                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
           ___________

           No. 08-1331
           ___________

United States of America,              *
                                       *
              Appellee,                *
                                       *
      v.                               *
                                       *
Geno Webb,                             *
                                       *
              Appellant.               *
           ___________
                                           Appeals from the United States
           No. 08-1332                     District Court for the
           ___________                     Southern District of Iowa.

United States of America,              *
                                       *
              Appellee,                *
                                       *
      v.                               *
                                       *
Micaiah Rey, also known as Joshua      *
Sanders, also known as Cal,            *
                                       *
              Appellant.               *

                                  ___________

                             Submitted: September 23, 2008
                                Filed: October 28, 2008
                                 ___________

Before LOKEN, Chief Judge, WOLLMAN, and SMITH, Circuit Judges.
                                   ___________

WOLLMAN, Circuit Judge.

       Micaiah Rey and Geno Webb were convicted of conspiracy to distribute
cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1), and 846. In response
to an interrogatory, the jury found beyond a reasonable doubt that the conspiracy
involved more than five but less than fifty grams of cocaine base. For sentencing
purposes, the district court1 determined by a preponderance of the evidence that the
conspiracy involved more than fifty but less than 150 grams of cocaine base.
Accordingly, Rey was sentenced to 240 months’ imprisonment, and Webb was
sentenced to 130 months’ imprisonment. Rey and Webb appeal, contending that their
sentences must be based on the amount of drugs found by the jury and not the amount
found by the judge. We affirm.

                                         I.

       Between April 2005 and November 2006, law enforcement agencies in
southeastern Iowa investigated Webb’s and Rey’s sales of cocaine base, also known
as crack cocaine. Throughout the investigation, officers enlisted several cooperating
individuals to purchase crack cocaine in controlled buys. Typically, a cooperating
individual called either Webb or Rey to arrange a meeting time and place. Officers
provided pre-serialized money to the cooperating individual, searched the individual
before and after the buy, and monitored the exchange. The individual met with either
Webb or Rey, purchased the drugs, and returned the drugs to the officers. The
ongoing investigation also involved three warrant-based searches. Rey was present
for all three searches, and Webb was present for two. These searches uncovered
drugs, drug paraphernalia, and approximately $14,000 cash. Each stash of money


      1
        The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.

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included pre-serialized bills from the controlled buys. A grand jury charged Webb
and Rey in a five-count superseding indictment, including one count of conspiracy to
distribute at least fifty grams of a mixture or substance containing cocaine base.

       The government presented several witnesses who testified to buying crack
cocaine from Webb and Rey, either for their personal use or in controlled buys.
Various law enforcement officers testified regarding the controlled buys and the
searches. The physical evidence that the government submitted included audio
recordings of cooperating individuals arranging controlled buys with Webb or Rey;
crack cocaine purchased in the controlled buys; drugs, drug paraphernalia, and photos
of money seized during the searches; and cellular phone records. The jury found both
Webb and Rey guilty of conspiracy to distribute crack cocaine, as charged in the
indictment. In response to an interrogatory, the jury found beyond a reasonable doubt
that the amount of cocaine base involved in the conspiracy was more than five grams
but less than fifty grams.

       At the first sentencing hearing, the district court found by a preponderance of
the evidence that the conspiracy involved more than fifty and less than 150 grams of
crack cocaine. The court found that the witness testimony regarding drug purchases
for personal use was credible and that the money was evidence of drug dealing beyond
that found by the jury. Accordingly, the court assigned a base offense level of 30 to
both Webb and Rey. After denying all requests for adjustments, the district court
concluded that both defendants’ criminal history category was III, resulting in an
advisory guidelines sentencing range of between 121 and 151 months. The court
sentenced Webb to 130 months’ imprisonment. At a later hearing, the court found
that Rey’s prior Illinois state conviction qualified as a felony drug offense and that he
was subject to the mandatory minimum sentence set forth in 21 U.S.C. § 841(b)(1)(A).
Over Rey’s objection, he was sentenced to 240 months’ imprisonment.




                                          -3-
                                         II.

       Webb and Rey argue that the district court erred at sentencing by applying a
preponderance of the evidence standard to determine drug quantity in excess of that
found by the jury beyond a reasonable doubt. We review this issue de novo, in light
of our case law interpreting 21 U.S.C. § 841(b)(1) and Apprendi v. New Jersey, 530
U.S. 466 (2000).

