### The Honorable Charles R. Wolle, Chief Judge, United States 1 

### District Court for the Southern District of Iowa. _____________ No. 95-3880

_____________ United States of America, * * Plaintiff-Appellee, * Appeal from the United States * District Court for the v. * Southern District of Iowa. * Martin Perkins, * * Defendant-Appellant. *

_____________ Submitted: March 12, 1996 Filed: August 23, 1996

_____________ Before McMILLIAN, BEAM, and HANSEN, Circuit Judges.

_____________ HANSEN, Circuit Judge.

Martin P erkins was charged by grand jury indictment with one coun t of possession of cocaine base with intent to dis tribute in violation of 21 U.S.C. § 841(a)(1), and using and carrying a firearm during and in relatio n to a dru g trafficking offense in violation of 18 U.S.C. § 924(c). Hi s first trial ended in a hung jury. At his secondtrial, the jury found him guiltyof the possession with intent to distribute charge but could no t reach a verdict on the firearms charge. The district court sentence d 1 Perkins to 135 months' confinement on the drug conviction, and th e government elected to dismiss the firearms charg e with prejudice. Perkins appeals both his conviction and sentence. We affirm.

### -2- I.
When viewed in the light most favora ble to the verdict, the evidence at trial established that on the evening of December 4, 1994, a woman who identif ied herself as Keisha Bateman telephoned the Burlington, Iowa , police department to report that she was involved in a domestic disput e withthe defendant at his apartment and that he had pointed a gun at her and assaulted her. She also told the police that the defendant was cuttin g up a quantity of crack cocaine and that he had a large stack of cash besid e him as he did so.

Later that evening, police officers obtained and executed a stat e court search warrant for Perkins' apartment. Officers observed Perkin s entering the living room from the bedroom. Ther e were no other persons in the a partment, Perkins told the officers he was the only person livin g there, and t here was but a single bed. Perkins was arrested on a n outstanding Illinois warrant. A pager device, which Perkins said he wore because his sick grandmother often paged him, was taken from his perso n when it beeped. Stored in its memory and displayed on its readout wer e several telephone numbers, one of which was followed by the numbers 911. Testimony indicated t hose three numbers were a code used by crack addicts to indicate to a supplier that the addict needed drugs as soon as possible

. In t he bedroom, officers seized $5,723 in cash found in two socks in a footlo cker; several pieces of crack individually wrapped in torn of f
corners of plastic sandwich bags, which were found in two sandwich bag s within a plastic shopping bag located between th e footlocker and the wall; and two razor blades in the pocket of a pair of pants. Officers foun d several plastic bags with the corners cut out in the kitchen and a razor blade with crack residue in the kitchen garbage. Also seized were various bills and letters addressed to the residence in the names of Marti n Perkins, Clint Coleman, and Edward Perkins. A leather wallet with

### -3-

two photo identification cards of the defendant (one of them a Michiga n driver's license) was found in the same footlocker in the bedroom whic h held the cash, and a fully loaded Colt Delta Elite 10 mm pistol was found in a shoe in the clos et of the bedroom. A quantity of ammunition for the weapon was also located and seized. While the s earch was being conducted, two men, one who identified himself as Edward Perkins and who said he live d there, and the other who would not identify himself, came to the door and wanted to enter. Entry was denied.
Keisha Bateman turned out to be Kela Cooper who had used a fals e name when maki ng the call to the police department. She testified about th e
even ts which preceded her telephone call to the police including he r observations of the d efendant cutting up crack cocaine in his living room with a substantial amount of cash at hand.

II.
Perkins appeals his conviction, contending that there is insuff icient eviden ce to support the jury's verdict, that the government knowingl y presented perjured testimony, that the district court erred in admitting evidence of his prior conviction for possession of crack cocaine, and that he received ineffective assistance of counsel at trial in violation of his Sixth Amendment right . He appeals his sentence, challenging the enhanced stat utorypenalties for crack cocaine and the district court' s det ermination of the quantity of drugs for which he should be hel d accountable. A.

