1

 The Honorable Linda R. Reade, United States District Judge for the Northern

District of Iowa. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 03-3133

___________

United States of America, * 

* 

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Northern District of Iowa.

Daniel John Marshall, * 

* 

Appellant. *

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Submitted: March 10, 2004

Filed: June 13, 2005

___________

Before MURPHY, HEANEY, and SMITH, Circuit Judges.

___________

SMITH, Circuit Judge.

Daniel John Marshall pleaded guilty to manufacturing and attempting to

manufacture five grams or more of methamphetamine in violation of 21 U.S.C. §§

841(a)(1), 841(b)(1)(A), and 846. The district court1

 concluded that Marshall was not

entitled to a reduction under the safety-valve provision and denied his motion for

downward departure. Marshall sought a downward departure based on his

extraordinary post-offense rehabilitation. The court sentenced him to seventy months'
2

 Marshall voluntarily waived his Miranda rights.

3

 Officers found 653 pseudoephedrine tablets in the residence.

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imprisonment under the United States Sentencing Guidelines. Marshall appeals,

arguing that the district court erred in finding that he had manufactured

methamphetamine on four occasions and that he was untruthful during his safetyvalve interview. Subsequent to oral argument, we directed the parties to provide

supplemental briefing on the issues raised by the recent changes in federal sentencing

caused by the Supreme Court's decisions in Blakely v. Washington, 124 S. Ct. 2531

(2004), and United States v. Booker, 125 S. Ct. 738 (2005). We affirm.

I. Background

On January 30, 2002, probation officers searched Amy al-Munasif's residence

at 1811 Fourth Avenue Southeast, Cedar Rapids, Iowa, where Marshall lived. The

search uncovered methamphetamine, methamphetamine-manufacturing equipment,

and ingredients used to manufacture the drug. 

Cedar Rapids Police Officer Anthony Robinson interviewed Marshall.2

 During

the interview, Marshall admitted that he periodically stayed at al-Munasif's residence,

and that all the methamphetamine-manufacturing materials and equipment found in

the residence, garage, and vehicle belonged to him. Marshall provided law

enforcement officers with a typewritten recipe for manufacturing methamphetamine.

He also stated that he obtained the manufacturing materials from co-ops and from

local discount stores including Wal-Mart and K-Mart. Marshall informed the officers

that they would uncover about 700 pseudoephedrine pills during their search. He

stated he possessed the pills in preparation for a "cook" that day.3

The district court found that Marshall had admitted to Officer Robinson during

his January 30 interview that he performed four prior methamphetamine "cooks."

Marshall admitted to manufacturing methamphetamine for the first time about one
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month prior—which would have been near the end of December—and had "cooked"

one time per week since then. Marshall admitted that he had used about 300

pseudoephedrine pills during each "cook." According to Marshall, he produced about

seven grams of methamphetamine at three of the "cooks" and had produced ten grams

at one of the "cooks." Marshall further explained that after his last "cook," which had

occurred two days prior to the interview, the finished product had been stolen from

his vehicle.

In January 2003, Marshall entered into a plea agreement with the government.

However, because Marshall would not stipulate to four "cooks," the parties reserved

the right to dispute drug quantity at sentencing. Marshall also sought to qualify for

a safety-valve reduction pursuant to U.S.S.G. § 5C1.2. In order to meet § 5C1.2

requirements, Marshall was again interviewed by Officer Robinson on June 20, 2003.

At that interview, Marshall stated that he had manufactured methamphetamine on

only two occasions, instead of his previous statement of four. He also stated that he

had used 300 pseudoephedrine pills during the first "cook" and only 250 during the

second "cook." 

At the sentencing hearing, Marshall claimed that he had "cooked" for the first

time only two weeks prior to the January 30 interview, and not a month earlier as he

had previously testified. Marshall also stated that methamphetamine was stolen from

his vehicle after his first cook, which occurred on January 12 or 13, 2002. Officer

Robinson, testifying for the government, stated that Marshall initially told him that

he had manufactured methamphetamine on four occasions, but at Marshall's safetyvalve interview, he admitted to manufacturing only twice. 

In rebuttal, Marshall testified on his own behalf. The court reminded Marshall's

counsel that "if [Marshall] takes the stand and [the court] finds he testified

untruthfully, he could not only lose his acceptance of responsibility, but have

obstruction of justice." After hearing the court's caution, Marshall testified. He stated
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that he was under the influence of methamphetamine at the time of the first interview.

