United States Court of Appeals

For the Eighth Circuit

___________________________

No. 15-1374

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Demetrius Colbert, also known as D-Coop

lllllllllllllllllllll Defendant - Appellant

____________

Appeal from United States District Court 

for the Eastern District of Arkansas - Little Rock

____________

 Submitted: January 14, 2016

 Filed: July 8, 2016

____________

Before WOLLMAN, MELLOY, and COLLOTON, Circuit Judges.

____________

WOLLMAN, Circuit Judge.
Demetrius Colbert appeals from his conviction on several drug-trafficking and

firearm-related charges and from the sentence imposed by the district court. We

1

affirm.

2

I.

Colbert’s conviction was one of many resulting from Operation Delta Blues,

a multi-year, multi-agency drug-trafficking and public-corruption investigation

conducted by the Federal Bureau of Investigation (FBI), the Drug Enforcement

Administration, the Internal Revenue Service, the Bureau of Alcohol Tobacco and

Firearms, and the criminal-investigation division of the Arkansas State Police. The

investigation resulted in more than seventy arrests, which included those of officers

in the Helena-West Helena Police Departments and the Phillips County Sheriff’s

Office.

In early 2011, court-ordered wiretaps on phones used by Sedrick Trice and

Leon Edwards, along with information provided by a confidential witness revealed

that Colbert was a large-scale cocaine distributer in Marianna and Helena-West

Helena, Arkansas. Based on that information, on April 12, 2011, the FBI obtained

a court order granting a wiretap for a thirty-day period on a cell phone that the FBI

believed was primarily used by Colbert. The FBI obtained court authorization for a

thirty-day extension of the wiretap beginning on May 12, 2011. The wiretap ended

on June 10th or 11th, by which time the FBI had intercepted more than 7,000 calls

made or received by Colbert’s cell phone, approximately 710 of which the FBI

determined were related to criminal activity.

The Honorable James M. Moody, Jr., United States District Judge for the

1

Eastern District of Arkansas.

We grant Colbert’s motion for permission to file a pro se supplemental brief. 2

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Agrand juryreturned a seventeen-count indictment charging Colbert and seven

others on October 4, 2011. An arrest warrant was issued for Colbert the following

day. The government obtained a search warrant on October 6, 2011, for Colbert’s

home located on Hillcrest Street in Marianna, Arkansas (the Hillcrest Street house). 

The search warrant permitted law enforcement officers to search the residence for

evidence of money laundering and to execute the search warrant at any time of the

day or night.

The FBI’s Special Weapons and Tactics (SWAT) team executed the warrant

at 4:00 a.m. on October 11, 2011. Colbert was in the house at the time, along with

his long-time girlfriend Catina Davis and their two children. The twelve-member

SWAT team arrived at the Hillcrest Street house in two SUVs and was accompanied

by a state trooper. Upon arriving at the house, the state trooper illuminated his squad

car’s blue overhead lights, which he directed at the front of the house in order to alert

anyone inside to the FBI’s presence. Two SWAT-team members acted as

“breachers,” who were responsible for positioning themselves outside the front door

on the left- and right-hand sides, announcing the FBI’s presence, and, if necessary,

forcing the door open with a hand-held battering ram. After the team was positioned,

FBI Agent Wendell Cosenza, the breacher positioned to the right of the door,

knocked loudly on the front door with his extendable baton and announced, “FBI,

warrant, come to the door.” He repeated the knock-and-announce sequence two more

times, pausing briefly each time, with the entire process taking less than one minute. 

The teamleader then instructed the other breacher to “hit it” and breach the front door

with the battering ram. 

Immediately before the battering ram struck the front door, a shot was fired

from within the house, followed by at least seven more shots in rapid succession after

the door was breached. After the front door was forced open, an agent threw a

flashbang grenade into the house, the team leader issued a “cover up” command, and

the teamretreated to covered positions. During the shooting, two FBI agentsreturned

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fire into the house. One agent fired three shots through the front window of the house

into the living room, toward where the first shots originated, and moments later

another agent fired two shots through a bedroom window, located to the left of the

front door, after the agent observed a gun in the window. One of the bullets fired

from inside the house struck Agent Cosenza in the leg. After the FBI agents took

cover, they ordered those in the house to surrender. Approximately one or two

minutes later, Davis surrendered to the FBI’s custody, followed by Colbert

approximately one or two minutes after Davis’s surrender. Team members then

secured the house and brought Colbert’s children out of the house.