The defen dant's claim that the government knowingly presented false testimony at the defe ndant's second trial, if true, would violate the Due Process Clause. United States v. Bagley , 473 U.S.

### -4-

667, 678 (1985); Napue v. Illinois , 360 U.S. 264, 269 (1959); United State s v. Martin , 59 F.3d 767, 770-71 (8th Cir. 1995).

The allegedly false testimony in this case involves the locatio n where the defendant's Michigan driver's license was found during th e search

. At the defendant's first trial, Deputy Sheriff Salsberr y identified a photogra ph as being taken during the search and as depicting
a pair of white jeans with two razor blades and a photo ID laying on top of them. He testifie d that the razor blades and the ID had been found in the pockets of the jeans and placed on top of th e jeans for photographing, that the ID was not the Michigan driver's license found in the wallet in the footlocker, and that neither the jeans nor the ID depicted in the phot o had been seized. From his testimony, a fact finder could have concluded that thr ee IDs of the defendant were found during the search, tw o (including the Michig an driver's license) in the wallet in the footlocker and one in the pocket of the jeans, but only the two in the wallet wer e seize d. Defense counsel, working from an enlargement of the sam e photograph, clearly demonstrated in the cross-examination of the deput y that the photo ID depicted in the photograph on top of the jeans was i n fact t he same Michigan driver's license that the deputy's testimon y indicated had been found in the defendant's wall et in the footlocker. The prosecutor so stipulated. The jury was unable to reach a verdict on the drug count.

At the second trial, Deputy Salsberry testified that from hi s recollectionalone, he was unable to recall what type of ID he had found in the jeans but he was sure that it was not sei zed. He further testified that he "now knows" t hat the ID in the photograph is in fact the Michigan driver's license he found in the defendant's wallet and that he does not know ho w it came to be photographed with the jeans. The photograph wa s admitted with a stipulation by the parties that "[t]he government agrees that the

### -5-

pants were not in the position originally locate d. The government further agrees that the Michi gan driver's license photographed with the pants was not found in those pants. It was originally found in the wallet." (Tr. of second trial at 72.)
All of this conflicting evidence andthe inferences to be drawn from it, wa s put before the second jury, and nothing was withheld from i t
concer ning the Michigan driver's license. The same conflicting an d impeaching evidence was before the jury as it determined the credibility of Depu ty Salsberry and the weight to give to his other testimony. Th e second jury convicted the defendant on the drug charge.

To prove prosecutorial use of false testimony that violates du e process, Perkins must show: (1) use of perjured testimony (2) that th e prosecution knew or should have known was perjur ed, and (3) "a `reasonable likeli hood' that the perjured testimony could have affected the jury' s judgment." Martin , 59 F.3d at 770 (quoting United States v. Nelson , 970 F.2d 439, 443 (8th Ci r.), cert. denied , 506 U.S. 903 (1992)). Our review of the facts convinces us that there was no attempt by the government to mislead the second jury through the use of false or perjured testimony

. The gover nment held nothing back and laid all of the evidence about th e Michigandriver's license before the second jury, including Deput y Salsberry's prior con flicting testimony. The officer's testimony at both trials was that the Michigan driver's license was found in the wallet in the footlocker and th at a third ID was found in the pants but not seized. It is his testimony at the first trial that the ID in the photograph was the one taken from the pants and that it was not the Michigan driver' s license found in the footlocker which was direct ly impeached and disproved bythe enlarged photograph. The government candidly informed the second jury that the Michigan license shown in the photograph was not found in th e pants. The government did not advance at the second

