                    United States Court of Appeals

                        FOR THE EIGHTH CIRCUIT


                             ___________

                             No. 96-3244
                             ___________



United States of America,          *
                                       *
                     Appellee,     *       Appeal from the United
                                   *       States District Court for
           v.                      *       the Southern District of
                                   *       Iowa.
Maurice Buford,                    *
                                   *
                     Appellant.    *

                             ___________

                    Submitted: January 16, 1997

                     Filed: February 24, 1997
                            ___________

Before, BOWMAN and MURPHY, Circuit Judges, and KYLE, District
Judge.1


KYLE, District Judge.


      A jury convicted Maurice Buford (“Buford”) of possession of
cocaine base with the intent to distribute, in violation of 21
U.S.C. § 841(a)(1), and of knowingly and intentionally using a
firearm in relation to a drug trafficking offense, in violation
of 18 U.S.C. § 924(c)(1).2   The district court sentenced him to




  1
        The Honorable Richard H. Kyle, United States District
Judge for the District of Minnesota, sitting by designation.
  2
        This conviction was subsequently vacated in light of the
Supreme Court’s decision in Bailey v. United States, 116
S. Ct. 501 (1995).
ninety-seven months.3        Buford challenges both his conviction and
his sentence.         We affirm.



I.       Background


         On November 17, 1994, officers from the Des Moines, Iowa
police department and the Drug Enforcement Administration (“DEA”)
executed a search warrant on a Des Moines apartment.        When
Officer Northrup (“Northrup”) of the Des Moines Police Department
was outside of the apartment building, he saw an arm come through
the corner of a window screen and toss a clear plastic “baggie”
onto a truck below.         Northrup saw the arm only from the elbow to
the hand.       The baggie was later found to contain 12.47 grams of
cocaine base.


         Northrup went inside the apartment and determined that the
baggie had been thrown from a bedroom window.        The officers found
Buford in this room.         When Northrup entered the bedroom, he saw
Buford, dressed only in a pair of shorts and no shirt, getting up
off of a mattress on the floor.        Underneath this mattress, the
Officers found 12.15 grams of cocaine base.        In addition, the
Officers found a .45 caliber firearm within Buford’s reach in the
bedroom and approximately $1,400.00 in cash in the apartment.


         When the police executed the search warrant, Lamont Walls




     3
        The Honorable Harold D. Vietor, United States District
Judge for the Southern District of Iowa.
(“Walls”) was also in the apartment.     Northrup testified that
Walls was wearing a white tee-shirt.     Another Officer testified
that Walls was wearing a long-sleeved, black sweater.


      At trial, a confidential informant testified that she knew
Buford fairly well from the neighborhood and that she had been
asked to bail Buford out of jail after his arrest in this case.
She testified that Buford told her, as she was taking him home
after bailing him out of jail, that he had thrown the cocaine out
of the apartment window.    Buford also told her he believed no one
would be able to identify him because only his arm was visible.
The informant did not tell the police about this conversation
until seven (7) weeks after it occurred.


      The jury convicted Buford.   At his sentencing hearing, the
district court determined that both the baggie of cocaine and the
cocaine found under the mattress were attributable to Buford, and
it sentenced him to ninety-seven months.


II.   Discussion


      On appeal, Buford advances two arguments.    First, he
challenges the sufficiency of the evidence upon which his
conviction was based.    Second, he contends that the district
court erred in finding that both the baggie of cocaine and the
cocaine found under the mattress were attributable to him for
sentencing purposes.


      A.   Sufficiency of the Evidence




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     This Court “may reverse on insufficiency of the evidence
only if no reasonable jury could find beyond a reasonable doubt
that [Buford] is guilty of the offense charged.”    United States
v. Anderson, 78 F.3d 420, 422 (8th Cir. 1996). 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 supports
the jury’s verdict.”    United States v. Bates, 77 F.3d 1101, 1104-
05 (8th Cir.)(quoting United States v. Erdman, 953 F.2d 387, 389
(8th Cir. 1992)), cert. denied, 117 S. Ct. 215 (1996).    “The
jury’s verdict must be upheld if there is an interpretation of
the evidence that would allow a reasonable-minded jury to
conclude guilt beyond a reasonable doubt.”    Id. at 1105 (quoting
Erdman, 953 F.2d at 389).


