United States Court of Appeals

For the Eighth Circuit

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No. 11-2618

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Juan Daniel Lugo

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Southern District of Iowa – Davenport

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 Submitted: September 20, 2012

Filed: January 8, 2013

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Before MELLOY, SMITH, and SHEPHERD, Circuit Judges.

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MELLOY, Circuit Judge.

Juan Daniel Lugo pleaded guilty to conspiring to manufacture, distribute, and

possess with intent to distribute, methamphetamine and marijuana in violation of

21 U.S.C. §§ 846 and 841(a)(1). The district court sentenced him to a prison term 1

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

District of Iowa.
of 240 months. Because the district court did not clearly err in determining the

identity of the substance for sentencing purposes, we affirm.

I.

On February 17, 2010, a grand jury indicted Lugo and three coconspirators for

violating 21 U.S.C. §§ 846 and 841(a)(1). Lugo subsequently pleaded guilty and

entered into a plea agreement. The presentence investigation report (PSR)

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recommended a total offense level of 39. This recommendation was based on a base

offense level of 38 for the quantity of drugs, a four-level increase for Lugo's

aggravating role as the leader and organizer of the conspiracy, and a three-level

reduction for Lugo's acceptance of responsibility.

At his sentencing hearing, Lugo objected to the PSR on several grounds. 

Relevant to this appeal is Lugo's contention that the district court mischaracterized

the methamphetamine as "actual" methamphetamine (or "ice" ), as opposed to a

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mixture containing methamphetamine. The district court, acknowledging the often

difficult task of determining drug quantity, reduced Lugo's base offense level from

38 to 36. The court stated:

The process of determining drug quantity is always – always difficult

because memories often fade, there is difficulty in recalling exactly

when the change was made from methamphetamine mixture to ice, all

those kinds of issues.

As part of Lugo's plea agreement, the government agreed to dismiss two 2

additional counts of the indictment relating to the distribution of drugs. 

The U.S. Sentencing Commission Guidelines Manual ("Sentencing

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Guidelines") defines "ice" as "a mixture orsubstance containing d-methamphetamine

hydrochloride of at least 80% purity." U.S.S.G. § 2D1.1(c) n.(C). 

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Here the ice alone easily gets him to a level 36. . . . [I]t would take 19 or

20 ounces of ice just to get to a level 36. It would take probably 60

ounces of ice alone to get to a level 38. This is the most conservative

estimate I’ve ever made, but I am going to find a level 36 and I can

justify that very easily based on the ice alone, not to mention the

marijuana or the other methamphetamine without attributing the 17

ounces to Mr. Lugo.

The district court denied Lugo's other objections to the PSR and, based on the

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adjusted total offense level of 37 (including the same four-level increase and threelevel reduction, respectively), sentenced Lugo to 240 months' imprisonment. 

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Lugo subsequently appealed his 240-month sentence, arguing that the district

court clearly erred in finding that the drug involved in the conspiracy was "ice" and

not a mixture containing methamphetamine. Specifically, Lugo contends that the

government failed to meet its burden with respect to proving the purity of the

methamphetamine because it did not conduct any testing on the seized substances. 

The government, however, claims that the Sentencing Guidelines do not require that

purity be proved with "absolutely certainty," and that "direct evidence of the visual

characteristics of a drug," as well as circumstantial evidence and expert testimony, are

all that is required for proof.

This Court submitted Lugo's case without argument on March 12, 2012, but

subsequently vacated thatsubmission on April 24 and ordered supplemental briefing

on three issues: (1) "whether it is clear error for the district court to sentence on the

basis of 'ice' methamphetamine despite the government's failure to test whether the

Lugo also objected to the PSR on the grounds that (1) the quantity of drugs

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was overstated, (2) he did not play an aggravating role in the offense, and (3) his

criminal history category was computed incorrectly. 

The advisory sentencing range based on Lugo's offense level and criminal

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history category is 235–293 months' imprisonment.

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seized methamphetamine is in fact 'a mixture or substance containing

d-methamphetamine hydrochloride of at least 80% purity'"; (2) "whether the analysis

may be different depending on whether there was an actual seizure of

methamphetamine"; and (3) whether United States v. Stewart, 122 F.3d 625, 628 (8th

Cir. 1997), and United States v. Whitehead, 487 F.3d 1068, 1072 (8th Cir. 2007),

control this issue. We then heard oral arguments from the parties regarding Lugo's

appeal and the issues listed above. We now affirm.

II.

A.

