                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-1839
                                   ___________

United States of America,             *
                                      *
            Appellee,                 *
                                      *    Appeal from the United States
      v.                              *    District Court for the
                                      *    District of Nebraska.
Cesar Alfredo Torres, also known as   *
Cesar Rodrigo Salas Vallejo,          *
                                      *
            Appellant.                *
                                 ___________

                             Submitted: October 14, 2008
                                Filed: January 13, 2009
                                 ___________

Before MELLOY, BEAM, and GRUENDER, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

       A jury convicted Cesar Torres of conspiracy to distribute and possess with
intent to distribute cocaine, methamphetamine, and marijuana in violation of 21
U.S.C. § 841(a)(1), as sentenced in accordance with 21 U.S.C. §§ 841(b)(1) and 846.
The district court sentenced Torres to 151 months’ imprisonment, 5 years’ supervised
release, and a special assessment of $100.1 Torres appeals, arguing that the evidence
was insufficient to support the jury’s verdict and that the sentence of 151 months is


      1
       The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
substantively unreasonable. Having jurisdiction under 28 U.S.C. § 1291, we affirm
both the conviction and the sentence.

I. Background

       Because Torres challenges the sufficiency of the evidence, we present the facts
in the light most favorable to the jury’s verdict. United States v. Cannon, 475 F.3d
1013, 1016 (8th Cir.), cert. denied, 128 S. Ct. 365 (2007). Following a police
investigation of several individuals, Torres was arrested and indicted in July 2007 for
conspiracy to distribute and possess with intent to distribute a mixture or substance
containing methamphetamine, a mixture or substance containing cocaine, and
marijuana. Two of Torres’s alleged co-conspirators and co-defendants, Enrique
(“Lupe”) Sosa and Fernando Marquez, are currently fugitives. During an interview
with law enforcement officers following his arrest, Torres provided detailed
information about his co-defendants’ activities, including their potential location. A
jury found Torres guilty on January 11, 2008. Seven persons under investigation for
crimes arising out of the same events as those with which the government charged
Torres entered plea agreements and testified against him as cooperating witnesses.

      Cooperating witness Mickie Weppner testified that Angela Oneth first
introduced him to Torres, Sosa, and Marquez in the spring or summer of 2006 for the
purpose of obtaining quantities of drugs larger than what Oneth wanted to deal.
Weppner testified that after this meeting he obtained methamphetamine, cocaine, and
marijuana from the trio at least a couple of times per week until his arrest in December
2006. Weppner would most often call Sosa for drugs, and Sosa would either send
Torres alone or would arrive to conduct the transaction accompanied by Torres and/or
Marquez. Weppner also testified that Torres provided him with drugs on credit and
that Weppner would pay either Sosa or Torres once he obtained money.




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       Cooperating witness Troy Springer testified that he accompanied Weppner on
at least two occasions when Weppner obtained drugs from Torres. On the first
occasion, Torres dropped off a quarter-pound of methamphetamine at Weppner’s
house. On another occasion, Torres provided Weppner with methamphetamine
concealed in a bread bag while the three were at a gas-station parking lot.
Cooperating witness Michael Sands similarly testified that he was present when
Weppner made drug purchases from Torres, Sosa, and Marquez. On one occasion,
Sands was present when Weppner purchased approximately a quarter-pound of
methamphetamine concealed in a grocery bag directly from Torres. During another
purchase, Sands waited in his car while he observed Weppner speak with Torres and
Marquez. When Weppner returned, he possessed between a quarter- and half-pound
of methamphetamine. In total, Sands accompanied Weppner to obtain drugs from
Torres, Sosa, and/or Marquez approximately twelve times.

      Cooperating witness Shantella Jordan testified that while residing with
Weppner, Weppner obtained methamphetamine, powder cocaine, and marijuana from
Torres, Sosa, and Marquez. At least three or four times, the three met with Weppner,
and when they left, Weppner would be in possession of approximately four to six
ounces of methamphetamine. On one occasion, Jordan and Weppner obtained an
ounce of methamphetamine directly from Torres after picking him up from a bar.
Following Weppner’s incarceration, Jordan testified that she started obtaining drugs
from Sosa. At least once, Torres was present when Jordan obtained two ounces of
methamphetamine from Sosa.

