                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                Nos. 00-2297/2330
                                  ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeals from the United States
      v.                                * District Court for the District
                                        * of Nebraska.
Fernando Ortiz                          *
and Roberto O. Martinez,                *
                                        *
            Appellants.                 *
                                   ___________

                             Submitted: November 14, 2000

                                 Filed: January 3, 2001
                                  ___________

Before MORRIS SHEPPARD ARNOLD, JOHN R. GIBSON, Circuit Judges, and
      GOLDBERG,1 Judge.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       Fernando Ortiz and Roberto Martinez were arrested in the course of a police
undercover operation and were subsequently convicted of distributing cocaine in
violation of 21 U.S.C. § 841(a)(1). On appeal, Mr. Ortiz and Mr. Martinez argue that
there was insufficient evidence to support their convictions. Mr. Ortiz argues


      1
       The Honorable Richard W. Goldberg, Judge, United States Court of
International Trade, sitting by designation.
additionally that the district court erred by failing to submit the question of drug
quantity to the jury and by refusing to grant him a reduction in his sentence for his
minor role in the crime. We affirm the judgment of the trial court.2

                                            I.
       Mr. Ortiz and Mr. Martinez contend that the evidence presented against them at
trial was insufficient to warrant their convictions. "We review the sufficiency of the
evidence de novo, examining the evidence in the light most favorable to the jury verdict
and giving the verdict the benefit of all reasonable inferences," United States v.
Robinson, 217 F.3d 560, 564 (8th Cir. 2000), cert. denied, 121 S. Ct. 497 (2000). We
will reverse the convictions only if we conclude that no reasonable jury could have
found that Mr. Ortiz and Mr. Martinez were guilty beyond a reasonable doubt. See id.

       In its case against Mr. Ortiz and Mr. Martinez, the government presented
evidence that they were the accomplices of others who sold drugs to the police. Police
officers testified that they observed Mr. Ortiz and Mr. Martinez acting in a suspicious
manner while waiting in Mr. Ortiz's car, which was parked across the street from the
place where the drug sale occurred. The officers also testified that they saw one of the
individuals who sold drugs to the police walking over to Mr. Ortiz's car during the
course of the drug sale and talking to the people in it.

       Mr. Ortiz and Mr. Martinez assert that none of this evidence tended to show that
either of them knew about the drug sale that the arresting officers witnessed or that
either of them handled any of the cocaine involved in it. They fail to mention, however,
that there was considerable other testimony linking them to the crime. As part of the
government's case, for instance, several police officers testified that they saw Mr. Ortiz
and Mr. Martinez driving a car to pick up cocaine and then deliver it to the place where


      2
      The Honorable Joseph F. Bataillon, United States District Judge for the District
of Nebraska.

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the drugs were sold. The police officers further testified that they witnessed Mr. Ortiz
and Mr. Martinez serving as lookouts while the sale of the drugs was occurring. The
government also provided unchallenged evidence that the police found cocaine in
Mr. Ortiz's car, all around the area next to where Mr. Martinez was seated.

       Reviewing the record of the trial, it appears clear to us that the jury chose to
believe the testimony of the police officers over the theories that Mr. Ortiz and
Mr. Martinez advanced. It is not our province to assess the credibility of witnesses,
see United States v. Washington, 197 F.3d 1214, 1217 (8th Cir. 1999), cert. denied,
2000 WL 1053937, 69 U.S.L.W. 3363 (2000), and we have held that "a jury verdict
should not be overturned lightly," United States v. Sykes, 977 F.2d 1242, 1247 (8th
Cir. 1992). The application of these principles to the instant case leads us to conclude
that the jury was not unreasonable in finding Mr. Ortiz and Mr. Martinez guilty based
on the evidence before it.

                                             II.
       Mr. Ortiz also argues that the trial court erred when it declined to submit the
question of drug quantity to the jury. In making this argument, he relies on Apprendi
v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000), in which the Supreme Court held 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." Because the maximum
penalty for an offense under 21 U.S.C. § 841(a)(1) increases according to drug
quantity, Mr. Ortiz contends that the trial court was obligated under Apprendi to let the
jury determine the amount of cocaine attributable to him.

      We disagree. We have explained previously that "[t]he rule of Apprendi only
applies where the non-jury factual determination increases the maximum sentence
beyond the statutory range authorized by the jury's verdict," United States v. Aguayo-
Delgado, 220 F.3d 926, 933 (8th Cir. 2000), cert. denied, 2000 WL 1634209, 69
U.S.L.W. 3364 (2000). In this case, the trial court gave Mr. Ortiz a sentence of 63

                                          -3-
months of imprisonment, which is less than the 20-year maximum that the statute
authorizes. See 21 U.S.C. § 841(b)(1)(C). Apprendi therefore has no application here.

                                             III.
       Mr. Ortiz asserts that the trial court incorrectly refused to grant him either a two-
or four-level reduction to his sentence pursuant to U.S.S.G. § 3B1.2. Under this
provision, a sentencing court may decrease the offense level of a defendant if it finds
that the defendant is only a minor or minimal participant in the criminal activity.
Mr. Ortiz maintains that he deserves a lower sentence than the one that the trial court
gave him because the evidence at trial demonstrated, at most, that he played only a
small part in the sale of cocaine to the police.

       We have held that whether a defendant should be characterized as a minor or
minimal participant in an offense is a question of fact, and we review the sentencing
court's factual finding under a clearly erroneous standard. See United States v.
Fregoso, 60 F.3d 1314, 1329 (8th Cir. 1995); see also United States v. Hale, 1 F.3d
691, 694 (8th Cir. 1993). In this case, the trial court determined that Mr. Ortiz was
neither a minor nor minimal participant in the crime because he was the driver of the
vehicle used for transporting the cocaine and seemed to be quite aware of what was
happening during the drug sale. Because the trial court's finding does not leave us with
a "definite and firm conviction that a mistake has been committed," United States v.
Westerman, 973 F.2d 1422, 1428 (8th Cir. 1992), we are unable to say that it was
clearly erroneous.

                                         IV.
       For the reasons stated above, we affirm the judgment of the trial court.




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A true copy.

      Attest:

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




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