                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 00-1404
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Southern District of Iowa.
Roberto Gallardo Chavez,                *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: September 12, 2000

                                  Filed: October 20, 2000
                                   ___________

Before WOLLMAN, Chief Judge, LAY, and BRIGHT, Circuit Judges.
                             ___________

WOLLMAN, Chief Judge.

      Roberto Gallardo Chavez was convicted of one count of conspiracy to distribute
methamphetamine in violation of 21 U.S.C. § 846, two counts of distribution of
methamphetamine in violation of 21 U.S.C. § 841(a)(1), and one count of possession
with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1).
Through its verdict form, the jury found that the quantity of methamphetamine involved
was at least 1700 grams. Relying on the pre-sentence investigation report, which
suggested that the actual quantity was approximately 81 kilograms, the district court1
sentenced Chavez to a life sentence on each count. Chavez appeals, and we affirm.

       Chavez makes two arguments. First, he contends that the district court erred in
denying his motion for a verdict of acquittal at the close of the State’s evidence because
the State failed to offer evidence sufficient to prove the elements of the crimes charged
beyond a reasonable doubt. Second, he argues that Apprendi v. New Jersey, ___ U.S.
___, 120 S.Ct. 2348 (2000), requires that the drug quantities used in sentencing be
found by a jury.

       In reviewing a district court's denial of a motion for acquittal based on
insufficiency of the evidence, we consider the evidence in the light most favorable to
the verdict and reverse only if no reasonable jury could have found that the defendant
is guilty beyond a reasonable doubt. See United States v. Lacey, 219 F.3d 779, 783
(8th Cir. 2000). Although Chavez does not specify the alleged defects in the State’s
evidence, his arguments center on two contentions: (1) the State failed to prove the
agreement element of the conspiracy charges, and (2) the State’s witnesses were so
lacking in credibility that their testimony was insufficient to support a guilty verdict.

       To be guilty of conspiracy, a defendant must have knowingly entered into an
agreement with at least one other person to violate the law. See id. The government
may prove facts in issue in a criminal case by circumstantial as well as by direct
evidence. See United States v. Thomas, 914 F.2d 139, 141-42 (8th Cir. 1990). “The
facts and circumstances relied on by the government must be consistent with guilt, but
they need not be inconsistent with any other reasonable hypothesis, and it is enough to
convict if the entire body of evidence is sufficient to convince the jury beyond a



      1
        The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.

                                           -2-
reasonable doubt that the defendant is guilty.” Id. (quoting United States v. Wisdom,
534 F.2d 1306, 1309 (8th Cir. 1976)).

       Sixteen witnesses appeared for the Government. Collectively, they testified that
Chavez sold, distributed, and possessed methamphetamine, that he arranged for its
delivery to Des Moines, that he had a money collection system, and that he associated
and conducted business with other known drug dealers. Because this evidence was
more than sufficient for the jury to conclude that Chavez knowingly entered into an
agreement to violate the law, the district court properly declined to grant the motion for
a verdict of acquittal on those grounds.

       Chavez also claims that the district court should have granted his motion because
the Government’s witnesses were unreliable. Among other things, he argues that
various witnesses had improper interests in testifying, gave testimony that conflicted
with that of other witnesses, or were categorically untrustworthy. He also contends that
certain witnesses were improperly permitted to give testimony for which no proper
foundation had been laid.

       In ruling on a motion for acquittal, the role of the district court is not to weigh
evidence or consider the credibility of the witnesses, but rather to determine whether
the Government has presented evidence on each element sufficient to support a jury
verdict. See Burks v. United States, 437 U.S. 1, 16 (1978); United States v. Bredell,
884 F.2d 1081, 1082 (8th Cir. 1989). Questions of credibility are the province of the
jury. See United States v. Fuller, 942 F.2d 454, 458 (8th Cir. 1991). The district court
had neither the duty nor the authority to grant Chavez’s motion based on witness
credibility. Because we have also reviewed Chavez’s claims that certain testimony
should have been excluded for lack of proper foundation and find them to be without
merit, we conclude that the district court committed no error in denying Chavez’s
motion for a judgment of acquittal.


                                           -3-
       We turn, then, to Chavez’s Apprendi claim. According to Apprendi, the
constitution requires that “ . . . any fact that increases the penalty for a crime beyond
the statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” 120 S.Ct. at 2363; see United States v. Aguayo-Delgado, 220 F.3d 926, 930
(8th Cir. 2000). Chavez was convicted of possession with intent to distribute
methamphetamine, two counts of distribution of methamphetamine, and conspiracy to
distribute methamphetamine. The statutory maximum for each of these crimes, even
assuming the minimum quantities of methamphetamine found by the jury, is a life
sentence. See 21 U.S.C. §§ 841(b)(1)(A) and 846. Therefore, because none of
Chavez’s sentences exceeds the statutory maximum, Apprendi is inapplicable. See
Aguayo-Delgado, 220 F.3d at 993-94 (upholding sentence based on judge’s findings
of drug quantities where sentence was within range authorized by statute for defendants
with prior convictions without regard to drug quantity); accord United States v.
Hernandez-Guardado, Nos. 99-10342, 99-10480, 2000 WL 1264596 at *9 (9th Cir.
Sept. 7, 2000); United States v. Corrado, Nos. 98-2269, 98-2270, 98-2365, 2000 WL
1199096 at *13 (6th Cir. Aug. 24, 2000); United States v. Smith, 223 F.3d 554, 565-66
(7th Cir. 2000). Cf. United States v. Nordby, No. 99-10191, 2000 WL 1277211 at *4-
*5 (9th Cir. Sept. 11, 2000) (holding Apprendi mandated reversal where only finding
of drug quantity was by preponderance of the evidence by sentencing judge and
sentence exceeded statutory maximum prescribed for minimal drug quantities).

