                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-2428
                                    ___________

United States of America,                *
                                         *
             Appellee,                   * Appeal from the United States
                                         * District Court for the Southern
      v.                                 * District of Iowa.
                                         *
Ernest Carl Crank,                       *       [UNPUBLISHED]
                                         *
             Appellant.                  *
                                    ___________

                            Submitted: March 1, 2001
                                Filed: March 6, 2001
                                    ___________

Before LOKEN, FAGG, and BEAM, Circuit Judges.
                           ___________

PER CURIAM.

       A jury found Ernest Carl Crank guilty of one count of conspiring to distribute
cocaine and cocaine base, four counts of distributing cocaine base, and one count of
distributing cocaine, all in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district
court sentenced Crank to concurrent prison terms of 245 months on each of the
conspiracy and cocaine-base-distribution counts, and 240 months on the cocaine-
distribution count, to be followed by concurrent supervised release terms totaling five
years. For reversal, Crank challenges the sufficiency of the evidence to support his
conviction, and the drug-quantity attribution for sentencing purposes.
       At trial, the government introduced two witnesses who testified Crank furnished
them with the cocaine and cocaine base they sold on five specific occasions to
undercover agents, and Crank furnished them with cocaine and cocaine base for resale
regularly during most of 1996. This evidence, as corroborated by the testimony of
several law enforcement officials, was sufficient to support Crank’s conspiracy and
distribution convictions. See United States v. Robinson, 217 F.3d 560, 564 (8th Cir.),
cert. denied, 121 S. Ct. 497 (2000); United States v. Moore, 212 F.3d 441, 444-45 (8th
Cir. 2000).

       Turning to Crank’s sentence, we conclude the district court’s decision to hold
Crank accountable for 1.4 kilograms of cocaine base for sentencing purposes, after
cautiously taking into consideration one of the witness’s tendency to exaggerate, was
not clearly erroneous. See United States v. Padilla-Pena, 129 F.3d 457, 467 (8th Cir.
1997) (reviewing court is particularly hesitant to find clear error in district court’s drug-
quantity findings where those findings are based on determinations of witness
credibility), cert. denied, 524 U.S. 905, 906 (1998). Nevertheless, we must vacate the
245-month prison terms imposed on the conspiracy and cocaine-base-distribution
convictions and remand for reconsideration in light of recent Supreme Court directives.
See Apprendi v. New Jersey, 120 S. Ct. 2348, 2362-63 (2000) (other than fact of prior
conviction, any fact that increases penalty beyond prescribed statutory maximum must
be submitted to jury and proved beyond reasonable doubt). Where, as here, the
quantity of drugs was not alleged in the indictment or submitted to the jury, Crank
could not be sentenced above the twenty-year statutory maximum prison term he faced,
without reference to drug quantity, for his involvement with these schedule II controlled
substances. See 21 U.S.C. § 841(b)(1)(C) (authorizing maximum twenty-year prison
term for first-time felony schedule II controlled substance offenders, and minimum
three-year supervised release term); United States v. Nicholson, 231 F.3d 445, 452-55
(8th Cir. 2000), petition for cert. filed, (Jan. 29, 2001) (No. 00-8376).




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      Accordingly, we affirm Crank’s convictions, and the sentence imposed on his
cocaine-distribution conviction. We vacate the sentences imposed on Crank’s five
convictions related to cocaine base, all of which resulted in prison terms exceeding the
twenty-year statutory maximum, and remand for resentencing consistent with this
opinion. The government’s uncontested motion to supplement the record on appeal is
granted.

      A true copy.

             Attest:

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




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