### The Honorable Richard G. Kopf, United States District Judge 1 

### for the District of Nebraska. ___________ No. 95-3400

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska. Leroy Vanosdall, * * [UNPUBLISHED] Appellant. *

___________ Submitted: March 29, 1996 Filed: April 2, 1996

___________ Before FAGG, BOWMAN, and HANSEN, Circuit Judges.

___________
PER CURIAM.

Ler oy Vanosdall challenges the 87-month sentence imposed by th e dist rict court after he pleaded guilty to conspiring to distribute an d 1 posses s with intent to distribute methamphetamine, in violation of 2 1 U.S.C. §§ 841(a)(1) a nd 846. Counsel filed a brief pursuant to Anders v. California , 386 U.S. 738 (1967), and Vanosdall w as given an opportunity to file a supplemental brief, but did not do so. We affirm.
Upon Vanosdall's objection to the quantity of methamphetamine th e presentence report (PSR) attributed to him, the district court held a n evidentiary hearing. After Vanosdall and supplier Shari

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Trompke testified, the court preliminarily found Vanosdall had receive d thirty-eight ounces (1077.3 grams) of methamphet amine from Trompke and her bro ther, Allen Trompke. Conservatively evaluating Shari's testimony , however, the court discounted this amount by "a 10 percent error factor" and held Vanosdall accountable for 969.57 grams of methamphetamine. The court sentenced Vanosdall to 87 months imprisonment, the top of th e Guidelines range.
In his Anders brief, counsel first s uggests the government failed to prove that the methamphetamine distributed to Va nosdall was d- rather than l-methamphetamine. Although the government bears the burden of proving th e typ e of methamphetamine involved, see United States v. Wessels , 12 F.3 d 746, 754 (8th Cir. 1993), cert. denied , 115 S. C t. 105 (1994), we conclude Vanosdall waived this issue by not raising it in his objections to the PSR and by c onceding at the evidentiary hearing that the case involve d d-methamphetamine. Cf. United States v. Massey , 57 F.3d 637, 638 (8th Cir
. 1995) (per curiam) (c oncluding that defendant waived objection to type of methamphetamine by no t raising issue in district court and by stipulating to base offense level). Second, counsel suggests the Trompkes "attributed an excessivel y high amount of methamphetamine" to Vanosdall. We con clude the district court's drug-quantity determination is not clearly erroneous. See United States v. Williams , Nos. 95-2968 & 95-2972, slip op. at 4 (8th Cir. Mar. 5, 1996) (standard of review). The court's credibility finding as to Shari i s "virtually unreviewable" on appeal. See Wessels , 12 F.3d at 754. We note that Vano sdall received the benefit of the doubt, in that had the cour t held him accountable for 1077.3 grams, he would have received at least a 120-month sentence. See 21 U.S.C. § 841(b)(1)(A). Third, co unsel suggests the Guidelines do not apply and there is an irrational disparity between the penalties for d- and l-methamphetamine. We do not address these arguments because they

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were not raised below and no plain error appears. See Fritz v. Unite d States , 995 F.2d 136, 137 (8th Cir. 1993), cert. denied , 114 S. Ct. 88 7 (1994). Finally, counsel suggests there was insufficient evidence to support a sent ence at the top of the Guidelines range. We cannot revie w Vanosdall's 87-month sentence, as it is within t he Guidelines range and he has not shown it resulted from an incorrect appl ication of the Guidelines. See United States v. Garrido , 38 F.3d 981, 986 (8th Cir. 1994). Having carefully reviewed the record, we have found no othe r nonfrivolous issues for appeal. Penson v. Ohio , 488 U.S. 75, 80 (1988).

Accordingly, we affirm the judgment of the district court.
A true copy.

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