Consequently, the narcotic diminished his mental capacity and affected his ability to

correctly recall facts and respond to questions. Based upon this alleged diminished

capacity, Marshall urged the court to find that his first statement—in which he

admitted to four prior "cooks"—was inaccurate. On cross-examination, Marshall

conceded that it was possible that he may have stated that he had "cooked"

methamphetamine four times, but contended adamantly he had only "cooked" twice.

Marshall argued that unlike his first interview, he was not under the influence of

methamphetamine at his safety-valve interview and was able to provide accurate and

truthful information. Marshall admitted to only two prior "cooks" during his safetyvalve interview. 

The district court rejected Marshall's arguments. The court credited Marshall's

first interview and discounted his subsequent safety-valve interview. According to

the court, "[b]y the time he got to his safety valve interview, he was trying to

minimize his criminal conduct by saying he only cooked two times. I don't find that

credible, I do not find he's entitled to the safety valve." The court also denied

Marshall's motion for downward departure based on extraordinary post-offense

rehabilitation. The district court sentenced Marshall to seventy months' imprisonment

and forty-eight months' supervised release. 

On appeal, Marshall challenges the district court's findings that he

manufactured methamphetamine on four occasions. He also challenges the court's

finding that he was not truthful during his safety-valve interview, and, thus, not

eligible for a two-level reduction under U.S.S.G. § 5C1.2.

II. Discussion

A. Drug-Quantity Determination

We review the district court's drug-quantity determination for clear error.

United States v. Symonds, 260 F.3d 934, 936 (8th Cir. 2001). Because of this
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deferential standard of review, we will only reverse when the entire record definitely

and firmly illustrates that the lower court made a mistake. United States v. Quintana,

340 F.3d 700, 702 (8th Cir. 2003) (internal quotations omitted); United States v.

Causor-Serrato, 234 F.3d 384, 389 (8th Cir. 2000). A court may consider any

evidence in its sentencing determination that has sufficient indicia of reliability to

support its probable accuracy. United States v. Exson, 328 F.3d 456, 461 (8th Cir.

2003) (citations omitted). The government bears the burden of proving drug quantity

by a preponderance of the evidence. United States v. Houston, 338 F.3d 876, 878 (8th

Cir. 2003). Marshall contends that because the record does not support a finding that

he was untruthful about the number of times he "cooked" methamphetamine, the

district court's drug-quantity determination was in error. We disagree. 

In this case, the district court's drug-quantity determination was established

through Marshall's preliminary admissions to Officer Robinson. The district court's

findings on this issue are essentially a matter of credibility. "It is well established that

in sentencing matters a district court's assessment of witness credibility is

quintessentially a judgment call and virtually unassailable on appeal." Quintana, 340

F.3d at 702 (internal quotations omitted). The district court's reliance on Officer

Robinson's testimony was not clearly erroneous.

At the sentencing hearing, Officer Robinson testified for the government that

Marshall stated to him that he had performed four prior "cooks." The government also

presented Officer Robinson's contemporaneous notes as corroboration of his

testimony that Marshall had stated that he had performed four prior "cooks."

Marshall's counsel vigorously cross-examined the reliability of Officer Robinson's

notes and contended the officer may have been mistaken. The court also heard

testimony from Marshall. Marshall conceded that he may have stated he had made

four cooks but attributed the statement to confusion resulting from his

methamphetamine use. Marshall urged the court to rely instead on his safety-valve

interview in which he stipulated to only two prior "cooks." The court credited Officer
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Robinson's testimony and found that Marshall had manufactured methamphetamine

on four prior occasions. The district court's judgment was not clearly erroneous. 

B. Safety-Valve Departure

Next, Marshall argues that the district court erred in refusing to reduce his

sentence under the safety-valve provision of U.S.S.G. § 5C1.2. A defendant has the

burden of demonstrating that he is entitled to a more lenient sentence, and our review

of the district court's conclusion that Marshall did not discharge that burden is for

clear error. United States v. Surratt, 172 F.3d 559, 566 (8th Cir. 1999). 

In order to qualify for safety-valve reduction, a drug defendant must satisfy five

requirements. In relevant part, the five requirements are as follows: 

(1) the defendant does not have more than 1 criminal history point, as

determined under the sentencing guidelines . . . ; 

(2) the defendant did not use violence or credible threats of violence or

possess a firearm or other dangerous weapon . . . in connection with the

offense; 

(3) the offense did not result in death or serious bodily injury to any

person; 

(4) the defendant was not an organizer, leader, manager, or supervisor

of others in the offense . . . ; and 

(5) not later than the time of the sentencing hearing, the defendant has

truthfully provided to the Government all information and evidence the

defendant has concerning the offense or offenses that were part of the

same course of conduct or of a common scheme or plan . . . .