During the subsequent search of the house, FBI agents recovered $423,313 in

cash hidden throughout the house (including $139,673 found in two bags that were

located in the trunk of Colbert’s 1971 Oldsmobile Cutlass), a .40 caliber handgun

with an empty magazine from the top of the vanity in the master bathroom, empty

plastic bags containing cocaine residue from the toilet in the master bathroom, digital

scales containing cocaine residue from the master bathroom and the garage, several

pieces of diamond jewelry worth approximately $26,000, and two of Colbert’s five

cars.

In a superseding indictment, a grand jury charged Colbert with one count of

conspiracy to distribute or possess with intent to distribute cocaine and cocaine base,

in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A), and two counts of use of a

communications facility in furtherance of a drug-trafficking crime, in violation of 21

U.S.C. § 843(b)(collectively the conspiracy charges). It further chargedColbert with

being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and

924(a)(2), with assaulting a federal officer with a dangerous or deadly weapon, in

violation of 18 U.S.C. § 111(b), and with possession and discharge of a firearm in

connection with a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(iii)

(collectively the firearm-related charges). 

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Colbert filed pretrial motions to suppress evidence from the wiretaps and the

search and to sever the trial. Colbert objected to the wiretap evidence on the ground

that the government had not met its burden under 18 U.S.C. § 2518(1)(c) to show that

a wiretap was necessary. Colbert objected to the search warrant on the ground that

the affidavit did not establish a nexus between the Hillcrest Street house and moneylaundering evidence. In support of his motion to sever, Colbert argued that the

firearm-related offenses were unrelated to the drug-trafficking-related offenses.

The government filed a pretrial motion to suppress testimony from Marcus

Thompson, one of Colbert’s co-conspirators. Thompson was arrested on the same

day as Colbert by an FBI hostage rescue team (HRT) executing a no-knock warrant. 

When the HRT ignited an explosive breaching device attached to Thompson’s front

door, Thompson fired several rounds. Thompson would have testified that he

believed someone was breaking into his home to steal his drugs and money. Colbert

argued that thistestimony would demonstrate that he reasonably believed that he was

acting in self defense when he fired his gun at the SWAT team. The government

objected to the testimony, arguing that it was irrelevant because of the different

tactics used by the two teams.

The district court deniedColbert’s motions and granted the government’s. The

case proceeded to a five-day jury trial. Before the case was submitted to the jury,

Colbert moved for a judgment of acquittal on each of the counts except the felon-inpossession count, on which he conceded his guilt. As relevant here, Colbert argued

that he was entitled to a judgment of acquittal on the counts of assaulting a federal

officer, and of brandishing and discharging a firearm in furtherance of a federal drugtrafficking offense, because he had acted in self defense. The court denied Colbert’s

motion, Colbert presented no evidence, and the jury found him guilty of all of the

charged offenses.

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Colbert’s presentence investigation report (PSR) calculated the drug quantity

that Colbert was responsible for to be 200 kilograms of cocaine and 21 kilograms of

crack cocaine. That drug quantity was based on testimony from Alvin Long, Marcus

Thompson, and Leon Edwards, as well as on the intercepted telephone conversations

that were played at trial. Based on that drug quantity, the PSR calculated Colbert’s

base offense level to be 38 for the conspiracy, communications-facility, and felon-inpossession offenses. The PSR applied a 2-level enhancement based on Colbert’s

pattern of criminal conduct, which was Colbert’s sole source of income, and a 4-level

enhancement based on Colbert’s leadership role in the organization, resulting in an

adjusted offense level of 44. The PSR calculated Colbert’s offense level to be 27 for

his assault offense, but that conviction did not affect his total offense level due to the

multiple-count adjustment. Because Colbert’s combined offense level was greater

than the highest level permitted by the U.S. Sentencing Guidelines (U.S.S.G. or

Guidelines), the resulting total offense level was 43. Based on an offense level of 43

and a criminal history category of III, the Guidelines’ advisory sentence was life

imprisonment. For the offense of brandishing or discharging a firearm in furtherance

of a drug-trafficking crime, the Guidelines recommended the mandatory minimum

sentence of ten years’ imprisonment, to be served consecutively to the sentence for

the other offenses. The resulting advisory Guidelines sentence was life

imprisonment, with a 10-year consecutive sentence to follow.

