The HONORABLE DAVID S. DOTY, United States District Judge * for the District of Minnesota, sitting by designation. The Honorable Richard G. Kopf, United States District Judge for 2 the District of Nebraska. ___________ No. 96-1038

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska Lee Warn Scott, * * Appellant, *

___________ Submitted: June 11, 1996 Filed: July 30, 1996

___________ Befo re Magill, Circuit Judge, HENLEY, Senior Circuit Judge, an d DOTY, District Judge.

*

___________ DOTY, District Judge. Lee Wa rn Scott (“Scott”) was convicted of conspiracy t o distribute crack cocaine in violation of 21 U.S.C. § 846. H e appeals his conviction and 20 year sentence. Finding no error, we affirm the judgments of the district court. 2

I. The grand jury returned a one-count indictment against Scottcharging him with conspiracy to distribute crack cocaine “[f ]rom an

unknown date, but beginning at least as early as on or about June-3-

30, 1994, and continuing until at least on or about September 21, 1994.” At trial, three witnes ses testified to their drug dealings with Sco tt. Harold Stewart testified that he first met Scott i n Florida and agreed to travel with Scott and others to Mississippi to throw a barbecue, something Scott was known to do in Florida

. After the barbecue in Mississippi, the group traveled to Lincoln, Nebraska, with the aid of another individual, Peter Mays, a “travel guide.” The party arrived in Lincoln on a Monday sometime in late June 1994, and checked into a local motel.
On Wednesday of that week, Stewart learned that Scott had be en storing crack cocaine in the hotel room that Stewart shared wit h Felton Milner. Stewart observed Scott cut the crack cocaine into distribution size “rocks” wort h $50 a piece and give 25 rocks each to Mays and another individual, Roy Horton. Scott collected th e sale proceeds from Horton and Mays the next morning. Stewart saw this activity repeated during the remainder of the week. Tha t Saturday before returning to Florida, Stewart rode around Lincoln with Scott collecting drug proceeds from a number of individuals. St ewart said he did not distribute crack for Scott, but on on e occasion he held money that was the proceeds of crack sales made by Milner that he (Stewart) later gave to Scott. That summer, Stewart returnedto Nebraska from Florida with his own supply of crac k cocaine and entered into competition with Scott.
Jimmy Simmons testified that Scott offered him crack to sell during the summer of 1994 in exchange for a cut of the profits

. Simmons failed to sell this crack, instead he smoked his entir e allotment and did not pay Scott. Simmons further testified tha t Scott threatened him with a knife because he didn’t pay for th e crack.
Scott provided crack to Christopher Gant for resale, accordi ng-4-

to Gant’s testimony at trial. Gant observed Scott and co

conspirator Edward Walker, a/k/a “Pokey,” selling crack to a t least three people on July 9, 1994, at 2410 Vine Street in Lincoln . Gant-5-

stated that Scott was the money man while Walker actuall y distributed the crack that was kept in a white medicine bott le with a red cap.
The government also offered a video tape of surveillance, and the testimony of the officer who taped the surveillance, conducted at 2410 Vine Street on July 9, 1994. The tape depicts a number of individuals approaching the house on Vine and greeting Scott, who
was st anding by a brown car parked in the driveway of the house

. Some of the parties would thengreet Edward Walker. After awhile, individuals arriving at the house would enter the front doorof the house followed by Scott, during which time Walker would stand i n front of the door blocking any view from the street. Th e individuals would then exit the house after only one or two minutes andScott would return to the front yard. After conductin g approx imatelyan hour of surveillance, officers contacted bot h Scott and Walker, eventually arresting both individuals afte r crack cocaine was discovered in a white medicine bottle with a redlid in the grass by the porch of the house.

Scott testified on his own behalf. He denied that he was a drug dealer and stated that he came to Lincoln to open a barbecue business. The large sums of cash that had been found on his person andin the freezer of his hotel room were the proceeds of hi s wife’s back social security disability benefits given to him t o start up his business and to enable his family to move from Florida to Nebraska.

The jury found Scott guilty. The district court, after a n evidentiary hearing at which the trial transcript was admitted as evidence, found that Scott was responsible for at least 700 grams of crack cocaine for a base offense level of 36. Two points were addedfor obstruction of justice, four points for Scott’ s-6-

leadership role in the conspiracy, and two points for using a dangerous weapon for a total base offense level of 44. Scott’s-7-

criminal history level was cat egory II for a guideline sentence of life imprisonment. The district court departed downward upon the government’s motion to 20 years because Scott had been advised at his arraignment that the maximum sentence was 20 years. Scot t challenges his conviction and sentence.

