1

The Honorable Richard G. Kopf, United States District Judge for the District

of Nebraska.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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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as JAK, * [UNPUBLISHED]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. *

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Submitted: December 17, 2010

Filed: March 1, 2011

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Before WOLLMAN, BRIGHT, and COLLOTON, Circuit Judges.

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PER CURIAM.

A jury found Jaktine Moore guilty of conspiracy 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 at trial was insufficient to support the
2

The jury also found that the conspiracy involved 500 grams or more of cocaine

(not of the cocaine base variety). Because 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 imprisonment 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 sufficient to support the jury’s finding that the conspiracy

involved 500 grams or more of cocaine.

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There are approximately 28.35 grams in an ounce.

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conviction and sentence; (2) that the district 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 light most favorable to the government, 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 the testimony of a number of cooperating

witnesses. Three of them—Dangelo Erving, Daniel Robinson, and John

Sutton—testified that they had personally purchased crack cocaine from Moore.

Erving testified that his first purchase from Moore was equal to his smallest—4.5

ounces3

—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
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December 2007 he purchased at least 9,000 grams of crack cocaine from Moore. That

Erving had purchased 4.5 ounces on at least one occasion was corroborated by another

government witness, Marcus Bridges.

Robinson testified that he purchased crack cocaine from Moore three

times—specifically, that he made two purchases of one ounce and another of 1.5

ounces. Sutton testified that he purchased five ounces from Moore on one occasion

and three ounces on each of three other occasions.

In addition, several of the government witnesses testified that they had

purchased crack cocaine from Moore’s co-defendant, Jobita 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 evidence on which the jury could have relied in

finding that Moore had been engaged in a conspiracy to distribute more than 50 grams

of crack cocaine. 

Nevertheless, Moore argues that the government’s case contained no direct or

physical evidence and that the testifying witnesses were all “unreliable and interested”

as they were “convicted felons who entered into plea agreements with the government

and provided testimony in exchange 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 are we to weigh the credibility

of the witnesses who testified at Moore’s trial. And we have “repeatedly upheld jury

verdicts based solely on the testimony of co-conspirators and cooperating witnesses,

noting that it is within the province of the 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)).
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We therefore conclude that sufficient evidence supports Moore’s conviction.

II.

Title 21, United States Code, Section 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’ contained in § 841(b)(1)(A)[] . . . is defined

exclusively by § 802(44) . . . .”).

The jury found Moore guilty of conspiring 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 establishing 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 convictions 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 scheme or plan,” made clear

by the fact that they “were obtained close in time, and were for similar offenses

allegedly committed in close temporal and geographical proximity to each other.”

Appellant’s Br. at 12-13. Therefore, he argues, they should be counted as only one

conviction.
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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 considered a “career offender” under the sentencing

guidelines. See U.S. Sentencing Guidelines Manual § 4B1.1 (2010).

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We disagree. Section 841(b)(1)(A) requires the imposition of a life sentence

whenever a person with “two or more prior 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 Moore’s two prior convictions—one for an

offense committed on February 24, 1993, in Centennial, Colorado, and the other for

an offense committed on March 13, 1993, in Brighton, Colorado—“result[ed] from

acts forming a single criminal episode.” 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 transactions, 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 convictions 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. Title 21, United States Code, Section 851(e)

precludes challenges to “the validity of any prior conviction” offered to establish the

applicability of a mandatory minimum sentence required by 21 U.S.C. § 841(b) if the

prior conviction “occurred more than five years before the date of the information

alleging such prior conviction.” The government’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. 
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Moore argues that this bar violates his rights to due process and equal

protection. We have already considered and rejected just 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, see United States v. Carter, 270 F.3d

731, 736-37 (8th Cir. 2001). 

IV.

The conviction and sentence are affirmed.

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