                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-1924
                                   ___________

United States of America,              *
                                       *
             Appellee,                 *
                                       *
      v.                               * Appeal from the United States
                                       * District Court for the
Salvador Barrios-Perez, also known     * Southern District of Iowa.
as Salvador Barrios, also known as     *
Flaco, also known as Chava, also       *
known as Javier Eduardo Miranda,       *
                                       *
             Appellant.                *
                                  ___________

                             Submitted: December 10, 2002

                                  Filed: February 3, 2003
                                   ___________

Before WOLLMAN, GIBSON, and MELLOY, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

      A jury convicted Salvador Barrios-Perez (Barrios) of conspiring to distribute
methamphetamine, cocaine, and marijuana in violation of 21 U.S.C. §§ 841(b)(1),
846, distributing methamphetamine in violation of 21 U.S.C. § 841(a)(1), distributing
methamphetamine to a person of less than twenty-one years of age in violation of 21
U.S.C. § 859, and possessing a firearm in furtherance of a drug conspiracy in
violation of 18 U.S.C. § 924(c)(1). The district court1 sentenced Barrios to 295
months in prison. Barrios appeals, contending that the evidence presented was
insufficient to convict him of the distribution and firearm charges and that the
instructions submitted to the jury constructively amended the indictment in violation
of his Fifth and Sixth Amendment rights. Barrios also challenges his sentence,
asserting that the district court erred in calculating his base offense level under USSG
§ 2D1.1. We affirm.

                      I. SUFFICIENCY OF THE EVIDENCE

       In considering a challenge to the sufficiency of the evidence supporting a guilty
verdict, we “look at the evidence in the light most favorable to the verdict and accept
as established all reasonable inferences supporting the verdict.” United States v.
Harmon, 194 F.3d 890, 892 (8th Cir. 1999) (citation omitted). We will uphold the
conviction unless “no reasonable jury could have found the defendant guilty beyond
a reasonable doubt.” Id. (quotations omitted).

      Barrios and seven other individuals were indicted with drug conspiracy and
weapons violations on the basis of evidence obtained during police searches and
seizures in Des Moines, Iowa, on July 27, 2001. Count II alleged that Barrios
possessed a firearm in furtherance of a drug conspiracy in violation of 18 U.S.C. §
924(c). After a controlled delivery of a package containing methamphetamine to
1672 Northwest 84th Street, police officers executed a search warrant for the house.
Police officers seized approximately 4.4 pounds of methamphetamine, 325 pounds
of marijuana, and a .45 caliber semi-automatic pistol. Evidence adduced at trial
linked Barrios to both the pistol and the drugs seized at the residence. Documentary
evidence pointed to Barrios’ management of the stash house. Ornelas, who accepted


      1
       The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.

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the package during the controlled delivery to 1672 Northwest 84th Street, testified
that Barrios had given the pistol to him so that he could threaten a man who “was
talking about things that he shouldn’t [have been] talking about.” “The credibility of
[Ornelas’ testimony] was for the jury to determine . . . .” United States v. Miller, 283
F.3d 907, 912 (8th Cir. 2002) (citation omitted). The jury found Ornelas’ testimony
to be credible, and thus we conclude that “the evidence amply supported the jury’s
verdict on this count.” Id.

       Counts VIII and IX alleged that Barrios distributed more than fifty grams of
methamphetamine in violation of 21 U.S.C. § 841(a)(1) and distributed more than
fifty grams of methamphetamine to a person less than twenty-one years old in
violation of 21 U.S.C. § 859. Jose Ramirez was less than twenty-one years old when
police seized a pound of methamphetamine from his vehicle on July 27, 2001.
Ramirez testified that he knew Barrios and that Barrios had delivered marijuana to
him on several occasions. Ramirez also testified that he procured the
methamphetamine from Matias Leonos and Barrios and that Barrios was supposed
to have delivered the pound of methamphetamine to him. Accordingly, the evidence
is sufficient to support the jury’s verdict on this count.

                        II. CONSTRUCTIVE AMENDMENT

       Barrios asserts that the district court’s instructions to the jury constructively
amended the indictment in violation of his Fifth Amendment right to indictment by
grand jury and Sixth Amendment right to due process. Constructive amendment of
an indictment constitutes reversible error and “occurs when the essential elements of
the offense set forth in the indictment are [in effect] altered . . . by the prosecutor or
the court after the grand jury has passed upon them.” United States v. Emery, 186
F.3d 921, 927 (8th Cir. 1999) (quoting United States v. Begnaud, 783 F.2d 144, 147
n.4 (8th Cir. 1986)). Jury instructions are found to “have caused a constructive



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amendment only if they ‘in effect allowed the jury to convict the defendant of an
offense different from or in addition to the offenses alleged in the indictment.’” Id.

      Barrios contends that the indictment was constructively amended because it
was phrased in the conjunctive, whereas the district court instructed the jury in the
disjunctive. An instruction that requires the jury to find a conspiracy to distribute
marijuana or cocaine, or both, does “not permit the jury to convict the defendant of
an offense different from that charged in the indictment.” United States v. Moore,
184 F.3d 790, 793 (8th Cir. 1999) (quoting United States v. Lueth, 807 F.2d 719,
733-34 (8th Cir. 1986)). The offense charged both in Moore and in the instant case
was conspiracy to distribute a controlled substance. See Moore, 184 F.3d at 793;
Lueth, 807 F.2d at 734. Barrios “could have committed this offense with either
marijuana, [methamphetamine,] or cocaine.” Moore, 184 F.3d at 793; Lueth, 807
F.2d at 734. Because the challenged instruction did not alter the number or nature of
the crimes for which Barrios could be convicted, no constructive amendment
occurred.

                               III. SENTENCING ISSUE

       Barrios asserts that the district court erred in calculating his base offense level
under USSG § 2D1.1 for the purposes of sentencing. “We review the application of
the guidelines . . . de novo and factual findings for clear error.” United States v.
Gomez, 271 F.3d 779, 781 (8th Cir. 2001) (citations omitted). Because it is a factual
finding, we will reverse the district court’s determination of drug quantity “only if the
entire record definitely and firmly convinces us that a mistake has been made.”
United States v. Granados, 202 F.3d 1025, 1028 (8th Cir. 2000) (citation omitted).

      Barrios contends that the methamphetamine seized by the postal inspectors en
route to the house at 84th Street and from Jose Ramirez should not have been
included in the amount upon which the calculation of his sentence was based. There

                                           -4-
was evidence linking Barrios to methamphetamine seized from both sources,
however, and thus the district court did not err in including it in calculating Barrios’
base offense level.

      The judgment is affirmed.

      A true copy.

             Attest:

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




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