       A preponderance of evidence standard of proof applies to judicial fact finding
at sentencing, a standard that satisfies both the Fifth Amendment’s guarantee to due
process and the Sixth Amendment right to trial by jury. United States v. Cole, 537
F.3d 923, 929 (8th Cir. 2008). Drug type and quantity determine the statutory
sentencing range in cases charged under 21 U.S.C. §§ 841 and 846, with the statutory
maximum being based on the amount a jury finds beyond a reasonable doubt. United
States v. Aguayo-Delgado, 220 F.3d 926, 933 (8th Cir. 2000). The government,
however, is not required to prove quantity to convict a defendant. United States v.
Rolon-Ramos, 502 F.3d 750, 755-56 (8th Cir. 2007). Rather, if the government
wishes to seek a sentence that exceeds the statutory sentencing range for an
indeterminate amount of drugs, “then [it] must charge the facts giving rise to the
increased sentence in the indictment and must prove those facts to the jury beyond a
reasonable doubt.” Aguayo-Delgado, 220 F.3d at 933. Accordingly, a district court
may impose a sentence based on a drug quantity determination greater than that found
by the jury so long as the sentence does not exceed the statutory maximum of the
convicted offense and the district court’s calculation is supported by sufficient
evidence. United States v. Serrano-Lopez, 366 F.3d 628, 638 (8th Cir. 2004); United
States v. Johnston, 353 F.3d 617, 6245 (8th Cir. 2003) (per curiam). This is true even
where the district court’s finding subjects a defendant to a lengthier mandatory
minimum sentence than that which would be applicable based solely on the jury’s
quantity determination. United States v. Jenkins, 537 F.3d 894, 896-97 (8th Cir.
2008).

                                         -4-
        The sentences imposed in this case were appropriate because they did not
exceed the statutory maximum of the convicted offense and the evidence supported
the district court’s drug quantity finding. As stated above, the jury found beyond a
reasonable doubt that Webb and Rey conspired to distribute between five and fifty
grams of cocaine base. The penalties set forth in § 841(b)(1)(B) for conspiracy to
distribute more than five grams of cocaine base include a term of imprisonment
between five and forty years, and if the defendant has a prior felony drug offense
conviction, a term of imprisonment between ten years and life. Even though the
district court sentenced the defendants based on its finding that the conspiracy
involved between fifty and 150 grams of cocaine base, both Webb and Rey were
sentenced within the § 841(b)(1)(B) range. Stated differently, neither was sentenced
to a term of imprisonment greater than the statutory maximum for the offense that the
government proved to a jury beyond a reasonable doubt.

       Moreover, the district court’s drug quantity determination was not clearly
erroneous. See United States v. Titlbach, 300 F.3d 919, 923 (8th Cir. 2002)
(reviewing for clear error the district court’s drug quantity determination). Webb and
Rey concede that the physical evidence showed that the conspiracy involved about
thirty-five grams of cocaine base, which was the total amount purchased in the
controlled buys and seized in the related searches. The district court found credible
the witness testimony regarding drug buys for personal use and found that the seized
money was evidence of drug dealing beyond that which the jury found. Based on the
record before us, a preponderance of the evidence supported the district court’s drug
quantity determination.

       Rey argues that the district court erred in applying the mandatory minimum
sentence of § 841(b)(1)(A), conspiracy to distribute fifty grams or more of cocaine
base, because the jury found that the conspiracy involved less than fifty grams. This
argument fails, however, because facts that increase a mandatory minimum sentence
need not be proved to a jury beyond a reasonable doubt, as long as the penalty is

                                         -5-
within the range of the convicted offense. Aguayo-Delgado, 220 F.3d at 933-34. We
recently held that a district court erred when it failed to apply the mandatory minimum
sentence of § 841(b)(1)(A) to a defendant who had been indicted and convicted under
§ 841(b)(1)(B). Jenkins, 537 F.3d at 896-97. Because the district court found by a
preponderance of the evidence that the defendant was responsible for 96.20 grams of
cocaine base, he was subject to the § 841(b)(1)(A) mandatory minimum sentence. Id.
Accordingly, the district court here correctly sentenced Rey to twenty years’
imprisonment, the mandatory minimum under § 841(b)(1)(A).

       Similarly, Rey urges us to adopt the Second Circuit’s opinion in United States
v. Gonzalez, 420 F.3d 111, 115 (2nd Cir. 2005), and hold that drug quantities are
elements of an offense under 21 U.S.C. § 841(b)(1). Rey argues that § 841(b)(1)
defines three distinct crimes, each based on the amount of drugs involved in the
conspiracy, and that quantity must be proved beyond a reasonable doubt to a jury.
Rey’s proposal, however, is contrary to the law of this circuit. We have previously
held that the statute sets forth the elements of the offense that must be proved beyond
a reasonable doubt and that “drug quantity is not such an element unless the quantity
can and does lead to the imposition of a sentence greater than the otherwise applicable
statutory maximum.” Serrano-Lopez, 366 F.3d at 638. We are not at liberty to
overrule circuit precedent. United States v. Lucas, 521 F.3d 861, 867 (8th Cir. 2008)
(“[O]nly the en banc court can overrule prior circuit precedent.”).

       Finally, Webb and Rey argue that the district court’s drug quantity
determination violated the Fifth Amendment’s prohibition on double jeopardy. The
double jeopardy clause generally has no application in the sentencing context. Monge
v. California, 524 U.S. 721, 728 (1998). Because drug quantity is not an element of
the offense in this case, the sentences did not subject Webb or Rey to new jeopardy
for previously committed crimes, and thus no constitutional error occurred.




                                         -6-
                        Conclusion

The sentences are affirmed.
                ______________________________




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