1

 The Honorable James B. Loken became Chief Judge of the United States

Court of Appeals for the Eighth Circuit on April 1, 2003.

2

 The Honorable Richard G. Kopf, Chief Judge, United States District Court

for the District of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-3353

___________

United States of America, *

*

Appellee, * Appeal from the United States

* District Court for the 

v. * District of Nebraska.

*

Jeffrey H. Collins, *

*

Appellant. *

___________

Submitted: February 13, 2003

Filed: August 25, 2003

___________

Before LOKEN,1

 RILEY, and SMITH, Circuit Judges.

___________

SMITH, Circuit Judge.

Jeffrey H. Collins raises numerous issues challenging his conviction and life

sentence for conspiring to distribute and for possession with intent to distribute more

than 500 grams of methamphetamine. For the reasons herein, we affirm the district

court.2
3

 Each of these witnesses engaged in drug transactions with Collins from

March 1999 to September 15, 2001, as follows: in April 2001, Horan bought

methamphetamine from Collins twice, for a total of one-eighth of an ounce, at Bart's

Motel in Council Bluffs, Iowa; between 1999 and 2001, Stewart bought

methamphetamine from Collins on various occasions (once at Bart's Motel), and

during a six-month period in 2000, she bought one-fourth of an ounce to one ounce

of methamphetamine about every other day; Erickson, a twenty-year acquaintance,

testified that she first bought drugs from Collins within the first two years of meeting

him, and that the last time she bought drugs from Collins was on the day he was

arrested; Rydberg testified that he bought at least one-half of an ounce of

methamphetamine on at least six occasions, and that Hald was the "middleman" in

many of the transactions from July 2000 to January 2001; Hald, a fifteen-year

acquaintance of Collins's, testified that over one summer, he and Collins engaged in

forty to fifty transactions in a two-month period for amounts ranging from onesixteenth of an ounce to half pounds, with the weight of all transactions totaling at

least three pounds, and that in March or April 2001, on six to eight occasions, Hald

resold a total of one to two ounces of methamphetamine to others with Collins's

knowledge; Gomez testified that she bought methamphetamine from Collins eight to

ten times in the spring of 2001 in amounts ranging from one-sixteenth of an ounce to

one-quarter of an ounce, and that the largest amount she saw in Collins's possession

was about one pound of methamphetamine on three or four occasions; Matejka

testified that he first bought methamphetamine from Collins in 1999, that Collins paid

him with one-sixteenth of an ounce of methamphetamine for helping friends move

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I.

Because Collins challenges the sufficiency of the evidence used to convict him,

we summarize the evidence adduced at trial. Seven people familiar with Collins's

drug sales testified against him. These witnesses–Thomas Horan, Brenda Stewart,

Pamela Erickson, Douglas Rydberg, James Hald, Susan Gomez, and Matthew

Matejka–testified that Collins sold them methamphetamine at various times and in

various amounts during the two-year period charged in the indictment, sometimes

accepting property rather than money in exchange for methamphetamine.3
some furniture, and that until February 5, 2001, he and Collins engaged in up to

eighty transactions of one gram to one ounce per transaction, for a total of over onehalf of a pound of methamphetamine.

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In addition to the regular drug transactions, these witnesses testified about

Collins's related drug activities. Stewart testified that she committed forgeries to

obtain cash or merchandise to pay for drugs. Collins would place an "order," and

Stewart would go to a store and fraudulently acquire the item. 

Rydberg testified that he usually bought methamphetamine from Hald, who

first bought the drugs from Collins. Rydberg testified that he would either buy the

drugs "on credit," or pool several people's money to buy a larger amount of

methamphetamine at a lower price. Rydberg testified that Hald was the "middleman."

Hald verified that Collins approved reselling the methamphetamine because Collins

would not sell to strangers. Hald also testified that he once traded a Plymouth

Sundance automobile to Collins for an ounce of methamphetamine, and at trial, the

government offered the car title to show the change in ownership from Hald to

Collins. Gomez, who had known Collins since 1994, also would pool her money with

other customers' money to buy larger quantities at lower prices. She testified that she

would "skim some off the top" from the purchases for herself.

