United States Court of Appeals FOR THE EIGHTH CIRCUIT

______________________________________________ Nos. 96-3542EM, 96-3584EM, 96-3732EM, 97-2196EM

______________________________________________

_____________ * * No. 96-3542EM *

_____________ * * United States of America, * * Appellee, * * v. * * William Fred Coleman, Jr., also known * as William Coleman, * On Appeal from the United * States District Court Appellant. * for the Eastern District * of Missouri.

_____________ * * No. 96-3584EM *

_____________ * * United States of America, * * Appellee, * * v. * * Mark D. Ward, * * Appellant. *-2-

_____________ * * No. 96-3732EM *

_____________ * * United States of America, * * Appellee, * * v. * * On Appeal from the United Tom Leroy Whitehurst, * States District Court * for the Eastern District Appellant. * of Missouri. *

_____________ * * No. 97-2196EM *

_____________ * * United States of America, * * Appellee, * * v. * * Stacey Anne Gessaman, * * Appellant. *

___________ Submitted: November 17, 1997 Filed: March 5, 1998

___________The Hon. Carol Jackson, United States District Judge for the Eastern District 1 of Missouri. -3- Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN and MAGILL, Circui t Judges.

___________ RICHARD S. ARNOLD, Chief Judge.

Willia m Coleman, Stacey Gessaman, Mark Ward, and Thomas Whitehurs t appeal the sentences they received for methamphetamine manufacture and relate d crimes. For the most part, we affirm the sentences imposed by the Distri ct Court. We 1 remand Coleman’s case for resentencing using his correct Criminal History Category.
I. Facts
Inearly 1995, law enforcement officials in Missouri were alerted that William Austin was purchasing suspiciously large amounts of iodine. Upon detention and a promise of immunity

from prosecution, Austin admitted that he was buying the iodine for use in the m anufacture of methamphetamine. He implicated Coleman, Gessaman, Ward, and Whitehurst in operating a methamphetamine laboratory at a farmhous e rented by Whitehurst and Gessaman in Sullivan, Missouri.
After a controlled delivery of iodine by Austin to the farmhouse, FBI agent s obtained a warrant to search t he farmhouse. On December 23, 1995, they surrounded the fa rmhouse. An FBI negotiator left a message on the answering machine that th e house was surrounded, the warrant would be executed, and the occupants of the house should vacate immediately. A second call was answered by Whitehurst , to whom these dire ctions were repeated. During the conversation, Whitehurst was heard instructing others w ithin the farmhouse to destroy evidence of drug production. After about 1 2 minutes, Coleman, Ward, and Whitehurst came out of the farmhouse. As they wereThis c ount arose from drugs found during a traffic stop in 1994, discusse d 2 below. -4- leaving, smoke started to come out of the area of the farmhouse alleged by Austin to co ntain the methamphetamine laboratory. Eventually, the whole farmhouse burne d down. Af

ter the fire, the FBI found weapons, laboratory equipment, and residua l amo unts of ephedrine, iodine, and red phosphorus, which are methamphetamin e ingredients. The appellants were indicted on this evidence and Austin’s testimony. Coleman, Ward, and Whitehurst were convicted of conspiracy to manufacture methamphetamine, 21 U.S.C. § 846 (1994) (Count I); use of fire and e xplosive material to destroy property used in interstate commerce, 18 U.S.C. § 844(i) (1994) (Count II); and destruction of property to prevent seizure of evidence, 18 U.S.C. § 2232(a) (1994) (Count III). Whitehurst was convicted of three additional counts: possession o f firearms by

a convicted felon, 18 U.S.C. §§ 922(g), 924(a)(2) (1994) (Counts IV and VI); and possession of ephedrine wit h the intent to manufacture methamphetamine, 21 U.S.C. § 841(d)(1) (Count V). Gessaman pleaded guilty to conspiracy to manufacture 2 methamphetamine, 21 U.S.C. § 846 (1994). At sentencing, the District Court found that the con spiracy had produced at least 16.67 kilograms of methamphetamine, which corresponded to a base offense level of 36. For their burning of the farmhouse, Coleman, W ard, and Whitehurst received twolevel enhancements for obstruction of justice. Whitehurst received a further four-level enh ancement

for his leadership role in the conspiracy. The District Court sentence d Colema n to 262 months, Ward to 235 months, and Whitehurst to life. Gessama n rec eiveda two-level enhancement for related weapon possession, and a three-leve l decrease for acceptance of responsibility. She was sentenced to 168 months in prison.-5-

Coleman, Ward, and Whitehurst received additional, concurrent sentences. Each was sent enced to 240 months on Count II and 60 months on Count III

