                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                Nos. 02-2764/3037
                                  ___________

United States of America,             *
                                      *
      Cross-Appellant/Appellee,       *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * Northern District of Iowa.
James Randall Sanders,                *
                                      *
      Appellant/Cross- Appellee.      *
                                 ___________

                             Submitted: June 12, 2003

                                  Filed: September 9, 2003 (Corrected: 10/03/03)
                                   ___________

Before BOWMAN, MURPHY, and BYE, Circuit Judges.
                         ___________

BYE, Circuit Judge.

      James Randall Sanders appeals his conviction, sentence, and the denial of his
suppression motions. The government cross-appeals, challenging the sentence
imposed by the district court. We affirm the conviction, reverse the district court's
drug quantity calculation, and remand for re-sentencing.

                                          I

       The criminal trial and conviction of Sanders were the culmination of an
investigation consisting of at least three separate brushes between Sanders and the
law. Additionally, the government learned the extent of Sander's criminal enterprise
during plea negotiations. Each of these four encounters plays an important role in
Sanders's appeal and so is described in detail below.

       First, on November 4, 1997, on the outskirts of Grinnell, Iowa, a law
enforcement officer stopped a vehicle driven by Jeremiah Shaull and also occupied
by Sanders, because neither was wearing a seatbelt. After making the stop, the officer
discovered that Shaull did not have a valid driver's license and that an arrest warrant
had been issued for Sanders. Both men were arrested. Twenty packets of
methamphetamine, together totaling 2.6 grams, were discovered in a film canister in
Shaull's front pocket. Marijuana, more methamphetamine, drug paraphernalia, and
a scale were also found in a pack Shaull was wearing on his belt. Additionally, a
large knife was found inside the car.

       Second, on April 1, 1998, a deputy sheriff and a reserve deputy sheriff of
Benton County, Iowa arrived at Teri Hawkins and Sanders's trailer home to serve
civil papers. As the deputies approached, they briefly saw Hawkins watching them
from a window. They knocked on the door and it was answered by Tim Rose,
Hawkins's adult son, who claimed Hawkins was not at home. The deputies smelled
a strong odor of burned marijuana and observed smoke coming from the trailer.
Sanders disputed this, claiming he smoked the marijuana long before law enforcement
arrived.

        Law enforcement asked Rose if he had been smoking marijuana. After a brief
pause, Rose denied doing so. Then law enforcement heard a commotion within the
trailer. It sounded as if people within the trailer were moving to the back of the
trailer. Rose looked nervously in that direction. Law enforcement surmised that the
trailer's occupants were trying to destroy evidence, so they entered the trailer and told
the occupants to come forward. Sanders came forward, stated he lived in the trailer,
and asked to speak with the deputy alone. The deputy agreed, and Sanders led him

                                          -2-
into a small bedroom where Sanders volunteered he had been smoking marijuana and
he did not want his friends to get in trouble. He further expressed a willingness to
cooperate and commented he did not want to go to jail over "a joint." The deputy
suggested Sanders speak with Detective Peter Wright. Sanders agreed.

      Wright was called to the scene, and he was joined by Detective Scott Elam.
Consent to search the trailer was asked of Sanders and Rose. Though Sanders
disputes it, a magistrate judge found at a hearing on a motion to suppress that Sanders
consented to a search of the residence. The search uncovered .3 grams of marijuana,
1.71 grams of methamphetamine, numerous small plastic bags, twist ties, and various
other drug paraphernalia.

       Third, on May 30, 1998, an Iowa state trooper stopped a vehicle for having a
defective license plate light. Apparently, though the stop occurred during the
mid-afternoon, the vehicle's lights were on because it was a dark, overcast day.
Robert Campbell was operating the vehicle, Sanders was in the front passenger seat,
and Hawkins was in the back passenger seat. Campbell had a suspended license and
there had been another arrest warrant issued for Sanders. Therefore, both men were
arrested. Hawkins did not have a valid driver's license either, so the vehicle was
towed and an inventory search was conducted pursuant to protocols established by
the Iowa State Patrol. The inventory search revealed controlled substances, a knife
of about twelve inches in length, a digital scale, numerous small plastic bags, twist
ties, and various other drug paraphernalia.

