United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2525

___________ United States of America, * * Appellee, * *
v. * * Terry Swant, * * Appellant. *

__________ Appeals from the United States No. 97-2720 District Court for the

__________ Northern District of Iowa. United States of America, * [UNPUBLISHED] * Appellee, * *
v. * * Daniel Edward Bouska, * * Appellant. *

___________ Submitted: March 5, 1998 Filed: March 6, 1998

___________ Before FAGG, BOWMAN, and MURPHY, Circuit Judges.The Honorable Michael J. Melloy, Chief Judge, United Sta tes District Court for 1 the Northern District of Iowa. -2- ___________ PER CURIAM.
In a superseding indictment, Terry Swant, Daniel Edward Bouska, and Steven Damjanovic were charged with conspiring to distribute methamphetamine an d possessing methamphetamine with intent to distribute, in violation of 21 U.S.C

. §§ 841(a)(1) and (b)(1)(A), and 846. Swant pleaded guil ty, and Bouska was convicted by a jury following a trial . On appeal, Swant challenges the sentence imposed on him by the district court, and Bouska challenges his conviction and sentence. We affirm. 1

Bousk a challenges his conviction by arguing the district court erred in denying his request for a mistrial, made after the prosecutor asked Bouska on cross-examination whether he knew that another individual, who was with Bouska at the time of his arrest, had methamphetamine on his person, contrary to the dist rict court & s pretrial ruling. We review for abuse of discretion a district cour t & s discretionary decision to deny a motion fora mis trial. See United States v. Thomas , 93 F.3d 479, 487 (8th Cir. 1996)

. Reversib le trial error occurs when a prosecutor & s actions are improper and hav e prejudicia lly affected the defendant & s substantial rights so as to deprive the defendant of a fair tria l. In making such a determination, we consider the cumulative effect o f such mi sconduct, the strength of the properly admitted evidence of the defendant & s guilt, and the curative actions taken by the district court. See id.

Given t he extensive evidence of Bouska & s guilt, we cannot say that the court abused its discretion in denying the motion for a mistrial. Even assuming withou t deci ding that the prosecutor & s action was improper, we do not believe Bouska wa s denied a f air trial. Bouska & s involvement with methamphetamine was testified to and corroborated by four other witnesses. Bouska admitted that he had used-3-

methamph etamine with, and had obtained methamphetamine from, three of thes e witnesses. In answer to the prosecutor & s question, Bouska stated that he was not aware officers had discovered methamphetamine on his companion, thereby diminishing the alleged prejudicial effect of the question. The district court also refused to admit into evidence the methamphetamine seized from this other person, or the lab report & s reference to this methamphetamine.

As to their sentences, Swant and Bouska both challenge the district court & s imposition of a two-level enhancement for possessing firearms during the commission of a drug offense, pursuant to U.S. Sentencing Guidelines Manual § 2D1.1 (b)(1) (1995). We conclude that the court did not clearly err in assessing this enhancement. See U.S. Senten cing Guidelines Manual § 2D1.1, comment. (n.3) (1995) (enhancement applies unless it is clearly improbable that weapon was connected with drug offense); United States v. McCracken , 110 F.3d 535, 542 (8th Cir. 1997) (standard of review). As t o Swant , although the firearms seized from his residence were kept in a locked gu n cabinet, the guns were visible through the cabinet & s glass front; the key to the cabinet
was loca ted on top of the cabinet; the ammunition for these weapons--including a loaded clip--was stored in or near the cabinet; and Swant conducted drug transactions at his residenc e. As to Bouska, numerous firearms--including a small caliber handgun with a c lip, a small caliber revolver, and an SKS rifle--were discovered at hi s residences, where drug transactions occurred. Cf. United States v. Macklin , 104 F.3d 1046, 1048 (8th Cir.) (finding no clear error in assessment of firearm enhancement , given, among other things, ongoing drug trafficking occurring out of residence wher e firearms were seized, and likely need for defendants to protect both drugs and cas h found in residence), cert. denied , 118 S. Ct. 229 (1997).