. Whitehurst also was sentenced to 120 months for Counts IV-VI of his conviction.
At issue are the District Court’s determination of methamphetamine quantit y produced by the conspiracy; its attribution of the total amount to each individua l de fendant; its application of role-in-the-offense and other adjustments to the bas e offe nse level; and its determination of Coleman’s Criminal History Category

. Additionally, Coleman and Ward argue for retrials, because of the ineffectiv e assistance of trial counsel and alleged errors by the District Court, respectively. Finally , Whitehurst and Gessaman object to the use against them of weapons and drugs seized from Gessaman’s car during a traffic stop in 1994, as evidence in Whi tehurst’s trial and as the basis for a

n enhancement in Gessaman’s sentencing. We address each issue in turn. II. Determination of Methamphetamine Quantity Attributable to the Conspiracy
Because the physical evidence of methamphetamine production consisted o f preliminary ingred

ients, the District Court had to approximate the quantity of finished product for which the defendants would be sentenced . U.S.S.G. § 2D1.1, commentary n.1 2 (1997). Its calculation began with 81.5 pounds of iodine, which Austin ha d testified to purchasing for the operation. It then ap plied what Austin had testified to be the defendants’ formula for methamphetamine: three parts ephedrine to two part s iodine to one part red ph osphorus. The Court then took into account the practicalities of the manufacturing process and made a conservative estimate of ultimate production. The defendants challenge each step of the calculation. We uphold the District Court’s determination of methamphetamine quantity.
We rev iew a district court’s determination of drug quantity for clear error

. United States v. Sales , 25 F.3d 709, 711 (8th Cir. 1994). “Defendants who challenge-6-

the sentencing court’s determination of drug quantity face an uphill battle on appeal, because we will reverse a determination of drug quantity only if the entire recor d definitely and firmly convinces us that a mistake has been made.” Id. First, the District Court’s reliance on Austin’s testimony, which provided th e beginning amount of iodine as well as the formula used to extrapolate the amount of resultant methamphetamine, was not clear error. Determinations of witness credibility are virtually unreviewable. UnitedStates v. Adipietro , 983 F.2d 1468, 1472 (8th Cir. 1993). The District Court considered Austin’s lengthy criminal history and serious drug abuse, and its possible ef fects on his mental acuity, but concluded there was nothing to indicate that, at th e time of trial, Austin “suffered any impairment of memory; of cognition; or of perception or reasonin g to the extent that his testimony is rendered unreliable.” Whitehurs t Sentencing Tr. at 103 (October 10, 1996). We note that the District Court did no t credit Austin’s testimony entirely; 81.5 pounds repres ented only part of the total iodine Austin testified to purchasing. As to the “3-2-1" formula, the District Court found that Au stin’s testimony bore “more than a ring of truth”and was supported by “ampl e info rmation.” Id. at 105. We defer to the District Court’s evaluation of Austin’ s credibility.
Th e District Court’s use of iodine quantity to calculate methamphetamin e quantity an d its computation of yield also were not clear error. The defendants argue that, because iodine is used as a reagent (in excess) rather than as a precursor (in fixed proportion), io dine quantity bears no fixed relationship to resultant methamphetamine quantity. They also urge that the specific capacities of the farmhouse lab allowed only an inefficient yield, less than a 100% theoretical yield. The District Court hear d extensive expert testimony on these issues at trial and at sentencing, from two chemists for the gov ernment and one for the defense. Further, Austin testified to the particular formula used by the defendants, which specified the relative proportions of chemical ingredie nts and thus eliminated the alleged indeterminacy. Using this formula and an iodine amou nt of 82 kilograms, even a yield assumption of 50 to 55% would hav e resulted in 60 pounds, or 27 kilograms, of methamphetamine. Whitehurst SentencingUnder the November 1, 1997 version of the Guidelines, a Le vel 36 base offense 3 level app lies to methamphetamine quantities ranging from five to fifteen kilograms

. U.S.S.G. § 2D1.1 (1997). -7- Tr. a t 116 (October 9, 1996). The District Court’s use of 16.67 kilograms fo r sentencing was therefore conservative, and not clearly erroneous.