### -6-

trial the impeached testimony given by the offic er at the first trial that the ID ca rd in the photograph was not the Michigan ID. Moreover, th e officer's testimony at the second trial about the Michigan driver's licens e
was consistent with the officer's contemporaneous written report and the search warrant inventory. While the officer's impeached first tria l testimony would also tend to impeach his other t estimony that the Michigan driver's license was initially found in the footlocker, we are unable to sayon this record that his testimony at both trials about finding th e Michigan ID in the wallet in the footlocker was in fact perjured, and that the government knew o r should have known it. Indeed, at the second trial the stipulation between the parties included the sentence: "It wa s originally found in the wallet." No objection was made to that part of th e stipulation by the de fendant, and the stipulation was specifically agreed to in front of the jury.
The jury was fully informed about th e discrepancies, contradictions, and inconsistencies in the officer's testimony and was free to determine whether the officer's testimony about where he found the Michigan ID was in fact tr ue. While the inconsistency in the officer's testimony wa s serious and constituted excellent impeachment ma terial for the defense, we
are not convinced that the government was precluded from presenting hi s testimonyas it did during the second trial. We agree with the district court's conclusion that no due process violationoccurred. While no party is permitted to put on testimony that it knows or should know to be untrue , it is not improper to put on a witness whose testimony may be impeached. Truth determination is still the traditional jury function. As th e experienced district court judge said, "what we have is a classic case of questio ns for the jury concerning credibility of witnesses." (Tr. o f second trial at 12.)

### -7- B.

In a ruli ng on a motion in limine before the first trial, th e district court granted the government's request pursuant to Federal Rule of Evidence 404(b) to introduce evidence that the defendant had possessed crack cocaine on June 2, 1994, about six months before his arrest on the charges in the indictment. The district court indicated that because of the way defense counsel had conducted voir dire, the evidence of th e defendant's prior possession of crack cocaine wo uld be admissible "to show knowledge of what crack cocaine is and knowledge that it is unlawful t o have crack cocaine in one's possession." The district court further state d that the government had the burden of proving that the defendant knew he was in possession of a controlled substance and that the defendant knew it
was unlawful to have crack cocaine. (Tr. of first trial at 11-13.) The district court further indicated that before the testimony about the prior possession would be received, the government would be required to state th e purpose for which it was offered to the jury, an d "the court will instruct the j ury that it is received only for a limited purpose." ( Id. at 12. ) When the e vidence about the prior possession was offered at the firs t trial, the defendant' s Rule 404(b) objection was overruled, and the court specifically instructed the jury concerning the limited purposes for which they could use the evidence. ( Id. at 120.) The instruction was no t reiterated in the court's final instructions to the first jury because the defense s pecifically agreed that it not be given. ( Id. at 211-12.) Th e first trial ended in a hung jury.

Before the start of the second trial, the court indicated that th e limine ruling was the same. At the second trial , and over a specific Rule 404(b) objection, the government presented testi mony from a police officer that on June 2, 1994, the defendant had been fou nd in possession of eleven rocks of crack cocaine and that he

### -8-

had been charged with possession of cocaine with intent to deliver as a result of that incident. (Tr. of second trial at 203.) The partie s stipulated that the defendant pled guilty to sim ple possession as a result of the June 2, 1994, incident. ( Id. at 299-300.) The second jur y convicted the defendant of the possession of cocaine with intent t o distrib ute charge. Perkins contends that the district court erred b y admitting the evidenc e of his other crime and by failing to give the jury an instruction limiting the purposes for which t he evidence could properly be considered.

In this circuit, "the trial court has broad discretion under [Rul e 404( b)], and will be reversed only when the evidence `clearly has n o bearing upon any of the issues involved.'" United States v. DeLuna , 763 F.2d 897, 913 (8th Cir.) (quoting United States v. Wagoner , 713 F.2d 1371, 1375 (8th Cir. 1983); internal citation omitted), cert. denied , 474 U.S. 980 (1985). Rule 404(b) clearly states that evidence of other acts o r wrongs "is not admissible to prove the character of a person in order to show action in conformity therewith." Fed. R. Evid. 404(b). Such evidenc e is admissible for the limited and specific purposes listed in the Rule

. In order to be admissible for any one of the specific purposes set forth in Rule 404(b) (i.e., motive, opportunity, intent, preparation, plan , knowledge, identity, or absence of mistake), the evidence of the prio r wrong must be "(1) relevant to a material issue raised at trial, (2 ) similar in kind and close in time to the crime charged, (3) supported by sufficient evidence to support a finding by a jury that the defendan t
co mmitted the other act, and (4) not the cause of prejudice tha t substantially outweighs its probative value." United States v. Rogers , No
. 95-3660, 1996 WL 416721, at *2 (8th Cir. July 26 , 1996). In this circuit, "Rule 404(b) is a rule of inclusion, prohibiting only that evidence that tends solely to prove the defendant's criminal disposition." United State s v. Shoffner , 71 F.3d 1429, 1432 (8th Cir. 1995).

