United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 99-1137

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United States of America, *

*

Appellee, *

*

v. *

*

Sheldon Mayhew, *

*

Appellant. *

__________ Appeals from the United States 

District Court for the District

No. 99-1293 of Nebraska.

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 [UNPUBLISHED]

United States of America, *

*

Appellee, *

*

v. *

*

Charles K. Mayhew, *

*

Appellant. *

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No. 99-1294

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United States of America, *
*The Honorable Andrew W. Bogue, United States District Judge for the District

of South Dakota, sitting by designation.

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*

Appellant, *

*

v. *

*

Charles K. Mayhew, *

*

Appellee. *

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No. 99-1319

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United States of America, *

*

Appellant, *

*

v. *

*

Sheldon Mayhew, *

*

Appellee. *

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Submitted: December 17, 1999

Filed: December 23, 1999 

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Before McMILLIAN and FAGG, Circuit Judges, and BOGUE,* District Judge.

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PER CURIAM.

After their coconspirators pleaded guilty and testified at trial, Sheldon and

Charles Mayhew were convicted by a jury of conspiracy to distribute and possess with

intent to distribute methamphetamine. The Mayhews appeal, and the Government

cross-appeals. We affirm. 

Sheldon Mayhew argues the evidence was insufficient to convict him. He

acknowledges he was involved in some illegal activity, but contends there was no

evidence he entered an agreement or understanding with others to possess and

distribute drugs. Having reviewed the evidence in the light most favorable to the

verdict, we conclude a reasonable jury could find otherwise. Sheldon also appeals his

sentence, challenging the enhancement for obstruction of justice under U.S.S.G. §

3C1.1 based on his harassment and intimidation of a witness, and the enhancement for

being an organizer or leader of criminal activity under U.S.S.G. § 3B1.1(a). We have

considered the record and established case law, and conclude the district court properly

imposed the enhancements.

Charles Mayhew attacks only his sentence. He takes issue with the district

court's drug quantity finding, imposition of a leadership enhancement under U.S.S.G.

§ 3B1.1(a), refusal to grant a downward departure for his poor physical condition under

U.S.S.G. § 5K2.0, imposition of an obstruction of justice enhancement under U.S.S.G.

§ 3C1.1 for telling coconspirators to minimize methamphetamine weight if arrested, and

imposition of a fine under U.S.S.G. § 5E1.2. Having carefully considered these issues,

we conclude the district court made no mistakes. 

In its cross-appeal, the Government asks us to remand for resentencing and

instruct the district court to make specific findings of fact explaining its drug quantity

estimates. The presentence reports estimated both Sheldon and Charles were

responsible for 30 kilograms of methamphetamine. The Mayhews objected to the
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presentence reports' drug quantity determinations, stating certain drug amounts were

not foreseeable and the unsubstantiated testimony of certain witnesses was not credible.

The district court, which had presided over the trial and heard the witnesses testify,

sustained the Mayhews' objections. Stating it had reviewed the evidence, the court

found Sheldon was responsible for 400 grams of methamphetamine and Charles was

responsible for 700 to 1000 grams of methamphetamine. Although the district court

did not make express credibility findings, it is apparent the court chose to discredit the

witnesses' testimony about certain drug amounts. See United States v. Moss, 138 F.3d

742, 745 (8th Cir. 1998). This is sufficient under our case law. See id. A district

court's findings about credibility are virtually unreviewable on appeal. See United

States v. Jones, 160 F.3d 473, 480 (8th Cir. 1998); Moss, 138 F.3d at 745. Contrary

to the Government's assertion, the district court's drug quantity findings are not clearly

erroneous. 

We thus affirm the district court.

A true copy.

Attest:

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