Stewart, Erickson, Hald, and Matejka testified about an incident at Matejka's

residence that resulted in Matejka's incarceration for possession of methamphetamine

allegedly belonging to Collins. Matejka testified that on February 6, 2001, Collins

went to Metejka's house to be paid for a drug deal. While there, the police entered the

house to serve an arrest warrant on Matejka. Matejka was charged after the police

found him with 49.5 grams of methamphetamine in the basement, drugs that Matejka

claimed belonged to Collins. Hald testified that Matejka told him that Collins framed

him for the methamphetamine the police found in the raid. Stewart also testified that
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Collins sent a letter to her while she was in jail indicating that Collins refused to

admit that the drugs he had taken to Matejka's house were his.

Emma Chance, the owner of Bart's Motel in Council Bluffs, testified that

Collins rented a room at the motel sixteen days in January, February, and March of

2001, paying cash for each transaction. Ron Riethmuller, records administrator for

the Nebraska Department of Correctional Services, testified that during the timeframe in the indictment, Collins was on "work release." Consequently, no one from

the corrections department supervised or monitored Collins during the day as long as

he returned to the work-release center at night. Riethmuller also noted that Collins

was paroled on February 25, 2000, but was returned to the correctional facility on

August 14, 2000. However, the state discharged Collins from the correctional service

on January 4, 2001. 

Several police officers testified about Collins's behavior at the time of his arrest

on September 27, 2001. The officers testified that Collins attempted to escape by

jumping into his car and leading the police on a chase. During the chase, Collins

threw a package out of the car. The police recovered the package and discovered that

it contained 16.1 grams of methamphetamine.

Based on above evidence, a jury convicted Collins of conspiracy to distribute

and possess with intent to distribute methamphetamine. The court then sentenced

Collins to life in prison. Collins appeals his conviction and sentence.

II.

A. Sufficiency of the Evidence

Collins first argues that there was insufficient evidence to convict him of

conspiracy because the evidence merely established a buyer-seller relationship

between Collins and numerous individuals without showing a conspiracy to distribute

drugs. He argues that the jury "misinterpreted" the facts and the jury instructions, and
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that while he may have associated with convicted felons and drug dealers, the

evidence does not support a finding that he conspired with them to distribute drugs.

"The standard of review of an appeal concerning sufficiency of the evidence

is very strict, and the verdict of the jury should not be overturned lightly." United

States v. Crossland, 301 F.3d 907, 913 (8th Cir. 2002) (quoting United States v.

Burks, 934 F.2d 148, 151 (8th Cir. 1991)). In reviewing the sufficiency of the

evidence on appeal, the court views the evidence in the light most favorable to the

government, resolving evidentiary conflicts in favor of the government, and accepting

all reasonable inferences drawn from the evidence that support the jury's verdict.

United States v. Erdman, 953 F.2d 387, 389 (8th Cir. 1992). We will reverse only if

no reasonable jury could have found the accused guilty beyond a reasonable doubt.

United States v. Harmon, 194 F.3d 890, 892 (8th Cir. 1999).

To prove that a defendant conspired to distribute drugs under 21 U.S.C. § 846,

the government must prove (1) that there was a conspiracy, i.e., an agreement to

distribute the drugs; (2) that the defendant knew of the conspiracy; (3) that the

defendant intentionally joined the conspiracy. United States v. Jones, 101 F.3d 1263,

1267 (8th Cir. 1996); United States v. Westbrook, 896 F.2d 330, 338 (8th Cir. 1990).

Tacit understanding–as opposed to mere presence at and knowledge of an intended

drug sale–will suffice; a formal agreement is unnecessary. Jones, 101 F.3d at 1267

(citing United States v. Shoffner, 71 F.3d 1429, 1433–34 (8th Cir. 1995)). The

existence of a conspiracy may be proved by either direct or circumstantial evidence.

United States v. Jenkins, 78 F.3d 1283, 1287 (8th Cir. 1996). Evidence of association

or acquaintance, though relevant, is not enough by itself to establish a conspiracy.

United States v. Ivey, 915 F.2d 380, 384 (8th Cir. 1990). 