II.

A. Motion to Suppress Scott first argues that the district court erred by failing to suppress evidence seized pursuant to his warrantless arrest on July 9, 1994, at 2410 Vine Street. “In determining whether probabl e cause exists to make a warrantless arrest, the court looks to the totality of the circumstances to see whether a prudent perso n would bel ieve the individual had committed or was committing a crime. ” United States v. Hawkins , 59 F.3d 723, 727 (8th Cir. 1995) ( quoting United States v. Segars , 31 F.3d 655, 659 (8th Cir. 1994) (i nternal citati ons omitted)). The historical facts supporting probabl e cause are reviewed for clear error, the determination of probable cause is subject to de novo re view. Ornelas v. United States , 116 S. Ct. 1657, 1663 (1996) (resolving standard of review generall y for reasonable suspicion and probable cause determinations) ; United States v. Snook , ___ F.3d ___, 1996 WL 368885 *4 n.3 (8t h Cir. July 5, 1996) (citing Ornelas ).
The district court adopted, wi thout objection, the report and
rec ommendationof Magistrate Judge Piester that concluded a n “abundance” of probable cause supported the warrantless arrest of Scott on July 9, 1994. Reviewing the entire record, there can be
no doubt that this determination is correct. Officers ha d informationfrom two confidential informants that a black ma n driving a distinct vehicle was selling crack cocaine from 24 10 Vine-8-

Street. One informant stated that this man was staying at a local motel. Police officers observed the described vehicle at tha t hotel, then later at 2410 Vine Street. An officer observed Scott-9-

exit the vehicle at issue and engage in a number of brief ex changes consistent with the informant’ s description of how the crack sales
were conducted at that residence and that were consistent wit h narcotic sales in general. Based on the correlation between th e informants’ information, the officers’ observations and , consid ering all reasonable inferences, we agree a prudent perso n wouldbelieve that Scott was committing the crime of selling a cont rolledsubstance. Scott’s arrest was supported by probabl e cau se. The district court correctly denied Scott’s motion t o suppress.

B. Sufficiency of the Evidence Sco tt challenges the district court’s denial of his Rule 2 9 motion, arguing that the evidence was insufficient to support his conviction on the charge of co nspiracy. The standard of review of the sufficiency of the evidence is well-settled. We examine th e evidence in the light most fav orable to the verdict and accept all reasonable inferences as established, only reversing a verdict if no reasonable jury could have found the defendant guilty beyond a reasonable doubt on each essential element of the charge. United States v. Jenkins , 78 F.3d 1283, 1287 (8th Cir. 1996) (citation s omitted). To prove a conspiracy, “the government must show a n agreement between two people and that the agreement’s object ive was a violation of the law.” United States v. Escobar , 50 F.3d 1414, 1419 (8th Cir. 1995). Re viewing all of the evidence presented at trial, an d considering it in the light most favorable to the verdict, w e conclude that there is sufficient evidence to sustain Scott’ s con viction. The testimony showed an agreement between Scott an d others, including Stewart, Sim mons, Gant and Walker, to distribute crack cocaine. Scott testifie d to the contrary, and suggests that the other witnesses were wholl y incredible, but it is for the jury-10-

to judge the credibility of the witnesses. Moreover, Scott’ s argument that the evidence at most establishes a buy-sell ag reement between him and others ignores the repeated testimony that Scott-11-

furnished a number of individu als with resale quantities of crack, expect ing those individuals to provide him with the proceeds o f these sales. See United States v. Eneff , 79 F.3d 104, 105 (8t h Cir. 1996). A reasonable jury, relying on the testimony o f Stewar d, Simmons and Gant, the videotape depicting the sales o n July9, as well as the crack and sums of cash seized, could fin d Scott guilty of each essential element of the crime of conspiracy. Basedon this evidence, we cannot agree that no reasonable jur y couldhave found Scott guilty beyond all reasonable doubt. Th e district court properly denied Scott’s motion for judgment o f acquittal.