       On September 30, 1998, Sanders was indicted. During the pendency of his
case, Sanders expressed an interest in cooperating with law enforcement. To
facilitate these discussions, an Assistant United States Attorney (AUSA) sent pre-
proffer agreements to counsel for all the defendants involved in the alleged
conspiracy, including Sanders, explaining that any incriminating statement made
during the proffer talks would not be used against the defendant making the

                                         -3-
statement. The agreement, however, had a few exceptions, among them that "[a]ny
information your client provides during the informal proffer may be used . . . . [i]n the
event your client is ever convicted of a criminal charge, by a court for use at the time
of sentencing[.]" United States v. Sanders, No. CR 98-55 slip op. at 6-7 (N.D. Iowa
July 29, 1999) (Report and Recommendation quoting the pre-proffer letter).

       On December 9, 1998, Sanders signed the pre-proffer agreement, but before he
did so he specifically asked the AUSA how he could best help himself. The AUSA
told Sanders he could substantially reduce his sentence by cooperating. Sanders
asked for a more concrete promise, and the AUSA suggested Sanders's sentence
might "possibly work down to five years." Sanders believes this was a promise, but
admits no other promises were made.

       Ultimately, a jury convicted Sanders of (1) conspiracy to distribute and possess
with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C), and 846; (2) possession with intent to distribute 2.66 grams of
methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(C); and (3)
distribution of methamphetamine and marijuana to a person under the age of 21 in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C) and 859.

      At sentencing, the district court found that Sanders was responsible for 350
grams of methamphetamine and that, therefore, a base offense level of 30 was
appropriate under § 2D1.1 of the United States Sentencing Guidelines (Guidelines).
Sanders was sentenced to concurrent terms of 210 months of imprisonment and six
years of supervised release on each of the three counts of the conviction. Sanders
appeals.




                                          -4-
                                           II

       Sanders first contends the evidence was insufficient to support his convictions
for conspiracy to distribute and possess methamphetamine and possession with intent
to distribute 2.6 grams of methamphetamine. Sanders does not challenge the
sufficiency of the evidence underpinning his conviction for distribution of
methamphetamine and marijuana to a minor.

       The standard of review on this issue is very strict. United States v. Espino, 317
F.3d 788, 791 (8th Cir. 2003). "In reviewing the sufficiency of the evidence on
appeal, the court views 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.
at 792. We will reverse only if no reasonable jury could have found the accused
guilty. Id.

      A.     Conspiring to Distribute and Possess with Intent to Distribute
             Methamphetamine.

       To prove Sanders conspired to distribute drugs under 21 U.S.C. § 846, the
government must establish there was an agreement to distribute drugs that Sanders
knew of and intentionally joined. Id. A "[t]acit understanding - as opposed to mere
presence at and knowledge of an intended drug sale - will suffice; a formal agreement
is unnecessary." Id. "The existence of a conspiracy may be proved by either direct
or circumstantial evidence." Id. "Evidence of association or acquaintance, though
relevant, is not enough by itself to establish a conspiracy." Id.

       The jury concluded the government met its burden, and the evidence supports
this conclusion. James Hubbell, Shaull, and Linda Smith each testified they assisted
Sanders's methamphetamine distribution activities by driving Sanders to various

                                          -5-
locations to purchase methamphetamine from various suppliers. Hubbell and Shaull
each described assisting Sanders in weighing and packaging the methamphetamine
for resale. Hubbell admitted purchasing dozens of bottles of Fed 7, a brand of
pseudoephedrine, for use in cutting the methamphetamine. Hubbell, Shaull, and
Smith also testified regarding the roles of Rose and Hawkins as drivers and procurers
of Fed 7 pseudoephedrine. This testimony was consistent with the corroborating
seizures of methamphetamine, scales, weapons, plastic bags and other drug
paraphernalia. Clearly, on this evidence, a reasonable jury could find that Sanders
knew of and intended to join the conspiracy.

      B.     Possession With Intent to Distribute Methamphetamine

      Sanders also contends the evidence is insufficient to sustain his conviction for
possession with intent to distribute 2.6 grams of methamphetamine seized from
Shaull during the November 1997 traffic stop.

       To convict Sanders of possession of methamphetamine with intent to distribute,
the government must show he possessed the drug and did so with the intent to
distribute. United States v. Oleson, 310 F.3d 1085, 1089 (8th Cir. 2002). The fact
that the methamphetamine was discovered on Shaull rather than on Sanders
complicates the government burden, but, of course, possession may be constructive
as well as actual. E.g., Ortega v. United States, 270 F.3d 540, 545 (8th Cir. 2001).

