                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 05-1786
                                     ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
      v.                              * District Court for the District of
                                      * North Dakota.
Adrian Morin,                         *
                                      *
           Defendant - Appellant.     *
                                 ___________

                            Submitted: December 14, 2005
                                Filed: February 14, 2006 (Corrected 2/16/06)
                                    ___________

Before MELLOY, COLLOTON, and BENTON, Circuit Judges.
                          ___________

MELLOY, Circuit Judge.

       Adrian Steven Morin appeals the judgment of the district court1 entered after
he pleaded guilty to conspiracy to distribute and to possess with intent to distribute in
excess of 500 grams of a substance containing methamphetamine in violation of 21
U.S.C. §§ 841(a)(1) and 846. He argues that his sentence violated the Ex Post Facto
Clause and the Fifth and Sixth Amendments of the United States Constitution. He
also asserts that the district court made numerous errors in calculating the applicable


      1
       The Honorable Ralph R. Erickson, United States District Judge for the District
of North Dakota.
range under the United States Sentencing Guidelines (the “Guidelines”), and that the
district court improperly considered certain statements while calculating that range.
We affirm.

                                           I.

       Morin was one of thirteen defendants charged in a fifty-count indictment.
Morin entered into a plea agreement on August 30, 2004. The plea agreement
required the government to dismiss five counts against Morin, but allowed each party
to argue any issue related to Morin’s sentence. A sentencing hearing was held on
December 10, 2004, and, because of issues related to Blakely v. Washington, 542 U.S.
296 (2004), all parties agreed to delay sentencing until after the United States
Supreme Court’s ruling in United States v. Booker, 543 U.S. 220 (2005). At
sentencing on February 25, 2005, the government submitted Morin’s confession,
jailhouse recordings of Morin, various investigative reports, and grand jury testimony
of several co-conspirators. The district court reviewed these materials and the
Presentence Investigation Report.

       The district court concluded that Morin’s base offense under the Guidelines was
a 38. It added a two-level increase for possession of a firearm and a four-level
increase for being a leader, organizer or manager. U.S.S.G. §§ 2D1.1(b), 3B1.1(a).
It also allowed a three-level reduction for acceptance of responsibility. U.S.S.G. §
3C1.1. The district court determined that with a net offense level of 41 and a criminal
history of category I, the applicable Guidelines range was 324 to 405 months. It stated
that the Guidelines were advisory and that it considered the sentencing factors laid out
in 18 U.S.C. 3553(a). The district court then varied 60 months from the low end of




                                          -2-
the Guidelines range and sentenced Morin to 264 months,2 five years supervised
release, and a $100 special assessment. Morin filed a timely appeal.

                                          II.

       Morin appeals a number of aspects of his sentence. He argues that, because of
uncertainty in the law at the time he entered his plea, his sentence was imposed in
violation of the Fifth and Sixth Amendments and the Ex Post Facto Clause of the
United States Constitution. He also asserts that the district court made the following
errors in sentencing: improperly considering certain statements made by Morin,
finding that Morin possessed a dangerous weapon, determining that Morin was an
organizer or leader, and erroneously calculating the drug quantity attributed to Morin.
We address these arguments in turn.

Booker Arguments

      Morin entered a plea agreement post-Blakely and pre-Booker, but was
sentenced post-Booker. Because of the timing of his plea, Morin contends that it was
improper for the district court to impose sentence enhancements that are permissible
under Booker but which he claims were impermissible under Blakely. He specifically
claims that his sentence violates the Fifth and Sixth Amendments and the Ex Post
Facto Clause. These arguments are without merit. We have previously rejected the
argument that when a plea was entered into post-Blakely and pre-Booker, sentence
enhancements cannot be based on facts found by a judge. United States v. Salter, 418
F.3d 860, 862 (8th Cir. 2005). Morin acknowledged at his plea hearing that he faced
the possibility of life imprisonment for the crime he admitted. He was ultimately




      2
       This sentence was to run concurrently with another sentence previously
imposed for a separate conviction.

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sentenced to 264 months. As such, he cannot now claim that his plea was unknowing
or that he did not have fair warning about the possible length of the penalty imposed.

       Morin also argues that his sentence was in violation of Booker because the
district court did not properly treat the Guidelines as advisory. This argument is
without merit. Although the district court acknowledged the importance of the
Guidelines, it stated that it treated the Guidelines as advisory. The record indicates
that the district court considered other section 3553(a) factors. Additionally, the
district court sentenced Morin below the low end of the recommended Guidelines
range.

Sentence Enhancements

      In calculating Morin’s sentence, the district court considered a variety of
evidence including a tape-recorded confession of Morin and jailhouse recordings of
several of Morin’s phone calls. Morin asserts that the confession was improperly
obtained after he requested counsel. Morin also asserts that the jailhouse conversations
were communications obtained without a warrant and thus are inadmissible.

      The district court rejected Morin’s first argument because it believed Morin’s
testimony that he requested an attorney was not credible. “A district court’s
assessment of a witness’s credibility is almost never clear error given that court’s
comparative advantage at evaluating credibility.” United States v. Killingsworth, 413
F.3d 760, 763 (8th Cir. 2005). We find no clear error in the district court’s credibility
finding in this case. Because Morin had not requested an attorney, his confession was
admissible despite being given without an attorney present. Dormire v. Wilkinson,
249 F.3d 801, 805 (8th Cir. 2001) (holding that the right to counsel is invoked only
when “a suspect clearly and unambiguously makes known his [or her] desire to have
counsel present”) (internal quotations omitted).