### -9- Our c ases hold that generally the court should give the jury a limiting instruction informing them of the narro w purpose(s) for which the evidence was admitted. United States v. Williams , 994 F.2d 1287, 1290 (8t h Cir. 1993); United St ates v. Marion , 977 F.2d 1284, 1288 (8th Cir. 1992); Llach v. United States , 739 F.2d 1322, 1327 (8th Cir. 1984); United States

v. Miller , 725 F.2d 462, 466 (8th Cir. 1984). "Such an instructio n diminishes the danger of any unfair prejudice arising from the admission of other acts." United States v. Mays , 822 F.2d793, 797 (8th Cir. 1987).

As in dicated above, when the district court decided the motion i n limine be fore the first trial, it said the prior act was admissible "t o show knowledge of wha t crack cocaine is and knowledge that it is unlawful to have crack cocaine in one's possession." Defendant makes much of the fact that the governm ent has no burden of proving that the defendant knew that it i s unlawful to possess crack cocaine, and argues that the cour t erred in admitting the prior act for that purpos e. While the defendant is correct i n asserting that the government had no burden to prove that h e actually knew it was unlawful to possess crack c ocaine, the court admitted the prior act for other reasons as well. The co urt correctly admitted the prior act as tending to show the defendant knew he was in possession of a controlled substance. The court's marshaling instruction required the jur y to find " [t]hat defendant Martin Perkins knew he was in possession of a controlled substance." (Instr. No. 12.) Knowledge acquired by th e defendant as a result of the previous offense (i.e., what the controlled substance crack cocaine is) was probative of his knowing possession o f crack cocaine at the time charged in the Indictment. Additionally, th e prior offense was admissible to show intent. The defendant was charge d withpossession of cocaine with the intent to distribute. Consequently, the government had to prove that he had the intent to distribute.

### -10- Both knowledge and intent are specif ic purposes for which prior acts can be admitted under Rule 404(b). Hence, evide nce concerning the June 2, 1994, possession conv iction was relevant to issues raised at trial (i.e., the defendant's knowing possession of a controlled substance and his inten t at the time of the present offense). It was similar in kind and within si x months' time of the c harged conduct. See United States v. Wiley , 29 F.3d 345, 351 (8th Cir.) (evidence of prior possession of cocaine base less tha n 20 months earlier admissible in prosecution for possession of cocaine base withintent to distribute), cert. denied , 115 S. Ct. 522 (1994); Unite d States v . Sykes , 977 F.2d 1242, 1246 (8th Cir. 1992) (evidence o f po ssessionof controlled substance (PCP) in California admissible i n prosecution in Minnes ota for conspiracy to distribute PCP); United States

v. Wint , 974 F.2d 961, 967 (8th Cir. 1992) ("evidence of an offens e
committed within the previous five years is reasonably close in time") , cert. denied , 506 U.S. 1062 (1993). The defenda nt stipulated to the prior guilty plea so there certainly was sufficient evidence to permit the jury to find that the defendant committed the prior bad act.
Balancing the probative value of the prior conviction against an y prej udicial impact it may have is within the broad discretion of th e district court. Here, the court minimized any s uch prejudice by carefully instructing the jury about when in their deliber ations they could consider the prior act, if at all, and the limited purposes for which it could be considered. Contra ryto the impressions left with the court by th e briefs and at oral ar gument that no limiting instruction of any kind with respect to the Rule 404(b) evidence had ever been given to the second jury , the distr ict court did in fact give the jury a limiting instructio n concerning the purposes for which the jury could consider the

### Neither the defendant's appellate counsel nor the attorney 2 

### for the government who argued before us was counsel at trial. The appellant's brief contained the following statements:

