1

The Honorable Gregory W. Carman, Chief Judge, United States Court of

International Trade, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 99-3810

___________

United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the

v. * District of Nebraska.

*

Doran Dee Robinson, also known *

as Dee Robinson, *

*

Appellant. *

___________

Submitted: April 11, 2000

Filed: July 5, 2000 

___________

Before BOWMAN and HANSEN, Circuit Judges, and CARMAN,1

 Judge.

___________

BOWMAN, Circuit Judge.

Doran Dee Robinson appeals his conviction and sentence for conspiracy to

distribute and possess with intent to distribute methamphetamine in violation of 21

U.S.C. §§ 841(a)(1) & 846 (1994). We affirm.
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I.

We state the facts in the light most favorable to the jury's verdict. Robinson and

Richard Housman were arrested in a reverse sting operation on December 15, 1997,

in which Special Agent Dean Gibbs of the Drug Enforcement Agency attempted to sell

them a pound of methamphetamine. The operation was orchestrated by Dave

Mentzner, who, unknown to Robinson and Housman, was working as a confidential

informant for the Nebraska State Patrol.

Mentzner first told Housman that Gibbs was coming to town with a pound of

methamphetamine to sell. Housman then contacted several potential buyers, including

Robinson, to inform them of the available methamphetamine. Approximately a week

before the arrests, Robinson told Housman that he was interested in looking at the

methamphetamine to purchase. Housman informed Robinson that Mentzner was asking

$10,000 for the pound. Robinson replied that the price was "within range." A few

days later, Robinson told Housman he wanted Housman to set up the meeting as soon

as possible.

Housman set up the meeting for noon on December 15 at his house. Around

11:30 a.m. that day, Housman went to Robinson's house to let him know that the deal

was set up. Robinson was not home at that time, and Housman returned to his house

to let Mentzner and Gibbs know that Robinson was not available. They then agreed

to meet again at 3:00 p.m. Housman returned to Robinson's house, where he found

Robinson and informed him that the meeting was set up for 3:00 p.m. Housman also

told Robinson that if Robinson bought the pound of methamphetamine, then he would

want one ounce out of it as his cut. Robinson agreed to this arrangement.

Shortly before 3:00 p.m., Robinson and Housman went to Housman's house.

Robinson informed Housman that he wanted to see and try the methamphetamine

before he purchased it. Mentzner and Gibbs arrived in a van, and Mentzner told
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Housman and Robinson that he wanted to do the deal in the van. They all entered the

van, where, after introductions were made, the following conversation was recorded

by surveillance:

Robinson: Well if we can look at it or if we can try it or if we

can do something, I'd like to—

Gibbs: I'd like to see the money first.

Robinson: Well, I got the money.

Housman: Show um both.

Robinson: I can, I can show you the money all day long but

that don't mean that I don't want to deal, you

know, I just want to look at it.

Gibbs: Okay. There's ten there?

Robinson: Uh, I have over ten on me, but then again it

doesn't seal a deal cuz like I said, I wanted to see

(inaudible) anyway. But he said it's good shit, and

I said if it's like that goddamn (inaudible)

Mentzner: We had some stuff going around town here for a

while that looked like some Nestle's Quik shit, it

wasn't no good at all.

Robinson: My girlfriend told me, she says, well if Dave's got

it, it's gotta be good shit, cuz he wouldn't be

fucking around with, you know, no dope.

Gibbs: Well, let me get it.

Housman: I've been a nervous fuckin wreck for (inaudible) I

swear to god.

Robinson: Hey you don't wanta get caught with this much

(inaudible). Ask him, he'll tell you. It ruinned

[sic] my motherfuckin life. (inaudible)

Gibbs: I put it down in the ground, so it could have a

safe, keep this damn cooler open, we'll look at it.

Got it in bags here and, here you go. (inaudible)

You can cut into it if you want.

Robinson: What's this on the outside?

Gibbs: That's just mold and stuff.

Robinson: You cut into it, it's your bag.
2

 The Honorable William G. Cambridge, United States District Judge for the

District of Nebraska.

