The Hono rable John F. Nangle, United States District Judge for the Eastern 1 District of Missouri, sitting by designation. United States Court of Appeals FOR THE EIGHTH CIRCUIT

No. 96-2976

United States of America, * * Appellee, * * Appeal from the Unite d States v. * District Court for the
* Southern D istrict of Iowa. Parmoto Richard Purvis, * * Appellant. *

Submitted: March 12, 1997 Filed: May 29, 1997

Befor e FAGG and HEANEY, Circuit Judges, and NANGLE, 1 District Judge.

HEANEY, Circuit Judge. Parmoto Purvis was t ried before a jury and convicted in the Southern District of Iowa of numerous dru g offe nses stemming from his leadership role in th e dist ribution of large amounts of cocaine, cocaine base , and methamphetamine. Specifically, the jury found tha t Purv is had engaged in a continuing criminal enterpris e (“CCE”) fromThe court imposed a life sentence on the CCE conviction, a forty-year , 2
con current sentence on Purvis’s two distribution convictions, a five-year consecutive sentence for the first conviction under section 924(c)(1), and two consecutive twentyyear sentences for the second and third convictions under section 924(c)(1). To avoid double jeopardy, the court imposed no additional sentence on the consp iracy conviction which related to the same facts as the CCE conviction. Similarly, the court did no t impose a sentence as to one section 924(c)(1) conviction because both it and a different section 924(c)(1) conviction for which the court imposed the statutorily-mandate d sentence were predicated on the same drug-trafficking offense.
2 April 1, 1 994 through August 16, 1995 in violation of 21 U.S. C. §§ 848(a), (c) (1994); conspired to distribut e controlled substances during that same period i n violation of 21 U.S.C. § 846 (1994); distributed cocaine base in violation of 21 U.S.C. § 841(a)(1) (1 994); and on at leas t four occasions carried a firearm during and i n furtherance of a drug-trafficking offense in violation of 18 U.S.C. § 924(c)(1) (1994). The court sent enced Purvis to a prison sentence of life plus forty-five years. On 2 appeal, Purvis challenges the sufficiency of the evidence to s upport three of his convictions under sectio n 924( c)(1) and the court’s computation of the dru g quan tities for sentencing purposes. We affirm th e convictions and sentence.

I.

Inreviewing the sufficiency of the evidence, we mus t consider t he evidence in the light most favorable to the jury verdict and resolve all evidentiary conflicts i n favor of the government. United States v. Ba tes , 77 F.3d 11 01, 1104-05 (8th Cir. 1996). We uphold the jur y verdict if there is an interpretation of the evidenc e3

that would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt. Id.

Purvis argues that the evidence is insufficient t o convi ct him on three of the four firearm charges. W e disagree. The evidence at trial, consisting primarily of test imonyfrom other members of the conspiracy, fairl y established the following facts. Purvis4

played on the poverty, homelessness, and genera l disfranchi sement of numerous people to establish himself
as the leader of an organization that, among othe r activ ities, distributed large quantities of cocaine , cocaine ba se, and methamphetamine. Purvis’s home, where many of th e co-conspirators stayed, served as the center of operations. In addition to large amounts of drugs and
cas h stored in the house and garage, Purvis kept a n extensive arsenal of firearms at his home. T he guns were kept loaded and readily accessible and were use d routinely to protect the drugs, cash, and sto len property that flowed through the house. Purvis assigned certai n pers ons to act as security forces, guarding the singl e entr ance to the house and stationing themselves i n window s to keep watch over the area outside the house

. He al so set up a security camera that enabled person s inside the house to monitor what was happening outside

.

In order to sustain the convictions for “carrying” a firearm in violation of section 924(c)(1), th e government must prove that Purvis “bore the firearm on or about his perso n during and in relation to a drug traffickin g offense.” United States v. White , 81 F.3d 80, 83 (8t hWe note that each of t he firearm charges was submitted to the jury under only 3 the “carry ” prong of section 924(c)(1), under the theory that Purvis either carried o r aided and abetted in the carrying of a firearm during the commission of a drug

trafficking offense. In his brief, Purvis relies heavily on Bailey v. United States , 116 S. Ct. 501 (1995), which clarifies the meaning of the “u se” prong of section 924(c)(1). Although Bailey provides some guidance in this case insofar as it recognizes th e common-sense limits on a key term in the statute, our obligation here is to decid e whether Purvis can stand convicted of carrying firearms, the only question presented to the jury. Thus, if the evidence were insufficient to support the “carry” convictions, we would have to reverse the convictions regardless of whether the same evidenc e cou ld have supported convictions under the “use” prong of the statute. Cf. Unite d States v. Miner , 108 F.3d 967, 969 (8th Cir. 1997) (upholding section 924(c)(1 ) conviction despite flawed instruction under “use” prong where jury instructed on both “u se” and “carry” prongs and under specific facts it was “inescapably clear” that properly-instructed jury would have convicted defendant of carrying firearm).
5 Cir. 1996). In addition to general testimony tha t 3 Purvis instructed6

vario us people under him to regularly carry guns t o prot ect the criminal operation, there is more tha n sufficient evidence that Purvis carried a firearm on the spe cific occasions to which his convictions relate

. Furt her, contrary to Purvis’s assertions, there is als o ample evidence to connect the carrying of the guns to his specific drug-trafficking crimes. Pur vis’s first firearm conviction was predicated o n events which took place on a night in early 1 994. Purvis and several other persons were in the middle of a dru g sale inside the house when they were interrupted by a loud co mmotion taking place outside. Several men, a t least one of whom was armed with a gun, were threatening a woman wh o was connected to Purvis either as one of his drug customers or as one of his distributors. The me n were upset because the woman had “ripped them off. ” Purvis testified that he picked up his gun, a loaded, 9mm
revo lver, which was within ready reach during the dru g transaction. Purvis put the gun in the back of his pants and proceeded outside. One of Purvis’s associates , carr ying a loaded shotgun that belonged to Purvis , provided Purvis with backup. Purvis was able to diffus e the s ituation by paying the men a small sum of money