        "To prove constructive possession, the government had to present evidence that
appellants had knowledge and ownership, dominion or control over the contraband
itself, or dominion over the vehicle in which the contraband is concealed." Id.
(internal quotation and citation omitted). Furthermore, possession may be exclusive
or joint. Id. But "mere presence as a passenger in a car from which the police recover
contraband . . . does not establish possession." Id. (internal quotation and citation



                                         -6-
omitted). Likewise, "mere association with persons who possess drugs is insufficient
to show constructive possession." Id.

       In this case, the government presented evidence showing more than mere
presence or association.        Shaull testified Sanders had given him the
methamphetamine to carry shortly before the traffic stop. Furthermore, government
witnesses testified Sanders, not Shaull, was in the illegal drug trade. Thus, there is
support for the jury's determination that Sanders had constructive possession of the
illegal drugs.

      This leaves the question of Sanders's intent. In his brief, Sanders claims the
methamphetamine was for his personal use and it was not his intent to distribute the
drug. He draws attention to Agent Wright's testimony indicating some
methamphetamine users do use a gram or more a day. He further insists all the other
evidence seized at the November traffic stop was indicative of personal use only.

       "Intent to distribute controlled substances may be proved by either direct
evidence or circumstantial evidence." United States v. Schubel, 912 F.2d 952, 956
(8th Cir. 1990). Even a small amount of contraband may combine with circumstantial
evidence to support a finding of intent to distribute. United States v. Alvarez, 254
F.3d 725, 727 (8th Cir. 2001) (affirming jury verdict on charge of possession with
intent to distribute when defendant was found to possess only 2.4 grams of
methamphetamine at time of arrest). The presence of equipment to weigh and
measure the narcotics, paraphernalia used to aid in their distribution, and large sums
of cash are common indicia of drug trafficking and are all circumstantial evidence of
intent to distribute. Schubel, 912 F.2d at 956.

      Here the methamphetamine was seized from a vehicle which also contained
paraphernalia, a scale, and a large knife. Additionally, the 2.6 grams of
methamphetamine had been divided into twenty packets, each containing about a

                                         -7-
one-quarter gram of methamphetamine. This evidence is sufficient to support the
jury's verdict.

                                           III

       Sanders next argues the district court erred in denying his motion to suppress
his proffer statements. He contends he involuntarily and unknowingly agreed to the
waiver contained in the pre-proffer agreement. He argues, further, that the
government's records of the conversations and of his statements are unreliable. We
disagree.

       We review the factual findings of a district court under the clear error standard,
and review de novo conclusions of law based on those factual findings, such as
whether a Miranda1 waiver was valid or a confession was voluntary. United States
v. Syslo, 303 F.3d 860, 865 (8th Cir. 2002). Both parties agree this standard governs
the voluntariness of the pre-proffer agreement.

      Sanders never actually reached a plea agreement with the government, but he
did enter into plea negotiations during which he made several incriminating
statements. These statements were not used at trial but were used at sentencing.
Proffer discussions that do not result in a guilty plea normally are not admissible
against a defendant. United States v. Mezzanatto, 513 U.S. 196, 197 (1995). A
defendant, however, may waive this protection in whole or in part. Id. at 210.

      The proffer agreement states, in the relevant part: "Any information your client
provides during the 'informal proffer' may be used . . . [i]n the event your client is
ever convicted of a criminal charge, by a court for use at the time of sentencing[.]"
Sanders acknowledges he and his attorney read the proffer agreement. He also admits


      1
          Miranda v. Arizona, 384 U.S. 436, 473 (1966).

                                          -8-
he signed the agreement. He argues, however, that merely reading the agreement
before signing, and having it only generally explained (rather than explained
"paragraph by paragraph") by the AUSA led him to believe the waiver only applied
to future prosecutions and not to his pending charges.

