                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1156
                                   ___________

United States of America,            *
                                     *
            Appellee,                *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * District of Nebraska.
Salvador Galaviz-Luna, also known as *
Chavo, also known as Manual Salinas, *
                                     *
            Appellant.               *
                                ___________

                         Submitted: August 26, 2004
                             Filed: August 3, 2005
                                  ___________

Before BYE, LAY, and RILEY, Circuit Judges.
                             ___________

RILEY, Circuit Judge.

      Salvador Galaviz-Luna (Galaviz-Luna) was charged with and convicted of
conspiracy to distribute and possess with intent to distribute 500 grams or more of a
substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1), and 846. The district court1 sentenced Galaviz-Luna to 235 months’


      1
      The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska. Judge Kopf served as Chief Judge of the District of Nebraska until
November 30, 2004.
imprisonment and five years’ supervised release. On appeal, Galaviz-Luna
challenges the sufficiency of the evidence used to convict him. Galaviz-Luna also
asserts the district court erred in enhancing his offense level under United States
Sentencing Guideline (U.S.S.G.) § 3C1.1 on the basis he obstructed justice, and he
further argues his sentence should be vacated and the case remanded for resentencing
pursuant to United States v. Booker, 125 S. Ct. 738 (2005). We affirm.

I.     BACKGROUND
       At trial, the jury heard the testimony of nine witnesses cooperating under
federal plea agreements. These nine witnesses–Lois Anthony, Rodney Sherman,
Hugo Corrales, Ross Racek, Jose Federico Guerro Vasquez, Charles Prorok, Fidel
Martinez, Jonathan Trejo, and Jackie Boersen–related similar accounts of Galaviz-
Luna purchasing and distributing methamphetamine at various times and in various
amounts from April 1998 through January 2002. Galaviz-Luna’s counsel
characterized these adverse witnesses as drug-addicted felons seeking sentence
reductions in exchange for testifying against Galaviz-Luna. Galaviz-Luna admitted
he used methamphetamine with several of the government’s witnesses, but he denied
he ever sold methamphetamine. The jury convicted Galaviz-Luna of conspiracy to
distribute methamphetamine. At sentencing, the district court found Galaviz-Luna
perjured himself with his trial testimony, and accordingly applied a two-level
obstruction of justice enhancement under U.S.S.G. § 3C1.1.

      Galaviz-Luna appeals his conviction, arguing “[t]he only evidence that
Mr. Galaviz-Luna was involved in drug dealing came from drug dealers who had
been caught and were seeking to feather their own nests by informing on another.”
Galaviz-Luna alternatively appeals his sentence, contending the district court erred
in enhancing his offense level by failing to address clearly each element of perjury.
Galaviz-Luna also contends the district court violated his Sixth Amendment rights,
because (1) the facts supporting the sentencing enhancement for obstruction of justice
were not admitted by Galaviz-Luna nor proved to a jury beyond a reasonable doubt,

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and (2) the district court erroneously applied the sentencing guidelines in a
mandatory, rather than an advisory, fashion.

II.    DISCUSSION
       A.    Sufficiency of the Evidence
       Galaviz-Luna contends there was insufficient evidence to support his
conspiracy conviction, because the evidence against him came “completely from
subjective testimony from alleged co-conspirators.” Galaviz-Luna points out that no
controlled substances, scales, or large sums of money were seized in connection with
his case.

       Galaviz-Luna faces a “high hurdle” with his argument concerning the
sufficiency of the evidence used to convict him, because the standard of review on
this issue is strict. United States v. Cook, 356 F.3d 913, 917 (8th Cir. 2004). We
review “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 support the jury’s verdict.” Id. (quoting
United States v. Sanders, 341 F.3d 809, 815 (8th Cir. 2003)). We reverse “only if no
reasonable jury could have found [Galaviz-Luna] guilty.” Id. The government may
prove the conspiracy with either direct or circumstantial evidence. Id.