Swant also argues that the district court erred in imposing a role enhancement , pursuant to U.S. Sentencing Guidelines Manual § 3B1.1(c) (1995). We conclude that the court did not clearly err in determining Swant was a manager of the drug conspiracy-4-

and thus qualified for this role enh ancement. See United States v. Flores , 73 F.3d 826, 835 (8th Cir.) (standard of review), cert. denied , 116 S. Ct. 2568 (1996).

Sw ant fronted drugs to two other individuals; found and cultivated th e conspiracy & s Ca lifornia drug source; alone arranged to pick up and transport the drugs fromCalifor nia to Iowa, where others resold them; and also cut the drugs. See U.S

. Sentencing Guidelines Manual § 3B1.1, comment. (n.2) (1995) (adjustment applies if defendant was organizer, leader, manager, or supervisor of one or more participants); cf. United States v. Alexander , 53 F.3d 888, 892-93 (8th Cir. 199 5) (finding 2-level role enhancement not clearly erroneous , because defendant “took a degree of responsibility fort he distribution business” by delivering drugs to middlemen, cutting drugs fo r distribution, and transporting drugs interstate without supervision); United States v

. Harris , 982 F.2d 317, 318 (8th Cir. 1992) (affirming2-level role enhancement for being manager of drug conspiracy, because, among other things, defendant was key lin k between supply of drugs from Florida and its distribution in Iowa, and defendant was able to supply large quantities of drugs during conspiracy).
Contrary to Swant & s assertion, to be a mana ger, a defendant in a drug conspiracy need not control or manage the activities of co-consp irators. See United States v. Tran , 16 F.3d 897, 902-03 (8th Cir. 1994). While Swant maintains that he objected to th e presentence repor

t and that the government failed to offer any evidence demonstrating the rol e enhancement was appropriate, we agree with the government that Swan t objected to imposition of the enhancement and not to the veracity of the underlyin g facts.
Bouska also argues that the district court clearly erred in mak ing its drug-quantity cal culationby relying on the “suspect” testimony of two cooperating, governmen t witnesses

. We disagree, because the court was entitled to rely on and assess tha t testi mony. See United States v. Stavig , 80 F.3d 1241, 1245 (8th Cir. 1996) (standard of review); United States v. Campos , 87 F.3d 261, 263-64 (8th Cir.)-5-

(affirming district court & s approximation of drug quantity; d efendant essentially attacked district court & s credib ility determinations, which are virtually unreviewable on appeal), cert. denied , 117 S. Ct. 536 (1996); United States v. Dailey , 918 F.2d 747, 748 (8th Cir. 1990 ) (district court may rely upon evidence presented at trial in making sentencin g determinations). We further conclude that the court did not clearly err in denyin g Bouska an acceptance-of-responsibility reduction. See U.S. Sentencing Guideline s Manual § 3E1.1, comment. (n.2) (1995) (§ 3E1.1 is “not intended to apply to a defe ndant who puts the government to its burden of proof at trial”); United States v

. Trupiano , 11 F.3d 769, 776 (8th Cir. 1993) (standard of review).

Finall y, because the district court determined that Bouska was responsible fo r only the amount of methamphetamine with which he was personally involved and not for the re levant conduct of his co-conspirators Damjanovic and Swant, we believe the
co urt did not clearly err in denying Bouska a mitigating-role reduction. See Unite d States v. Thompson , 60 F.3d 514, 517-18 (8th Cir. 1995) (standard of review); United States v. McCarthy , 97 F.3d 1562, 1574 (8th Cir. 1996) (district court did not err i n refusing to grant defendant role reduction; defendant, who was hel d responsible for only amount of drugs he personally distributed and not fo r entire amount of drugs distributed in conspiracy, sought “double reduction” to his base offense level by attempting to have entire amou nt of drugs in conspiracy be used to determine his role in offense), cert

. denied , 117 S. Ct. 1011, 1284 (1997).
Accordingly, we affirm Swant & s sentence, and Bouska & s c onviction and sentence.

A true copy.

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