     To convict Buford of possessing cocaine with the intent to
distribute, under 21 U.S.C. § 841(a), the Government had to show,
beyond a reasonable doubt, that: (1) Buford was in possession of
cocaine base; (2) Buford knew he was in possession of cocaine
base; and (3) Buford intended to distribute some or all of the
cocaine base.    United States v. Thomas, 58 F.3d 1318, 1322 (8th
Cir. 1995).    Possession may be either actual or constructive.
See Anderson, 78 F.3d at 422; United States v. Kiser, 948 F.2d
418, 425 (8th Cir. 1991).    “Constructive possession exists when a
person has ownership, dominion, or actual control over the
contraband.”    Anderson, 78 F.3d at 422.


     Buford argues that the evidence at trial was insufficient to




                                - 4 -
support his conviction.   He addresses the evidence regarding each
baggie of cocaine separately, and we will do the same.4


      Buford contends there was insufficient evidence for the jury
to conclude, beyond a reasonable doubt, that he possessed the
baggie of cocaine thrown out of the apartment window.     He points
out that no one identified whose bare arm actually threw the
cocaine out the window.   Because two men were in the apartment
when the police arrived and there was conflicting testimony about
whether the other occupant wore long or short sleeves, Buford
maintains that there is only a “fifty-fifty” chance that he threw
the baggie out the window.   Finally, Buford asserts that we
should give no weight to the confidential informant’s testimony
because she did not tell the police that Buford said he threw the
cocaine out the window until seven weeks after their conversation
occurred.


      We believe there was sufficient evidence to support a jury’s
finding that Buford possessed this baggie of cocaine.     It is not
the province of this Court to “reweigh evidence or judge the
credibility of witnesses when reviewing the sufficiency of the
evidence” on appeal. Anderson, 78 F.3d at 422.   Buford, however,
asks this Court to engage in such a credibility determination by
discounting the testimony of the confidential informant.
Buford’s attorney had the opportunity to cross examine the




  4
    Although the Court is addressing this issue with respect to
each baggie of cocaine individually, the Government was not
required to prove, beyond a reasonable doubt, that Buford
possessed both baggies.

                               - 5 -
informant when she testified, yet the jury, apparently, found her
believable.   Not only did the informant testify that Buford told
her he threw the baggie of cocaine out the window, but one
officer also testified that Buford was the only person in the
apartment with bare arms. Taking the evidence in the light most
favorable to the Government, and resolving all evidentiary
conflicts in favor of the Government, we find there is an
interpretation of the evidence that would allow a reasonable-
minded jury to conclude that Buford possessed the baggie of
cocaine thrown out of the window.        See Bates, 77 F.3d at 1104-05.


     Buford also contends there was insufficient evidence to
support the conclusion that he possessed the cocaine found under
the mattress.   The apartment, he points out, was registered in
another person’s name, and the police did not find any of his
belongings there.   Buford argues that he was “merely present” in
the apartment when the police arrived.


     We conclude there was sufficient evidence to support a
jury’s determination that Buford also possessed the cocaine under
the mattress.   When the police entered the apartment, Buford was
wearing only a pair of shorts.    He was getting up off of a
mattress laying on the floor under which the police found
cocaine.   Based upon Buford’s statement to the informant that he
threw the baggie of cocaine out the window, his state of dress,
and his location relative to the location of the cocaine, a jury
could reasonably infer that Buford knew there was cocaine in the
apartment and attempted to hide it.       Thus, a jury could
reasonably conclude, beyond a reasonable doubt, that Buford




                                 - 6 -
possessed this cocaine.    See Bates, 77 F.3d 1104-05.


      Finally, Buford claims that the quantity of the cocaine
base, 24.62 grams, is not large enough to support a reasonable
inference that he possessed the drugs with the intent to
distribute.