Colbert objected to the PSR’s drug-quantity calculation and to the application

of several enhancements, including the 4-level leadership-role enhancement. The

district court rejected Colbert’s objections, adopted the calculations in the PSR, and

imposed a sentence of life imprisonment, with an additional ten years’ imprisonment

to be served consecutively.

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II.

Colbert appeals his convictions, arguing that the evidence derived from the

wiretap and the search of the Hillcrest Street house should have been suppressed, that

Thompson’s testimony about the search warrant executed at his house should have

been admitted, that there was insufficient evidence to prove that he intended to shoot

a federal agent, and that the firearm-related charges should have been severed from

the conspiracy charges. 

A. The Motions to Suppress

“We review the district court’s factual findings supporting the denial of

[motions] to suppress for clear error and its legal determinations de novo.” United

States v. Garcia-Hernandez, 682 F.3d 767, 771 (8th Cir. 2012).

1. The Wiretap

Colbert argues that the wiretap evidence should have been suppressed, because

the application and affidavit used to secure the wiretap failed to satisfy the necessity

requirement set forth in 18 U.S.C. § 2518(1)(c), which provides that such an

application must include “a full and complete statement as to whether or not other

investigative procedures have been tried and failed or why they reasonably appear to

be unlikely to succeed if tried or to be too dangerous.” This necessity requirement

prevents the government from routinely using wiretaps “as the initial step in an

investigation.” United States v. Thompson, 210 F.3d 855, 858-59 (8th Cir. 2000)

(quoting United States v. Maxwell, 25 F.3d 1389, 1394 (8th Cir. 1994)). But as we

have repeatedly held, the necessity requirement does notmandate that the government

“exhaust all possible techniques before applying for a wiretap.” United States v.

Macklin, 902 F.2d 1320, 1326-27 (8th Cir. 1990) (“The government is simply not

required to use a wiretap only as a last resort.”); see also United States v. Kahn, 415

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U.S. 143, 153 n.12 (1974) (noting that the necessity requirement “is simply designed

to assure that wiretapping is not resorted to in situations where traditional

investigative techniques would suffice to expose the crime”). A district court’s

determination that a wiretap is necessary constitutes a finding offact, which issubject

only to clear-error review. Thompson, 210 F.3d at 859.

The record belies Colbert’s contention that the government had not attempted

traditionalsurveillance techniques before seeking a wiretap. The affidavit supporting

the application outlined several traditional investigative techniques the government

employed with respect to Colbert, beginning no later than December 2010. These

techniques included physical surveillance, information from two confidential

witnesses, attempted controlled buys, and the installation of a pen register and trapand-trace device on Colbert’s cell phone. Moreover, the affidavit explained why

those techniques were insufficient to gather evidence necessary to secure a

conviction. For example, the government attempted a controlled buy using a

cooperating witness on December 20, 2010, and attempted to conduct physical

surveillance of that transaction. But, after contacting Colbert and Thompson,

arranging to purchase a small quantity of crack cocaine, and going to Thompson’s

residence to buy the drugs, the witness could not complete the purchase because

Thompson never opened his door and Colbert would not answer his phone. That

same cooperating witness again attempted to conduct a controlled buy for the

government on February 1, 2011, but Colbert denied having any drugs to sell. The

affidavit stated that controlled buys would not be an effective investigative technique,

because Colbert did not trust the government’s cooperating witness and because no

other cooperating witnesses had been identified.

Colbert argues that the timing of the wiretap application demonstrated that the

government could not have attempted alternative investigative techniques and that the

government’s explanations for why certain techniques were infeasible lacked merit. 