III. Determination of Methamphetamine Quantity Attributable

to Individual Defendants We reject the assertions that Coleman , Gessaman, and Ward should not be held resp onsible for the full amount of methamphetamine produced by the conspiracy

. Coleman claims that his late entry into the conspiracy -- allegedly in 1994, over a year a f ter the conspiracy was determined to have begun -- should have been reflected in a reduced drug quantity for sentencing. However, in 1995 alone, the conspirac y purchased an estimated 60 pou nds of iodine, which, using the District Court’s method of cal culation, would have yielded 12.27 kilograms of methamphetamine, leaving the base offense level unchanged. U.S.S.G. § 2D1.1 (1995) (Level 36 offens e level applies to methamphetamine quantities of 10 to 30 kilograms). 3
Gessa man

and Ward assert that they did not agree to “jointly undertake” th e production of the total amount o f methamphetamine, nor was that amount “reasonably foreseeable” to them. See U.S.S.G. § 1B1.3(a)(1)(B) (1997). Because Ward did not raise the issue of foreseeability either in o bjections to his presentencing report or at his sentencin g, the District Court properly relied on the presentencing report’s findings , which held Ward accountable for the full amount of drugs produced by the conspiracy. See United States v. Montanye , 996 F.2d 190, 192 (8th Cir. 1993), cert. denied , 117 S. Ct. 3 18 (1996). As to Gessaman, the record supports the District Court’s findings on foreseeability. Gessaman stipulated that she purchased ingredients and generall y assisted Whitehurst in the operation. Evidence presented during her codefendants’ trial and her sentencing hearing showed that she rented the farmhouse, helped purchase-8-

iodine and lab equipment, accepted iodine deli veries, and worked in the laboratory. In light of this evidence, the District Co urt properly found that “[s]he was involved in the jointly undertaken criminal activity” and that “she was aware that there was ongoing ma nufacture of methamphetamine in this case; and therefore, it was reasonabl y foreseeable to her that the yield would be of t he quantity that the Court has determined it to be.” Gessaman Sentencing Tr. at 145-46 (April 9, 1997).

IV. Role-in-the-Offense Adjustments Whitehurst disputes the four-level increase to his offense lev el, for his leadership role in the conspiracy. See U.S.S.G. § 3B1.1(a) (1997). Coleman, Gessaman, an d Wa rd argue that their offense levels should have been decreased, because they wer e only minimal or minor participants. See U.S.S.G. § 3B1.2 (1997). We hold that the District Court’s resolution of these issues was correct.
The evidence at trial amply showed Whitehurst’s direction of the conspiracy’s activitie s. In particular, his decisionmaking authority over the procurement o f equipment, supplies, and chemical ingredients demonstrated his leadership role in the conspiracy. Whitehurst Sentencing Tr. at 116-17 (October 10, 1996).
Neither was the District Court’s failure to grant Coleman, Gessaman, and Ward mitigating-role adjustments clear error, in light of each defendant’s involvement in the drug operation. Coleman was “the distributor of the methamphetamine and a n ‘enfo rcer’ of the conspiracy, collecting currency for Whitehurst.” Colema n Prese ntencing Report at ¶ 18 (adopted by District Court, Coleman Sentencing Tr. a t 133 (September 20, 1996)). Gessaman helped purchase ingredients and cook th e methamphetamine. Ward made the propane tank and the stainless steel container used to cook the methamphetamine. The record s upports the District Court’s determination of each defendant’s role in the conspiracy and its evaluation that none of them was a minor or minimal participant.-9- V. Obstruction-of-Justice Enhancement
We also a ffirm the District Court’s enhancement of Coleman’s, Ward’s, an d Whitehu rst’s offense levels for obstruction of justice. The Sentencing Guideline s provide for a two-level increase in offense level “[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the ad ministration of justice during the investigation, prosecution, or sentencing of the instant offense . . ..” U.S.S.G. § 3C1.1 (1997). The enhancement applies when the defendant has participated in destroying or concealing material eviden ce. Id. , commentary, n.3(d). The defendants rely on the Guidelines’ fur

ther direction that, if such conduct occurs contemporaneously with the defendan t’s arrest, the enhancement does not apply unless it resulted in a materia l hindrance to investigation, prosecution, or sentencing. Id. However, the District Court found, a nd we agree, that even if the defendants’ burning of the farmhouse could b e co nsidered contemporaneous with their arrest, the total destruction of the farmhous e and a “substantial amount of potential evidence” constituted a material hind rance within the meaning of the Guidelines. C oleman Sentencing Tr. at 130 (September 20, 1996). Further, the District Court followed the Sentencing Guidelines’ approach to grouping closely re lated counts by grouping Counts II and III (use of fire to destroy propert y used in interstate commerce and destruction of property to prevent seizure of evidence) with Count I (conspiracy to manufacture methamphetamine), the most serious offense. Se e U.S.S.G. § 3D1.2 (1997). Thus, the enhancement did not represent doubl e counting and was properly applied.Effective November 1, 1997, the applicable Guideline i s now found at U.S.S.G. 4 § 2D1.1(b)(6). Gessaman’s Fourth Amendment chal lenges to the use of these guns against her 5 are addressed below. The presentencing report also found that Gessaman failed to satisfy factor (5) 6 of the safety-valve test, which requires the defendant to have “tru thfully provided to the Gover nment

