1 The Honorable Richard G. Kopf, United St ates District Judge for the District of Nebraska. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 10-2577

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska. Jaktine Alphonso Moore, also known * as JAK, * [UNPUBLISHED]
* Appellant. *

___________ Submitted: December 17, 2010 Filed: March 1, 2011

___________ Before WOLLMAN, BRIGHT, and COLLOTON, Circuit Judges.

___________ PER CURIAM. A jury found Jaktine Moore guilty of c onspiracy to distribute and possess with intent to distribute 50 grams or more of cocaine base ( i.e. , “crack” cocaine), in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court, 1 after finding that Moore had been convicted previously of two felony drug offenses, sentenced him to life imprisonment in accordance with 21 U.S.C. § 841(b)(1)(A). Moore appeals, arguing (1) that the evidence presented attrial was insufficient to support the2 The jury also found that the conspiracy involved 500 grams or more of cocaine (not of the cocaine base variety). Becau se that finding mandated a minimum sentence of only 10 years’ imprisonment for Moore, who had a prior conviction for a drug felony offense, see 21 U.S.C. § 841(b)(1)(B)(ii), and because we will affirm his conviction and sentence of life imprisonmen t on the basis of his participation in a conspiracy to distribute 50 grams or more of crack cocaine, we need not consider whether the evidence was suffi cient to support the jury’s finding that the conspiracy involved 500 grams or more of cocaine.

3 There are approximately 28.35 grams in an ounce.
-2- conviction and sentence; (2) that the distri ct court improperly counted his prior drug convictions as two convictions for the purposes of 21 U.S.C. § 841(b)(1)(A); and (3) that 21 U.S.C. § 851(e)—which precluded him from challenging the validity of his prior convictions—is unconstitutional. We affirm. 2

I.

“We review the sufficiency of the evidence [supporting a conviction] de novo, viewing evidence in the lightmost favorable to the gove rnment, resolving conflicts in the government’s favor, and accepting all reasonable inferences that support the verdict.” United States v. May , 476 F.3d 638, 640-41 (8th Cir. 2007) (citation and internal quotation marks omitted). “We may reverse only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt.” Id. (citation and internal quotation marks omitted).

At trial, the government offered th e testimony of a number of cooperating witnesses. Three of them—Dangelo Erving, Da niel Robinson, and John Sutton—testified that they had persona lly purchased crack cocaine from Moore. Erving testified that his first purchase from Moore was equal to his smallest—4.5

ounces 3 —and that he went back to Moore at least every few days for more. His largest purchase was eighteen ounces, and he testified that between October 2006 and-3- December 2007 he purchased at least 9,000 gr ams of crack cocaine from Moore. That Erving had purchased 4.5 ounces on at leas t one occasion was corroborated by another government witness, Marcus Bridges.

Robinson testified that he purcha sed crack cocaine from Moore three times—specifically, that he made two pur chases of one ounce and another of 1.5 ounces. Sutton testified that he purchas ed five ounces from Moore on one occasion and three ounces on each of three other occasions.

In addition, several of the governmentwitnesses testified that they had purchased crack cocaine from Moore’s co-defendant, Job ita Avery, and that they had observed Moore cooking cocaine into crack cocaine and supplying it to Avery to sell. All told, there was an abundance of eviden ce on which the jury could have relied in finding that Moore had been engaged in a c onspiracy to distribute more than 50 grams of crack cocaine.

Nevertheless, Moore argues that the gove rnment’s case contained no direct or physical evidence and that the testifying witn esses were all “unre liable and interested” as they were “convicted felons who entere d into plea agreements with the government and provided testimony in exch ange for . . . downward departures.” Appellant’s Br. at 7-8. We see this as little more than an invitation to re-weigh the evidence, and we decline to do so. The jury was in a better position than ar e we to weigh the credibility of the witnesses who testifie d at Moore’s trial. And we have “repeatedly upheld jury verdicts based solely on th e testimony of co-conspirators and cooperati ng witnesses, noting that it is within the province of th e jury to make credibility assessments and resolve conflicting testimony.” United States v. Bower , 484 F.3d 1021, 1026 (8th Cir. 2007) (citing United States v. Tabor , 439 F.3d 826, 829 (8th Cir. 2006), vacated on other grounds , 552 U.S. 1136 (2008)).-4- We therefore conclude that sufficien t evidence supports Moore’s conviction.