The government, for sentencing purposes, bears the burden to prove drug type

by a preponderance of the evidence. United States v. Thompson, 335 F.3d 782, 784

(8th Cir. 2003). We review a sentencing court's determination of drug type for clear

error, and "will reverse only if firmly convinced [that] a mistake has been made." Id.

(citing United States v. Maxwell, 25 F.3d 1389, 1397 (8th Cir. 1994)). Where only

"a small portion of the methamphetamine recovered during [an] investigation" is

tested for purity, "the testing evidence combined with the testimony of witnesses who

actively participated in the drug conspiracy [can] amply support[]" a sentencing

court's conclusion as to drug type for a quantity of drugs greater than the amount

seized. United States v. Fairchild, 189 F.3d 769, 778 (8th Cir. 1999). "When no

quantity has been recovered, the government may prove the purity of quantities

attributed to the defendant by circumstantial evidence, for example, a conspirator's

reliable testimony . . . or an expert's testimony as to the normal purity of

methamphetamine produced in a lab." United States v. Houston, 338 F.3d 876, 879

(8th Cir. 2003) (citations omitted). In relying on witness testimony as evidence of

purity, "[t]he finder of fact may accept the parts of a witness's testimony that it finds

credible while rejecting any portion it finds implausible or unreliable," United States

v. Boyce, 564 F.3d 911, 916 (8th Cir. 2009), and such "[f]indings about the

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credibility of witnesses are 'virtually unreviewable on appeal,'" id. (quoting United

States v. Gomez-Perez, 452 F.3d 739, 743 (8th Cir. 2006)). 

B.

Several of our prior decisions are instructive on whether it was clear error for

the district court to find, absent testing for purity, that the methamphetamine was

properly categorized as "ice." In Stewart, the defendant argued that there was not

sufficient evidence to prove that the cocaine that he sold was "crack" cocaine. 122

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F.3d at 628. Specifically, the defendant argued that there must be evidence that the

substance contained cocaine hydrochloride and sodiumbicarbonate. Id. We rejected

that argument because "the Sentencing Guidelines only state that crack cocaine is

'usually prepared by processing cocaine hydrochloride and sodium bicarbonate.'" Id.

(emphasis added) (quoting U.S.S.G. § 2D1.1(c) n.D). The Sentencing Guidelines

thus "do[] not require such evidence before the district court can conclude that a

substance is crack cocaine." Id. (emphasis added). 

A decade later, in Whitehead, we again considered whether it was clear error

for the district court to determine that a substance is "crack" cocaine absent laboratory

testing. 487 F.3d at 1072 (citing Stewart, 122 F.3d at 628). In that case, the

government presented testimony from an experienced narcotics agent regarding the

appearance of the seized substance and the conditions under which he found it. Id. 

Specifically, the agent testified that he found the substance damp and in a microwave,

but that it later dried out and took on a rock-like form. Id. In finding no clear error

in the district court's identification of the drug as "crack," we reiterated that "the

Under the Sentencing Guidelines, "crack" cocaine carries with it a higher a

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base offense level per unit mass than cocaine in a powder form. See U.S.S.G.

§ 2D1.1(c); see also Theus v. United States, 611 F.3d 441, 447 (8th Cir. 2010) ("[A]

crack cocaine conviction [will] yield a much higher sentence than a powder cocaine

conviction.").

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identity of a controlled substance can . . . be proved by circumstantial evidence and

opinion testimony." Id. (alteration in original) (quoting United States v. Covington,

133 F.3d 639, 644 (8thCir. 1998) (internal quotation marks omitted)). 

The general principles underlying our decisions in Stewart and Whitehead

accord with the decisions of our sister circuits. See, e.g., United States v. Linton, 235

F.3d 328, 329–30 (7th Cir. 2000) (district court's determination of "crack" cocaine

supported by "direct evidence of the visual characteristics" of the substance and

testimony of veteran narcotics agent and forensic chemist); United States v. Jones,

159 F.3d 969, 981–83 (6thCir. 1998) (testimony offorensic scientist and experienced

narcotics officer, coupled with knowledge of drug preparation, sufficient to satisfy

preponderance standard that substance was "crack" cocaine); see also United States

v. Verdin-Garcia, 516 F.3d 884, 896 (10th Cir. 2008) ("Narcotics need not be seized

or tested to be held against a defendant at sentencing. . . . Laboratory test results are

perhaps more persuasive evidence of amounts of purities than eyewitness testimony

. . . but [such testimony] is not unreliable as a matter of law.").

C.