        We conclude the evidence, viewed most favorably to the jury’s verdict, was
sufficient to support Galaviz-Luna’s conviction. Several government witnesses
testified they received methamphetamine from Galaviz-Luna and then resold the
methamphetamine to other individuals. The cooperating witnesses were cross-
examined as to their plea agreements and the possibility of receiving sentence
reductions in exchange for their testimony. Issues of witness credibility and motive
are for a jury to decide, see id., and Galaviz-Luna’s case does not merit deviation
from this precedent. In addition, a police officer, who inspected the patrol car in
which Galaviz-Luna had been seated, discovered a folded up dollar bill with a light-

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colored powdery substance inside it, which substance was later identified as
methamphetamine. Galaviz-Luna told an officer he placed the folded bill under the
car seat because he was scared. Upon questioning, Galaviz-Luna admitted the light-
colored powdery substance inside the dollar bill was “smack.” We affirm Galaviz-
Luna’s conviction.

      B.    Sentence Enhancement
      Galaviz-Luna advances two arguments suggesting the district court erred in
sentencing him. First, Galaviz-Luna contends the district court clearly erred in
enhancing his offense level under U.S.S.G. § 3C1.1 for obstructing justice. Second,
Galaviz-Luna raises a Sixth Amendment challenge under Booker. We will address
each argument in turn.

             1.     Obstructing Justice
      In his initial brief on appeal, Galaviz-Luna challenges as clear error the
application of a two-level sentence enhancement for obstruction of justice. “Even
after Booker, ‘[w]e review the [interpretation and] application of the sentencing
guidelines de novo and review the district court’s factual findings for clear error.’”
United States v. Porter, 409 F.3d 910, 917-18 (8th Cir. 2005) (alterations in original)
(quoting United States v. Mathijssen, 406 F.3d 496, 498 (8th Cir. 2005)). Whether
Galaviz-Luna committed perjury and, in so doing, obstructed justice is a factual
finding, and we reverse a district court’s imposition of a sentence enhancement under
U.S.S.G. § 3C1.1 only upon a showing of clear error. See United States v. Red Elk,
368 F.3d 1047, 1052 (8th Cir. 2004).

      “A witness commits perjury if he ‘gives false testimony concerning a material
matter with the [willful] intent to provide false testimony, rather than as a result of
confusion, mistake, or faulty memory.’” United States v. Thomas, 93 F.3d 479, 489
(8th Cir. 1996) (quoting United States v. Dunnigan, 507 U.S. 87, 94 (1993)). Before
imposing a sentence enhancement for obstruction of justice, “the district court must

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review the evidence and make an independent finding of perjury by a preponderance
of the evidence, one not based solely on the jury’s disbelief of the defendant’s
testimony.” Red Elk, 368 F.3d at 1052. Given the conflict between Galaviz-Luna’s
trial testimony and the other evidence at trial, the district court found Galaviz-Luna
perjured himself, and said:

      The overwhelming trial evidence from a wide variety and diversity of
      people, is that [Galaviz-Luna] was a drug dealer, and actively a drug
      dealer, and took significant steps to deal drugs. And it is true that he
      testified contrary to his proffer when it became obvious that if he stuck
      by his proffer, he would have implicated himself in distributable
      quantities. And I, therefore, overrule the objection and find that the
      obstruction [of] justice enhancement is appropriately imposed here.

The district court then asked, “Do the parties require any further findings?” Both the
government and Galaviz-Luna’s counsel replied, “No.” We will not at this late date
ask the district court to make further perjury findings.

       The district court, in effect, made a specific finding of perjury, and we see no
evidence this finding was clearly erroneous. Therefore, we hold the district court did
not clearly err in assessing a two-level sentence enhancement for obstruction of
justice under U.S.S.G. § 3C1.1.

