                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
           ___________

           No. 02-1927
           ___________

United States of America,               *
                                        *
              Appellee,                 *
                                        *
      v.                                *
                                        *
Matias Leonos-Marquez,                  *
                                        *
              Appellant.                *
           ___________
                                            Appeals from the United States
           No. 02-2136                      District Court for the
           ___________                      Southern District of Iowa.

United States of America,               *
                                        *
              Appellant,                *
                                        *
      v.                                *
                                        *
Matias Leonos-Marquez,                  *
                                        *
              Appellee.                 *

                                  ___________

                             Submitted: February 12, 2003

                                 Filed: March 24, 2003
                                  ___________
Before WOLLMAN, HEANEY, and MELLOY, Circuit Judges.
                         ___________

WOLLMAN, Circuit Judge.

      A jury convicted Matias Leonos-Marquez of conspiring to distribute
methamphetamine, cocaine, and marijuana in violation of 21 U.S.C. §§ 841(b)(1),
846, distributing in excess of fifty grams of methamphetamine in violation of 21
U.S.C. § 841(a)(1), and distributing methamphetamine to a person of less than
twenty-one years of age in violation of 21 U.S.C. § 859. The district court1 sentenced
Leonos to 224 months in prison. Leonos appeals, contending that the evidence
presented was insufficient to convict him of the distribution charges, that the district
court erred by dismissing his motion for a new trial, and that the instructions
submitted to the jury addressing the conspiracy charge constructively amended the
indictment in violation of his Fifth and Sixth Amendment rights. Leonos also
challenges his sentence, arguing that the district court erred in granting a two-point
sentence adjustment for organizer/leader status under U.S.S.G. § 3B1.1(c). The
United States cross-appeals, contending that the district court erred by not enhancing
Leonos’s sentence for obstruction of justice under U.S.S.G. § 3C1.1. We affirm.

                      I. SUFFICIENCY OF THE EVIDENCE

       In considering a challenge to the sufficiency of the evidence supporting a guilty
verdict, we “look at the evidence in the light most favorable to the verdict and accept
as established all reasonable inferences supporting the verdict.” United States v.
Barrios-Perez, 317 F.3d 777, 779 (8th Cir. 2003) (citing United States v. Harmon, 194
F.3d 890, 892 (8th Cir. 1999) (citation omitted)). We will uphold the conviction



      1
       The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.

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unless “no reasonable jury could have found the defendant guilty beyond a reasonable
doubt.” Id. (quotations omitted).

       Leonos and seven other individuals were indicted on drug conspiracy and
weapons violations on the basis of evidence obtained during police searches and
seizures in Des Moines, Iowa, on July 27, 2001. Count I alleged that Leonos
conspired to distribute in excess of 500 grams of a mixture or substance containing
methamphetamine, in excess of 500 grams of cocaine, and in excess of 100 kilograms
of marijuana. To convict Leonos of conspiracy, the government was required to
prove that he agreed or conspired knowingly to distribute drugs, an illegal act.
United States v. Crossland, 301 F.3d 907, 913 (8th Cir. 2002) (citing United States
v. Davidson, 195 F.3d 402, 406 (8th Cir. 1999); United States v. Grego, 724 F.2d
701, 704 (8th Cir. 1984)). A conspiracy may consist of a tacit or implicit
understanding rather than an explicit or express agreement. Id. (citing United States
v. Pintar, 630 F.2d 1270, 1275 (8th Cir. 1980)). The government, further, must have
shown that Leonos exhibited “some element of cooperation beyond mere knowledge
of the existence of the conspiracy.” Id. (citing United States v. Duckworth, 945 F.2d
1052, 1053 (8th Cir. 1991)). The evidence adduced at trial, however, need not
“exclude every reasonable hypothesis except that of guilt.” United States v. Sloan,
293 F.3d 1066, 1068 (8th Cir. 2002) (citing United States v. Gipp, 147 F.3d 680, 688
(8th Cir. 1998) (citation omitted)).

      On July 27, 2001, after conducting a controlled delivery of a package
containing methamphetamine at 1672 Northwest 84th Street, Des Moines, Iowa,
police officers executed a search warrant for the house. Police officers seized
approximately 4.4 pounds of methamphetamine and 325 pounds of marijuana.
Materials seized from the residence, including a Western Union receipt, a notebook
containing a list of names, drug notes, and cellular telephone records and telephone
numbers, linked Leonos to the house and to the related drug trafficking.



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       Counts VIII and IX alleged that Leonos distributed more than fifty grams of
methamphetamine in violation of 21 U.S.C. § 841(a)(1) and distributed more than
fifty grams of methamphetamine to a person less than twenty-one years old in
violation of 21 U.S.C. § 859. Jose Ramirez was less than twenty-one years old when
police seized a pound of methamphetamine from his vehicle on July 27, 2001.
Ramirez testified that he had ordered from Leonos the pound of methamphetamine
that the police seized from his vehicle. Ramirez testified that he also had ordered
marijuana from Leonos, which Barrios had delivered to him. “The credibility of
[Ramirez’s] testimony was for the jury to determine . . . .” Barrios-Perez, 317 F.3d
at 779 (citing United States v. Miller, 283 F.3d 907, 912 (8th Cir. 2002)). The jury
found [Ramirez’s] testimony to be credible, and thus we conclude that ‘the evidence
amply supported the jury’s verdict on this count.’” Id.