1.

Subsequent to the filing of supplemental briefs, we decided United States v.

Walker, 688 F.3d 416 (8th Cir. 2012). In Walker, the defendants pleaded guilty to

conspiring to distribute methamphetamine, and their coconspirators testified at their

sentencing hearing. Id. at 419–20. Specifically, the defendants' coconspirators

"consistently identified the methamphetamine . . . as'ice,'" and "distinguished the 'ice'

. . . from the anhydrous methamphetamine . . . based on its appearance, form, price,

and quality." Id. at 424. The defendants argued that the district court erred by

"crediting the testimony of[their] coconspirators because they did not have chemistry

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backgrounds or understand the definition of 'ice' under the Guidelines." Id. at 425. 

We rejected this argument:

That [the defendants] and their coconspirators did not have a scientific

or technical understanding of the term "ice" is relevant to the district

court's assessment of the reliability of their testimony asto drug identity

or purity, but does not necessarily preclude the district court from

finding the methamphetamine . . . was "ice."

Id. 

In finding no clear error in the district court's identification of the substance as

"ice," we noted "the flexible Guidelines approach of allowing the sentencing court

broad discretion to consider a wide range of relevant evidence from a variety of

sources as long as the evidence 'has sufficient indicia of reliability to support

probable accuracy.'" Id. at 423 (quoting United States v. Sicaros-Quintero, 557 F.3d

579, 582 (8th Cir. 2009)). Such evidence includes the source of the controlled

substance, the price generally obtained for the controlled substance, the substance's

appearance and form, and users and distributors' reports of the identity and quality of

the substance. Id. at 424. 

2.

Lugo's case is indistinguishable from Walker, and thus Walker controls our

analysis. Here, Lugo's coconspirator testified regarding the physical characteristics

and appearance ofthe methamphetamine involved in the conspiracy. Specifically, the

sentencing court heard testimony from Tamera Scheper that the methamphetamine

from Lugo was "powdery and rocky and . . . clear" and "white," and that she sold

sixty-one ounces (61 oz.) of the substance between July 2008 and January 2009. 

Scheper also testified that Lugo had referred to the substance as "ice," that she sold

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it to her customers as "ice," and that it was "much cleaner" than anhydrous

methamphetamine. 

We find no clear error in the district court's consideration of, and reliance on,

Scheper's testimony to determine that Lugo was dealing in "ice" and not a mixture of

substances containing methamphetamine. Scheper'stestimony regarding the amount

and quality of methamphetamine that she received from Lugo is plainly within the

purview of evidence that the district court may consider when making a finding as to

the identification of a substance. See Walker, 688 F.3d at 423 (citing with approval

United States v. Cockerill, No. 99-4634, 2000 WL852608, at *2–3 (4th Cir. June 28,

2000) (coconspirator's testimony that the methamphetamine "was of very good

quality" is sufficient evidence for a sentencing court to conclude that the substance

was not a methamphetamine mixture)); see also Whitehead, 487 F.3d at 1072 ("[T]he

identity of a controlled substance . . . can be proved by circumstantial evidence and

opinion testimony." (second alteration in original) (quoting United States v.

Covington, 133 F.3d 639, 644 (8thCir. 1998) (internal quotation marks omitted))). 

D.

We now address, to the extent that they remain unanswered, the questions for

which the partiessubmitted supplemental briefs. First, asfirstset forth in Walker and

made clear in this opinion, it is not clear error for the district court to sentence on the

basis of "ice" methamphetamine despite the government's failure to test the purity of

the seized substance. See Walker, 688 F.3d at 425. Second, this analysis remains

unchanged even where, as here, there was an actual seizure of methamphetamine. 

This Court in Walker, while recognizing the value of chemical testing, see id. n.4,

stated that "[t]he Guidelines do not require the government to establish the identity,

quantity, or purity of methamphetamine by laboratory analysis," id. at 423 (emphasis

added). See also id. ("[T]he Guidelines do not specify what evidence is required to

establish methamphetamine as 'ice' and . . . we have consistently rejected arguments

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demanding direct evidence of drug identity, quantity, or purity." (citing Whitehead,

487 F.3d at 1071–72)). Finally, Stewart and Whitehead, although dealing with

different types of drugs, present the same issue as Walker and this case. Those cases

thus control to the extent that they fill any gaps left by our decision in Walker.

III.

For the reasons set forth above, we find no clear error in the district court's

identification of the substance as "ice" methamphetamine. Accordingly, Lugo's

sentence is affirmed. 

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