Based on the facts established at trial, the evidence supports Collins's

conviction for conspiracy. The evidence establishes that Collins himself would not

sell methamphetamine to strangers, but instead would sell substantial amounts of
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methamphetamine to Hald or Rydberg, for example, who would resell the drugs to

numerous individuals. The evidence proves that Collins knowingly participated in

and promoted this scheme. Furthermore, Collins's challenge to the veracity and

credibility of the various witnesses is to no avail–questions of credibility are the

province of the jury. See United States v. Chavez, 230 F.3d 1089, 1091 (8th Cir.

2000); United States v. Fuller, 942 F.2d 454, 458 (8th Cir. 1991). 

B. Quantity of Drugs Attributed to Collins

Collins next argues that the district court and the jury erroneously attributed

more drugs to Collins than he could have sold in the time frame provided in the

indictment. Collins argues that it was impossible for the witnesses collectively to

have bought more than 500 grams of methamphetamine from him because he was

incarcerated during seven months in 2000. Collins provides no legal support for his

argument.

The government responds that the sentencing judge was the same judge who

presided over trial, and that in such cases, the sentencing court is not required to hold

an evidentiary hearing to resolve any factual challenges such as drug quantity. See

United States v. Wiggins, 104 F.3d 174, 178 (8th Cir. 1997). As such, the district

court properly calculated Collins's offense level using the volume of drugs the jury

calculated in this case. 

A sentencing court's quantity calculations are factual findings and therefore,

are reviewed for clear error. United States v. Jimenez-Villasenor, 270 F.3d 554, 561

(8th Cir. 2001). A reviewing court will not overturn a finding of drug quantity unless

the entire record definitely and firmly convinces the court that a mistake has been

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

Collins's "impossibility" argument fails. The evidence proves that the witnesses

knew of Collins's incarceration and testified that they bought drugs either from him
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or from Collins's middlemen when he was not incarcerated. In addition, Collins's

challenge is based (in part) on his attack against the witnesses' credibility and their

recall regarding the amount of drugs he sold to them. We leave this credibility issue

for the jury. Chavez, 230 F.3d at 1091; Fuller, 942 F.2d at 458. Despite Collins's

seven-month incarceration, the evidence provided a reasonable jury sufficient

evidence to have found Collins guilty beyond a reasonable doubt.

C. Sentence Illegality Under Apprendi and the Eighth Amendment

Collins next argues that the district court assessed an excessive and illegal

sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000) and the Eighth

Amendment. Specifically, Collins argues that the court violated Apprendi by failing

to submit his prior convictions to the jury for enhancement purposes. Additionally,

he contends the court's life sentence for these drug offenses constituted "cruel and

unusual" punishment under the Eighth Amendment.

1. Alleged Apprendi Violation

In Apprendi, the United States Supreme Court stated, "Other than the fact of

a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond a

reasonable doubt." 530 U.S. at 490. We have applied this rule in United States v.

Carter, 270 F.3d 731 (8th Cir. 2001) in response to the same argument that Collins

asserts. In Carter, the defendant challenged his 130-month sentence for a drug

offense, which was enhanced under 21 U.S.C. § 841(b) based on a prior drug felony

conviction. We held that evidence of a prior conviction need not be submitted to the

jury for the enhancement to apply. Id. As such, the district court did not err in not

submitting Collins's prior convictions.

2. Eighth Amendment Violation

Collins also asserts that the imposition of a mandatory life sentence is cruel and

unusual punishment in violation of the Eighth Amendment. He claims that the
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sentence is "grossly disproportionate" to the crime and argues that this was a "simple

drug conspiracy" that, when compared with similar crimes, did not warrant a life

sentence. 

The Eighth Amendment "forbids only extreme sentences that are 'grossly

disproportionate' to the crime." Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)

(Kennedy, J., concurring in part and concurring in the judgment) (quoting Solem v.

Helm, 463 U.S. 277, 288 (1983)); accord United States v. Frieberger, 28 F.3d 916,

920 (8th Cir. 1994); United States v. Jones, 965 F.2d 1507, 1518 (8th Cir. 1992). The

Supreme Court concluded in Harmelin that a state sentence of mandatory life

imprisonment without the possibility of parole for possessing 672 grams of cocaine

did not violate the Eighth Amendment, despite the fact that the defendant had no prior

felony convictions. 501 U.S. at 994. 

