## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-3974

___________ United States of America, * * Appellee, * * v. * Appeal from the United States * District Court for the Northern Ray Campbell, * District of Iowa. * Appellant. *

___________ Submitted: May 12, 1998 Filed: August 6, 1998

___________ Befor e McMILLIAN, ROSS, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge. Acting on a tip from hotel employees, police officers in Cedar Rapids, Iowa , went to the hotel to arrest Jose Dealejandro for a parole violatio n. At the time that they effe cted the arrest, the officers detained and searched three people who were with Mr. Dealejandro, including Ray Cam pbell. On Mr. Dealejandro’s person, the officers found 155 grams of amphet amine and a .22-caliber semi-automatic pistol; in the room that Mr. Dealejandro had rented, they found a police scanner and a small quantity of marijuana. On Mr. Campbell’s person, the officers found a 10-millimeter semi--2-

automatic pistol and $1,793 in cash; on the ground in front of Mr. Campbe ll, they found keys to a Chrysler. The officers soon located the owner of the Chrysler, who had a rrived at the hotel in Mr. Campbell’s Pontiac, and they then searched both vehicles. In the Chrysler, the officers found a number of rounds of ammunition and spent shel l casings, a holster, and
anotebook that they believed to be a drug ledger; in the Pontiac, they discovered a n empty bottle of ephedrine, a drug used in the manufacture of methamphetamine.

Mr. Campbell was arrested and indicted, as relevant here, for possessing 15 5 grams of amphetamine and aiding and abetting the possession of that amp hetamine with intent to distribute it, see 21 U.S.C. § 8 41(a)(1), § 841(b)(1)(C), and 18 U.S.C. § 2(a), andfor conspiring to distribute amphetamine, see 21 U.S.C. § 846. After a two-day trial, a jury convicted Mr. Campbe ll on those counts, and the trial court sentenced him to 160 months in prison.

Mr. Campbell appeals his conviction, arguing that the trial court erred i n allowing Bryce Scott to testify at trial that he saw Mr. Campbell at a garage on th e same da y that a friend of Mr. Scott’s purchased two kilograms of cocaine there

. Mr. Campbell also appeals his sentence, arguing that the trial court i mproperly included the sale of cocaine to Mr. Scott’s friend as relevant conduct in determinin g Mr. Campbell's sentence. Finall y, Mr. Campbell argues that the trial court improperly exclude d the testimony of certain witnesses at sentencing regarding other allege d relevant conduct. We find no error in the conviction and we therefore uphold it. On the sentencing issues, however, we find that the record does not support the trial court’s findings of fact with respect to the sale of the two kilograms of cocaine to Mr. Scott’s friend. We theref ore vacate Mr. Campbell's sentence and remand the matter for furthe r proceedings.-3- I. Attrial, the government called Mr. Scott, who had had a conversation with Mr. Campbell while they were both incarcerated. According to Mr. Scott’s testimony, du ring that conversation Mr. Campbell reminded Mr. Scott that the two of them ha d met at a garage in Moline, Illinois, and Mr. Scott then recalled seeing Mr. Campbel l there. Mr. Scott

further testified that Mr. Campbell also reminded him that drugs had be ensold at the garage that day. Finally, Mr. Scott testified that a friend of his ha d indeed purchased two kilograms of cocaine that day at the garage, although Mr. Scott did not testify that Mr. Campbell was involved in the sale of that cocaine.
The trial court admitted Mr. Scott’s testimony over Mr. Campbell’s objectio n unde r Fed. R. Evid. 404(b), as evidence that Mr. Campbell’s involvement with Mr. Dealejandro and the 155 grams of amphetamine was not a mista ke. After carefully revie wing the record, we hold that even if the trial court erred in admitting thi s evidence, given the compelling evidence in the record of Mr. Campbell’s guilt (not the least damning of which was hi s admission to Mr. Scott that he was Mr. Dealejandro’s partner in dealing drugs), the error was harmless at worst. See , e.g. , United States v. Beasley , 102 F.3d 1440, 1449 (8 Cir. 1996), cert. denied , 117 S. Ct. 1856 (1997). th

II. Mr. Camp bell raises two sentencing issues. As a preliminary matter, w e disagree with the government’s contention that Mr. Campbell has wa ived any objection to the facts contained in his presentence report (PSR). In a presente nce submission, the government

and Mr. Campbell did indeed stipulate that the facts set forth in relevant paragra phs of the PSR accurately reflected evidence presented at trial. In that sam e submission, however, Mr. Campbell also clearly objected to the paragraphs in which thre e specific drug transactions, involving two different drugs, were attributed to him as conduct relevant to sentencing.-4-