II.

Title 21, United States Code, Secti on 841(b) requires a sentence of life imprisonment for a violation of § 841(a) if the quantity threshold of § 841(b)(1)(A) is met and the violation is committed “after two or more prior convictions for a felony drug offense have become final.” A “felony drug offense” is “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State . . . that prohibits or restricts conduct relating to” controlled substances. 21 U.S.C. § 802(44); see Burgess v. United States , 553 U.S. 124, 126 (2008) (“The term ‘felony drug offense’ cont ained in § 841(b)(1)(A)[] . . . is defined exclusively by § 802(44) . . . .”).

The jury found Moore guilty of conspiri ng to violate § 841(a) with a quantity of drugs in excess of the threshold set by § 841(b)(1)(A). Furthermore, the government filed an information establis hing that Moore had two prior felony drug convictions, one from Brighton, Colorado, in April 1994 and another from Centennial, Colorado, in July 1995. See 21 U.S.C. § 851(a). Section 841(b)(1)(A) therefore required the district court to sentence Moore to life imprisonment.

Moore does not dispute that his April 1994 and July 1995 convi ctions were for “felony drug offense[s]” for the purposes of § 841(b)(1)(A). Rather, he argues that the two prior convictions were part of a “single common sc heme or plan,” made clear by the fact that they “were obtained clos e in time, and were for similar offenses allegedly committed in close temporal and geographical proximity to each other.” Appellant’s Br. at 12-13. Th erefore, he argues, they should be counted as only one conviction.4 Because we conclude that the district court properly sentenced Moore to life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A), we need not consider his claim that he should not have been considereda “career offender” under the sentencing guidelines. See U.S. Sentencing Guidelines Manual § 4B1.1 (2010).
-5- We disagree. Section 841(b)(1)(A) re quires the imposition of a life sentence whenever a person with “two or more pr ior convictions for a felony drug offense” violates § 841(a) with a quantity of drugs in excess of the threshold set by § 841(b)(1)(A). We cannot say that M oore’s two prior convictions—one for an offense committed on February 24, 1993, in Centennial, Colorado, and the other for an offense committed on Marc h 13, 1993, in Brighton, Colorado—“result[ed] from acts forming a single criminal ep isode.” United States v. Gray , 152 F.3d 816, 821 (8th Cir. 1998); see id. at 822 (“Although [the defendant]’s two drug sales may have formed a series or pattern of drug tran sactions, each . . . sale was a separate, punctuated occurrence with a limited duration. We therefore hold that the district court correctly ruled that [the defendant]’s two prior felony drug convictions . . . constituted separate convic tions for purposes of sentencing pursuant to section 841(b)(1)(A).”). 4

III.

Moore’s final claim—that 21 U.S.C. § 851(e) violates his rights to due process and equal protection—also fails. Title21, United States Code, Section 851(e) precludes challenges to “the validity of any prior conviction” offered to establish the applicability of a mandatory minimum sent ence required by 21 U.S.C. § 841(b) if the prior conviction “occurred more than five y ears before the date of the information alleging such prior conviction.” The govern ment’s information alleging Moore’s two prior convictions—in April 1994 and July 1995—was filed on January 22, 2010. Section 851(e) therefore barred Moore from challenging the validity of those convictions.-6- Moore argues that this bar violates his rights to due process and equal protection. We have alrea dy considered and rejected ju st such a challenge, however,

see United States v. Prior , 107 F.3d 654, 660-61 (8th Cir. 1997), and, absent en banc review, are obliged to abide by that decision, seeUnited States v. Carter , 270 F.3d 731, 736-37 (8th Cir. 2001).

IV.

The conviction and sentence are affirmed.

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