. Purvis the n went back inside, still armed, and completed the drug transaction. The jury obviously disbelieve d Purv is’s claim that the altercation outside and th e asso ciated display of weapons had no relationship t o drug-trafficking activity. We have no troub le upholding the jur y’s finding that Purvis carried a firearm tha t nigh t during and in furtherance of a drug-traffickin g crime. Purvis was also found guilty of carrying a firearm o n a nig ht soon thereafter when he sold cocaine base to a n7

unde rcover federal agent. Purvis’s girlfriend, als o acti velyengaged in the drug operations, testified tha t both she and Purvis had loaded firearms readi ly available duri ng that particular transaction. According to hi s girl friend, Purvis had the same loaded 9mm revolve r available on the desk at which the drug deal took place. His girlfriend, following Purvis’s instruction to hav e read yaccess to a gun at all times for “protection, ” observed t he transaction while keeping her gun, a loaded .380 pistol, “within a hand’s reach.” Again, it wa s certainly reasonable for the jury toPu rvis claims error with the court’s admission of evidence that he violentl y 4 atta ckedone of his co-conspirators. Purvis argues that the testimony constitute s imp ermissibleevidence of prior bad acts and should have been excluded under Rul e 404(b) of the Federal Rules of Evidence. His argument fails because the proof offered
8 conclude t hat Purvis either carried or aided and abetted in the car rying of a firearm in connection with the sale of a controlled substance on that occasion.

The final firearm conviction Purvis challenges i s pred icated on the overarching drug conspiracy and i s based on w eapons that were seized by state police during
a se arch of Purvis’s garage during the course of th e cons piracyand in the midst of this federa l inve stigation. There is detailed trial testimony fro m his co-conspirators stating that firearms were a n essential part of the criminal activity led b y Purvis and
conn ecting the weapons seized to the drug conspiracy

. Purv is argues that because no drugs were seized durin g the search , there is nothing to link the weapons to drug traff icking; he then goes on to assert that even if th e polic e had discovered drugs in the garage, the mer e storage of weapons in the vicinity of drugs i s not enough to establish a firearm violation under sectio n 924(c)(1). While Purvis’s arguments have some merit in t he abstract, he ignores the essential fact that the weapons seized do not constitute the entire evidentiary basis for th e char ge. Rather, the recovered weapons corroborate th e ex tensive testimony linking Purvis to the firearm s offense. After fully reviewing that testimony in ligh t of th e weapons seized by police and identified by co

conspirato rs, we affirm Purvis’s conviction for carrying a firearm in the course of a drug conspiracy. 4by the government formed the basis of a substantive count in the indictment agains t

him. The indictment charged that Purvis carried a firearm in violation of sectio n 924( c)(1) when he shot and threatened to kill a co-conspirator whom Purvis believed hadstolen drug money and personal property related to the drug operation. Because the evide nce constituted direct proof in support of Purvis’s fourth (and unchallenged) firearm conviction, there can be no question as to its relevance and the district court did not err in permitting the government to introduce evidence of the attack.
9 II.

Purvis argues that the district court erred i n calc ulating the drug quantity as part of determinin g Purv is’s base-offense level for sentencing. A court’ s drug-quant ity determination is a factual finding that we revi ew under the clearly erroneous standard. Unite d St ates v. Bieri , 21 F.3d 811, 817 (8th Cir. 1994)

. Determinin g the drug quantities involved in this case is pote ntiallychallenging for two reasons. First, i n con trast to the large scale of the operation, th e government’s investigation recovered only a very smal l amount of drugs as a result of its investigation. Thus,
as is sometimes the case, the court had to approximat e the drug quantities involved based on witnesses ’ testi monyrather than rely on the actual amounts o f recovered substances. See , e.g. , United Stat es v. Logan , 54 F.3d 452, 455 (8th Cir. 1995) (when the amount o f drugs s eized does not reflect the scale of the offense , the district court may approximate the quantity)

. Second, th e probation office’s presentence report relied in pa rt on information provided by confidentia l in formants whose testimony was not part of the tria l record. T o avoid unfairness in the calculation from the latter, however, the court specifically stated:10

I’m n ot taking into account amounts base d strictlyon information related in th e presentence report concerning confidentia l infor mants’ materials, but I am relying on th e trial testimony. The trial testimony wa s obviously heavily challenged b y effective crossexamination by defense co unsel, bu t nevertheless, the jury found credible th e tes timonyof numerous co-conspirators wh o testified against Mr. Purvis and found Mr

. Purvis’s explanation and testimony no t believable.

I fin d that the credible evidence, based o n wi tnesses called by the government at trial , supports the presentence report findings tha t very substantial amounts of co ntrolled substance are attributable to Mr. Purvis as the leader of an organization that was distributing cocaine , crack cocaine, and methamphetamine.11

(Sen tencing tr. at 16:7-17:1.) The court the n specificallyfound Purvis responsible for approximatel y ten kilograms of each of the three substances, slightl y less than the amounts calculated in the presentenc e report. A fter careful review, we are satisfied that the dist rict court based its calculation on proper evidenc e and t hat its determination is amply supported by th e trial testimony.

III.

In sh ort, Purvis’s convictions and sentence ar e affirmed.

A true copy.

Attest.

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

.