An application need only establish that the government has attempted traditional

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investigative techniques and demonstrate that those techniques are “insufficient to

reveal the full conspiracy or the identity of” the conspirators. Thompson, 210 F.3d

at 859. Colbert claims that the government’s investigation of him did not begin until

March 28, 2011, when the government first intercepted a phone call from Colbert’s

phone through the wiretap on another co-conspirator’s phone, and that the only

investigative technique attempted after that date was the pen register. But the

government’s affidavit shows that the investigation began well before March 28,

when the government attempted the aforementioned controlled buys in December

2010 and February 2011.

Colbert also argues that the affidavit’s use of boilerplate language did not

satisfy the necessity requirement. An affidavit that explains “in general terms why

some ofthe procedures have failed in other investigations and would likely fail in this

case,” satisfies § 2518(1)(c) if it contains “particular instances in which normal

procedures were used and did in fact fail.” Macklin, 902 F.2d at 1327. The

affidavit’s use of explanations that “are common to most drug conspiracy

investigations . . . does not necessarily preclude a finding of necessity under section

2518(1)(c).” Thompson, 210 F.3d at 859 (“[A]lthough the affidavit’s assertions of

inadequacy ‘might appear boilerplate, the fact that drug investigations suffer from

common investigatory problems does not make these problems less vexing.’”

(quoting United States v. Milton, 153 F.3d 891, 895 (8th Cir. 1998))). We conclude

from our review of the affidavit that the district court did not clearly err in finding

that the wiretap was necessary.

2. The Search Warrant

Colbert argues that the search-warrant application’s failure to allege a nexus

between the Hillcrest Street house and money laundering rendered it inadequate to

establish probable cause. “[T]here must be evidence of a nexus between the

contraband and the place to be searched before a warrant may properly issue.” 

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United States v. Tellez, 217 F.3d 547, 550 (8th Cir. 2000). “The requisite nexus

between a particular location and contraband is determined by the nature of the crime

and the reasonable, logical likelihood of finding useful evidence.” United States v.

Etheridge, 165 F.3d 655, 657 (8th Cir. 1999). “[W]e accord substantial deference”

to the district court’s probable-cause determination, affirming as long as the court

“had a ‘substantial basis for concluding that probable cause existed.’” 

Garcia-Hernandez, 682 F.3d at 771 (quoting United States v. Buchanan, 574 F.3d

554, 561 (8th Cir. 2009)). 

The affidavit included information provided by two witnesses, one who had

engaged in transactions with Colbert in the past, and another who had been present

when Colbert sold cocaine to other individuals. The affidavit also included

intercepted phone calls in which Colbert used coded language to coordinate cocaine

sales. The affidavit stated that Colbert owned several expensive cars, that he

frequently wore expensive jewelry, and that he was in the process of renovating his

primary residence, the Hillcrest Street house, but that he had not filed taxes in several

years and had no apparent legitimate source of income. Although public records did

not list Colbert or Davis as the owner of the house, the FBI determined that Colbert

was the owner based on intercepted phone calls and the fact that he was renovating

the house by, for example, adding granite counter tops and new fixturesin the kitchen

and bathroom. It was reasonable to infer from those facts that the Hillcrest Street

house itself and any improvements or jewelry located in the house were paid for with

proceeds from Colbert’s drug-trafficking business and that such evidence was likely

to be located in the house. Those facts thus provided a substantial basis for the

district court’s conclusion that there was a reasonable likelihood that the government

would find evidence of money laundering in the Hillcrest Street house.3

Colbert contends that the warrant was improperly granted, because although 3

the application sought evidence ofmoney laundering, he was not charged with money

laundering, and many of the items listed on the warrant application were not found

during the search. Nevertheless, probable cause that evidence of money laundering

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Colbert argues in the alternative that, assuming that probable cause existed, the

motion to suppress should have been granted because the warrant was based on stale

information. “A warrant becomes stale if the information supporting the warrant is

not ‘sufficiently close in time to the issuance of the warrant and the subsequentsearch

conducted so that probable cause can be said to exist as of the time of the search.’” 