We have held that mandatory minimum penalties for drug offenses do not

violate the Eighth Amendment's prohibition of cruel and unusual punishments. United

States v. Mendoza, 876 F.2d 639, 640–41 (8th Cir.1989). It is well settled that a

sentence within the range provided by statute is generally not reviewable by an

appellate court. United States v. Richard, 872 F.2d 253, 255 (8th Cir. 1989).

Furthermore, such a sentence that falls within the range prescribed by statute has

never been found to be an Eighth Amendment violation. Mendoza, 876 F.2d at 639

(citing Hutto v. Davis, 454 U.S. 370, 372 (1982)).

In United States v. Prior, 107 F.3d 654, 660 (8th Cir. 1997), we did not find

a violation of the Eighth Amendment when the district court sentenced the defendant

to life imprisonment without the possibility of parole based on his conviction of

possessing with intent to distribute 1,147.6 grams of methamphetamine and his prior

record of three drug felony convictions. We compared Prior's case to the facts of

Harmelin and concluded that Prior's sentence did not violate the Eighth Amendment's

ban on cruel and unusual punishments, even in light of Prior's argument that his
4

 Collins's prior felonies involved the delivery and manufacture of marijuana

and a controlled substance.

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conduct as an addict was not as egregious as that of "larger-scale distributors." We

stated:

Such a proportional analysis is only appropriate after an initial

comparison of the crime to the sentence for which it is imposed leads to

an inference of gross disproportionality. United States v. Johnson, 944

F.2d 396, 409 (8th Cir.) (relying on Harmelin), cert. denied, 502 U.S.

1008 (1991). We have noted that the possession of narcotics with the

intent to distribute is an offense "at the root of some of the gravest

problems facing our country. The 'fruit' of the drug plague is

everywhere; it fills our jails, our courts, our streets, and our nurseries."

United States v. Meirovitz, 918 F.2d 1376, 1381 (8th Cir. 1990), cert.

denied, 502 U.S. 829 (1991). Prior's three previous convictions indicate

that he has been involved in drug distribution for many years, and his

actions have furthered the spread of this plague.

Prior, 107 F.3d at 660.

Under these facts, Collins's two prior felonies used to enhance this sentence

were also drug crimes.4

 As in Prior, the repeated nature of similar crimes particularly

lends the matter to the enhancement provision of § 841(b) and does not warrant a

finding of disproportionality under the Eighth Amendment. Collins's constitutional

claim thus cannot succeed.

D. Mistrial/New Trial for Sequestration Violation

Collins next argues that the district court erred in refusing to grant a mistrial

or a new trial after two alleged violations of the court's sequestration order. Collins
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alleges that the first violation occurred when the United States Marshall Service

placed prosecution witnesses Rydberg and Hald in the same holding cell as they

awaited their turns to testify. Collins claims that the second violation occurred when

Sheriff Deputy Robert Jones, prior to being called to testify, entered the courtroom

during the testimony of Emma Chance, another prosecution witness. Collins argues

that there was "manifest necessity" for granting a mistrial or a new trial under these

circumstances, and nothing short of mistrial or a new trial could have cured the

violations.

Sequestration of most witnesses is mandatory when requested, see Fed. R.

Evid. 615, but the district court is granted wide latitude in implementing sequestration

orders, and the standard of review is abuse of discretion. United States v. Vallie, 284

F.3d 917, 921 (8th Cir. 2002); United States v. Kindle, 925 F.2d 272, 276 (8th Cir.

1991). Courts distinguish between a judge's failure to comply with a Rule 615 request

and a party's violation of a Rule 615 order as in this case, with action on the latter

committed to the sound discretion of the trial court. See United States v. Ell, 718 F.2d

291, 293 (9th Cir. 1983). The purpose of sequestration is to prevent witnesses from

tailoring their testimony to that of prior witnesses and to aid in detection of

dishonesty. Vallie, 284 F.3d at 921 (citing Geders v. United States, 425 U.S. 80, 87

(1976)). 