      Cooperating witness Angela Oneth testified that she used cocaine with Torres.
While she never purchased drugs directly from Torres, she obtained
methamphetamine from Sosa and Marquez on three or four occasions. During these
transactions, Torres was present and aware that the purchases were taking place.
Cooperating witness LeShawn Rogers also testified that he purchased
methamphetamine from alleged co-conspirators Sosa and Marquez. At delivery,

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Rogers saw Torres with Sosa and/or Marquez approximately ten times. Rogers also
testified that Torres provided him with cocaine on one occasion and attempted to
convince him to deal the drug.

      Finally, cooperating witness Kayla Tobey testified that Weppner was her source
of methamphetamine. She often overheard conversations between Weppner, Sands,
and Springer discussing Weppner’s source for the drugs. Tobey testified that
Weppner would always discuss “Cesar” and “Lupe,” although she never met them.
Tobey also once accompanied Weppner to the mobile-home park where Torres, Sosa,
and Marquez lived. While parked at the mobile-home park, Weppner left Tobey in
the vehicle, and when he returned, he possessed methamphetamine.

II. Discussion

A. Sufficiency of the Evidence

       We examine the evidence “in the light most favorable to the jury verdict and
giv[e] the verdict the benefit of all reasonable inferences. We will reverse the jury
verdict only if no reasonable jury could have found [the defendant] guilty” beyond a
reasonable doubt. United States v. Montano, 506 F.3d 1128, 1132 (8th Cir. 2007)
(internal citations omitted).

       To prove conspiracy, the Government must show that there was an agreement
to achieve an illegal purpose, Torres knew of the agreement, and Torres knowingly
participated in the agreement. United States v. Castro-Gaxiola, 479 F.3d 579, 581
(8th Cir.), cert. denied, 128 S. Ct. 430 (2007). “Mere presence at the location of the
crime alone, even when coupled with knowledge of that crime, is not sufficient to
establish guilt on a conspiracy charge.” United States v. Sloan, 293 F.3d 1066, 1067
(8th Cir. 2002) (internal quotation omitted). Additionally, “[e]vidence of association
or acquaintance. . . alone is insufficient to establish a conspiracy.” United States v.

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Whirlwind Soldier, 499 F.3d 862, 869 (8th Cir.), cert. denied, 128 S. Ct. 1286 (2008)
(internal quotation omitted). “Instead, the defendant must have knowingly contributed
. . . efforts to the conspiracy’s objectives.” Sloan, 293 F.3d at 1067.

       Torres contests the sufficiency of the evidence, arguing that the Government
failed to prove beyond a reasonable doubt that he was a member of a conspiracy to
distribute and possess with intent to distribute methamphetamine, cocaine, and
marijuana. Torres does not contest the existence of a conspiracy. He argues instead
that no reasonable jury could find that he was a member of that conspiracy because
he was merely present during the sale of controlled substances, and his association
with Sosa and Marquez is insufficient for criminal liability. He further challenges the
Government’s reliance on cooperating witnesses who hoped for sentence reductions
in exchange for their testimony.

      The evidence supports the jury’s finding that Torres was more than a mere
bystander and that he knowingly contributed to, and was thus a member of, the
conspiracy in numerous ways. As outlined above, the witness testimony establishes
the following: Torres made numerous deliveries of controlled substances, he
accompanied his co-conspirators during other deliveries, he collected the proceeds
from his and his co-conspirators’ sales of controlled substances, and he sold cocaine.
Torres’s own statements following his arrest also evidence his participation in the
conspiracy. At trial, a law-enforcement officer testified that the extent of Torres’s
knowledge about Sosa’s and Marquez’s dealings was inconsistent with someone who
was a simple bystander and not a participant in the drug trade. Thus, viewing the
evidence in the light most favorable to the jury’s verdict, a reasonable jury could have
concluded that Torres knowingly participated in the conspiracy.