all information and evidence [she] has concerning the offense o r offe nses . . . .” U.S.S.G. § 5C1.2(5) (1997). Because the District Court correctl y de termined

that Gessaman’s possession of weapons disqualified her from the safet y valve, it did not reach this second issue, and we need not do so now. -10- VI. Safety-Valve Adjustment Gessaman argues that

the District Court erred in failing to decrease her offense level pur suant to U.S.S.G. § 2D1.1(b)(4), which reduces the offense levels o f 4 defendants meeting the criterion for the safety-valve exception to statutory minimum se ntences in U.S.S.G. § 5C1.2. We hold that she was disqualified from the decrease by her possession of weapons connected to the drug conspiracy. Among other criteria, the “safety valve,” and hence the § 2D1.1(b)(4) decrease, requires that “(2) the defendant did not . . . possess a firearm or other dangerou s weapon (or induce another participant to do so) in connection with the offense . . .. ” U.S.S.G. § 5C1.2(2) (1997). The District Court found that Gessaman failed to meet this criterion because of the 14 guns found in her car in December 1994 and licensed to her name, as well as the ten guns found at the farmhouse in December 1995. As

5 6 with a weapon-possession enhancement , which Gessaman also received, defeating the saf ety-valve decrease requires the government “to prove by a preponderance of th e evidence that it is not clearly improbable that the weapon had a nexus with the criminal activity.” United States v. Richmond , 37 F.3d 418, 419 (8th Cir. 1994), cert. denied , 513 U.S. 1178 (1995). The firearms in the farmhouse were found in “strategi c positions, suggesting that their intended use was fo r protection of the residence and the-11-

methamphetamine laboratory”; during Austin’s controlled delivery of iodine to th e farmhouse, Gessaman said that he should have contac ted the farmhouse in advance “to avoidthe possibility of being shot”; and numerous of the firearms found in her car in 1994 “were not commonly associated with a sporting activity.” Addendum t o Gessaman Presentencing Report at 5 (adopted by District Court, Gessaman Sentencing Tr. at 173 (April 9, 1997)). In light of this evidence, the District Court’s denial of a safety-valve adjustment was not clear error. VII. Criminal History Category
Th e government concedes that Coleman should have been placed in Crimina l Histor y Category I for sentencing purposes. We therefore remand for resentencin g using the correct category. VIII. Arguments for Retrial
A. Ineffective Assistance of Counsel Coleman argues that the ineffective a ssistance of his counsel at trial violated his Sixth Amendment rights. Suc h a claim should normally be raised not on direct appeal but in a 28 U.S.C. § 2255 proceeding, so that a record can be developed properly by the Dist rict Court. United States v. Kenyon , 7 F.3d 783, 785 (8th Cir. 1993). W e decline to address arguments at this stage.
B. Trial Errors
Ward claims that the District Court committed various errors dur ing his trial, and also that the evidence presented at trial was insufficient to support his conviction. We have considered these claims and find them to be without merit.-12- IX. Search and Seizure Issues
White hurst argues that the District Court erred in admitting into evidence guns and d rugs seized from Gessaman’s car in December 1994, on Fourth Amendmen t ground s. Similarly, Gessaman challenges the District Court’s consideration of thi s evidence at her sentencing. We hold that the search of the car and the seizure of the guns and drugs found therein were constitutional. On December 3, 1994, Gessaman’s car was stopped for a traffic law violation. Police observed a handgun clip protr uding from under the passenger seat. They asked Gessaman and Whitehurst, who was her passenger, to leave the car and to sit i n separate police cars, which they did. The police then retrieved the clip from the car and, in the process, observed a gun under the back seat. They proceeded to search the van, finding ten

bottles of ephedrine, 14 guns, and ammunition in the back of the van, as well as other firearms and drugs.
Traffic v iolations constitute probable cause for police to stop a car, Unite d States v. Cummins , 920 F.2d 498, 500 (8th Cir. 1990), cert. denied , 502 U.S. 96 2 (1991) , as well as to order the driver and passengers out of the car, Maryland v

. Wilson , 117 S. Ct. 882, 884 (1997). The police’s observation of the clip justified a limited sweep of the passenger compartment. See United States v. Richards , 967 F.2d 1189, 1193 (8th Cir. 1992). Thus, the gun under th e back seat, and the drugs and guns in the back of the van, were validly seized.
X.
We affirm the sentences of Gessaman, Ward, and Whitehurst. We reman d Coleman’s case for resentencing according to his correct Criminal History Category.-13-

It is so ordered. A true copy.
Attest: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.