the
definition of a crime of violence, for there was no use, attempted use, or threatened use
of physical force against the person of another. Section 4B1.2 defines the term "crime
of violence" as:

      [A]ny offense under federal or state law, punishable by imprisonment for
      a term exceeding one year, that --

      (1)    has as an element the use, attempted use, or threatened use of physical
             force against the person of another, or

      (2)    is burglary of a dwelling, arson, or extortion, involves use of explosives,
             or otherwise involves conduct that presents a serious potential risk of
             physical injury to another.

       Following the arguments of the defendant's counsel that the information did not
recite a crime of violence, the government presented additional evidence, to include
police reports concerning the acts and the ensuing investigation. At the conclusion of
the hearing, the district court concluded that a proper factual basis for a crime of
violence had been established and accordingly utilized that finding in computing the
sentence of the defendant.

        The commentary to § 4B1.2 of the United States Sentencing Commission
Guidelines Manual makes it clear that the district court need only analyze the conduct
set forth and/or expressly charged in the information or indictment. It is not necessary



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to conduct any further hearings or receive any further evidence other than the
information that was filed. Count Three of the indictment clearly reflects conduct
presenting a serious potential risk of physical injury to one or more persons, and,
accordingly, the judgment is AFFIRMED.

      A true copy.

            Attest:

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




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