        With regard to Torres’s claim that the government’s witnesses were not credible
because they expected to receive reduced sentences in exchange for their testimony,
it is not our charge on appeal to assess the credibility of witnesses. United States v.

                                          -5-
Bower, 484 F.3d 1021, 1025–26 (8th Cir. 2007). “[W]e have repeatedly upheld jury
verdicts based solely on the testimony of co-conspirators and cooperating witnesses,
noting that it is within the province of the jury to make credibility assessments and
resolve conflicting testimony.” Id. (internal citation and quotation omitted). This
court has also “frequently placed importance on the defendant’s opportunity to expose
to the jury the inconsistency between a witness’s trial testimony and earlier
inconsistent statements.” United States v. Crenshaw, 359 F.3d 977, 990–91 (8th Cir.
2004). In this case, Torres’s counsel repeatedly and properly called into question the
witnesses’ credibility. Ultimately, however, “[i]t was the jury’s job to determine
whether these witnesses could be trusted.” United States v. Baker, 367 F.3d 790, 798
(8th Cir. 2004).

       Some of the cooperating witnesses gave statements to the police that were
inconsistent with their later trial testimony, particularly with regard to Torres’s
involvement in the conspiracy and the quantity of drugs involved. This fact, however,
is also an insufficient basis on which to overturn the jury’s verdict. The government
rehabilitated many of these witnesses on redirect, and the types of inconsistences and
omissions that Torres highlights do not warrant taking the fact-finding function away
from the jury. See Baker, 367 F.3d at 798 (indicating that factual determinations as a
matter of law may be appropriate in circumstances that include when the testimony
describes a physical impossibility under the laws of nature or when it was physically
impossible for the witness to have observed what he or she claims); see
also Crenshaw, 359 F.3d at 990 (providing examples of when inconsistencies in
witness testimony were insufficient to undermine a jury’s conviction).

      In conclusion, the verdict indicates that the jury found the Government’s
cooperating witnesses to be credible and that it accepted their testimony. The
testimony established a factual basis to believe that Torres was a member of the
conspiracy. As a result, there is sufficient evidence to support the jury’s verdict.



                                         -6-
B. Reasonableness of the Sentence

       Torres also challenges his 151-month sentence, claiming that it is longer than
necessary to achieve the goals of sentencing and that under 18 U.S.C. § 3553(a) he
merited a sentence below the advisory range. Because Torres does not challenge the
district court’s calculation of the advisory sentencing guidelines range, we review his
sentence for an abuse of discretion and note that a sentence within the guidelines is
presumptively reasonable on appeal. United States v. Pruneda, 518 F.3d 597, 607 (8th
Cir. 2008).

       We find that the district court did not abuse its discretion in sentencing Torres
at the low end of the advisory range. In this case, the appropriate guidelines range
was 151 to 188 months. Torres moved to have the district court sentence him to the
mandatory minimum of 120 months based on the nature of the offense, Torres’s
minimal criminal history, and his character. During the sentencing hearing, Torres’s
counsel engaged the district court in a lengthy discussion about the reasons why a
120-month sentence was sufficient to promote respect for the law, provide punishment
for the offense, and protect the public. Ultimately, the district court overruled
Torres’s objection to the Presentence Investigation Report and sentenced him to 151
months’ imprisonment.

       The record does not suggest that the district court failed to consider a relevant
factor, weighed an improper or irrelevant factor, or committed a clear error of
judgment. United States v. Beck, 496 F.3d 876, 879 (8th Cir. 2007). And, as the
Supreme Court has indicated, where “the record makes clear that the sentencing judge
considered the evidence and arguments, we do not believe the law requires the judge
to write more extensively.” Rita v. United States 127 S. Ct. 2456, 2469 (2007); see
also Whirlwind Soldier, 499 F.3d at 874 (noting that under Rita a judge is not required
to give more extensive reasons for imposing a sentence within the Guidelines range
when clear that the “judge listened to the argument and considered supporting

                                          -7-
evidence”). Thus, we find that the district court did not abuse its discretion in
imposing a sentence at the bottom of the properly calculated guidelines range.

      Accordingly, we affirm Torres’s conviction and sentence.
                     ______________________________




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