      We have held that drug quantity is not an essential element
of the offense of possessing cocaine with the intent to
distribute.   See United States v. Buchanan, 985 F.2d 1372, 1377
(8th Cir. 1993).   The Government does not have to establish that
the defendant possessed a certain quantity of cocaine in order to
prove that the defendant possessed the cocaine with the intent to
distribute.   See id.; United States v. Luster, 896 F.2d 1122,
1126 (8th Cir. 1990).    Buford’s contention that he possessed too
small a quantity of cocaine to maintain his conviction is not
supported by the law.5    Moreover, intent to distribute a




  5
     Buford cites United States v. Munoz, 957 F.2d 171, 174 (5th
Cir. 1992), to support his contention that the quantity of
cocaine base in his case, 24.62 grams, is too small to create a
reasonable inference that he possessed the cocaine with the
intent to distribute. That case, however, does not support his
argument. In Munoz, the Fifth Circuit stated that “proof of
intent to distribute does not require the presence of a certain
minimum quantity of controlled substance.” 957 F.2d at 174.
Proof of such intent may be inferred from “the presence of
distribution paraphernalia, large quantities of cash, or the
value and quality of the substance.” Id.
     In Munoz, the Fifth Circuit upheld the conviction of the
defendant who was found with 10.5 grams of cocaine, $1,000.00 in
cash, and a piece of notebook paper with numbers listed on it.
In the instant case, Buford was found with more cocaine (24.62
grams), more cash ($1,400.00), and a gun within his reach. Thus,
Munoz, is inapposite.

                                - 7 -
controlled substance may be established by direct or
circumstantial evidence.    See Buchanan, 985 F.2d at 1377.    In the
instant case, in addition to the cocaine, the police found a gun
within Buford’s reach and $1400.00 in cash in the apartment.      The
presence of the cash, the gun, and the quantity of drugs allow a
reasonable jury to conclude, beyond a reasonable doubt, that
Buford possessed the cocaine with the intent to distribute it,
and not merely for personal use.       See Anderson, 78 F.3d at 422.


       We find there was sufficient evidence to support Buford’s
conviction for possessing cocaine with the intent to distribute.
We, therefore, affirm his conviction.


III.    Sentencing Determination


       Buford argues that the district court erred by attributing
the cocaine that was thrown out the window to him in determining
his sentence.


       While the Government must prove all the essential elements
of an offense beyond a reasonable doubt, once a conviction has
been legally obtained, the Government need only prove the facts
bearing on the sentence by a preponderance of the evidence.       See
United States v. Sales, 25 F.3d 709, 711 (8th Cir. 1994)
(citations omitted).    This Circuit has “repeatedly held that a
quantity of drugs involved in a conspiracy is not an essential
element of the offense,” and thus, the Government need not prove




                                   - 8 -
quantity beyond a reasonable doubt.      See id.


      We review a district court’s determination of a drug
quantity under the “clearly erroneous standard.”     See id. (citing
United States v. Bieri, 21 F.3d 819, 824 (8th Cir.)), cert.
denied, 115 S. Ct. 208 (1994).    Defendants making such challenges
“face an uphill battle on appeal because we will reverse a
determination of drug quantity only if the entire record
definitely and firmly convinces us that a mistake has been made.”
Id. (citing Anderson v. City of Bessemer, 470 U.S. 564, 573, 105
S. Ct. 1504, 1511 (1985)).


     In light of our previous determination that it was not
unreasonable for the jury to conclude that Buford possessed this
baggie of cocaine, we also find that the district court’s
determination of the quantity of drugs for sentencing was not
clearly erroneous.   The district court based this determination
upon the testimony of the confidential informant and the police
officers who executed the search warrant.     Once again, Buford
asks this Court to determine the credibility of witnesses and
resolve conflicting testimony.    This however, is the province of
the district court as the fact finder on this issue, and we will
not reweigh the evidence and determine the credibility of
witnesses on appeal.   See Anderson, 78 F.3d at 422-23.    The
entire record overwhelmingly supports the district court’s
determination; we are not convinced, much less definitely and
firmly convinced, that a mistake has been made.     See Sales, 25
F.3d at 711. Accordingly, we affirm both the conviction and the
sentence.




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A true copy.


     Attest:


          Clerk, U.S. Court of Appeals, Eighth Circuit.




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