U.S.S.G. § 5C1.2 (emphasis added). The only requirement at issue here is whether

Marshall truthfully provided to the government, before sentencing, the number of

prior "cooks."
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As noted above, at sentencing, the government argued that Marshall had not

truthfully provided all information and evidence he had concerning the

methamphetamine-manufacturing offense before the hearing. The government

presented evidence, including Officer Robinson's testimony and interview notes,

which supported its contention that Marshall was untruthful at his safety-valve

interview and at the hearing. The district court assessed the witnesses' testimony and

concluded that Marshall had not been completely truthful at the safety-valve

interview because he was trying to minimize his criminal conduct. Based upon the

record before us, we cannot say the court's finding is clearly erroneous. 

C. Booker Error

Subsequent to oral argument, the Supreme Court handed down its landmark

decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), which invalidated a state

sentencing guidelines system remarkably similar to the federal system. We suspended

our consideration of the case pending the Supreme Court's decision in United States

v. Booker, 125 S. Ct. 738 (2005), and our own decision in United States v. Pirani, No.

03-2871, slip op. (8th Cir. Apr. 29, 2005). We directed the parties to supply

supplemental briefing in light of Booker which had the effect of rendering the Federal

Guidelines system advisory. Based upon Booker, Marshall contends that the district

court committed plain error by applying the Federal Sentencing Guidelines in a

mandatory manner. Marshall argues that the case must be remanded for resentencing.

While it is true that the district court committed error under Booker by applying

the Federal Sentencing Guidelines as mandatory, it is not true that the error always

requires a remand for resentencing. In Booker, the Court directed us to apply"ordinary

prudential doctrines" such as plain error and harmless error. 125 S. Ct at 769.

Marshall acknowledges in his supplemental brief that he made no Sixth Amendment

objection below and that "this court should apply a plain error standard of review".

Our recent Pirani decision clearly sets forth the standard to be applied in this circuit

in analyzing Marshall's argument. We apply the traditional plain error factors set forth
4

The following colloquy took place between the court and counsel for

Marshall:

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in United States v. Olano, 507 U.S. 725 (1993). To show plain error, Marshall must

show there is :

(1) error, (2) that is plain, and (3) that affects substantial rights. If all

three conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial

proceedings.

Pirani slip op. at 7 (citing Johnson v. United States, 520 U.S. 461, 466–67 (1997)).

We have held that applying the Guidelines in a mandatory manner is error and

that the error is plain under Booker. Id. at 8. The more difficult question for this case

is whether the error affected Marshall's substantial rights. "[T]he third Olano factor

turns on whether Pirani has demonstrated a reasonable probability that he would have

received a more favorable sentence with the Booker error eliminated." Id. at 10.

Based upon our review of the record and our applicable precedent, Marshall has not

shown a reasonable probability that his sentence would have been more favorable in

the absence of mandatory sentencing guidelines. 

With respect to the third Olano element Marshall argues that because he

received a sentence at the bottom of the applicable Guidelines range there is a

reasonable probability that his sentence may have been lower had the district court

viewed the Guidelines as advisory. In addition, he notes the district court's statement

"[t]hat's the very lowest sentence I can give him under the guideline range." This

statement, however, was made in response to Marshall's request that he be sentenced

at the low end of the Guidelines range.4

 A sentence at the bottom of the Guidelines
COURT: I'll hear from the attorneys . . . on where I should sentence

[Marshall] within the [guideline] range.

COUNSEL: We would ask the court to sentence . . .Mr. Marshall to the bottom

of the guideline range, seventy months.

* * * *

COURT: I am ready to sentence. It is the judgment of the Court that Daniel

John Marshall is hereby committed to the custody of the Bureau

of Prisons to be imprisoned for seventy months on Count 1 of the

indictment. That's the very lowest I can give him under the

guideline range.

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range, without more, does not show a reasonable probability that a sentence would

have been reduced in the absence of mandatory guidelines. Id. at 12; see also United

States v. Light, No. 04-1849, slip op. at 9 (8th Cir. May 9, 2005) (district court's

statement that "my discretion is limited to that 235 to 295" insufficient to demonstrate

reasonable probability of a lesser sentence). Marshall argues that "it is certainly

reasonable to assume that the district court may have imposed a lower sentence if it

had not believed it was required to apply the guidelines sentence." Based upon the

holding in Pirani, we are not free to assume that the district court would have

imposed a lower sentence. Marshall must establish a reasonable probability and he

has not done so. While it is not certain the district court would have sentenced him

at 70 months under an advisory guidelines system, the court's statement in response

to Marshall's request alone is insufficient to make the probability of a more favorable

sentence reasonable. 

