## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1797

___________ United States of America, * Plaintiff/Appellee, *

v. * District Court for the Gregory Allen Peck, * Defendant/Appellant. * *

* Appeal from the United States

* Northern District of Iowa.

*

* *

___________ Submitted: Oct. 22, 1998 Filed: December 7, 1998

___________ Befo re BOWMAN, Chief Judge, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.

___________ MURPHY, Circuit Judge Grego ry Allen Peck pled guilty to one count of possession with intent t o di stribute 10 grams or more of methamphetamine, in violation of 21 U.S.C. § § 841(a)(1) and 841(b)(1 )(B), conditioned on his right to appeal several pretrial rulings.The Honorable Michael J. Melloy, Chief Judge, United Sta tes District Court for 1 the Northern District of Iowa. – 2– The district court imposed a sentence of 210 months after concluding that Peck was 1 a career offender under U.S.S.G. § 4B1.1 and then departing downward. Peck’ s appeal focuse s on the district court’s factual finding that the sentence for one of his prio r felon ies had been imposed within ten years of his arrest, its denial of a motion t o suppress statements, and several other rulings. We affirm.

I.

Inthe early morning hours of December 23, 1996, a deputy sheriff observed a Ford Bronco parked near the entrance to a c ounty park with its lights on and its engine runnin g. When the deputy approached the vehicle, he saw Peck asleep in the drive r seat, onl y partially clothed. He also saw what appeared to be a large marijuan a cigare tte in the ashtray. After another officer arrived, they both noticed the odor o f marij uana and woke Peck up and took him to their patrol car. He asked them t o retrieve his pants and while doing so the officers discovered $2200 in cash in a pocket. They read him his righ

ts, placed him under arrest, and then conducted a partial search of the vehicle and found a box containing marijuana and methamphetamine and other drug-related material.

Peck left town and traveled to Oregon before the federal indictment was filed, and a w arrant was issued for his arrest. When Peck learned about the warrant, h e contacted the authorities in Iowa, expressed his desire to cooperate, and traveled back to the state, voluntarily surrendering in May 1997.

On his retu rn to Iowa he was taken into custody and again read his Mirand a rights. He signed a one page “statement of cooperation” which stated that he wa s aware of hi s right to speak with an attorney and that he could stop cooperating at any– 3–

time. He w as then interviewed for several hours and made some incriminatin g statements, implicating himself and others in criminal activities. He reported that h e had p urchased over 15 ounces of methamphetamine from a source in California i n December 1996, that he had previo usly purchased 8 ounces of methamphetamine, and that he had been involved in receiving approximately 1,000 pounds of marijuana. In his lat er plea agreement, he stipulated that he had received two packages o f metham phetamine in 1996, one containing approximately 8 ounces and the othe r approximately 15 ounces 2 grams.

At his se ntencing hearing, Peck testified that several of his statements abou t methamphetamine in the May interview and in his plea stipulation had been false and made only to curry favor with the authorities. At the hearing, he claimed that the first time he ha d ever received methamphetamine was when he purchased 15 ounces 2 grams from a source in Iowa a few days before his arrest in December. Peck als o pres ented evidence to show his alleged source in California was unavailable durin g parts of the relevant time period. This evidence contradicted his earlier statement s about the number, timing, and source of his methamphetamine purchases.

The district court reviewed Peck’s criminal history and concluded that h e qu alified as a career offender under U.S.S.G. § 4B1.1. For Peck to meet the caree r offender requirements he would have had to have two prior felonies involving violence
or c ontrolled substances for which he had been sentenced within ten years of th e commencement of the current offense. See U.S.S.G. § 4A1.2(e)(2). Peck had tw o prior felony drug convictions, one for growing marijuana and one for possessing and transpor ting or selling marijuana. He was sentenced for the first in September 198 6 and receiv ed a suspended sentence for the other in July 1995. The district cour t
coun ted both convictions in its career offender calculation after finding that Peck’ s conduct relevant to the instant offense had begun at least by e arly 1996. The court also departed downward after determining that Peck’s criminal history score of V I overstated his actual record since the Wisconsin conviction could have been within just– 4–

afew months of being time barred and neither of his prior convictions had warranted serious sentences. The cour t found the offense level to be 34 and reduced the criminal history category to IV which resulted in a sentencing range of 210 to 262 months.