       To succeed, Sanders must show more than that he misunderstood the extent of
his waiver or its ramifications; he must show his will was overborne. Cf. United
States v. Peck, 161 F.3d 1171, 1174 (8th Cir. 1998) ("Lack of awareness of the
potential adverse impact of statements is not sufficient in itself to invalidate a waiver
of the right to counsel"); United States v. Johnson, 47 F.3d 272, 277 (8th Cir. 1995)
(rejecting the argument that defendants must be warned of the potential sentencing
consequences of waiving their right to remain silent); Jenner v. Smith, 982 F.2d 329,
333 (8th Cir. 1993) (saying that a statement is not involuntary unless "the police
extorted it from the accused by means of coercive activity"). Sanders cannot meet
this burden. There is no evidence that Sanders's will was overborne.

       Sanders argues, further, that it was error to consider his proffer statements at
sentencing because the government's reports of those interviews were inaccurate. The
government effectively responds to this argument by explaining that the sentencing
court relied on Sanders's version of his proffer statements. Accordingly, Sanders's
argument fails.

                                           IV

       Sanders also argues that law enforcement entered his house without his consent
in violation of the Fourth Amendment. We disagree.

       Whether Sanders voluntarily gave consent is a question of fact; this court will
review the district court's conclusions on such questions for clear error only. United
States v. Jones, 254 F.3d 692, 695 (8th Cir. 2001). "A finding is 'clearly erroneous'

                                          -9-
when, although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been
committed." United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).

       The Fourth Amendment, made applicable to state actors by the Fourteenth
Amendment, United States v. Ameling, 328 F.3d 443, 447 (8th Cir. 2003), protects
"the right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures," and it requires probable cause for lawful
searches and seizures. U.S. CONST. amend. IV. Generally, to search a private place,
person, or effect, law enforcement must obtain a warrant supported by probable cause
from a judicial officer. E.g., Katz v. United States, 389 U.S. 347, 357 (1967)
("Searches conducted outside the judicial process, without prior approval by judge
or magistrate, are per se unreasonable under the Fourth Amendment -- subject only
to a few specifically established and well-delineated exceptions.") (footnotes
omitted). Where one voluntarily consents to a search, however, law enforcement
need neither a warrant nor probable cause to legally execute the search. United States
v. Matlock, 415 U.S. 164, 171 (1974); Schneckloth v. Bustamonte, 412 U.S. 218, 222
(1973).

        When a defendant claims he or she did not consent voluntarily to a search
which revealed evidence of criminal activity, the government must show by a
preponderance of the evidence that, under the totality of the circumstances, the
defendant did voluntarily consent for the challenged evidence to survive a
suppression motion. E.g., United States v. Severe, 29 F.3d 444, 446 (8th Cir. 1994).
In this case, the government relied upon the testimony of law enforcement officials
involved in the encounter. They testified that consent was orally given. Sanders also
testified, claiming he did not consent. The district court believed law enforcement.
"A district court's determination as to the credibility of a witness is virtually
unreviewable on appeal." United States v. Heath, 58 F.3d 1271, 1275 (8th Cir. 1995).
In fact, "[a] district court's decision to credit a witness's testimony over that of another

                                           -10-
can almost never be a clear error unless there is extrinsic evidence that contradicts the
witness's story or the story is so internally inconsistent or implausible on its face that
a reasonable fact-finder would not credit it." Id.

      Here the district court was faced with two different versions of the events and
chose to credit law enforcement's version. There was no extrinsic evidence to
contradict this version, and so the district court did not err in rejecting Sanders's
version.

                                            V

        Additionally, Sanders alleges prosecutorial misconduct during grand jury
proceedings mandates reversal of his conviction. We disagree. Even if we were to
assume there was prosecutorial misconduct during the grand jury proceedings, the
petit jury's guilty verdict rendered those errors harmless. United States v. Kouba, 822
F.2d 768, 774 (8th Cir. 1987). "Except in cases involving racial discrimination in the
composition of the grand jury, a guilty verdict by the petit jury excuses errors at the
grand jury level that are 'connected with the charging decision.'" Id. The guilty
verdict means Sanders was "guilty as charged beyond a reasonable doubt. Measured
by the petit jury's verdict, then, any error in the grand jury proceeding connected with
the charging decision was harmless beyond a reasonable doubt." United States v.
Exson, 328 F.3d 456, 460 (8th Cir. 2003) (quoting United States v. Mechanik, 475
U.S. 66, 70, (1986)). Therefore, the district court did not err in denying Sanders's
motion to dismiss the indictment because of any alleged abuse during the grand jury
proceedings.




