The HONORABLE HAROLD D. VIETOR, United States District Judge for th e 1 Southern District of Iowa. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2183

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Southern District of Iowa. David S. Forsythe, * * [UNPUBLISHED] Appellant. *

___________ Submitted: March 6, 1998 Filed: March 13, 1998

___________ Before LOKEN, HEANEY, and MURPHY, Circuit Judges.

___________ PER CURIAM. Following a narcotics-trafficking investigation of David S. Forsythe during which authorities were assisted by a confidential informant, Forsythe was charged with and plea ded guilty to conspiring to distribute marijuana and cocaine, in violation of 2 1 U.S.C. § 846; using a communication facility t o distribute marijuana, in violation of 21 U.S.C. § 843(b ); and possessing marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The district court sentenced Forsythe to a total of 120 month s 1 imprisonment and eight years s upervised release, and he appeals. Counsel has movedThe HONORABLE CHARLES R. WOLLE, Chief Judge, United States Distri ct 2 Court for the Southern District of Iowa. -2- to withdraw pursuant to Anders v. California , 386 U.S. 738 (1967), and Forsythe has filed a pro se supplemental brief. We affirm. At sentencing, the confident ial informant testified for the government as to how much marijuana and cocaine Forsythe had delivered to him during the relevant time

. Ba sed on this testimony, the district court determined Forsythe should be hel d resp onsible for a total of 385.56 kilograms of marijuana and marijuana equivalent , which triggered a mandatory minimum sentence of 120 months imprisonment because of Forsythe & s prior felony drug conviction. See 21 U.S.C. § 841(b)(1)(B)(vii). Both counsel in his Anders brief and Forsythe in his pro se brief challenge the district court & s drug-quantity finding, contending that the government & s evidence was not credible, and that the court should have adopted a clear-and-convincing standard of proof.

We uphold the district court & s finding as not clearly erroneous, because it i s support ed by the confidential informant & s testimony, which the district court wa s entitled t o credit in whole or in part. See United States v. Cassidy , 6 F.3d 554, 55 7 (8th Cir. 1993) (credibility determinations are not “a ll-or-nothing proposition”); United States v. Adipi etro , 983 F.2d 1468, 1472 (8th Cir. 1993) (witness credibility); United States v. Wyatt , 19 F.3d 1283, 1284 (8th Ci r. 1994) (per curiam) (standard of review). We likewise conclude the district court was not required to apply a clear-and

convincing standard of proof in deter mining drug quantity. See United States v. Pugh , 25 F.3d 669, 676 (8th Cir. 1994). Forsythe also argues in his pro se brief that the district court violated Federa l 2 Rule of Criminal Procedure 11(c)(1) when it all owed him to enter a guilty plea without advising him of the possibility that he faced a 120-month mandatory minimum sentence. We reject this argument. Forsythe received a sentence far less than what he-3-

was tol d he faced: a potential mandatory minimum sentence of 240 month s impris onment

and a maximum penalty of life imprisonment. Forsythe also was tol d dur ing the change-of-plea hearing that the district court could not determine at tha t point what his sentence would be, and that regardless of the parties & dispute over the correct quantityof drugs applicable to his offenses, he faced the maximum sentence-- life in prison. See Fed. R. Crim. P. 11(h) (harmless error exception); United States v. Raineri , 42 F.3d 36, 41-42 (1st Cir. 1994) (finding harmles s error when misinformation at Rule 11 h earing did not create expectation of lesser penalty than that actuall y received), cert. denied , 515 U.S. 1126 (1995); cf. United Sta tes v. Marks , 85 F.3d 396, 397 (8th Cir.) (district court not obligated during Rule 11 hearing to advise defendant of applicable Guidelines range or actua l sentence defendant will receive), cert. denied , 117 S. Ct. 205 (1996). Upon review of the record in accordance with Penson v. Ohio , 488 U.S. 75, 80 (1988), we find no nonfrivolous issues. Accordingly, we affirm. A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.