II.
Peck asserts that it was error for the court not to suppress t he statements he made in May 1997 because they were involu ntary under the totality of the circumstances and made without waiver of his right to counsel. He states that he did not make a n intelligent and knowledgeable waiver of his right to counsel because he was unaware of the poten tial adverse impact his statements could have on sentencing. Peck als o complains that he was tired after a long bus ride and that the officers suggested he might receive more lenient treatment if he cooperated. The magistrate judge sp ecifically found that Peck had kno wn he was going to be met by law enforcement officers upon arrival in I owa; that he had received Miranda warnings, signed a cooperation agreemen t sh owing he was aware of his rights, arranged the meeting with officers and wanted to talk; and t hat he had continued to cooperate after speaking with an attorney. Th e district court adopted the findings and conclusions of the magistrate judge.
The district court’s ultimate interpretation and application of legal standards are reviewed de novo. See, e.g. , United States v. M akes Room , 49 F.3d 410, 414 (8th Cir. 1997). Its findings of fact are only reviewed for clear error, however, and due weight must be given to permissible inferences drawn from those facts. See Ornelas v. United States , 517 U.S . 690, 699 (1996). In light of the record and the trial court findings , Peck has not shown his will was “overborne.” United States v. Meirovitz , 918 F.2 d 1376, 1379 (8th Cir. 1990); see also Jenner v. Smith , 982 F.2d 329, 333 (8th Cir. 1993) (statement not involuntary unless “the police extorted it from the accused by means of coercive activity”). Lack of awa reness of the potential adverse impact of statements is not sufficient in itself to invalidate a waiver of the right to counsel. See Patterson v.Peck also submitted a supplemental pro se brief. It is not our practice t o 2 consider pr o se briefs filed by parties represented by counsel, see United States v

. Dierl ing , 131 F.3d 722, 734 n.7 (8th Cir. 1997), and Peck raises no arguments tha t would lead to a different result. His motion for use of pseudonyms is denied. – 5– Illino is , 487 U.S. 285, 292 (1988) (valid Miranda warnings sufficient to demonstrat e valid wai ver of Sixth Amendment right to counsel); United States v. Johnson , 47 F.3d 272, 277 (8th Cir. 1995) (rejecting the argument that defendants must be warned of the potential sentencing consequences of waiving their right to remain silent).

Peck further challenges the district court’s factual finding that the relevan t conduct in the instant offense began before September 1996 -- a finding critical to its determination th at he was a career offender. The contradictory evidence presented on the issue of when the relevant conduct be gan made it necessary for the court to base its decision on credibility. Special Agent Dasso testified about his May 1997 intervie w with Peck which suggested that the relevant conduct began long before December 1996. Peck argues that Dasso misrepresented statement s from the May interview, that several statements he had made were untrue, and that his relevant conduct did not begin until De cember

1996, making the 1986 felony irrelevant for career offender status

. Credibility determinations a re squarely within the discretion of the district court, and it was not clear error to acce pt the officer’s testimony regarding Peck’s admissions. See Un itedStates v. Coleman , 148 F.3d 897, 901 (8th Cir. 1998) (“Determinations o f witness credibility are virtually unr eviewable.”); United States v. Dolan , 120 F.3d 856, 871 (8th Cir. 1997) (noting that the district court need not accept a defendant’s “sel f serving assertions at sentencing”).

Peck’s counsel raises several other points that are without merit. Peck argues 2 that the federal government did not have jurisdiction to prosecute him because the crime had been committed on state land. This argument formed the basis of his failed Motion to Dismiss Indictment, Motion for Declaratory Judgment, and Motion to– 6–

Dism iss on Constitutional/Jurisdictional Grounds. It was not error to deny thes e motions; 21 U.S.C. § 841(a)(1) has been found to be a valid exercise of Congress ’ powers under the Commerce Cla use. See United States v. Brown , 72 F.3d 96, 97 (8th Cir. 1995). Thecourt also correctly declined to take judicial notice of other irrelevant materials. The jury has no role in deciding legal issues, and Peck waived any claim to an independent evidentiary h earing on his motion to withdraw the factual stipulation in his guilty plea or to withdraw his plea. He explicitly stated in the district court that the motion to wi thdraw his plea had itself been withdrawn and that issues relating to th e stipul ation of facts were incorporated into his arguments about the period of relevan t conduct. United States v. Olano , 507 U.S. 725, 732-33 (1993) (waiver involve s intentionally relinquishing or abandoning a known right).

III.

After a thorough review of the record, we find that the district court did not err in its pretri al rulings or sentencing decisions. Peck has not shown that it was error for the cou rt to consider statements made in his May interview with law enforcemen t offic ers or that the court’s factual findings at the sentencing hearing were clearl y erroneous. We affirm the judgment.
A true copy.

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