                                          -11-
                                         VI

       The government cross-appeals, making two arguments. First, the government
asserts the district court erred in refusing to apply an upward adjustment for perjury
pursuant to § 3C1.1 of the Guidelines. We disagree.

      The factual finding underlying an enhancement for obstruction of justice is
reviewed for clear error; application of the sentencing guidelines to those facts is
subject to de novo review. United States v. O'Dell, 204 F.3d 829, 836 (8th Cir.
2000).

       As discussed in section IV of this opinion, at the suppression hearing the
magistrate judge was confronted with two different versions of the events and chose
to credit law enforcement's version. The magistrate rejected Sanders's testimony in
which he claimed he did not consent to the search. The magistrate stated:

             The defendant testified that Detective Wright never asked for a
      consent to search the trailer. He contends that Detective Wright simply
      stated that he didn't need a search warrant because the police smelled
      marijuana. The only thing that defendant admits about consenting to the
      search of his residence, is that when Detective Wright accused him of
      operating a methamphetamine lab, Sanders stated, "I said look around,
      do you see a lab? I said there's no lab here." The court does not believe
      the defendant.

             This defendant has been extremely cooperative with police on
      virtually every encounter. He was anxious to immediately cooperate
      with Deputy Wright and also wanted to show Deputy Wright that he
      would cooperate. Even after he got indicted, the defendant was anxious
      to try and talk his way out of these charges at the proffer session
      discussed below. The court believes the defendant voluntarily and
      quickly gave consent for the search of his residence.



                                        -12-
             ....

             The defendant does not make the typical argument that his
      consent was not freely and voluntarily given. This defendant contends
      that he never gave consent for the search of his trailer. For the reasons
      set forth in the findings of fact above, the court believes the defendant
      did in fact, consent and was anxious to do so.

United States v. Sanders, No. CR 98-55 slip op. at 4-5 and 13-14 (N.D. Iowa July 29,
1999) (Report and Recommendation).

       The district court adopted the magistrate judge's findings stating "[t]he court
has conducted a de novo review of the report and recommendation and carefully
considered each of the defendant's objections. The court concludes that the report
and recommendation should be adopted and the motions denied as recommended by
Judge Jarvey." United States v. Sanders, No. CR 98-55 slip op. at 1 (N.D. Iowa Dec.
8, 1999) (Order adopting Report and Recommendation). Nonetheless, at the
sentencing hearing the district court sustained Sanders's objection to the adjustment,
stating:

            As far as the testimony at the suppression hearing, although it was
      found against Mr. Sanders on that issue, there is just so much dispute
      about this – and again, DEA policies were violated, the way this was
      handled, and that could have resolved this very easily – I'm just not
      convinced that the suppression testimony rises to the level of
      obstruction. And I'm not willing to assess an obstruction of justice
      enhancement based upon that testimony alone, and I cannot find, based
      upon what I reviewed of the record, that there was the type of willful
      testimony taken on the record under oath that would warrant an
      obstruction enhancement, so I'm going to sustain that objection.

Sentencing Transcript at 167-68.




                                        -13-
       Here, the district court did not make a finding of perjury even though it did not
believe Sanders's testimony. Without such a finding an enhancement is not required.
United States v. Iversen, 90 F.3d 1340, 1342 (8th Cir. 1996) (holding because the
district court did not make a finding of perjury an enhancement for obstruction was
not required). Thus, it was not error for the district court to refuse to impose the
adjustment.

                                          VII

      The government's second argument is that the district court erred in calculating
drug quantity. We agree.

      We will reverse a district court's determinations regarding drug quantity only
upon a finding of clear error. United States v. Symonds, 260 F.3d 934, 936 (8th Cir.
2001). The district court determined Sanders was responsible for only 350 grams of
methamphetamine, triggering a base offense level of 30 under § 2D1.1 of the
Guideline. The government insists at least 500 grams of methamphetamine were
involved, triggering a base offense level of 32. In making its drug quantity
determination, the district court stated:

