1The Honorable Andrew W. Bogue, United States District Judge for the District

of South Dakota, sitting by designation.

2The Honorable George Howard, Jr., United States District Judge for the Eastern

District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-1481

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Roy Lee Russell, *

*

Appellant. *

___________

Submitted: September 13, 2000

Filed: November 28, 2000

___________

Before BOWMAN and BEAM, Circuit Judges, and BOGUE,1 District Judge.

___________

BOWMAN, Circuit Judge.

Roy Lee Russell appeals his conviction for obstructing justice in violation of 18

U.S.C. § 1503(a), arguing that the evidence presented at trial was insufficient to sustain

his conviction. He also challenges the sentence imposed by the District Court.2 We
3Block was tried twice; the first trial ended in a mistrial. After Block was retried

and convicted, his attorney moved for a new trial based upon Russell's "exculpatory"

affidavit.

-2-

affirm, but remand for compliance with Federal Rule of Criminal Procedure 32(c)(1)

(attachment of fact-findings made at sentencing to presentence investigation report).

I.

The Arkansas State Police hired Russell in 1997 to act as a confidential

informant in an undercover drug operation dubbed "Operation Wholesale." Russell

was paid by the state police and the FBI to identify drug dealers and make drug buys

under the supervision of an Arkansas State Trooper. As part of this arrangement,

Russell was expected to testify at the trials of those arrested for the undercover drug

deals.

In the summer of 1998, a grand jury charged approximately forty-eight

defendants identified in Operation Wholesale with distribution of cocaine and cocaine

base. As trial preparation began, Russell had a falling-out with the FBI and the state

police over the terms of payment for his continuing participation in these prosecutions.

In one of the first Operation Wholesale cases tried, Russell testified that he had

purchased crack cocaine from the defendant, Steve Block, on the dates specified in the

indictment. However, after Block's conviction Russell signed an affidavit stating that

he had never purchased drugs from Block on any occasion.3 This development spurred

an investigation that revealed Russell had signed affidavits exonerating ten defendants

charged in Operation Wholesale. Consequently, the United States Attorney dismissed

pending indictments against fifteen defendants because Russell was the only person
4Subsequent to Russell's conviction, additional indictments against Operation

Wholesale defendants were dismissed because no other witness could identify the

defendants.

5

In this appeal, Russell does not attack his perjury conviction. His appeal is

limited to attacks upon his conviction for obstruction of justice and his sentence.

-3-

who could identify the defendants as drug dealers.4 In addition to signing affidavits

exonerating Block and other defendants, Russell later testified in federal

court—directly contradicting his earlier testimony—that he had never purchased

controlled substances from Block on any occasion.

Because of these events, Russell was charged with and convicted of obstruction

of justice and perjury. At his sentencing, Russell objected to multiple aspects of the

presentence investigation report (PSR). After a lengthy sentencing hearing, the District

Court found that all but one of these objections lacked merit and sentenced Russell to

concurrent terms of 110 months on the obstruction count and 60 months on the perjury

count. The court also ordered Russell to pay restitution to the FBI and the Arkansas

State Police for the monies they paid to him for his services during Operation

Wholesale. Russell appeals.5

II.

A.

Russell advances two deficiencies in the evidence supporting his obstruction

conviction as grounds for reversal. First, he argues that the government has not

established that he lied in the affidavits he signed for Operation Wholesale defendants.

Second, Russell asserts that he lacked any intent to "interfer[e] with the due

administration of justice," as required for an obstruction conviction by United States

v. Aguilar, 515 U.S. 593, 599 (1995).
-4-

In reviewing the sufficiency of the evidence in support of a criminal conviction

we consider whether, in the light most favorable to the government, there is substantial

evidence of the defendant's guilt to support the jury's verdict. See United States v.

Slavens, 746 F.2d 1338, 1341 (8th Cir. 1984). Russell's indictment charged him with

obstruction of justice under the "Omnibus Clause" of §1503. A conviction under this

provision requires proof of a sufficient nexus between the defendant's actions and an

intent to impede judicial proceedings. See Aguilar, 515 U.S. at 599. "In other words,

the endeavor must have the '"natural and probable effect"' of interfering with the due

administration of justice." Id. (quoting United States v. Wood, 6 F.3d 692, 695 (10th

Cir. 1993)).

Russell argues that the government's evidence failed to show that he lied in the

affidavits he signed exonerating ten of the defendants. Although Russell stated under

oath that he never bought drugs from those defendants, the government presented much

evidence contradicting Russell's story. Before any of the defendants were arrested, the

government had Russell confirm the identities of the suspects by looking at photos of

them and affirming that those suspects had sold him drugs. The Arkansas state trooper

who worked with Russell on each transaction testified that each of the contested buys

did in fact take place.

In addition, Russell's girlfriend testified that Russell claimed that the defendants

for whom he signed affidavits were going to pay him for his help in getting them out

of their drug charges. Two other witnesses testified that Russell never voiced any

concerns about the guilt of those indicted and arrested through the operation, until

disputes arose over his pay and his responsibility for paying income tax thereon.

Although Russell's own testimony contradicts the evidence described, it was within the

jury's province to credit the testimony of other witnesses over that of Russell. See

DiCarlo v. Keller Ladders, Inc., 211 F.3d 465, 468 (8th Cir. 2000) ("Determining the

credibility of a witness is the jury's province, whether the witness is lay or expert.").
6Russell acted as a confidential informant in a 1987 Arkansas State Police drug

operation.

-5-

Thus, the jury was free to determine Russell had lied, and there is substantial evidence

supporting that view.

Turning to Russell's argument that he lacked the intent to influence a judicial

proceeding, we find that the record contains substantial evidence of such an intent.