              2.    Booker
       In the wake of the Supreme Court’s decision in Booker, Galaviz-Luna filed a
supplemental brief arguing his sentence should be vacated and the case remanded for
resentencing, because (1) the district court enhanced his sentence based on a judicial
finding that he obstructed justice by committing perjury under U.S.S.G. § 3C1.1, and
(2) the district court sentenced him under a mandatory, rather than an advisory,
sentencing regime.



                                          -5-
       Galaviz-Luna’s first argument, i.e., that the district court violated Booker by
enhancing his sentence based on judicial fact finding, is unavailing. The district court
found facts supporting the obstruction of justice enhancement based on a
preponderance of the evidence, but such judicial fact finding is not necessarily
unconstitutional under Booker. See United States v. Keller, No. 04-2459, 2005 WL
1558125, at *2 (8th Cir. July 5, 2005). “Nothing in Booker suggests that sentencing
judges are required to find sentence-enhancing facts beyond a reasonable doubt under
the advisory Guidelines regime.” United States v. Pirani, 406 F.3d 543, 551 n.4 (8th
Cir. 2005) (en banc). Rather, as discussed below, the error is that the district court
applied its fact finding under a mandatory Guidelines system.

       Because Galaviz-Luna did not object to his sentence on Sixth Amendment
grounds in the district court, we review for plain error. See Fed. R. Crim. P. 52(b);
Pirani, 406 F.3d at 549-50. Under plain error review, we may not correct an error not
raised in the district court unless there is “(1) error, (2) that is plain, and (3) that
affects substantial rights. If all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if (4) the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Id. at 550
(quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997)).

      Insofar as the district court did not specifically ask and instruct the jury to find
beyond a reasonable doubt whether Galaviz-Luna committed perjury, and thus
obstructed justice, the district court’s imposition of this enhancement under a
mandatory Guidelines regime was an error that was plain under the Sixth
Amendment. See United States v. Ziesman, 409 F.3d 941, 957 (8th Cir. 2005)
(concluding “the district court committed error in applying the Guidelines in a
mandatory fashion based on judge-found facts, and the error is plain at the time of
appellate consideration”).




                                           -6-
       Turning to the third prong of plain-error review, we ask whether the error
affects substantial rights, which “means that the error must have been prejudicial: It
must have affected the outcome of the district court proceedings.” United States v.
Olano, 507 U.S. 725, 734 (1993). “It is the defendant rather than the Government
who bears the burden of persuasion with respect to prejudice.” Id. To carry this
burden, Galaviz-Luna must establish “a ‘reasonable probability,’ based on the
appellate record as a whole, that but for the error he would have received a more
favorable sentence.” Pirani, 406 F.3d at 552.

       Galaviz-Luna argues his burden of demonstrating prejudice is satisfied by the
district court’s statement at sentencing: “I’m prepared to sentence the defendant at the
low end of the guidelines. . . . [T]hat’s hardly a low end, but in any event, that’s what
I’m prepared to do.” However, a sentence at the low end of the applicable Guidelines
range is not, by itself, sufficient to show a reasonable probability of a lesser sentence
in the absence of mandatory sentencing guidelines. See Pirani, 406 F.3d at 553.

       We conclude the record as a whole does not establish a reasonable probability
the district court would have imposed a more lenient sentence under an advisory
Guidelines system. In fact, the district court indicated Galaviz-Luna’s sentence
“reflect[s] the seriousness of the offense, . . . promote[s] respect for the law, . . .
provide[s] for just punishment, and . . . afford[s] deterrents.” After the court
overruled Galaviz-Luna’s objections to the obstruction of justice enhancement and
imposed the enhancement, counsel for Galaviz-Luna expressly requested the sentence
given. Because Galaviz-Luna fails to meet the third prong of the plain-error test, we
need not consider the fourth prong of plain-error review. The district court did not
plainly err in sentencing Galaviz-Luna.

III.   CONCLUSION
       For the foregoing reasons, we affirm Galaviz-Luna’s conviction and sentence.
                           ______________________________


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