                       II. CONSTRUCTIVE AMENDMENT

       In light of our decision in United States v. Barrios-Perez, we find to be without
merit Leonos’s argument that the district court’s instructions to the jury constructively
amended the indictment. 317 F.3d at 779-780.

                          III. MOTION FOR NEW TRIAL

       Leonos contends that the district court erred by dismissing his motion for new
trial. “We review a district court’s denial of a motion for a new trial with great
deference, reversing only if the district court abused its discretion.” Jones v. TEK
Indus., 319 F.3d 355, 358 (8th Cir. 2003) (citing Belk v. City of Eldon, 228 F.3d 872,
878 (8th Cir. 2000)). We “give great deference to [the district court’s] judgment,
because [it] has the benefit of hearing testimony and observing the demeanor of the
witnesses throughout the trial.” Id. (citing Bonner v. ISP Techs., Inc., 259 F.3d 924,
932 (8th Cir. 2001)). Furthermore, a district court’s findings concerning the
credibility of a witness are virtually unreviewable on appeal. United States v. Moore,

                                          -4-
212 F.3d 441, 447 (8th Cir. 2000) (citation omitted). Leonos argued that a new trial
was appropriate because of an alleged incident of prosecutorial misconduct. Leonos’s
brother, Marced Leonos, stated that the prosecutor and a prosecution witness
appeared in front of the jury when neither Leonos nor his counsel were present. The
district court determined that Marced Leonos’s testimony was inaccurate and that no
misconduct had occurred. Accordingly, we conclude that the district court did not
abuse its discretion in denying Leonos’s motion for a new trial.

                            IV. SENTENCING ISSUES

                              A. Sentence Enhancement

      Leonos challenges his sentence, contending that the district court improperly
enhanced his offense level pursuant to U.S.S.G. § 3B1.1(c) for his role in the offense.
Leonos asserts that evidence presented at trial did not support the court’s finding that
he was an “organizer, leader, manager, or supervisor in [a] criminal activity.”

      A sentence enhancement under § 3B1.1 is based upon findings of fact, which
we review for clear error. United States v. Thompson, 210 F.3d 855, 860 (8th Cir.
2000) (citations omitted). Among the factors a district court considers in determining
whether a defendant is an organizer or leader are the “defendant’s decision-making
authority, the nature of his participation in the crime, whether he recruited
accomplices, the degree of his participation in organizing the offense and his control
and authority over others.” Id. at 861 (citing U.S.S.G. § 3B1.1, cmt. n.4; United
States v. Rodriguez, 112 F.3d 374, 377 (8th Cir. 1997)). We construe the terms
organizer and leader broadly. Id. (citing United States v. Guerra, 113 F.3d 809, 820
(8th Cir. 1997)). To be considered an organizer or leader, an individual in a drug
conspiracy must have done more than sell drugs for resale. Id. He need not,
however, have controlled his co-conspirators directly. Id.



                                          -5-
       Leonos exerted control over the 84th Street stash house and was associated
with Barrios. Ramirez testified that he thought that Leonos was in charge because
“all [he] had to do is just tell [Leonos] what [he] need[ed], then [Leonos] made a
phone call, and there you go.” Ramirez testified that he had ordered one pound of
methamphetamine from Leonos, as well as marijuana, which Barrios had delivered
to him. Ramirez stated that Barrios routinely made drug deliveries for Leonos. He
also stated that at the time of the trial, he still owed Leonos approximately $32,000
dollars for the marijuana, indicating that Leonos managed the conspiracy’s finances.
In light of this evidence, there is no clear error in the district court’s determination
that Leonos was an organizer or leader within the meaning of U.S.S.G. § 3B1.1(c).
See Thompson, 210 F.3d at 861.

                      B. Cross-Appeal: Sentence Enhancement

       The government challenges Leonos’s sentence, contending that the district
court erred by refusing to impose a sentence enhancement for obstruction of justice
pursuant to U.S.S.G. § 3C1.1. The determination whether Leonos committed perjury
and in so doing obstructed justice is a factual finding. Accordingly, we will reverse
the district court’s refusal to impose a sentence enhancement under U.S.C.G. § 3C1.1
only upon a showing of clear error. See United States v. Esparza, 291 F.3d 1052,
1054-55 (8th Cir. 2002).

        “A witness commits perjury if he ‘gives false testimony concerning a material
matter with the wilful intent to provide false testimony, rather than as a result of
confusion, mistake, or faulty memory.’” United States v. Thomas, 93 F.3d 479, 489
(8th Cir. 1996) (citations omitted). The government contends that Leonos committed
perjury by submitting a letter to the court in support of his motion for new trial that
contained false allegations of prosecutorial misconduct and by calling Marced Leonos
to testify regarding the false information at the sentencing hearing. The district court
determined that the evidence was insufficient to support a finding that Leonos had

                                          -6-
committed perjury. Our review of the record satisfies us that the district court did not
commit clear error in so ruling.

      The judgment is affirmed.

      A true copy.

             Attest:

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




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