Collins's first allegation involves Hald and Rydberg's confinement in the same

holding cell during the trial. He cites United States v. Greschner, 802 F.2d 373 (10th

Cir. 1986), for the proposition that the sequestration order "requires not only that

prospective witnesses be excluded from the courtroom, but also that they be

prohibited from discussing the case with other witnesses." However, Greschner did

not create a blanket prohibition against allowing witnesses to discuss the case both

before and after they testify as Collins asserts. Instead, the court in Greschner

determined that Rule 615 and the trial court's sequestration order required only that

witnesses be excluded from the courtroom and that witnesses be prevented from
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discussing testimony "they have given and events in the courtroom with other

witnesses who are to testify." Id. at 376. Greschner does not address the situation here

involving two potential witnesses who possibly discussed the case before testifying

or being present in the courtroom. As such, this is not a violation of Rule 615, which

serves to "prevent witnesses from tailoring their testimony to that of prior witnesses

and to aid in detection of dishonesty." Vallie, 284 F.3d at 921; Geders, 425 U.S. at

87. Neither Hald nor Rydberg could tell the other about the nature of his testimony

because neither had testified prior to the time they were in the holding cell. 

Collins's second claim turns on Officer Jones's pre-testimony presence in the

courtroom when Chance testified. Because Collins did not immediately object to the

officer's presence, the issue may only be reviewed for plain error. However, even

under plain-error review, the district court was not required to order a mistrial upon

Collins's late mistrial motion. Instead, the trial court enjoys wide latitude to fashion

the appropriate remedy for a violation, including a warning by the court prohibiting

such contact, exclusion of testimony of the violating witness, or awarding a mistrial.

We review that decision for an abuse of discretion. Vallie, 284 F.3d at 921; Kindle,

925 F.2d at 276. Here, the government notes that the district court admonished the

prosecution about the violation. Furthermore, although the officer's presence violated

the sequestration order, no prejudice occurred. Chance and Officer Jones offered

testimony on two completely different issues that did not overlap and did not involve

any of the same facts involving Collins. As such, the district court did not err in

denying Collins's mistrial or new trial motions. 

E. Factual Impossibility

Collins next argues that he had "at least a partial factual impossibility defense"

that the jury "disregarded" despite being specifically instructed that Collins was

incarcerated during various periods within the time-frame in the indictment. Collins

argues that when he was detained during these various dates, it was impossible for

him to commit the crime of conspiracy. He also argues that although Matejka testified
5 Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

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that the two of them completed at least thirty-five drug deals between July and

October 2000, these deals could have only taken place during July and August

because Collins returned to custody in September of 2000. Collins offers no legal

argument to support his claim.

Factual impossibility refers to those situations in which a circumstance or

condition, unknown to the defendant, renders physically impossible the

consummation of his intended criminal conduct. The oft-cited example is of the

would-be thief who attempts to pick an empty pocket. See United States v. Frazier,

560 F.2d 884, 888 (8th Cir. 1977) (internal citations omitted); United States v.

Darnell, 545 F.2d 595, 597 (8th Cir. 1976). Here, however, the facts indicate that the

commission of the charged crime was not "factually impossible." Collins had

sufficient time over the period charged in the indictment to sell the quantity of drugs

he sold, and the indictment's inclusion of months in which Collins was in prison does

not defeat the inclusion of months in which he was not in prison.

F. Daubert Inquiry for Fingerprint Evidence

Collins next argues that the district court erred in failing to conduct a Daubert5

analysis on fingerprint evidence used to enhance his sentence. The court admitted

fingerprint evidence to identify Collins as the same person convicted of prior

offenses. Collins challenged whether the fingerprints from his previous custody dates

bore enough "indicia" of identity with Collins's fingerprints to support a conclusion

that Collins committed the prior crimes. Collins argues that the fingerprint analysis

did not meet Daubert's requirements for admission and use at sentencing to trigger

the mandatory life sentence. Collins asserts that this was not harmless error, and his

failure to challenge the admission of this evidence below does not prevent this court

from declaring it as plain error.
6

 The Seventh Circuit stated in Havvard, 260 F.3d at 600 (internal citations

omitted):

The issue of the reliability of fingerprint evidence after Daubert appears

to be one of first impression in this circuit, and few other courts have

addressed this question. Those discussing the issue have not excluded

fingerprint evidence; instead, they have declined to conduct a pretrial

Daubert hearing on the admissibility of fingerprint evidence, or have

issued brief opinions asserting that the reliability of fingerprint

comparisons cannot be questioned.

