                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-3460
                                    ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Milton Hernandez,                       *
                                        *
             Appellant.                 *
                                    __________

                              Submitted: May 11, 2009
                                 Filed: June 30, 2009
                                  ___________

Before RILEY, SMITH, and COLLOTON, Circuit Judges.
                            ___________

RILEY, Circuit Judge.

       On October 17, 2007, a grand jury charged Milton Hernandez (Hernandez) with
(1) conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846; (2)
conspiracy to distribute crack cocaine, in violation of 21 U.S.C. § 846; (3) two counts
of distributing methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1); and
(4) three counts of distributing crack cocaine, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1). A jury convicted Hernandez of all seven counts. The district court1
sentenced Hernandez to two concurrent sentences of 151 months imprisonment, and

      1
       The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
five years of supervised release. Hernandez now appeals claiming (1) the evidence
presented at trial was insufficient to support Hernandez’s conviction, and (2)
Hernandez’s sentence is unreasonable. We affirm.

I.    BACKGROUND
      During trial, Federal Bureau of Investigation (FBI) Special Agent Gregory
Beninato (Agent Beninato) testified he was a member of an international task force,
created by the governments of the United States and El Salvador, which focused
primarily on violent crimes arising out of MS-13, a Salvadoran gang. In late 2006,
Agent Beninato was contacted by a supervisor who explained Jorge Palacios
(Palacios), a former MS-13 member who had cooperated with law enforcement in Los
Angeles, California, needed to relocate due to threats on Palacios’s life. Palacios
relocated to Omaha, Nebraska, where Palacios continued to cooperate with law
enforcement and worked closely with Agent Beninato.

       Agent Beninato testified Palacios made contact with several MS-13 members
and conducted numerous illegal drug and firearm transactions with MS-13 members.
Several of these transactions were recorded using a video camera which was hidden
on Palacios’s hat. Still photos were made from the video. Other transactions were
recorded with an audio device. Using these recordings and photos as exhibits, Agent
Beninato described various occasions where Palacios met with Hernandez at
Hernandez’s home or place of employment, and Palacios purchased methamphetamine
or cocaine from either Hernandez or another co-conspirator. Agent Beninato testified
specifically to seven drug transactions. This testimony was corroborated with the
audio and videotapes, as well as several still photos depicting the transactions.

      With Palacios’s assistance, over 20 people were indicted for various offenses.
In exchange for his efforts, the FBI paid Palacios approximately $126,500. Roughly
$75,000 was paid for Palacios’s work in Omaha, and the remainder was paid for
Palacios’s work in Los Angeles.

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       During Hernandez’s trial, Palacios spent a significant amount of time discussing
the video and audio recordings and the still pictures of the drug transactions. The
recordings were played for the jury, and Palacios explained what was taking place in
the recordings. This testimony corroborated Agent Beninato’s testimony and
discussed, in even greater detail, each of the seven drug transactions.

      The government also presented two other cooperating witnesses, Jose Louis
Aguirre-Heras (Aguirre-Heras), who was convicted for the sale of narcotics after he
was recorded selling drugs to Palacios, and Doney Ordorica (Ordorica), who was
convicted for drug offenses in 2007. Each witness described his involvement in
multiple drug deals with Palacios and Hernandez.

       The jury found Hernandez guilty on all seven charges of conspiracy to
distribute and distribution of methamphetamine and crack cocaine. Pursuant to the
advisory United States Sentencing Guidelines (Guidelines) section 3D1.2(d), the
district court combined the various counts into two separate groups—the first
consisting of counts one, two, five, six, and seven, and the second consisting of counts
three and four. The district court then imposed two concurrent sentences of 151
months imprisonment and five years supervised release. Hernandez now challenges
his conviction and sentence on appeal.

II.   DISCUSSION
      A.     Sufficiency of the Evidence
      Hernandez claims the government failed to present sufficient evidence to
support his conviction. “‘We review the sufficiency of the evidence de novo, viewing
evidence in the light most favorable to the government, resolving conflicts in the
government’s favor, and accepting all reasonable inferences that support the verdict.’”
United States v. Bower, 484 F.3d 1021, 1025 (8th Cir. 2007) (quoting United States
v. May, 476 F.3d 638, 640-41 (8th Cir. 2007)). A verdict will only be overturned “if

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no reasonable jury could have found [the defendant] guilty beyond a reasonable
doubt.” United States v. Gray, 369 F.3d 1024, 1028 (8th Cir. 2004) (citation omitted).

       “To establish that a defendant conspired to distribute drugs under 21 U.S.C.
§ 846, the government must prove: (1) that there was a conspiracy, i.e., an agreement
to distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the
defendant intentionally joined the conspiracy.” United States v. Jiminez, 487 F.3d
1140, 1146 (8th Cir. 2007) (quoting United States v. Espino, 317 F.3d 788, 792 (8th
Cir. 2003)). In order to sustain a conviction for distribution of a controlled substance
in violation of 21 U.S.C. § 841(a)(1), the government must prove (1) Hernandez
knowingly and intentionally distributed a controlled substance, and (2) Hernandez
knew the item was a controlled substance at the time of distribution. See United
States v. Olguin, 428 F.3d 727, 728 (8th Cir. 2005); United States v. Vesey, 395 F.3d
861, 863 (8th Cir. 2005).

