The Honorable Robert T. Dawson, United States District Judge for the Western 1

District of Arkansas, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-2391

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United States of America *

 *

Plaintiff-Appellee, *

 * Appeal from the United States

v. * District Court for the Eastern

 * District of Missouri

Randy Fields, *

 *

Defendant-Appellant. *

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Submitted: November 17, 1998

Filed: January 21, 1999 

Before RICHARD S. ARNOLD and FAGG, Circuit Judges, and DAWSON , District 1

Judge.

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DAWSON, District Judge.

Randy Fields pled guilty to one count of knowingly and intentionally

distributing cocaine base, a Schedule II controlled substance, in violation of Title 21,

U.S.C. § 841(a)(1), conditioned on his right to appeal the denial of his pretrial motion

to suppress identification testimony. Fields now appeals the denial of the pretrial

motion
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and, in addition, contends that the district court erred in its application of § 4B1.2(a)

of the Sentencing Guidelines when it found that the defendant's 1992 Missouri state

court conviction, for unlawful use of a weapon, was a crime of violence. We affirm.

Factual Background

A confidential informant was utilized by a drug task force officer to purchase

drugs in an area where drug trafficking was occurring. Following the drug buy, the

confidential informant was shown a series of approximately 175 mug shots, and she

identified defendant Fields as the one from whom she had purchased the drugs. She

made a subsequent identification of the defendant as the seller of the substance from

a photographic line-up prepared by the Missouri State Police. The defendant was

indicted by the Grand Jury on one count of knowingly and intentionally distributing

cocaine base, a Schedule II controlled substance, in violation of Title 21, U.S.C. §

841(a)(1).

Following the arrest of the defendant, he filed a motion to suppress the

identification and contended that the identification process utilized was so

impermissibly suggestive as to give rise to a very substantial likelihood of irreparable

misidentification. Following two separate hearings on the motion, the district court

concluded that the identification procedure was appropriate and there was nothing in

the procedure utilized that was impermissibly suggestive.

Discussion

When reviewing rulings on the motions, this Court must only reverse the

findings below if the findings were clearly erroneous. U.S. v. Johnson, 28 F.3d 1487,

1494 (8 Cir. 1994). A ruling is clearly erroneous if it is not supported by substantial th

evidence, reflects an erroneous view of the law, or leaves a definite and firm

conviction that a mistake has been made. United States v. Eisenberg, 807 F.2d 1446,

1449-50 (8 Cir. 1986); U.S. v. Porter, 859 F.2d 83 (8 Cir. 1988). When the findings th th

by the district
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court are amply supported by the evidence, they should not be disturbed. See U.S. v.

Hernandez, 854 F.2d 295 (8 Cir. 1988). This Court must therefore evaluate the

th

identification evidence and determine if the District Court's findings are clearly

erroneous.

All parties agree that the test used in evaluating the reliability of identification

testimony comes from the Supreme Court of the United States, as set out in Manson

v. Braithwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 2254, 53 L.Ed.2d 140 (1977). The

Court held that: (1) the court must consider whether the identification procedures were

impermissibly suggestive, and (2) if the procedures used were impermissibly

suggestive, the court must look to the totality of the circumstances to determine

whether the suggestive procedure created a "very substantial likelihood of irreparable

misidentification." The Supreme Court has held that even if the pretrial identification

procedure is unduly suggestive it will not be invalidated if under the totality of the

circumstances the procedure was reliable despite any suggestive or inappropriate

identification procedures. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401

(1972).

The factors to be considered in the Court's analysis of the reliability of

identification testimony are the witness's opportunity to view the defendant at the time

of the crime, the witness's degree of attention at the time of the crime, the accuracy of

the witness's prior description, the witness's level of certainty at the line-up, and the

length of time between the crime and the line-up. U.S. v. Johnson, 56 F.3d 947, 954

(8 Cir. 1995) (quoting Manson, 432 U.S. at 114, 97 S.Ct. at 2253). th

The Magistrate found that the confidential informant had never seen Randy

Fields until she made the first drug buy on May 28, 1997. The confidential informant

was not given the name of any particular individual, and she was not shown a

photograph of Fields before she went to buy drugs. The confidential informant's

degree
 The career offender guideline provides for enhanced penalties for defendants who 2

have previously been convicted of two or more "crimes of violence" or "controlled

substance offenses," and who are pending sentencing in federal court for a third crime of

violence or controlled substance offense. U.S.S.G. § 4B1.1. Appellant concedes that a

prior felony conviction for the offense of resisting arrest was a violent felony within the

meaning of the sentencing guidelines since it clearly had as an element of the offense the

threatened use of physical force against the person of another. The issue, then, becomes

whether Appellant's 1992 conviction for unlawful use of a weapon constituted a second

"violent felony" in order to place him within the parameters of the career criminal

guideline, U.S.S.G. § 4B1.1.

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of attention was high because she was not a casual buyer in that her purpose in buying

the drugs was to later identify the suspect to the police for potential arrest. The district

court found that the period of time between the crime and the identification was about

15 to 20 minutes. Even assuming the procedure used was impermissibly suggestive,

which we do not, we nonetheless conclude that under the totality of the circumstances,

as set out in Johnson, supra, the procedure was reliable. 

We do not find that the identification procedures used were tainted by improper

or suggestive procedures and AFFIRM the decision of the United States District Court

Judge.

The second issue involves the finding by the court that a 1992 state court

conviction constituted a violent felony for sentencing purposes under the career

offender provision of the Sentencing Guidelines.2

The weapons charge was included within a three-count indictment filed in the

Circuit Court of Pemiscot County, Missouri, on August 6, 1991. Count One dealt with

burglary in the first degree while armed with a weapon and Count Two was the class

C felony of stealing certain firearms. Count Three of the indictment recited:

The Prosecuting Attorney of the County of Pemiscot, State of Missouri,
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charges that the defendant, in violation of Section 571.030.1(4), RSMo.,

committed the class D felony of unlawful use of a weapon, punishable

upon conviction under Sections 558.011.1(4) and 570.111, RSMo., in

that on or about June 16, 1991, in the County of Pemiscot, State of

Missouri, the defendant knowingly exhibited, in the presence of one or

more persons a pistol, a weapon readily capable of illegal use, in an angry

or threatening manner.

The defendant argued that the information that was filed did not meet the

definition of a crime of violence, for there was no use, attempted use, or threatened use

of physical force against the person of another. Section 4B1.2 defines the term "crime

of violence" as:

[A]ny offense under federal or state law, punishable by imprisonment for

a term exceeding one year, that --

(1) has as an element the use, attempted use, or threatened use of physical

force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives,

or otherwise involves conduct that presents a serious potential risk of

physical injury to another.

Following the arguments of the defendant's counsel that the information did not

recite a crime of violence, the government presented additional evidence, to include

police reports concerning the acts and the ensuing investigation. At the conclusion of

the hearing, the district court concluded that a proper factual basis for a crime of

violence had been established and accordingly utilized that finding in computing the

sentence of the defendant.

The commentary to § 4B1.2 of the United States Sentencing Commission

Guidelines Manual makes it clear that the district court need only analyze the conduct

set forth and/or expressly charged in the information or indictment. It is not necessary
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to conduct any further hearings or receive any further evidence other than the

information that was filed. Count Three of the indictment clearly reflects conduct

presenting a serious potential risk of physical injury to one or more persons, and,

accordingly, the judgment is AFFIRMED.

A true copy.

Attest:

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