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Gibbs: You sure? Alright. (inaudible)

Gibbs: Yah, that's pretty good stuff. (inaudible)

Unknown: Good god almighty.

Trial Exhibit No. 2, Transcript of Conversation. At that point, the van was raided by

the Nebraska State Patrol, and everyone was arrested.

During the course of the conversation, Robinson pulled a bundle of cash out of

his jacket, and Gibbs removed the package of methamphetamine from a cooler in the

back of the van. After Robinson indicated that he wanted to see or test the

methamphetamine, Gibbs cut open the package with a knife provided by Housman.

Before Robinson was able to test the methamphetamine, they all were arrested. A

Jennings Bryco .38 automatic handgun and $11,066 in currency were found on

Robinson at the time of the arrest.

Robinson and Housman were charged with conspiracy to distribute and possess

with intent to distribute methamphetamine and possession with intent to distribute

methamphetamine. In addition, Robinson was charged with two firearms offenses, and

the United States sought to have the $11,066 in currency forfeited. Housman reached

a plea agreement with the United States and testified at Robinson's trial. The United

States dismissed one of the firearms charges before trial, and the District Court2

dismissed the other firearms charge and the possession with intent to distribute charge

at the close of the prosecution's case.

Robinson chose to testify in his defense. In short, Robinson testified that he was

unaware of the methamphetamine until the day of the attempted sale, that he had no

intention of buying the methamphetamine, and that he only went to see the
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methamphetamine because Housman insisted. He also testifed that there was an

innocent explanation for the large amount of money found on him at the time of arrest.

The money was in three bundles: $3,300 for plane tickets for his children to fly from

Alaska to visit him, $5,600 for attorney's fees resulting from state drug charges, and the

remainder in a third bundle. 

The jury convicted Robinson of conspiracy to distribute and possess with intent

to distribute methamphetamine and found that $10,000 of the currency was subject to

forfeiture. At sentencing, the District Court applied enhancements under the United

States Sentencing Guidelines for obstruction of justice under § 3C1.1 and for

possession of a weapon during a drug trafficking offence under § 2D1.1. Robinson was

sentenced to 188 months imprisonment to run consecutively to a sentence he currently

is serving for a state drug conviction.

II.

Robinson appeals his conviction and sentence. He argues that the evidence was

insufficient to support the conviction for conspiracy to distribute and possess with

intent to distribute methamphetamine and that the District Court erred in imposing the

obstruction of justice enhancement, in imposing the weapon enhancement, and in

imposing the consecutive sentence. We address these four arguments in turn.

A.

We review the sufficiency of the evidence de novo, examining the evidence in

the light most favorable to the jury verdict and giving the verdict the benefit of all

reasonable inferences. We reverse only if no reasonable jury could have found

Robinson guilty beyond a reasonable doubt on each essential element of the charge.

To support Robinson's conviction for conspiracy under 21 U.S.C. § 846, there must be

evidence that Robinson entered into an agreement with at least one other person and
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that the agreement had as its objective a violation of the law. See United States v.

Maejia, 928 F.2d 810, 813 (8th Cir. 1991). Section 846 does not require proof of an

overt act in furtherance of the conspiracy. See United States v. Covos, 872 F.2d 805,

809-10 (8th Cir.), cert. denied, 493 U.S. 840 (1989). In essence, there must be

evidence that Robinson entered into an agreement with Housman and that the purpose

of that agreement was to purchase and distribute the methamphetamine. The

conspiracy may be proved through circumstantial evidence. See United States v.

Gooden, 892 F.2d 725, 729 (8th Cir. 1989) ("The nature of the offense of conspiracy

with its necessary aspect of secrecy often requires that the agreement be implied from

the surrounding circumstances."), cert. denied, 496 U.S. 908 (1990).