      The judgment is affirmed.

BRIGHT, Circuit Judge, concurring.

       I concur but write separately to once again express my view that the sentences
imposed by the Sentencing Guidelines are often a waste of time and money. The sheer
irrationality of the Sentencing Guidelines is graphically demonstrated by this case.




                                          -4-
        What
citizenship who has been heavily involved in drug trafficking but has committed no
       violent crimes. The district court followed the Guidelines and sentenced Chavez
to life imprisonment.

                has a life expectancy of seventy-eight years.2
will probably spend thirty-five years in federal prison. It costs the United States
government
offender in prison. Therefore, it will cost the taxpayers $836,000 for his incarceration.

      This
These unwise Sentencing Guidelines put nonviolent offenders in prison for years, they
    the lives of the prisoners, their families, and they also hurt our economy and our
communities




      2
          See                                           Life Tables for Males Vol. 47,
No.
Services, 1999, Table 2, p. 8.
      3

                Fiscal 1994, it cost an average of $58.50 per day to house an
      inmate
      The cost varies depending upon the security level of the institution in
      which
      facility. The figure of $58.50 is the system-wide average [daily] cost. In
              1995, we estimate the average cost per day per inmate will be
      $60.26, with an average annual amount of $21,995.

      from Kathleen M. Hawk, Director, United States Department of Justice, Federal
Bureau
Bright). Undoubtedly, these costs have increased over the past six years and may well


                                          -5-
productive members of society locked up. The opportunity costs imposed by the
Sentencing Guidelines are staggering.

        A brief look at the federal prison population reveals the terrible dilemma facing
America's drug war strategy. Our federal prisons are exploding. Our ninety-seven
federal prisons cannot contain the 143,218 incarcerated men and women. In fact,
18,551 prisoners are housed in contract facilities. Today, 62,852 men and women are
incarcerated in federal prisons for drug crimes. That means we spend $1,382,744,000
every single year to keep our federal drug offenders in federal prison. Unfortunately,
the problem is getting worse. In 1970, 16.3% of federal prisoners were drug offenders.
Today, 57% of federal prisoners are drug offenders.4 What an awful waste.
        America's drug war is an ill-fated attempt to overcome the economic axiom that
supply will meet demand. Right now we are fighting the drug war primarily on one
front, the supply side. We hope to eliminate drugs by eliminating the suppliers. We
should consider fighting demand with greater conviction by fighting addiction. As long
as there is a demand for drugs, some will brave the terrible risks and supply the drugs.
Chavez took a risk and he will pay with his life. The United States will pay too.

       Chavez's sentence is draconian and, even though it punishes him, it also punishes
the American taxpayer. It would be more sensible to give Chavez a stiff, but shorter,
sentence and to then promptly deport him to Mexico, as an example to other would-be
drug dealers. Instead, the Sentencing Guidelines leave our hands tied. We are left with
a tragic waste of a man's life, the irrational waste of the taxpayer's money, and an
incredible opportunity cost to the entire community.

     I expressed my views concerning a similar situation where a lesser sentence was
imposed on a younger Mexican man in United States v. Alatorre, 207 F.3d 1078, 1079


      4
        Federal Bureau of Prisons, Quick Facts, (last modified July, 2000)
<http://www.bop.gov/>.

                                          -6-
(8th Cir. 2000) (Bright, J., concurring). Two outstanding law professors, Marc L.
                                 5
                                   who have intensely and thoroughly studied the
            Guidelines, got it exactly right writing an article in the Buffalo Criminal
Law Review. I quote them in part:

               is hard to know where to begin in describing the disaster that has
      become
      disaster is all the more disheartening because the reform started with so
             promise. Few reform efforts--especially in the area of criminal
      justice,
      thought at their core.

             ....

                         the sentencing guidelines that emerged from the new
      administrative process
      in U.S. history. The collapse was quick, and it has become difficult to
               the current system as the reasoned and principled system we
      believe
      widely hated and in many ways dysfunctional. The expert agency that
               and monitors the guidelines--the U.S. Sentencing Commission
      --has
      Rather than achieving honest, wise or equal sentencing, the primary
                                 (albeit in conjunction with other developments)
      have
      to raise the analysis of probation officers above the arguments of lawyers
           the reasoning of judges, to shift the type of offenders in the federal


      5
       Marc Miller is professor of law at Emory Law School, and founding editor of
    Federal                       (Vera Institute / University of California Press).
Ronal
Miller and Wright are the editors of Criminal
Executive Materials (1998).



                                          -7-
      system, to shift offenders from state to federal systems, and to pour
      offenders into federal prisons, for longer and longer periods.

            How could such a thoughtful effort go so terribly wrong?

Marc L. Miller & Ronald F. Wright, Your Cheatin' Heart(land): The Long Search for
Administrative Sentencing Justice, 2 BUFFALO CRIM. L. REV. 723, 723, 726 (1999)
(footnotes omitted).

      In Alatorre, I asked, "Is anyone out there listening?" If not, isn't it about time?

      A true copy.

            Attest:

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




                                          -8-