C. Application of the Guidelines Scott makes a number of challenges to his sentence. First , Scot t alleges that the district court improperly calculated th e qua ntityof crack cocaine attributed to him when determining hi s base offense level. Under the United States Sentencing Guid elines,
a de fendant’s base offense level for drug-related crimes i s calculated according to the quantity of drugs directly attributed to him and, in the case of jointly undertaken criminal activity , all reasonably foreseeable quantities that were in the scope of the crimin al activity that he jointly undertook. U.S.S.G. § 2D1.1 ; U.S .S.G. § 1B1.3, application note 2. The sentencing court’ s quantity calculations are factual findings reviewed for clea r error. United States v. Flore s , 73 F.3d 826, 833 (8th Cir. 1996), cert
. denied , 1996 WL 282539 (U.S. June 24, 1996)).
The Presentence Investigation Report (“PSR”) recommended that Scott be held accountable for at least 500 grams but less than 1.5 kilograms of crack for a base offense level of 36. The probation officer’s calculations were based on Stewart’s trial testimo ny that Scott told him that he [Scott] had brought 10 ounces of crack t o-12-

Lincoln in June 1994, the 3.56 grams of crack seized on June 9, and Gant’s testimony that Scott sa id he [Scott] was planning to “bring back half a key, kilos, or fiv e kilos or something of that matter”-13-

in July 1994 (which is at least 500 grams). Trial Transcript , Volume III, pg. 291 at ln. 9-1 0. The probation officer also noted that Gant, Simmons and Stewart had seen Scott in possession o f crack at various times during the summer of 1994. The distric t court believed the probation officer’s calculations wer e “conservative,” but adopted them “as reasonable from the evidence adduced at trial.” We agree t hat this drug quantity determination is well-supported by the trial record and is indeed a conservative indica tionof the large quantities of crack that Scott importe d into Lincoln, Nebraska. Seeing no clear error, we uphold th e district court’s conclusion that Scott should be held accountable for at least 500 grams but less than 1.5 kilograms of crack.

Whether the district court complied with Federal Rule o f Criminal Procedure 32(c)(1), however, presents a closer question. Rule 32 requires the district court to make specific finding s as to each controverted matter in the PSR or determine that no finding is necessarybecause the matter will not be taken into account a t sentencing. Such findings ens ure “meaningful appellate review and the fairness of the sentencingprocess.” United States v. Beatty , 9 F.3d 686, 690 (8th Cir. 1993 ) (citations omitted). This circuit has stated that “the requirements of this rule [are] satisfie d where the district court made clear at sentencing that it wa s relying on its impressions of the testimony of witnesses at trial, coup ledwith its specific rejection of the defendant’s quantit y objections.” United States v. Flores , 73 F.3d 826, 835 (8th Cir. 1996) (citing United States v. Edward , 994 F.2d 417, 423 (8th Cir. 1993), cert. denied , 114 S. Ct. 701 (1994)). We acknowledge that th e district court satisfied these minimal requirements by th e iss uances of its written memorandum that rejected all of Scott’ s sentencing objections, including his position that he should only be held accountable for the 3.56 grams of crack seized, havin g pre viouslyconcluded that the PSR was “correct in all respects. ”-14-

See Memorandum and Order dated December 15, 1995, at pg. 1 ; Tentative Findings Order dated June 1, 1995, pg. 1. Further, the-15-

dist rict court, in agreeing with the probation officer’ s cal culations, expressly stated its reliance on the testimony presented at trial.
However, the value of specific references to trial testimony, the substance of that testimony and whether it is credible cannot be understated. Such specific ity is very important in the area of drug quantity calculations where the findings turn on th e credibility determinations of the trial judge, and where as here, the testimony presented is the word of one or two individuals

. Bec ause we find that the district court satisfied the minimum requirements of Rule 32 as established by this circuit, and because the record clearly shows that the drug quantity is well-supported, we reject Scott’s challenge to his sentence on this basis.

Scott next argues that the district court incorrectl y calculated his criminal history score by assessing one point each for hi s two previous convictions for aggravated battery and on e conviction for aggravated assault. Scott was sentenced to a fine ranging from $250 to $500 on each conviction. Section 4A1.1(c ) provides that one point shall be added for each “prior sentence ” not otherwise counted under § 4A1.1(a) or (b). A “prior se ntence” is defined as “any sentence previously imposed upon adjudica tion of guilt.” U.S.S.G. § 4A1.2(a)(1). From the plain language of th e guidelines, non-imprisonment sentences, such as the imposition of a fine only, are counted as a prior sentence unless the crime is a misdemeanor or other petty off ense that is similar to the excluded offens es listed in § 4A1.2(c)(1). Scott’s crimes of aggravate d assaul t or battery are not excluded crimes. Scott simpl y misconstrues the guidelines in arguing that points can only b e asse ssedif he is sentenced to a term of imprisonment. Th e distri ct court properly assessed one point each for the non