United States v. Brewer, 588 F.3d 1165, 1173 (8th Cir. 2009) (quoting United States

v. Palega, 556 F.3d 709, 715 (8th Cir. 2009)). “Important factors to consider in

determining whether probable cause has dissipated . . . include the lapse of time since

the warrant was issued, the nature of the criminal activity, and the kind of property

subject to the search.” Id. (quoting United States v. Gibson, 123 F.3d 1121, 1124 (8th

Cir. 1997)). We conclude that the affidavit established the existence of an ongoing

drug conspiracy fromwhichColbert was actively earningmoney, that police observed

Colbert overseeing construction on his house lessthan three weeks before the warrant

issued, and that Colbert resided at the Hillcrest Street house and kept his cars and

personal property inside the house. In light of these circumstances, we conclude that

the information used to establish probable case was not stale, and we hold that the

district court did not err in denying the motion to suppress evidence derived from the

search of the Hillcrest Street house.

B. Thompson Testimony

Colbert argues that the district court abused its discretion by granting the

government’s motion to exclude certain testimony from Thompson. “We review the

district court’s evidentiary rulings for abuse of discretion.” United States v. Lemons,

792 F.3d 941, 947 (8th Cir. 2015). As set forth earlier, the government moved to

exclude Thompson’s testimony asirrelevant. In granting the motion, the district court 

would be present in the house existed at the time the warrant issued, and there is

nothing to suggest that the warrant was a pretext for “general, exploratory

rummaging.” Cf. United States. v. Schmitz, 181 F.3d 981, 987-88 (8th Cir. 1999).

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noted “the distinction between the amount of force or what happened in the two

separate warrants” and the lack any of evidence that Thompson had communicated

with Colbert at the time the warrants were served.

Colbert argues that Thompson’s testimony about the search of his house was

relevant to show that Colbert reasonably believed he was acting in self defense. 

Evidence is relevant if “it has any tendency to make a fact more or less probable than

it would be without the evidence.” Fed. R. Evid. 401(a). While “[t]he threshold for

relevance is ‘quite minimal,’” United States v. Holmes, 413 F.3d 770, 773 (8th Cir.

2005) (quoting United States v. Guerrero-Cortez, 110 F.3d 647, 652 (8th Cir. 1997)),

we agree with the district court that the dissimilarity of the two events rendered the

proposed testimony irrelevant. The tactics that the HRT used when they executed

their no-knock warrant at Thompson’s home were completely different from those

used by SWAT at Colbert’s home. Unlike the SWAT team, the HRT did not knock

on Thompson’s door, announce their presence, orshine bright lightsinto Thompson’s

windows before breaching his front door. The district court thus did not abuse its

discretion in excluding Thompson’s testimony.

C. Misjoinder and Severability

Colbert argues that his conspiracy counts were misjoined with his firearmrelated counts under Federal Rule of Criminal Procedure 8(a). “We review de novo

a decision to join countstogether into a single indictment.” United States v. Midkiff,

614 F.3d 431, 439 (8th Cir. 2010). Rule 8(a) provides for the joinder of multiple

offenses that “are of the same or similar character, or are based on the same act or

transaction, or are connected with or constitute parts of a common scheme or plan.” 

Here, the charges were properly joined because all of the charges arose from the same

act, Colbert’s participation in a cocaine-distribution conspiracy. Specifically, the

indictment charged Colbert with possession and discharge of a firearm in furtherance

of the drug-trafficking conspiracy for which he was also charged in that indictment. 

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The remaining firearm-related offenses are in turn based on the same firearm as the

possession-and-discharge offense. Joinder was therefore proper.

Joinder being proper, we turn to whether the district court erred in denying

Colbert’s severance motion. We review a district court’s denial of a severance

motion for abuse of discretion, and “we will reverse only when that abuse of

discretion results in severe or clear prejudice.” United States v. Robinson, 781 F.3d

453, 461 (8th Cir. 2015) (quoting United States v. Reynolds, 720 F.3d 665, 669 (8th

Cir. 2013));see also Fed. R. Crim. P. 14(a). No such prejudice exists “when evidence

of the joined offense would be properly admissible in a separate trial for the other

crime.” Id. (quoting Reynolds, 720 F.3d at 670). Under the circumstances of this

case, the same evidence would be admissible at trials for both the conspiracy and the

firearm-related offenses. For example, the empty plastic bags containing cocaine

residue that were recovered from the bathroom at the Hillcrest Street house would

have been admissible as evidence of Colbert’s involvement in the cocainedistribution conspiracy at a trial for the conspiracy offenses and as evidence that

Colbert was not acting in self defense at a trial for the firearm-related offenses. The

district court thus did not abuse its discretion in denying the motion to sever.