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We will apply a plain-error analysis because Collins failed to object to the

admission of the fingerprint expert's testimony at trial. "Without an objection and a

proper request for relief, the matter is waived and will receive no consideration on

appeal absent plain error." McKnight v. Johnson Controls, Inc., 36 F.3d 1396, 1407

(8th Cir. 1994) (quoting Owen v. Patton, 925 F.2d 1111, 1115 (8th Cir. 1991)). Under

plain-error review, relief is not warranted unless the defendant demonstrates an error

that is plain and that affects the defendant's substantial rights. Jones v. United States,

527 U.S. 373, 389 (1999); United States v. Olano, 507 U.S. 725, 732 (1993). The

court then has discretion to correct a forfeited error if "the error seriously affects the

fairness, integrity or public reputation of judicial proceedings." Olano, 507 U.S. at

732 (internal quotations and alterations omitted).

There is no plain error here. Fingerprint evidence and analysis is generally

accepted. See, e.g., United States v. Havvard, 260 F.3d 597, 600 (7th Cir. 2001).6

 We

accepted the admissibility and reliability of fingerprint evidence in United States v.

Hernandez, 299 F.3d 984, 991 (8th Cir. 2002), thus eliminating a challenge on the

admissibility of such evidence on plain-error review. While such evidence may not

always satisfy a Daubert challenge due to deficiencies in testing procedures, for

example, there is no inherent fallacy in such evidence to make it inadmissible on

plain-error review.
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G. Denial of Motion for Downward Departure

In his final point on appeal, Collins argues that the district court erred in

denying his motion for downward departure under United States Sentencing

Guidelines § 5K2.0 and § 4A1.3. Collins asserts that the district court mistakenly

believed that it did not have the power to depart due to the application of the career

offender statute and 21 U.S.C. § 841 (1999), and that the district court indicated that

Collins's criminal history was "overstated." Collins addresses various prior offenses

used to calculate his criminal history and argues that these should have only placed

him in Criminal History Category V instead of Category VI.

Because the government did not file a motion for a downward departure from

the statutory mandatory minimum sentence, the district court properly determined that

it had no authority to depart. See 18 U.S.C. § 3553(e) (2000); United States v.

Johnson, 988 F.2d 859, 860 (8th Cir. 1993); United States v. Hawley, 984 F.2d 252,

254 (8th Cir. 1993). The law is firmly established that a district court lacks authority

to sentence below the statutory minimum if the pertinent provisions in 21 U.S.C. §

841(b) apply and the government has lawfully declined to move for a downward

departure under 18 U.S.C. § 3553(e). See United States v. Rodriguez-Morales, 958

F.2d 1441, 1442–47 (8th Cir. 1992). 

In this case, whether the mandatory life sentence under § 841(b)(1)(A)(viii)

applies depends on whether 500 or more grams of methamphetamine were involved

in Collins's offense. See 21 U.S.C. § 841(b). The jury convicted Collins of conspiring

to distribute and possess with intent to distribute 500 or more grams of

methamphetamine, a fact the sentencing court was permitted to adopt because the

same court presided over the trial in the case. See Wiggins, 104 F.3d at 178

(sentencing court that sat as trial court is not required to hold an evidentiary hearing

to resolve factual objections, and may instead base its findings of fact on the trial

record). And, finally, because Collins was previously convicted of at least two other
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drug felonies, § 841(b)(1)(A) makes a life sentence mandatory. Collins's argument

that the district court erred when it believed it could not depart from the Guidelines

is unavailing–the district court could not depart from the mandatory life sentence

required under §841(b) unless the government made a motion otherwise. 

We affirm the district court.

A true copy.

Attest:

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