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

__________ No. 98-2391

__________ United States of America * * Plaintiff-Appellee, * * Appeal from the United States v. * District Court for the Eastern * District of Missouri Randy Fields, * * Defendant-Appellant. *

___________ Submitted: November 17, 1998 Filed: January 21, 1999

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

___________ DAWSON, District Judge. Randy Fields pled guilty to one count of knowingly and intentionall y dis tributing cocaine base, a Schedule II controlled substance, in violation of Title 21, U.S.C. § 841(a)(1), co nditioned on his right to appeal the denial of his pretrial motion to suppre ss identification testimony. Fields now appeals the denial of the pretria l motion2–

and, i n 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 stat e 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 purchas e drugs in an area where drug trafficking was occurring. Following the drug buy, th e 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 photog raphic line-up prepared by the Missouri State Police. The defendant wa s indicted by the Grand Jury on one count of knowingly and intentionally distributin g
coca ine base, a Schedule II controlled substance, in violation of Title 21, U.S.C. § 841(a)(1).

Fo llowing the arrest of the defendant, he filed a motion to suppress th e iden tification and contended that the identification process utilized was s o impermissib ly suggestive as to give rise to a very substantial likelihood of irreparable mi sidentification. Following two separate hearings on the motion, the district cour t concludedthat the identification procedure was appropriate and there was nothing in the procedure utilized that was impermissibly suggestive.

Discussion When revi ewing rulings on the motions, this Court must only reverse th e findings below if the find

ings 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 fir m 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 district3–

court areamply supported by the evidence, they should not be disturbed. See U.S. v. Hernand ez , 854 F.2d 295 (8 Cir. 1988). This Court must therefore evaluate th e th ident ification evidence and determine if the District Court's findings are clearl y erroneous.

Allparties 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 i dentification procedures were impermi ssibly suggestive, and (2) if the procedures used were impermissibl y sug gestive, the court must look to the totality of the circumstances to determin e whether the sugg estive procedure created a "very substantial likelihood of irreparable misidentifica

tion." The Supreme Court has held that even if the pretrial identification procedur e is unduly suggestive it will not be invalidated if under the totality of th e circu mstances the procedure was reliable despite any suggestive or inappropriat e 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 o f identification testimony are the witness's opportunity to view the defendant at the time of the crime, the witn ess'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 th e 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 Rand y 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 photo graph of Fields before she went to buy drugs. The confidential informant' s degreeThe career offender guideline provide s for enhanced penalties for defendants who 2 hav e previously been convicted of two or more "crimes of violence" or "controlle d 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 wheth er Appellant's 1992 conviction for unlawful use of a weapon constituted a secon d "violent felony" in order to place him within the parameters of the career crimina l guideline, U.S.S.G. § 4B1.1.

4– of attention was high because she wa s not a casual buyer in that her purpose in buying the drugs was to later identify the suspect to the pol ice for potential arrest. The district court found that the perio d 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 identificat ion procedures used were tainted by improper or suggestive procedures and AFFIRM the decis ion of the United States District Court Judge.

Th e second issue involves the finding by the court that a 1992 state cour t
con viction constituted a violent felony for sentencing purposes under the caree r offender provision of the Sentencing Guidelines. 2

The weapons charge was included within a three-count indictment filed in th e Circuit Court of Pemiscot County, Missouri, on August 6, 1991. Count One dealt with burg lary 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:

T he Prosecuting Attorney of the County of Pemiscot, State of Missouri,5–

charges that the d efendant, in violation of Section 571.030.1(4), RSMo., committed the class D felony of unlawful use of a weapon, punishabl e upon co nviction under Sections 558.011.1(4) and 570.111, RSMo., i n that on or about June 16, 1991, in the County of Pemiscot, State o f Mi ssouri, the defendant knowingly exhibited, in the presence of one o r more persons a pistol, a weapon readily capable of il legal use, in an angry or threatening manner.
The defendant argued that the information that was filed did not meet th e definition of a crime of violence, for there was no use, attempted use, or threatened use of physical force against the person o f another. Section 4B1.2 defines the term "crime of violence" as:
[A]ny offense under federal o r 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 physica l force against the person of another, or (2) is burglary o f a dwelling, arson, or extortion, involves use of explosives, or oth erwise involves conduct that presents a serious potential risk o f physical injury to another. Following the argument s of the defendant's counsel that the information did not
rec ite a crime of violence, the government presented additional evidence, to includ e police reports con cerning the acts and the ensuing investigation. At the conclusion of th e hearing, the district court concluded that a proper factual basis for a crime o f violence had been established and accordingly utilized that finding in computing th e sentence of the defendant.

The commentary to § 4B1.2 of the United States Sentencing Commissio n Guidelines Manual makes it clear that the district court need only analyze the conduct set forth and/or expressly charged i n the information or indictment. It is not necessary6–

to con duct any further hearings or receive any further evidence other than th e informatio n

that was filed. Count Three of the indictment clearly reflects conduc t 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