                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                  No. 02-2904SI
                                  ___________

United States of America,               *
                                        *
            Appellee,                   * On Appeal from the United
                                        * States District Court for
      v.                                * the Southern District of
                                        * Iowa.
                                        *
Jim Keith Eis,                          * [To be published]
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: March 10, 2003

                                 Filed: March 18, 2003
                                  ___________

Before WOLLMAN, RICHARD S. ARNOLD, and MURPHY, Circuit Judges.
                         ___________

PER CURIAM.

      Jim Keith Eis, the appellant in this case, has been convicted on three counts:
conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. §§846,
841(a)(1), and 841(b)(1)(A), attempt to manufacture methamphetamine, in violation
of 21 U.S.C. §§841(a)(1) and 841(b)(1)(a), and 18 U.S.C. §2, and creating a
substantial risk of harm to human life while manufacturing or attempting to
manufacture a controlled substance, in violation of 21 U.S.C. §858. The jury
returned a verdict after a three-day trial. Thereafter, the District Court1 imposed a
sentence of life in prison on counts I and II. The sentence on Count III was ten years,
to be served concurrently. The life sentence was mandatory under the Sentencing
Guidelines as applied by the District Court.

       After considering the briefs and record, and hearing oral argument, we affirm.
The sentence imposed makes the case a calamitous one indeed for the defendant, and
any appeal in such a case must be taken seriously. Having considered the points
assigned as error on the appeal, however, we conclude that none of them is substantial
in a legal sense. In our view, some of the issues do not need to be discussed, and the
others do not require extended discussion. We make the following brief comments
by way of explaining our decision.

       1. The indictment charged, and the jury found beyond a reasonable doubt, that
50 or more grams of methamphetamine were involved in counts I and II. At the time
of sentencing, the District Court found, largely on the basis of trial testimony, that
Mr. Eis was responsible for 957.52 grams of methamphetamine. As the appellant
argues, the government has the burden of proof to show drug quantity by a
preponderance of the evidence. Our review of the District Court's findings on this
subject is for clear error only. We find no such error. A principal argument
advanced by the appellant is that the testimony of certain witnesses, used against him
on this point, was incredible, because the witnesses were testifying in order to gain
advantage for themselves, in the form of reduction of their own sentences. It is
perfectly true that testimony of this kind is suspect and should be weighed with care.
Here, however, the District Court, which heard the witnesses, believed them after
being fully advised of the extent of the consideration being gained by them for their
testimony. This sort of finding, as to the credibility of live witnesses, is virtually


      1
       The Hon. Charles R. Wolle, United States District Judge for the Southern
District of Iowa.

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never clearly erroneous. It is for the trier of fact to make these kinds of judgments.
Nothing in the present record leads us to believe that any reversible error occurred in
this respect.

       2. Mr. Eis urges that the District Court erred in enhancing his sentence on the
basis of an alleged obstruction of justice on his part. There was evidence that Mr. Eis
advised a fellow inmate, one Harland, to tell law enforcement that a co-defendant,
George Arndt, was responsible for the methamphetamine laboratory that officers had
discovered. In context, Mr. Eis was asking Mr. Harland (if this evidence is believed,
as it was by the trier of fact) to place more of the blame on Mr. Arndt than the facts
warranted. This is a clear attempt to impede the investigation, and, accordingly,
warrants an enhancement for obstruction of justice under USSG §3C1.1. Mr. Eis
argues that the conversation was not taken seriously by Mr. Harland, as evidenced by
the fact that he did not accept the invitation to place the blame on Mr. Arndt. An
obstruction of justice does not have to be completed, or successful, to qualify for the
enhancement. An attempt is sufficient, and that is what the evidence showed here.

       3. An enhancement was also applied for Mr. Eis's role in the offense. The
Court found that he was a leader or organizer of a criminal activity that involved five
or more participants or was otherwise extensive. That five or more participants were
involved is undisputed. The record also establishes that Mr. Eis gave directions to
more than one of these participants. On appeal, defendant urges that he could not
qualify for the enhancement unless he exercised authority over at least five other
persons. The guideline, §3B1.1, does not say this, and neither does the case cited by
defendant, United States v. Sarabia-Martinez, 276 F.3d 447 (8th Cir. 2002). Indeed,
the case says the opposite: "[T]he defendant need only have directed one other
participant to warrant an enhancement." Id. at 451, citing United States v. McMullen,
86 F.3d 135, 138-39 (8th Cir. 1996); USSG §3B1.1, App. Note 2.




                                         -3-
       4. The defendant also contends that the evidence failed to show that a
substantial risk of harm to the life of a minor existed as a result of his conduct, and
that the evidence was legally insufficient to support the convictions for conspiracy
and attempted manufacturing. We have considered these arguments and hold that
they are without merit.

      For these reasons, the judgment and sentence imposed by the District Court are

      Affirmed.

      A true copy.

             Attest:

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




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