Lastly, Marshall argues that the district court's sentence should be reversed as

unreasonable in light of the relevant factors of 18 U.S.C.§ 3553(a); see also Booker,

125 S. Ct. at 767 (holding that district court sentences are reviewed on appeal for

unreasonableness). Of the factors outlined in the statute, Marshall emphasizes his

"minimal criminal history." Additionally, he states that although he was convicted of

manufacturing methamphetamine, the government did not allege that he did so for
5

I concur in the majority’s holding that Marshall is not entitled to relief under

United States v. Booker, 125 S. Ct 738 (2005). I continue to believe that a

defendant’s challenge to the factual basis for a sentence enhancement preserves his

Sixth Amendment sentencing claim. See United States v. Pirani, 406 F.3d 543, 555-

62 (8th Cir. 2005) (en banc) (Heaney, J., dissenting). Moreover, I adhere to the view

stated by Judge Bye in Pirani, that defendants who did not properly preserve their

Booker claims in the district court are nonetheless generally entitled to resentencing

under a constitutional regime. Pirani, 406 F.3d at 562-67. Because a majority of our

court held to the contrary on both counts, however, I do not dissent on this basis.

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purposes other than for his own consumption. Marshall also contends he has reformed

his life since his arrest and presents little risk of recidivism. The district court

considered these same factors in declining Marshall's downward departure motion.

Our review task is not to decide whether we agree with the district court but whether

its decision traverses the boundaries of reasonableness. After reviewing the facts of

this case in light of § 3553(a), we cannot say the district court's sentence is

unreasonable. 

Accordingly, we affirm the judgment of the district court.

HEANEY, Circuit Judge, dissenting.

I respectfully dissent. In my view, the district court clearly erred by ignoring

Daniel John Marshall’s consistent statements that he cooked methamphetamine two

times, in favor of Officer Robinson’s testimony that he recalled Marshall telling him

about a year earlier that he had cooked methamphetamine four times. I would remand

this matter for resentencing with application of the safety valve and base offense level

of 28.5

Robinson interviewed Marshall on January 30, 2002 after Robinson and others

searched Amy al-Munasif’s house. At that time, Robinson had been on the DEA

Drug Task Force for less than a month. Robinson contemporaneously took
6

Marshall’s estimate was correct; officers recovered 653 pseudoephedrine

tablets.

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handwritten notes of the encounter and later wrote an official report, both of which

are part of the record. His notes contain basic information, such as the method

Marshall used to manufacture methamphetamine, and reflect the details of only two

cooks. Marshall admitted to Robinson that he recently had been consuming a large

amount of methamphetamine. He further related that the methamphetamine

manufacturing supplies at the residence were his, and indicated that the officers

would find roughly 700 pills of pseudoephedrine.6

 Marshall was not arrested at that

time.

Despite the January interview, the government waited nearly nine months

before charging Marshall with any federal offense. The reason for the delay is

unclear, since Marshall was the sole defendant and no extensive investigation beyond

the initial search and interrogation appears to have been completed before charging.

By the time he was charged, Marshall had left Iowa, secured a job in South Carolina,

and rid himself of his methamphetamine addiction. He was arrested on November 7,

2002, and returned to Iowa.

According to representations made by Marshall’s counsel, Marshall sought to

dispose of his case as quickly as possible. He admitted to the conduct alleged, but

disputed the claim that he cooked methamphetamine four times. Although he entered

into a plea agreement, Marshall maintained that he only cooked twice, and altered the

plea agreement documents to omit any reference to engaging in four cooks. He pled

guilty on January 30, 2003, less than three months after being charged.

Marshall appeared eligible for safety valve relief, so long as he fully debriefed

with the government as to the details of his offense. See USSG § 5C1.2(a)(5)

(requiring defendant to “truthfully provide[] to the Government all information and

evidence the defendant has concerning the offense” in order to qualify for safety
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valve relief). He met with the government on June 20, 2003. At this hearing, he

remained adamant that he only engaged in two cooks, and Robinson remained equally

adamant that Marshall admitted to four cooks during their earlier encounter. The

government then suggested that Marshall was being untruthful, and recommended

that the district court deny safety valve relief.

At sentencing, the government disclosed Robinson’s handwritten notes to

defense counsel for the first time. These notes do not reflect that Marshall

manufactured methamphetamine four times; they particularize only two cooks.

Below these details, Robinson had written “4 times before 300 pills apiece.”

