## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-1505

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Western District of Arkansas. Arnulfo Betancort-Salazar, * * [UNPUBLISHED] Appellant. *

___________ Submitted: January 27, 2010 Filed: February 1, 2010

___________ Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.

___________ PER CURIAM.
Arnulfo Betancort-Salazar (Betancort ) appeals the district court’s 1 judgment, entered after a jury found him guilty of conspiring to distribute, distributing, and possessing with intent to distribute meth amphetamine, and maintaining a residence for the purpose of distributing and using a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), 846, and 856(a)(1), and 18 U.S.C. § 2. Betancort pleaded guilty to illegally reentering the Un ited States following a deportation. The district court sentenced him to 144 months in prison. Betancort’s counsel has moved

1 The Honorable Robert T. Dawson, United States District Judge for the Western District of Arkansas.to withdraw and filed a brie f under Anders v. California , 386 U.S. 738 (1967), arguing that portions of an audio tape of a controlled buy should not have been admitted at trial, that the testimony of cooperating w itnesses was unreliable and thus there was insufficient evidence to convictBetancort, and that the court’s imposition of a 2-level enhancement for a supervisory role was err oneous. Betancort has filed a supplemental brief, in which he argues that evidence th at marijuana was found during the search of his residence should not have been admitted at trial.

We hold that the district court did notabuse its discretion in allowing the government to play portions of the audio tape. See United States v. Oslund , 453 F.3d 1048, 1054 (8th Cir. 2006) (standard of revi ew). Although only portions of the tape were intelligible and none of Betancort’s conversations--which all occurred in Spanish--were intelligible, those portions that were understandable were consistent with the witness testimony, the jury was to ld that the witnesse s did not understand the Spanish conversations, and Betancort’s counsel was able to argue that the conversations in Spanish could have b een about an unrelated topic. SeeUnited States v. Trogdon , 575 F.3d 762, 765 (8th Cir. 2009) (p artially inaudi ble tapes were admissible where tapes were audible enough to provide jury with gist of conversations; court should consider whethe r defendant had opportunity to offer his version of inaudible portions), cert. denied , 78 U.S.L.W. 3394 (U.S. Jan. 11, 2010) (No. 09-7983); cf. United States v. Webster , 84 F.3d 1056, 1065 (8th Cir. 1996) (video tape that did not preserve all acti ons and included unclear audio track still had significant probative value because it showedsome sort of trade across kitchen counter, and police later collected drugs from the counter).

We further hold that the evidence was sufficient to support Betancort’s convictions. See United States v. Birdine , 515 F.3d 842, 844 (8th Cir. 2008) (this court reviews sufficiency of evidence in li ght most favorable to government, resolving evidentiary conflicts in government’s favor and accepting all reasonable inferences that support jury’s verdict). Witnesses te stified that Betancort was the supplier of

-2-methamphetamine that was recovered from them, and a search of Betancort’s home revealed distribution amounts of methamphetamine and a cutting agent. The testimony also showed that another indi vidual acted as a middle-man for the drug transactions. See United States v. Parker , 587 F.3d 871, 881 (8th Cir. 2009) (to sustain conviction for possession with inte nt to distribute, government must prove defendant knowingly possesse d and intended to distribute drugs; constructive possession, where defendant ha s knowledge of object, ability to control it, and intent to do so, is sufficient); United States v. Hernandez , 569 F.3d 893, 896 (8th Cir. 2009) (to sustain conviction for distribution of controlled substance, government must prove defendant knowingly and intentionally distributed controlled substance, and knew it was controlled substance at time of distribution), petition for cert. filed , (U.S. Nov. 3, 2009) (No. 09-8131); United States v. Cruz , 285 F.3d 692, 700 (8th Cir. 2002) (to prove conspiracy, government must prove ex istence of agreement to achieve illegal purpose, and defendant’s knowledge of agreement a nd knowing participation in conspiracy). Although counsel argues that the testimony of the cooperating witnesses was unreliable, their credibility was for the jury to determine. See United States v. Foxx , 544 F.3d 943, 950 (8th Cir. 2008) (credibility determinations are well within province of jury), cert. denied , 130 S. Ct. 91 (2009); United States v. McKay , 431 F.3d 1085, 1094 (8th Cir. 2005) (impeachment ev idence was for jury to consider). As to the conviction for maintaining a drug reside nce, Betancort testified that he paid to rent the residence, and the other witnesse s testified that he sold drugs from the residence. See 21 U.S.C. § 856(a)(1) (it is unlawfu l to knowingly lease any place for purpose of distributing any controlled substance).

Because Betancort did not object in the di strict court to the supervisory-role enhancement, we review for plain error, see United States v. Lovelace , 565 F.3d 1080, 1086-87 (8th Cir. 2009), and we find none, see United States v. Davis , 583 F.3d 1081, 1097 (8th Cir. 2009) (to be subject to role enhancement under U.S.S.G. § 3B1.1(c), defendant need only manage or supervise one other participant, and terms “manager” and “supervisor” are construed br oadly), petition for cert. filed , (U.S. Jan. 5, 2010)

-3-(No. 09-8480). Finally, as to Betancort’s pro se argument, we find no plain error in the admission of evidence that marijuana ci garettes were also found in the search of his home, as it does not appear that the evidence was admitted to show Betancort’s character. See Fed. R. Evid. 404(b); United States v. Frazier , 280 F.3d 835, 846-47 (8th Cir. 2002) (other-crimes evidence may be admissible to prove issue which Rule 404(b) specifically permits to be proven).

After reviewing the record independently under Penson v. Ohio , 488 U.S. 75 (1988), we have found no nonfrivolous issues for appeal. Accordingly, the judgment is affirmed. We also grant counsel leave to withdraw.

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