Although the district court had stated it would give a limiting instruction and have the government inform the jury what purpose the prior conviction was being presented for, it failed to do either. (TT2 p. 198). The court's failure to give a limiting instruction improperly prejudiced the jury requiring that Defendant receive a new trial. (Appellant's Br. at 21.) At no place in the appellant's brief is mention made that the district court included a Rule 404(b) limiting instruction in its formal final written instructions to the jury. At no place in the government's brief (which was authored by the government's trial counsel) are we informed that such a limiting instruction was in fact given. The instructions given by the district court were not contained in the clerk's record on appeal, and neither side filed an appendix. The tape recording of the oral argument demonstrates that the questions asked of counsel by the court all assumed that no limiting instruction of any kind was ever given to the jury, and that neither advocate told us a limiting instruction was in fact given. After reading the entire transcript, however, we believed the district court had given a limiting instruction. ( See Tr. of second trial at 250, 301, 304.) On our own motion, we obtained the district court's instructions from the district court and found that a limiting instruction had in fact been given to the jury.
-11- evidence of the defendant's prior possession. Instruction No. 10A, "Prior 2 Similar Acts," was given to the jury by the court before final arguments at the specific reque st of the defendant's trial counsel. (Tr. of second trial at 250.) It to ld the jury that they could not use the prior act as proof that the defend ant did the acts charged in the indictment. It also told them that the prior act could only be considered by them after they had d etermined from the other evidence in the case beyond a reasonabl e doubt t hat the defendant did the act or acts alleged in the count unde r
con sideration, and then they could only consider it in determining "th e

### -12-

state of mind or intent with which the defendant actually did the act or acts charged in the counts of the

### -13-

Ind ictment." (Instr. No. 10A.) We do not believe the district cour t abused its broad discretion by admitting the ver y recent prior bad act for the li mited purposes it explained to the jury. See United States v

. Escobar , 50 F.3d 1414, 1421-22 (8th Cir. 1995); United States v. Gustafson , 728 F.2d 1078, 1084 (8th Cir.), cert. denied , 469 U.S. 979 (1984).
The defendant seems to argue that the district court should hav e, sua sponte , g iven the jury a limiting instruction at the point in the tria l when the Rule 404(b) evidence was admitted, and that it was prejudicia l
err or not to do so. (Appellant's Br. at 22.) We have never required a district court to do so. In fact, we have never found it to be plain erro r when a court does not give a limiting instruction of any kind sua sponte with respect to Rule 404(b) type evidence. United States v. McGuire , 45 F.3d 1177, 1188 (8th Cir.) ("The trial court nee d not issue a prior crimes limiting instruction sua sponte."), cert. denied , 115 S. Ct. 2558 (1995); Williams , 994 F.2d at 1290; United States v. Milham , 590 F.2d 717, 722 (8t h Cir. 1979); United States v. Conley , 523 F.2d 65 0, 654 n.7 (8th Cir. 1975) ("In the absence of a specific defense request, however, no limitin g instruction is required where the evidence was r elevant to an issue in the case." (citations omitted)). In this case, the court gave a limitin g instru ctionafter the defense counsel requested it. The defendan t complains that the district court did not follow exactly the procedure tha t it indicated it would when ruling on the motion in limine before the first trial

. We see no prejudice to the defendant in this respect. When th e district court did not give a limiting instructi on at the precise time the defendant may have expected it, counsel could su rely have asked for one or reminded the district judge of what he said he would do. What i s significant is that the jury was, in fact, properly instructed about the limitations imposed on the evidence of the defen dant's prior act. Exactly when to so instruct is surely a matter within the district court's broad discretion, and

### -14-

we res pectfully decline to micro-manage how that discretion should b e exercised. C.

The appel lant contends that the evidence considered by the jury was insuff icient to support his conviction for possessing cocaine with th e intent to distribute it. "The standard of review of an appeal concerning sufficien cyof the evidence is very strict, and the verdict of the jur y should not be overtur ned lightly." United States v. Burks , 934 F.2d 148, 151 (8th Cir. 1991). In assessing this argument, we are required to view the evi dence in the light most favorable to the verdict and to give th e government all reasonable inferences to be drawntherefrom. United States v. Suppenbach , 1 F.3d 679, 681-82 (8th Cir. 1993).