(Appellant’s Addendum at 1.) The government argued that this note buttressed

Robinson’s claim that Marshall cooked four times. Marshall, on the other hand,

suggested that the note meant merely that he bought 300 pills of pseudoephedrine on

four different occasions.

The district court sided with the government, which resulted in a much higher

sentence for Marshall. Since it found Marshall not truthful, he was ineligible for the

two-level safety valve reduction. See USSG §§ 2D1.1(b)(6), 5C1.2(a) (mandating

two-level reduction in offense level for drug defendants who, inter alia, truthfully

debrief on their offenses of conviction). Applying a base offense level of 30 and

other adjustments, Marshall was left with a sentencing range of 70 to 87 months, as

opposed to a range of 46 to 57 months, which would have applied if the court had

credited Marshall’s testimony.

Although I recognize that we typically defer to a district court’s decisions on

the veracity of witnesses, United States v. Tucker, 243 F.3d 499, 506 (8th Cir. 2001),

such deference is based on the principle that the district court is in the best position

to make such determinations, United States v. Mendoza-Gonzalez, 363 F.3d 788, 794

(8th Cir. 2004). Here, the district court’s statement of reasons indicate that it

disbelieved Marshall based on its hunch that Marshall was attempting to mitigate his
7

If Marshall did possess such extensive knowledge of the sentencing guidelines

and was indeed changing his story to avail himself of the most lenient sentence, one

would certainly expect him to recognize that if he simply agreed at the safety valve

interview that he cooked four batches of methamphetamine, he would have been

sentenced within a range two levels lower than what he actually received on account

of the application of the safety valve. See USSG §§ 2D1.1(b)(6), 5C1.2(a).

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culpability: “I credit his first statement to law enforcement on January 30, 2002,

during which he said he cooked methamphetamine four times. By the time he got to

his safety valve interview, he was trying to minimize his criminal conduct by saying

he only cooked two times.” (Sent. Tr. Vol. II at 98-99.) 

The district court opined that Marshall initially told Robinson he cooked four

times, and then later changed his story when he realized that four instances of

manufacturing would result in a more severe sentence than two because of the higher

yield. For a defendant with a GED, no record of legal training, and no prior federal

offenses, it is an unwarranted leap of faith to assume he recognized that United States

Sentencing Guideline section 2D1.1, which applies to violations of 21 U.S.C. §§

841(a)(1), 841(b)(1)(B)(viii), and 846 (Marshall’s offense of conviction), calls for a

base offense level of 30 for offenses involving 35 to 50 grams of actual

methamphetamine (the range if Marshall cooked four batches), and a base offense

level of only 28 for those involving 20 to 35 grams of actual methamphetamine (the

range if Marshall cooked two batches).7

 While one could certainly speculate that

Marshall educated himself about the sentencing guidelines through conversations

with counsel, the record does not support such conjecture. Marshall has insisted that

he only cooked twice since the time of his initial meeting with his lawyer in the fall

of 2002, well before his safety valve interview the following June.

Although the majority suggests that the district court was forced to make a

decision to believe one side of two conflicting accounts, that was simply not the case.

This is not a case in which we are presented with hard evidence that contradicts the
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defendant’s claim. The only apparent conflict concerns Marshall’s own statements:

whether the district court would believe what Robinson claims Marshall said on

January 30, 2002, or whether it would believe what Marshall has consistently

maintained to be the truth.

Robinson’s notes detail only two instances of manufacturing. Marshall

indicated he used about 550 pseudoephedrine pills altogether–250 one time and 300

another, and officers found roughly 650 unused pills that Marshall agreed were his,

for a grand total of 1200 pills. In this context, it is likely that the reference in

Robinson’s notes to “4 times 300 pills apiece” meant that Marshall had bought 300

pseudoephedrine pills on four occasions, for a total of 1200 pills. Robinson,

however, maintained that despite the fact that Marshall’s interpretation was consistent

with the accounting of pills used and unused, Marshall told him he manufactured

methamphetamine on four occasions.

When Marshall was asked at sentencing about the apparent conflict between

Robinson’s recollection and his own, he stated that if he indeed told Robinson he

cooked four times, he misspoke. Marshall was struggling with a serious

methamphetamine addiction, and was under the influence of the drug when Robinson

questioned him. Given that, he agreed that it was entirely conceivable that he

mistakenly told Robinson he cooked four times, or that Robinson either did not hear

him correctly or misunderstood him. What is less plausible, however, is that Marshall

actually did cook four times rather than two. Marshall was unequivocal that he only

manufactured methamphetamine twice, and his testimony to that effect should have

been credited. I would reverse the district court and remand for resentencing.

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