Not only is there circumstantial evidence of the conspiracy in this case—namely,

that Housman brought Robinson to meet the supposed methamphetamine dealers, that

Robinson had the required amount of cash on him, and that Robinson asked to see the

methamphetamine—but there also is direct evidence. Housman testified he contacted

Robinson about the available methamphetamine, that Robinson was interested in it, and

that the price generally was acceptable to Robinson. Furthermore, Housman testified

that Robinson agreed to give him a cut of the methamphetamine if it was acceptable as

sort of a finders fee. Robinson argues that, at most, the evidence only supports the

conclusion that he agreed with Housman to look at the methamphetamine. While this

may be true in a literal sense—that is, Robinson was careful not to commit to the

purchase until after he had inspected the methamphetamine and the Nebraska State

Patrol apparently precluded him from doing so—Robinson's argument misses the point.

The jury was entitled to infer that Robinson agreed to look at the methamphetamine

because his purpose was to purchase methamphetamine. That Robinson never agreed

to purchase the methamphetamine from Gibbs is not dispositive. The agreement at

issue in the conspiracy charge was not between Robinson and Gibbs or Mentzner, but

between Robinson and Housman. And we believe the evidence was more than

sufficient for a jury to reasonably infer that Robinson and Housman had an agreement

and that the purpose of the agreement was to purchase and distribute
3

 Robinson's argument that the evidence was insufficient because he never agreed

to actually purchase the methamphetamine relies principally on United States v. Joyce,

693 F.2d 838 (8th Cir. 1982). In that case, a government informant contacted Joyce

to inform him that a pound of cocaine was available for purchase in St. Louis. Joyce

flew from Oklahoma City to St. Louis the next day with $22,000, an amount they had

agreed would be more than sufficient to purchase the cocaine. Joyce met the informant

and an undercover officer in a hotel. Joyce expressed his interest in dealing, and they

agreed on a price of $20,000 for a pound of cocaine. The officer went to retrieve the

cocaine and returned with a duct tape wrapped plastic package. Joyce wanted the

officer to unwrap the package so that he could see the cocaine. The officer, however,

insisted on seeing Joyce's money. They reached an impasse, and as Joyce left the hotel,

he was arrested. Joyce was convicted of attempting to possess cocaine with intent to

distribute. On appeal, this Circuit reversed, holding that "[w]hatever intention Joyce

had to procure cocaine was abandoned prior to the commission of a necessary and

substantial step to effectuate the purchase of cocaine." Id. at 841. Joyce's motive for

refusing to purchase the cocaine was deemed not "particularly relevant." Id. at 843.

Our decision in Joyce has been roundly criticized by other circuits. See United

States v. Dworken, 855 F.2d 12, 22 (1st Cir. 1988) ("There was no complete and

voluntary renunciation of the general criminal intent to possess narcotics [in Joyce],

merely a desisting in the attempts to purchase the narcotics in question, for fear of

government involvement."); United States v. McDowell, 714 F.2d 106, 107 (11th Cir.

1983) (per curiam) ("Refusal to purchase because of inability to agree on price, or

dissatisfaction about quality, or lack of opportunity to inspect is not necessarily a

complete and voluntary renunciation of criminal purpose."). Nevertheless, absent a

decision of this Court en banc, Joyce is the law of the circuit, and we must decide this

case accordingly.

We believe Joyce is readily distinguishable from the present case and does not

govern it. The key lies in the difference between the law of attempt and the law of

conspiracy. Under the law of attempt, a substantial step is required in order for the

defendant to be convicted. In contrast, conspiracy under 21 U.S.C. § 846 does not

require an overt act. Furthermore, the implications of an abandonment and withdrawal

are entirely different in attempt and conspiracy cases. In an attempt case, abandonment

precludes liability for the attempt. In contrast, withdrawal in a conspiracy case only

precludes liability for subsequent criminal acts committed by coconspirators, but does

not preclude liability for the conspiracy itself. See United States v. Francis, 916 F.2d

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methamphetamine.3 
464, 466 (8th Cir. 1990). Had Robinson walked away from the drug deal before the

police moved in, as Joyce did, that would not somehow preclude his liability for the

conspiracy itself even if it constituted a valid withdrawal.

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B.

Robinson next argues that the District Court's finding of perjury that resulted in

a sentencing enhancement for obstruction of justice under § 3C1.1 was error because

the court's findings were unsupported by the record and were insufficiently detailed.