In or der to prove the possession of cocaine with the intent t o distribute charge aga inst the defendant, the government had to prove that he know ingly possessed cocaine with the intent to distribute. Unite d States v . Matra , 841 F.2d 837, 840 (8th Cir. 1988). Possession may b e either actual or constructive. United States v. Townley , 942 F.2d 1324, 1325 (8th Cir. 1991). "The jury's verdict must be upheld if there is an interpretationof the evidence that would allow a reasonable-minded jury to conclude guilt beyond a reasonable doubt." United States v. Erdman , 95 3 F.2d 387, 389 (8th Cir.), cert. denied , 505 U.S. 1211 (1992).

The defendant argues that the discrepancies in and impeachment o f Deputy Salsberry's testimony, coupled with the alleged incredibility o f Kela C ooper's testimony, together with the mishandling of the Michiga n driver's license at the scene of the crime, all add up to an insufficiency of the evidence. Kela Cooper, who testified that she was the person who called the police and gave them a false name and false social securit y number, testified that she observed the defendant in the living room of th e

### -15-

apartm ent cutting up crack cocaine for sale and that he had what sh e estimated to be $1,00 0 in cash in front of him as he did so. Kela Cooper is herself a convicted cocaine dealer and burglar who had been romanticall y spurned by the defendant, and who had expressed a desire to get revenge on him for his involvement with another woman. All of the reasons Kela Coope r had for not telling the truth and for "setting up" the defendant were laid in fr ont of the jury. Whether or not her testimony was credible was a n issue for the jury to decide. Rogers , 1996 WL 416721, at *2 (citing Unite d States v. Jenkins , 78 F.3d 1283, 1287 (8th Cir. 1996)); United States v. Hudso n , 717 F.2d 1211, 1213 (8th Cir. 1983) ("It is for the jury, not a reviewing court, to evaluate the credibility of witnesses and to weig h their testimony."). Her testimony was corroborated by the incriminating items (cash, plastic bags, crack, loaded weapon, razorblade with cocaine residue, pager with 911 coding) found by the off icers during the search at
a time wh en the defendant was physically in the apartment and when bot h direct and circumstantial evidence (including a listing of the apartment
as his address in the local telephone book) showed he resided there. Afte r a careful reading of the transcript, we conclude that the evidence is more than sufficient to support the jury's verdict th at the defendant knowingly posse ssed cocaine with the intent to distribute it under either a constructive or actual possession theory.

D.
At oral argument the appellant conceded that his claim of ineff ective assistance of counsel should be made in a later proceeding pursuant to 28 U.S. C. § 2255. We agree the claim is premature. See United States v

. Thomas , 992 F.2d 201, 204 (8th Cir. 1993).

### -16- E.

Perkin s attacks 21 U.S.C. § 841(a) as being void for vaguenes s because it fails to distinguish between cocaine and cocaine base. Thi s argument is foreclosed by this court's decisions in United States v. House , 939 F.2d 659, 664 (8th Cir. 1991), and United States v. Jackson , 64 F.3d 1213, 121 9 (8th Cir. 1995), cert. denied , 116 S. Ct. 966 (1996). Hi s argument that the rule of lenity should apply to equalize the penaltie s imp osed for cocaine and cocaine base is likewise foreclosed by Jackson

. See 64 F.3d at 1219-20. We reject his request t hat this panel "review and reverse its prior decision in United States v. J ackson . . ." (Appellant's Br. at 6.) The suggestion for rehearing by the court en banc was denied in Jackson , see 64 F.3d at 1213, and one panel o f the court cannot reverse another panel. Brown v. First Nat'l Bank in Len ox , 844 F.2d 580, 582 (8th Cir. 1988).