It is familiar law th at the government must establish, by a preponderance of the
ev idence, the quantities of drugs to be attributed to a defendant for sentencin g purposes. See , e.g. , Unite d States v. Padilla-Pena , 129 F.3d 457, 467 (8 Cir. 1997), th
cer t. denied , 118 S. Ct. 2063, 2064 (1998). Under Fed. R. Crim. P. 32(c)(1), th e sentencing court must determine these amounts at the sentencing hear ing. A sentencing court’s determination of the quantity of drugs is a finding of fact and is reviewed fo r clear error. See , e.g. , United States v. Payne , 119 F.3d 637, 645 (8 Cir. 1997), cert. th denied , 118 S. Ct. 454 (1997).
In this case, the trial court att ributed to Mr. Campbell two quantities of drugs in additionto the 155 grams of amphetamine that Mr. Dealejandro was carrying. First, the court concluded

from Mr. Scott’s testimony that Mr. Campbell had been involved in the sale of the t

wo kilograms of cocaine at the garage. Second, the court attributed seven ounces of methamphetamine to Mr. Ca mpbell based on the testimony of Samuel Robertson. We turn first to the question of the cocaine. We cannot find any supp ort in the record for the attribution to Mr. Campbell of the two kilograms of cocaine sold to Mr. Scott's friend. Mr. Sc ott was the only witness at trial who testified about this cocaine transac tion, and his testimony, as relevant here,
was limi ted to establishing that Mr. Campbell was present at a garage where drug s were sold and that Mr. Campbell was aware that drugs were sold there. Mr. Scott' s testimony also tended to show that two kilograms of cocaine were sold at the garage
on the sam e day that Mr. Campbell was there. But Mr. Scott did not testify tha t Mr. Campbell was present at the garage when this sale of drugs took place, let alone that Mr. Campbell was involved in the sale in any way. We therefore believe that the trial court clearly erred in attributing the two kilograms of cocaine to Mr. Campbell. With respect to the methamphetamine, we find ample evidence in the record to support the attribution of the seven ounces of methamphetamine to Mr. Campbell

. Mr. Rob ertson stated at trial that Mr. Campbell had sold approximately one ounce of-5-

methamphetamine to him on at least six occasions and that, on another occ asion, he had traded six to eight firearms to Mr. Campbell in exchange for an additional one or two ounces of methamphetamine.

Mr. C ampbell contends that the trial court refused to allow him to present th e testimony of three witnesses to rebut Mr. Robertson’s te stimony. Mr. Campbell asserts that in doing so, the trial court violate d the provisions of Fed. R. Crim. P. 32(c)(1) that require a sentencing court to make specific findings with respect to any factua l determin ations contained in a PSR that a defendant challenges or to state that th e material at issue will not be considered in imposing the sentence. The rule furthe r provides that a sentencing court, “in its discretion,” “may ... permit the parties t o introduce testimony or o ther evidence” that is relevant to the challenge. It is apparent to us, however, that Mr. Campbell forfeited the opportunity to bringwitnesses to testify at his sentencing.

Mr. Cam pbell and the government signed the presentence submission alread y alluded to o n August 21, 1997, and in it Mr. Campbell stated his desire to bring three witnesses who were incarcerated to testify at the sentencing he aring. A little more than a month later, the trial court ordered Mr. Campbell to set forth th e witnesses’ addresses and the substance of their expected testi mony, and to file this information no later than 5:00 p.m. on October 2.
On October 2 , however, Mr. Campbell’s attorney mailed a letter explaining, in general terms only, that his witnesses would testify tha t Mr. Robertson was lying at the trial and was doing so only to get better treatment from the government i n his own case. The le tter did not include the addresses of the three witnesses, even thoug h Mr. Campbell, at the sentencing hearing at least, seemed to know their whereabouts in the prison system.-6-

The trial court did not receive the letter until Octo ber 6. That same day, the trial court gr anted an extension of its order, giving Mr. Campbell until October 10 t o comply, but Mr. Campbell failed to amend his statement to give addresses or a more sp ecific indication of what the testimony of his witnesses would be. Finally, o n October 20, the trial court denied Mr. Campbell’s Motion for Production o f Incarce rated Witnesses, noting that he had failed to comply with the court's prio r orders. We think that this denial was altogether reasonable, given Mr. Campbell' s series of failures to meet the trial court's deadlines.

III. For the reasons given, we affirm Mr. Campbell’s conviction. We vacate hi s se ntence and remand the matter to the trial court for further proceedings no t inconsistent with this opinion. A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.