See United States v. Dunnigan, 507 U.S. 87, 94-95 (1993) (requiring district court to

review the evidence and make independent findings necessary to establish perjury

under definition requiring falsity, materiality, and willfulness). Here, the District Court

stated:

Paragraph 20 [of the Presentence Report] is a finding that the defendant

obstructed justice because his testimony was not truthful, and I agree with

that finding. It wasn't. His testimony was not truthful regarding material

facts in this case; and therefore, the two-level enhancement is applicable

under United States Sentencing Guideline Section 3C1.1.

Transcript of Proceedings at 358-59. Paragraph 20 of the Presentence Report

compared the testimony of Robinson and Housman and concluded that Robinson's

testimony was not truthful regarding material facts of the case. We believe that the

finding of the District Court, which implicitly adopted the findings of the Presentence

Report, is supported adequately by the record and thus was not clear error. See United

States v. Big Crow, 74 F.3d 163, 166 (8th Cir. 1996) (standard of review).

Furthermore, the District Court's failure to specifically find Robinson's false statements

to be willful was a "failure in form alone, insufficient to warrant remand." United

States v. Taylor, 207 F.3d 452, 455 (8th Cir. 2000) (reviewing record and concluding

that false trial testimony was willful after district court failed to make explicit

willfulness finding); accord United States v. Lambros, 65 F.3d 698, 702 (8th Cir.
4

 Robinson apparently was prepared at trial to produce evidence that he merely

was delivering the gun to a friend who was afraid for her safety because her husband

had been attacked in front of their home. After the husband began to testify, however,

the court reminded Robinson that the gun charges had been dismissed, and that

testimony was stricken from the record on Robinson's motion. See Transcript of

Proceedings at 232.

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1995), cert. denied, 516 U.S. 1082 (1996). Robinson's statements of his intention to

use the money for other purposes and his intention not to buy the methamphetamine

could not have been the result of confusion, mistake, or faulty memory. See United

States Sentencing Guidelines Manual § 3C1.1 commentary (n.2) (1998). Rather, these

false statements could only have been the result of a willful intent to deceive the jury

and obstruct the judicial process.

C.

In a related argument, Robinson challenges the District Court's application of a

two-level enhancement for possession of a firearm during the commission of a drug

offense under § 2D1.1(b)(1) because the court failed to make specific findings other

than his statement that "it is not clearly improbable that the weapon was connected with

the offense." Transcript of Proceedings at 359. The court's language tracks the

commentary of § 2D1.1, which states: "The adjustment should be applied if the weapon

was present, unless it is clearly improbable that the weapon was connected with the

offense." United States Sentencing Guidelines Manual § 2D1.1 commentary (n.3). We

believe the District Court's abbreviated statement must not be viewed in a vacuum.

First, the evidence that Robinson possessed the weapon at the time of the offense,

including the admission of the weapon itself into evidence and an arresting officer's

testimony that he found the weapon on Robinson at the time of the arrest, was

uncontested. Second, Robinson presented no evidence at trial or sentencing that he

was in possession of the weapon for any legitimate reason.4

 In the circumstances, we

believe the District Court's finding was sufficient.
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D.

Last, Robinson argues that the District Court erred in imposing his sentence

consecutively to his undischarged state term of imprisonment. We disagree. Robinson

had pled guilty to the state offense, but had not yet been sentenced, and the conduct

underlying that offense was not taken into account in the determination of the offense

level for the instant offense; thus, the broad directive of § 5G1.3(c) to formulate a

reasonable sentence applied. The court considered the factors of 18 U.S.C. § 3553(a)

as required by 18 U.S.C. § 3584. See United States Sentencing Guidelines Manual §

5G1.3 commentary (n.3) (arguably directing court to consider every factor relevant to

sentencing including factors related to the undischarged sentence). We cannot

conclude that the District Court's decision to impose the sentence consecutively was

unreasonable.

III.

Having found no error in Robinson's conviction or sentence, we affirm.

A true copy.

Attest:

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