D. Judgment of Acquittal

Colbert argues that the government failed to prove that he acted with the intent

required to establish his conviction for assaulting a federal officer, 18 U.S.C. § 111. 

“We review the denial of a motion for a judgment of acquittal de novo but view the

evidence in a light most favorable to the verdict.” United States v. Paris, 816 F.3d

1037, 1038-39 (8th Cir. 2016). “We reverse only when no reasonable jury could have

found the accused guilty.” Id. at 1039.

We conclude that there was substantial evidence that Colbert was not acting

in self defense when he fired on the SWAT team. The jury heard testimony from

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Agent Cosenza regarding how loudly he knocked on Colbert’s door and announced

the FBI’s presence; it viewed pictures of the dents left in the front door by Agent

Cosenza’s baton; and it heard testimony from other law-enforcement officials about

the lights directed inside the house and the sheer curtains that only partially covered

the windows. The jury also heard testimony that agents found kilogram-sized plastic

bags containing cocaine residue in the toilet of the master bathroom near where

Colbert’s gun was found. It considered testimony from the FBI’s firearms tool mark

examiner, who mapped the trajectories of the bullets that Colbert fired and concluded

that at least one bullet struck the door before it was opened. From this evidence, a

reasonable jury could find that Colbert knew that the FBI was at his door, that he

fired before the door was opened, and that he did so in order to buy the time

necessary to allow him to destroy evidence. The district court thus properly denied

Colbert’s motion.

III. Sentencing Issues

In reviewing Colbert’s sentence, we “first ensure that the district court

committed no significant procedural error,” and we then determine whether the

sentence imposed was substantively unreasonable. Gall v. United States, 552 U.S.

38, 51 (2007). “We review a district court’s interpretation and application of the

guidelines de novo and its factual findings regarding enhancements for clear error.” 

United States v. Aguilar, 512 F.3d 485, 487 (8th Cir. 2008). Colbert argues that the

district court procedurally erred by “selecting a sentence based on clearly erroneous

facts,” Gall, 552 U.S. at 51, when it calculated the drug quantity attributable to

Colbert, see U.S.S.G. § 2D1.1(c), and when it applied the four-level organizer-orleader enhancement, U.S.S.G. § 3B1.1(a).4

Colbert also objected to the application of a 6-level enhancement for

4

knowingly assaulting a police officer, U.S.S.G. § 3A1.2(c)(1), but that enhancement

did not ultimately affect his sentence, and we see no error resulting from it.

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Colbert argues that the district court relied on testimony from witnesses who

were not credible in calculating the drug quantity attributable to Colbert. The court’s

drug-quantity calculation is a finding of fact that we review for clear error, reversing

“only if the entire record definitely and firmly convinces us that a mistake has been

made.” United States v. Gonzalez-Rodriguez, 239 F.3d 948, 953 (8th Cir. 2001)

(quoting United States v. Granados, 202 F.3d 1025, 1028 (8th Cir. 2000)).

The district court’s drug-quantity calculation was based on the recordings of

Colbert’s intercepted phone calls that were played at trial and the trial testimony of

three of Colbert’s co-conspirators, Thompson, Edwards, and Long. Thompson

testified that he had purchased two to three kilograms of cocaine from Colbert per

week, totaling between 168 and 252 kilograms of cocaine in 2010 and 2011. 

Edwards testified that he had purchased between four and one-half ounces and nine

ounces of cocaine from Colbert two to four times per week and converted

approximately four ounces out of every nine ounces into crack, which amounted to

a total of forty-nine kilograms of cocaine, of which twenty-one kilograms had been

converted to crack over the relevant period. Long testified that he had facilitated

meetings between Colbert and Mexican drug suppliers, that he had received

approximately $500 per kilogram that Colbert purchased at these transactions, and

that he had profited $100,000 from facilitating the sale of at least 200 kilograms of

cocaine between 2010 and October 2011.

