                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1664
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Anthony Hicks,                          *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: November 19, 2004
                                Filed: May 27, 2005
                                 ___________

Before SMITH, BEAM, and BENTON, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

       Anthony T. Hicks ("Hicks") was charged in a two-count indictment with (1)
distribution of approximately 8.67 grams of a mixture containing a detectable amount
of cocaine base, commonly called "crack cocaine" having previously been convicted
of a felony drug offense, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 851,
and 18 U.S.C. § 2, and (2) conspiracy to distribute 5 grams or more of a mixture
containing a detectable amount of cocaine base, commonly called "crack cocaine,"
having been previously convicted of a felony drug offense, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(B), 846, and 851. Hicks pled guilty to the conspiracy charge
in the United States District Court for the Northern District of Iowa and was
sentenced to 151 months imprisonment and eight years supervised release. Hicks filed
a timely notice of appeal and argued that the district court's findings of fact during the
sentencing were clearly erroneous. For the reasons below, we affirm the district
court's1 sentence of imprisonment and supervised release.

       After entering his guilty plea, Hicks sought a "safety-valve" sentence reduction
and, at his request, was interviewed by law enforcement officers. The purpose of the
interview was to establish drug quantity and the date Hicks began his criminal
conduct for criminal history scoring. During that interview, Hicks stated that he
moved to Cedar Rapids, Iowa, in June 2000 and began selling crack cocaine in that
area for approximately six to eight months prior to December 2000. Hicks revealed
that, beginning in June 2000, he sold one-quarter ounce quantities of crack cocaine
each month until December 2000. According to Hicks, when he resumed his crack
cocaine sales in January 2001, he was selling at a rate of approximately one ounce per
month for the next year. According to Hicks, beginning in January 2002, he took a
three to four month sabbatical from selling crack cocaine, but later resumed his crack
cocaine sales, obtaining and selling one ounce quantities of crack cocaine per month
through the summer of 2002.




      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.

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       Based on Hicks's admissions2 in this interview, the Presentence Investigation
Report ("PSR") calculated the quantity of crack cocaine at approximately 500 grams,
resulting in a base offense level 36. The PSR also concluded that Hicks's offense
began while he was on probation and that his probation was revoked on August 1,
2000. Hicks objected to the PSR's quantity calculation, specifically, Paragraph 13,
which calculated Hicks's distribution at one-quarter ounce of crack per month
beginning in June 2000 and continuing for six months. Hicks also objected to
Paragraph 14, which assumed Hicks sold one ounce of crack per month from January
2001 to January 2002.

        At sentencing, Hicks testified that during the safety-valve interview he was
mistaken about when he settled and began selling crack cocaine in Cedar Rapids. He
testified that he actually moved to Cedar Rapids permanently in October 2000.

      2
        Hicks filed a motion for supplemental briefing on the applicability of the
Supreme Court's decision in Blakely v. Washington, 542 U.S.           ,124 S.Ct. 2531
(2004), upon his sentencing. We find that no additional briefing is required, as the
district court's drug quantity finding, although not determined by the jury, was based
upon Hicks's admissions during the safety valve interview after he pled guilty. See
United States v. Poulack, 236 F.3d 932, 937 (8th Cir. 2001) (affirming sentence based
on drug quantity amount determined by district judge where defendant stipulated and
admitted to drug quantity figure when he had knowledge that quantity was a key
factor in determining the maximum sentence). The district court may sentence a
criminal defendant based upon admitted facts without running afoul of Apprendi v.
New Jersey, 530 U.S. 466 (2000), which was extended by Blakely and, most recently,
United States v. Booker, Nos. 04-104, 04-105, 2005 U.S. LEXIS 628, at *45-*46
(Jan. 12, 2005) ("[a]ny fact . . . which is necessary to support a sentence exceeding
the maximum authorized by facts established by a plea of guilty or a jury verdict must
be admitted by the defendant or proved by a jury beyond a reasonable doubt")
(emphasis added). Moreover, as noted by the district court, the sentence of 151
months is at the low end of the Guidelines range for a total offense level 33, but is at
the high end of the Guidelines range of the total offense level had Hicks's in-court
testimony about the quantity of drugs been deemed credible. Therefore, Hicks's
sentence may not have been any different.

                                          -3-
According to Hicks, in the summers, during which the PSR assumed he was in Cedar
Rapids selling crack, he was actually in Chicago, Illinois, caring for his child and
younger siblings. Hicks explained that during the safety-valve interview, he first told
officers he began selling in late December 2000, but then recalled that it had to be
before that, and changed his answer to "summer" at some later point during the
interview. Hicks offered into evidence the permanent school record of his son as
proof that the child was enrolled in school in Cedar Rapids in October 2000. Hicks
testified that he enrolled his son in school shortly after they moved to Cedar Rapids
permanently. Hicks also testified that in August of 2000, he had a couple of court
cases in Chicago and that he did not begin dealing crack in Cedar Rapids until
sometime after those cases were resolved, which occurred in mid-August 2000.
Hicks's sister also testified and supported her brother's account of when he
permanently settled in Cedar Rapids.

      The district court overruled Hicks's objections regarding the calculation of drug
quantity, "safety-valve" status, and criminal history calculation. The court specifically
found that Hicks's in-court testimony was not credible, as Hicks had substantial
motive to lie. We review the district court's sentence under the Guidelines for
unreasonableness. United States v. Booker, Nos. 04-104, 04-105, 2005 U.S. LEXIS
628, at *70–*71, *80 (Jan. 12, 2005) (invalidating 18 U.S.C. § 3742(e)).

       When a defendant makes admissions regarding drug quantity, a court may rely
on the admissions to establish the base offense level. United States v. Symonds, 260
F.3d 934, 936 (8th Cir. 2001). In determining Hicks's base offense level and criminal
history score, the court was faced with two versions of events given by Hicks: one
given during the safety-valve interview and one given during the sentencing hearing.
There was no independent evidence to support Hicks's revised version of when he
settled and began selling crack in Cedar Rapids and it was not until the PSR revealed
the probation officer's Guidelines calculations that Hicks changed his story. The
district court found that Hicks's primary purpose in doing so was to lessen his base

                                          -4-
offense level and drug quantity calculation to take advantage of the safety-valve
reduction. The district court did not find his changed account credible. Based upon
this record, we are not persuaded to reverse that credibility determination. See
Darden, 70 F.3d at 1545.

      The district court's sentence is affirmed.
                       ______________________________




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