F.
Finally, the appellant asserts that the district court committe d
error when it converted one-third of the $5,723 in cash seized from the tw o socks ( $4,000 in mostly $20 bills in one sock, and $1,723 in the secon d sock) in the footlocker into a quantity of cocaine for sentencin g determ inationpurposes. We review the sentencing judge's drug quantit y determination for cle ar error. United States v. Newton , 31 F.3d 611, 614 (8thCir. 1994). The presentence investigation report (PSIR) attributed the 32.05 grams of co caine base seized at the apartment to the defendant. In add ition, relying on information provided by the Burlington, Iowa , police department tha t crack cocaine was sold in that community for about $1,400 per ounce, the PSIR converted all of the $5,723 seized into it s crack cocaine equivalent of 115.89 grams ($1,400 per ounce = $49.25 pe r gram. $5,723 dividedby $49.25 = 115.89 grams of cocaine base.). Adding this calculated equivalent quantity and the

### -17-

actual quantity seized together gave a total quantity for sentencin g guideline purposes of 147.94 grams, which resulted in a recommended offens e level of 32. See Uni ted States Sentencing Commission, Guidelines Manual , § 2D1.1(c)(4) (Nov. 1 994) (50-150 grams of cocaine base = level 32). The defendan t objected to using the cash seized from the footlocker t o determine the quantit y of cocaine base he should be held accountable for, arguing that the evidence linking the money to h im rested on the impeached testimony of Deputy S alsberry that he found the defendant's wallet in the
same footlocker. The district court, after hearing argument from bot h sides, concluded that the government had not pro ved that all of the 115.89 grams calculated from the $5,723 were attributable to the defendant. The district court reason ed that because the money and the crack were "in the same vicinity, I find that at least a third of t he money can reasonably be attributed to crack cocaine." (Sent. Tr. at 10-11.) The court reasoned further that a third of the money represented approximately 40 grams o f cocaine base which, when added to the 32.05 gram s seized, totaled at least 72 grams attributable to the defendant. Seventy-two grams falls within th e offense level 32 rang e for 50-150 grams of cocaine base. The defendant's criminal history score was 3, placing him in Cri minal History Category II, resulting in a guideline range of 135-168 months of confinement. The cour t imp osed a sentence of 135 months' confinement, no fine, 5 years o f supervised release, and a $50 special assessment.

Defendant contends that the district court's use of one-third of the money as representing crack cocaine proceeds was error. We have said that we will reverse a determination of drug quantity only if the entire record definitelyand firmly convinces us that a mistake has been made. United States v. Simmons , 964 F.2d 763, 773 (8th Cir.), cert. denied , 506 U.S

. 1011 (1992). Here th e PSIR disclosed that Perkins was unemployed and had been so for a year before his arrest. He claimed he had no assets. The PSIR revealed

### -18-

some $2,400 in debt. His adjusted gross income for 1991 was $1,559, for 1992 was $2,209, and for 1993 was $2,767. The seized cocaine base wa s located be tween the footlocker containing the cash and the wall. Th e defendant was observed with a sizable amount of cash (estimated at $1,000) at th e time he was cutting up crack cocaine just a few hours before hi s arrest.

Here, the district court approximated the quantity of cocain e attribu table to the defendant pursuant to application note 12 to USS G § 2D1.1 ("where . . . the amount seized does not reflect the scale of the offens e, the court shall approximate the quantity of the controlle d substance. In making this determination, the co urt may consider . . . the price generally obtai ned for the controlled substance . . ."). Given the defen dant's lack of employment for the year before the offense and hi s minimal income in the three years before that, and the fact he was observe d with both cash and crack shortly before the sear ch, we cannot say that the district court was clearly erroneous when it held that only one-third of the seized cash wouldbe converted to its cocaine equivalency. Some line drawing is necessary when approximations are made. Even if only 20 percen t of the money was drugproceeds, it would still result in an additional 23 grams which, when added to the 32.05 grams actually seized, would still pu t the defen dant at a base offense level of 32. We believe the distric t court's conservative approach was correct, and its quantity determination is affirmed.

III.
Accordingly, for the reasons stated, the judgment of the distric t court is affirmed.

### -19- A true copy.

Attest:

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