imprisonment sentences that Scott received for his convictions.-16-

The district court also enhanced Scott’s base offense level by-17-

two points for obstruction of justice, two points for possessing a dangerous weapon and four points for Scott’s role as a leader and organi zer of others. We review the factual findings supportin g each enhancement for clear err or. United States v. Adipietro , 983 F.2d 1468, 1479 (8th Cir. 1993) (obstruction of justice); United States v. Garrido , 995 F.2d 80 8, 815 (8th Cir.), cert
. denied , 114 S. Ct. 330 (1993) (dangerous weapon); United States v. Pena , 6 7 F.3d 153, 156-57 (8th Cir. 1995) (role in the offense).
Lying under oath certainly impedes the administration o f justice during the prosecution of a case. U.S.S.G. § 3C1.1 , application note 3(b). A defendant is subject to an obstruc tion of jus tice enhancement if he gives false testimony under oath i n regard to a material matter and does so willfully rather than out of confu sion or mistake. United States v. Dunnigan , 507 U.S. 8 7 (1993). A defendant’s testimony should be evaluated in the light most favorable to him. Applying this heightened standard, th e district court concluded that “Scott’s testimony under oath clearly constitutes perjury both as to the money in his possession when he arrived in Lincoln, Nebraska, and as to his involvement in t he sale of crack cocaine.” Memorandum and Order dated December 15, 1995, at pg. 2. Scott’s testimony concerned a material matter an d nothing suggests that it was given out of confusion or mistake

. The district court’s finding is supported by a review of the record as a whole and will not be set aside.
The Guidelines provide that a defendant’s base offense level for a drug-related crime must be increased if the defendan t possessed a dangerous weapon. U.S.S.G. § 2D1.1(b)(1). Dangerous weapon means “an instrument ca pable of inflicting death or serious bodilyinjury.” U.S.S.G. § 1B1.1, application note 1(d). Thi s enhancement is not limited to the possession of a firearm an d should be applied unless it is clearly improbable that the weapon-18-

was connected to the offense. U.S.S.G. § 2D1.1, application note 3. Scott’s challenge to this enhancement hinges on the fact that-19-

the knife was not produced at trial. Because the knife was neither produced at trial nor described at trial, Scott submits ther e is no evidence that the knife was “dangerous,” i.e., capable o f inflic ting at least serious bodily injury. Scott, however, ha s providedno authority for the proposition that the knife must b e produc ed. Simmons testified at trial that Scott threatened hi m with a knife because he smokedup the crack that Scott gave him to sell and did not pay for the drugs. Trial Transcript, Volume II, pg. 141-142. Simmons felt threatened by this conduct. Id. at 142, ln. 14-16. This testimony, which the district court credited, is sufficient to find by a preponderance of the evidence that Scot t did indeed possess a dangerous weapon, a knife, in connection with his criminal conduct.

Scott also challenges his four level enhancement for hi s aggravated role in the conspiracy. Scott’s arguments are without merit. The evidence showed that Scott recruited a number o f indivi duals including Simmons, Mays, Gant, Stewart, Milner an d Horton, at a minimum, to sell drugs for him. The district court correctly determined that this recruitment of accomplices, Scott’s supervis ionof their sales and the retention of a large share o f the profits warrants the maximum enhancement for his leadershi p role in a conspiracy involving five or more participants. Se e U.S.S.G. § 3B1.1, application n. 4.

Fina lly, Scott’s arguments regarding the disparity i n punishment between cocaine base and cocaine powder, the appl ication of the rule of lenity and his equal protection challenge arisin g therefrom are foreclosed by this circuit’s clear precedent. United States v. Long , 77 F.3d 1060, 1061-62 (8th Cir. 1996) (citin g UnitedStates v. Jackson , 64 F.3d 1213 (8th Cir. 1995), cert
. denied , 116 S. Ct. 966 (1996)). The court has considered Scott’s remaining arguments in support of his appeal and finds them to be-20-

without merit.-21- III. Basedon the foregoing, we uphold the judgments of th e district court. Probable cause supported Scott’s arrest on July 9, 19 94, sufficient evidence supported his conviction on th e conspi racycharge and the district court properly calculated hi s offense level and criminal his tory score. We must note that based on its calculations, the district court found Scott’s offens e level to be 44, and his criminal history to be category II for a result ing guideline sentence of life in prison. Notwithstandin g this fact, the district court departed downward on the motion o f the government pursuant to U.S.S.G. § 5G1.1(a) to 20 year s imprisonment. The district court was well within its discre tion to do so. Scott’s conviction and sentence are affirmed.

A true copy.

Attest:
Clerk, U.S. Court of Appeals, Eighth Circuit.