Colbert asserts that none of these witnesses was credible. He notes that Long

had previously lied to the FBI about his role in the conspiracy and the amount of

cocaine he had purchased, and that Thompson’s testimony was inconsistent because

he claimed at one point to have purchased two to three kilograms per week, but also

claimed that he had purchased only between twenty and forty kilograms over the

relevant period. The district court acted within its broad discretion when it in credited

Long’s testimony and when it credited the greater amount of cocaine that Thompson

claimed in his testimony. See United States v. Jackson, 782 F.3d 1006, 1014 (8th

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Cir.), cert. denied sub nom. O’Bryant v. United States, 136 S. Ct. 501 (2015). We

thus conclude that the district court did not clearly err in making its drug-quantity

calculation.

Colbert next argues that the 4-level organizer-or-leader enhancement under

U.S.S.G. § 3B1.1(a) was not supported by the record because he did not exercise any

control or decision-making authority over his co-conspirators. We disagree. We

broadly interpret the terms “organizer” and “leader” under § 3B1.1(a). United States

v. Morris, 791 F.3d 910, 914 (8th Cir. 2015). “Although an individual in a drug

conspiracy must do more than sell drugs for resale in order to be deemed an organizer

or leader, he need not directly control his co-conspirators.” Id. (quoting Thompson,

210 F.3d at 861). The trial testimony and recorded phone conversations indicate that

Colbert instructed his sister, Antoinette Colbert, to deliver cocaine on his behalf, and

on at least one occasion ordered Thompson to conduct a sale on his behalf, with

Thompson receiving no compensation for doing so. Moreover, Colbert was a highvolume distributor with several customers, some of whom purchased cocaine on

credit. The district court did not clearly err in finding that Colbert was a leader or

organizer of the conspiracy. See id. 

Having found no procedural error, we next determine whether the sentence

imposed was substantively reasonable, a question we review under a deferential

abuse-of-discretion standard, considering the totality of the circumstances. United

States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). “If the defendant’s

sentence is within the Guidelines range, then we ‘may, but [are] not required to, apply

a presumption of reasonableness.’” Id. (alterations in original) (quoting Gall, 552

U.S. at 51). The district court abuses its discretion if “it fails to consider a relevant

factor, gives significant weight to an irrelevant or improper factor, or considers only

appropriate factors but nevertheless commits a clear error of judgment by arriving at

a sentence that lies outside the limited range of choice dictated by the facts of the

case.” United States v. San-Miguel, 634 F.3d 471, 475 (8th Cir. 2011) (quoting

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United States v. Jones, 509 F.3d 911, 913 (8th Cir. 2007)). Colbert does not claim

that the district court considered irrelevant or improper factors, and we conclude that

the district court did not commit a clear error of judgment.

The district court properly considered the relevant § 3553(a) factors, noting

that the sentence was appropriate in light of “the seriousness of the offense,” that it

was necessary “to promote respect for the law,” that it ensured “just punishment for

the offense,” that it provided “an adequate deterrence . . . and protect[ed] the public

from further crimes from this defendant,” and that it reflected “Colbert’s apparent

complete lack of acceptance of responsibility for his criminal behavior.” The court

considered Colbert’s recitation of his claimed mitigating factors, and it did not

commit a clear error of judgment by imposing a life sentence. 

Colbert argues for the first time on appeal that a term-of-years sentence is

necessary to avoid unwarranted sentence disparities, 18 U.S.C. § 3553(a)(6), noting

that Bobby Banks, a defendant in another case, was convicted of similar crimes and

wassentenced to fifty-five years’ imprisonment, see United States v. Banks, 494 F.3d

681, 683 (8th Cir. 2007). Although Banks also involved a conspiracy under 18

U.S.C. § 846, that case did not involve the firearm-related charges and the drug

quantity present in this case.

Finally, Colbert argues that a sentence of life imprisonment constitutes cruel

and unusual punishment in violation of the Eight Amendment to the United States

Constitution, a challenge that we review by using the “‘narrow proportionality

principle’ that ‘applies to noncapital sentences.’” United States v. Wiest, 596 F.3d

906, 911 (8th Cir. 2010) (quoting Ewing v. California, 538 U.S. 11, 20 (2003)). 

Given the seriousness of Colbert’s crimes, we conclude that a life sentence is not

“grossly disproportionate” to his crime. Id.

The judgment and sentence are affirmed.

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