      I'm going to start at a level thirty. And in so doing, I'm giving the
      defendant the substantial benefit of the doubt, but I'm also taking into
      consideration several important factors in this case. One, I think if
      there's one thing we've learned from the United States Supreme Court
      over the past years, it's that we are to give a certain amount of deference,
      and I would say great deference, to juries, and I have always felt that.
      I'm not bound by that. And I am obviously going to sentence him at a
      level between 350 and 500 grams. But certainly the jury, and I think
      very rightly, had serious concerns about the credibility of a number of
      the Government's witnesses. We have, in the Government's calculation,
      almost 350 grams of methamphetamine that Deb Sadler says she didn't
      even sell to Mr. Sanders. I don't know who we believe in that scenario


                                         -14-
      when the Government calls Ms. Sadler as a witness and she testified that
      she didn't sell the drugs. Do I believe Ms. Sadler then, or do I believe
      it some other way? I don't know, but in any event, I think taking a very
      conservative approach, and considering Mr. Sanders' own statements,
      that at least 350 grams of methamphetamine were involved here.

             I'm also taking into consideration the fact that a lot of the
      methamphetamine – purported methamphetamine in this case was
      actually Fed 7, and I'm not convinced that the parties who were using
      and trading the Fed 7 didn't know it was Fed 7. A lot of Fed 7 was used
      personally by Mr. Sanders and Teri Hawkins, and to some extent, Mr.
      Rose, and they clearly knew what they were using, and I don't think
      those are quantities – personal use quantities of Fed 7, by people who
      knew it was Fed 7, I don't think can be used as part of the
      methamphetamine calculation.

            And in any event, I think I'm giving Mr. Sanders an extreme
      benefit of the doubt when going to under 500 grams, but I do think
      essentially 350 grams of methamphetamine based upon his own
      statements in this case.

Sentencing Transcript at 163-65.

       The district court, thus, relied on three grounds for giving the defendant "the
benefit of the doubt." First, the court gave deference to the jury on the question of
drug quantity. Second, the district court discredited a government witness. Third, the
district court reasoned some of the substance trafficked was not methamphetamine.
We consider each in turn.

       First, the jury found Sanders guilty of Count 1, conspiracy to distribute and
possess with intent to distribute methamphetamine; and the jury found the amount
involved to be less than 100 grams. Once the jury did so, however, it was the district
court's responsibility to determine drug quantity, not the jury's. See United States v.
Titlbach, 300 F.3d 919, 921 (8th Cir. 2002). Of course, in light of Apprendi v. New

                                         -15-
Jersey, 530 U.S. 466 (2000), the sentence must not exceed the maximum sentence
prescribed for the crime of which the appellant was properly convicted. Nonetheless,
the fact that the duty to calculate drug quantity rested on the judge, coupled with the
fact that the drug quantities attributable to Sanders from the proffer talks were not
before the jury, makes the district court's deference to the jury on the point erroneous.



       Second, the district court credited Deb Sadler's testimony in which she claimed
she did not sell methamphetamine to Sanders. "The law is well-settled that 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). The government, however, notes that during the proffer talks
Sanders admitted to obtaining a total of 800.87 grams of methamphetamine from
various sources. These amounts are uncontested. Further, the government notes
Sanders claims to have received 170.1 grams from Sadler in six installments, and an
additional 56.7 grams in a seventh installment, for a total of 236.8 grams. If this
amount is deducted from the total of 800.87 grams, one is still left with 574.07 grams
of methamphetamine, obviously more than 500 grams. Therefore, the base level
offense should have been 32 rather than 30.

       Third, it was, of course, acceptable for the district court to refuse to attribute
Fed 7 to Sanders as methamphetamine. The Fed 7 amounts, however, did not figure
in the government's arithmetic to begin with.

      Therefore, even allowing for the district court's rejection of Sadler's trial
testimony, Sanders is still responsible for more than 500 grams of methamphetamine,
and the district court clearly erred in establishing drug quantity otherwise.




                                          -16-
                                         VIII

     Accordingly, we affirm the judgment of conviction. We reverse the sentence,
however, and remand for resentencing consistent with this opinion.2

      A true copy.

             Attest:

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




      2
       Sanders submitted his own pro se brief to supplement the work of his defense
counsel. In this second brief, Sanders raises six issues which taken together, he
claims, deprived him of a fair trial. Even though "it is not the court's practice to
consider pro se briefs filed by parties represented by counsel," United States v. Peck,
161 F.3d 1171, 1175 n.2 (8th Cir. 1998), we have considered these claims and
summarily reject them. See 8th Cir. R. 47B(1) & (4).

                                         -17-