                                          -4-
        The district court rejected Morin’s second argument because it found that Morin
impliedly consented to the taping of his jailhouse calls. United States v. Horr, 963
F.2d 1124, 1126 (8th Cir. 1992) (finding that an inmate impliedly consented to the
monitoring of his calls–despite his inability to refuse such monitoring– because he
was aware of the prison’s monitoring policy). Morin had been given a prisoners’
handbook which informed him that his jailhouse calls would be monitored. There
were also signs above the phones in the prison informing him of this fact. We agree
with the district court that these recorded conversations would have been admissible
at trial. As such, the district court was able to properly rely on them at sentencing.3

       The district court relied on Morin’s statements described above, as well as
additional evidence, and imposed a two-level increase for possession of a firearm and
a four-level increase for being a leader, organizer, or manager. U.S.S.G. §§ 2D1.1(b),
3B1.1(a). We review each of these enhancements for clear error. United States v.
Johnson, 47 F.3d 272, 277 (8th Cir. 1995). “Section 2D1.1(b)(1) provides for a two-
level enhancement for possession of a dangerous weapon ‘unless it is clearly
improbable that the weapon was connected with the offense.’” United States v.
Dillard, 370 F.3d 800, 804 (8th Cir. 2004) (quoting U.S.S.G. § 2D1.1 at cmt. n.3).
Section 3B1.1 provides for a four-level enhancement when a “defendant was an
organizer or leader of a criminal activity that involved five or more participants or was
otherwise extensive.” U.S.S.G. § 3B1.1(a).

      “As a ‘general proposition, a sentencing judge may appropriately conduct an
inquiry broad in scope, largely unlimited either as to the kind of information he [or
she] may consider, or the source from which it may come.’” United States v. Wallace,
408 F.3d 1046, 1047-48 (8th Cir. 2005) (quoting Nichols v. United States, 511 U.S.
738, 747 (1994)). In addition to Morin’s statements, the district court relied on grand

      3
       Because we agree with the district court that these statements would have been
admissible at trial, we need not address the government’s argument that Morin waived
any right to object to these statements at sentencing by entering a guilty plea.

                                          -5-
jury testimony in making its determination that the dangerous weapon enhancement
applied. One person testified that Morin possessed a firearm while selling her
methamphetamine. Although this testimony is hearsay, “[h]earsay evidence is
admissible in sentencing as long as it bears some indicia of reliability.” Id. The grand
jury testimony in this case has indicia of reliability because it was given under oath
and subject to the penalties of perjury. See United States v. Williams, 10 F.3d 910,
914-15 (1st Cir. 1993). The testimony has an additional indicium of reliability in that
it comes from multiple witnesses who described Morin’s involvement with various
firearms. In many cases, the grand jury testimony is also corroborated by Morin’s
own statements. As such, we find the testimony sufficiently reliable to be used for the
purposes of sentencing. Therefore, there is no clear error in the district court’s
application of the dangerous weapon enhancement.

       With respect to the organizer or leader enhancement, Morin does not dispute
that the conspiracy involved more than five participants and was extensive. Rather,
he claims he was not an organizer or leader. We have said that those terms are to be
interpreted broadly. United States v. Thompson, 210 F.3d 855, 861 (8th Cir. 2000).
We have also said that for the enhancement to apply, at least five people must have
been involved in the operation, but only one of those people needs to have been under
the defendant’s direction.4 United States v. Rodriguez, 112 F.3d 374, 377 (8th Cir.
1997). The grand jury testimony in the record indicates that Morin directed one or
more of his co-conspirators to distribute drugs on his behalf. As such, there is no clear
error in the district court’s finding that Morin directed the actions of one or more
members of the conspiracy.



      4
        Morin argues that the district court did not properly distinguish between the
four-level enhancement for being an organizer or leader under U.S.S.G. § 3B1.1(a)
and the three-level enhancement for being a manager or supervisor under U.S.S.G. §
3B1.1(b). After a careful review of the record we are confident that the district court
correctly understood and applied U.S.S.G. § 3B1.1(a).

                                          -6-
       We review the district court’s factual findings of a drug quantity for clear error.
United States v. Johnston, 353 F.3d 617, 625 (8th Cir. 2003). “We can disturb the
district court’s drug quantity calculation only if the entire record definitely and firmly
convinces us that a mistake has been made.” United States v. Titlbach, 300 F.3d 919,
923 (8th Cir. 2002). “[I]n a drug conspiracy, the district court may consider amounts
from drug transactions in which the defendant was not directly involved if those
dealings were part of the same course of conduct or scheme.” United States v.
Mickelson, 378 F.3d 810, 821-22 (8th Cir. 2004). “In order to attribute a quantity of
drugs to a defendant, the sentencing court is required to find by a preponderance of
the evidence that the activity involving those drugs was in furtherance of the
conspiracy and either known to that defendant or reasonably foreseeable to him [or
her].” Id. at 822. The evidence relied on by the district court establishes that Morin
was involved in a conspiracy and that he knew or that it was reasonably foreseeable
to him that the conspiracy involved in excess of 15 kilograms of a mixture containing
methamphetamine. The record contains grand jury testimony from a number of
Morin’s co-conspirators establishing that Morin knew or reasonably should have
known that the conspiracy involved that quantity of drugs. That testimony has indicia
of reliability. Thus, the district court did not err in calculating the drug quantity and
setting Morin’s base offense level at 38.

                                           III.

  For the foregoing reasons, we affirm the sentence imposed by the district court.

                        ______________________________




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