        Upon our review of the trial evidence, the jury’s verdict was supported by
sufficient evidence to sustain a conviction for each of these offenses. Palacios
testified he purchased drugs from Hernandez, or one of Hernandez’s co-conspirators,
on several occasions. Seven of these occasions were captured on a video or audio
recording and were played for the jury. Aguirre-Heras testified he sold illegal
narcotics to Hernandez and repeatedly sold drugs from Hernandez’s home. Two of
these sales were videotaped and played for the jury. Finally, Ordorica reported he
purchased a total of 14 ounces of methamphetamine from Hernandez in the course of
eight separate drug transactions and sold 2 ounces of powder cocaine to Hernandez
approximately eight or nine times.

       Hernandez contends the cooperating witnesses were not credible, and therefore,
there was insufficient evidence to support his convictions. Specifically, Hernandez
claims Palacios was not a credible witness because Palacios has an extensive criminal
history, Palacios testified he did not assault his former girlfriend despite having

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previously pled guilty to that offense, and Palacios feared he would be deported if he
did not cooperate. Hernandez also challenges Aguirre-Heras’s credibility, claiming
Aguirre-Heras was only testifying in an attempt to minimize his ten year prison
sentence and avoid deportation, and Aguirre-Heras’s testimony that he only sold drugs
on the occasions when he was caught was “facially unbelievable.” Finally, Hernandez
asserts Ordorica’s testimony was not credible because Ordorica has an extensive
criminal history, and because Ordorica initially told police he sold illegal narcotics to
Hernandez once, but testified at trial that Ordorica sold drugs to Hernandez eight
times.

       To reach a verdict, a jury is often required to weigh the credibility of criminal
witnesses. See, e.g., United States v. Daugherty, 952 F.2d 969, 970 (8th Cir. 1991)
(citing United States v. Bailey, 444 U.S. 394, 414-15 (1980)). “The finder of fact may
accept the parts of a witness’s testimony that it finds credible while rejecting any
portion it finds implausible or unreliable.” United States v. Boyce, 564 F.3d 911, 916
(8th Cir. 2009) (citation omitted). “It is the function of the jury, not an appellate
court, to resolve conflicts in testimony or judge the credibility of witnesses.” United
States v. Harrison, 671 F.2d 1159, 1162 (8th Cir. 1982). Such credibility findings are
“‘virtually unreviewable on appeal.’” Boyce, 564 F.3d at 916 (quoting United States
v. Gomez-Perez, 452 F.3d 739, 743 (8th Cir. 2006)).

       The district court correctly instructed the jury on its duty to judge the credibility
of the witnesses. We presume the jurors followed the instructions absent evidence to
the contrary. See United States v. Harper, 466 F.3d 634, 647 (8th Cir. 2006) (citing
Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985)). On this record, the jury’s
credibility determinations are supported by sufficient evidence, and viewing the
evidence in the light most favorable to the verdict, the jury reasonably found
Hernandez guilty beyond a reasonable doubt.




                                            -5-
       B.     Unreasonable Sentence
       Hernandez also contends his sentence of 151 months imprisonment was greater
than necessary to promote the goals of 18 U.S.C. § 3553(a)(2), and is therefore
unreasonable. Hernandez argues, because Hernandez “was not a significant player in
the drug distribution industry” and “had no prior convictions for violent crimes,” his
sentence “was beyond the controlling statutory directives,” and Hernandez should
have been sentenced to no more than the mandatory minimum sentence.

       An “appellate court must review [a] sentence under an abuse-of-discretion
standard.” Gall v. United States, 522 U.S. 38, 128 S. Ct. 586, 597 (2007). Our court
“must first ensure that the district court committed no significant procedural error,
such as . . . failing to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the chosen sentence.” Id. If
the sentence is procedurally sound, we “then consider the substantive reasonableness
of the sentence imposed.” Id. at __, 128 S. Ct. at 597.

       Procedurally, a sentencing court should first accurately calculate a defendant’s
sentencing Guidelines range and provide each party an opportunity to explain their
desired sentence. See id. at __, 128 S. Ct. at 596. The district court must then
consider each of the § 3553(a) factors and conduct an individualized assessment to
determine what sentence is appropriate given the facts in the particular case. Id. at __,
128 S. Ct. at 596-97. “In explaining the chosen sentence and analyzing the relevant
§ 3553(a) factors, ‘a district court is not required to provide a full opinion in every
case, but must set forth enough to satisfy the appellate court that he has considered the
parties’ arguments and has a reasoned basis for exercising his own legal
decisionmaking authority.’” United States v. Hill, 552 F.3d 686, 691 (8th Cir. 2009)
(quoting United States v. Robinson, 516 F.3d 716, 718 (8th Cir. 2008)) (internal
marks omitted).




                                          -6-
       The district court accurately calculated Hernandez’s Guidelines range and
provided Hernandez with the opportunity to argue for his desired sentence. Based
upon Hernandez’s offense level of 32 and criminal history category III, Hernandez’s
Guideline range was 151 to 188 months imprisonment. The court then considered the
§ 3553(a) factors and determined, based upon the facts before it, that a sentence at the
bottom of the Guidelines range, 151 months, was appropriate. “Where, as here, the
sentence imposed is within the advisory guideline range, we accord it a presumption
of reasonableness.” United States v. Harris, 493 F.3d 928, 932 (8th Cir. 2007) (citing
Rita v. United States, 551 U.S. 338, __, 127 S. Ct. 2456, 2462-63 (2007); United
States v. Lincoln, 413 F.3d 716, 717 (8th Cir. 2005)). Hernandez failed to rebut this
presumption. We therefore conclude the district court’s sentence was both
procedurally and substantively reasonable, and we find no abuse of the district court’s
discretion.

III.   CONCLUSION
       The district court’s judgment and sentence are affirmed.
                        ______________________________




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