Russell had prior experience as a confidential informant,6 establishing a familiarity with

his role as an informant and the process through which the pending cases would

proceed. Three witnesses testified at trial that Russell expected some form of payment

for assisting Operation Wholesale defendants in having their charges dismissed.

Furthermore, the Arkansas state trooper assigned to Russell testified that after the

affidavits surfaced Russell stated that some of the cases could be saved if the FBI could

"get their money right." Multiple witnesses attested to Russell's anger at the prospect

of having to pay taxes on his income from the state police and the FBI, as well as at the

FBI's reduction of his compensation. Finally, three law enforcement officials who

handled the operation testified that Russell claimed he would "get amnesia" and that

the government would lose these cases without him. Russell's attempts to obtain

payment for exonerating affidavits and his threats to sabotage the pending prosecutions

demonstrate Russell's intent to obstruct justice. We thus conclude that there is

substantial evidence that Russell had knowledge that the "natural and probable effect"

of his actions would be to interfere with the administration of justice in these

prosecutions.

Because the evidence is sufficient to support Russell's conviction for obstruction

of justice, the conviction is sustained.

B.
7The identification and discussion in Russell's brief of these asserted errors lack

coherence and clarity. We have attempted to identify and address the arguments

Russell appears to have made.

8Rule 32(c)(1) requires that for each matter controverted at the sentencing

hearing "the court must make either a finding on the allegation or a determination that

no finding is necessary because the controverted matter will not be taken into account

in, or will not affect, sentencing. A written record of these findings and determinations

must be appended to any copy of the presentence report made available to the Bureau

of Prisons." Fed. R. Crim. P. 32(c)(1).

-6-

Russell's brief appears to challenge his sentence on two grounds.7 First, he

argues that the District Court erred in its guidelines application based on Federal Rule

of Criminal Procedure 32(c)(1) and this court's decision in United States v. Candie, 974

F.2d 61 (8th Cir. 1992). Second, he asserts that the District Court misapplied the

cross-reference provisions of United States Sentencing Guidelines §§ 2J1.2(c) and

2X3.1.

Russell attacks the sufficiency of the District Court's findings of controverted

fact required by Rule 32(c)(1).8 At sentencing, the government has the burden of proof

on disputed facts, and generally must satisfy a preponderance of the evidence standard.

See United States v. Simmons, 964 F.2d 763, 771 (8th Cir.), cert. denied, 506 U.S.

1011 (1992). We review a district court's findings of fact at sentencing for clear error,

giving due deference to the court's opportunity to observe witnesses' credibility and to

its application of the guidelines to the facts. See 18 U.S.C. § 3742(e) (1994).

Attacking the drug-quantity findings made at sentencing, Russell argues that our

decision in Candie demonstrates the insufficiency of those findings. In Candie, the

defendant appealed his guideline sentence on the ground that unreliable trial testimony

from a confederate was used to establish the defendant's base offense level. The

confederate was a convicted felon, and the defendant objected to the exclusive use of
-7-

his testimony to establish the drug quantities used to calculate the defendant's sentence.

At the sentencing hearing, no other drug-quantity evidence was presented, and the court

concluded that it had "no alternative but to accept that evidence because [to assess

some other amount] would be completely arbitrary and capricious without any evidence

to support it whatsoever." Candie, 974 F.2d at 63. On appeal, we vacated the sentence

and remanded for resentencing, on the basis that the district court's statement regarding

its use of the allegedly unreliable testimony did not adequately explain why the court

chose to credit that testimony. See id. at 65.

Russell's case is distinguishable from Candie. First, unlike the court in Candie,

the District Court held an extensive sentencing hearing. The government presented

testimony by an FBI agent regarding drug quantities associated with the Operation

Wholesale cases. Russell called two chemists who testified regarding the weights of

the drugs purchased by Russell in the undercover operation. At the conclusion of this

testimony, in response to a defense objection to quantity determinations in the PSR, the

court threw out the drug amounts associated with two cases, finding them too unreliable

to include in calculating Russell's base offense level. The court then made its drugquantity findings based on a preponderance of the evidence that the court considered

to be reliable. We conclude the court adequately complied with Rule 32(c)(1)

regarding findings of controverted material fact as related to drug quantity.

Russell made other objections to the PSR, including to the suggested amount of

restitution, the assertion that he testified falsely, and the assertion that his actions

caused the dismissal of fifteen pending cases. After a thorough review of the evidence

presented at trial and at sentencing, we find that the evidence supports these statements

in the PSR. Furthermore, the court adequately addressed these objections at

sentencing. See United States v. Mills, 987 F.2d 1311, 1316-17 (8th Cir.) (holding that

Rule 32(c)(1) is satisfied where a sentencing judge, who also presides over a

defendant's trial, makes findings based on evidence presented at trial even though no

additional evidence is introduced at sentencing), cert. denied, 510 U.S. 953 (1993); cf.
-8-

Smith v. United States, 206 F.3d 812, 813 (8th Cir.) (per curiam) (holding that a

sentencing judge may consider "reliable evidence from a codefendant's trial presided

over by the sentencing judge"), cert. denied, No. 00-6030, 2000 WL 1337176 (Oct. 16,

2000). The evidence met the preponderance standard on these matters. Thus, we find

no sentencing error on any of these grounds.

Next, Russell objects that no copy of the court's findings of controverted fact

was attached to the PSR as required under Rule 32(c)(1). We cannot determine from

the record whether this requirement has been fulfilled. Failure to attach the findings is

not, however, a basis for resentencing. See Poor Thunder v. United States, 810 F.2d

817, 826 (8th Cir. 1987) (remanding for attachment of findings to PSR, but not for

resentencing). Thus, we remand to the District Court solely to provide the opportunity,

if the District Court has not done so already, to comply with this provision of Rule 32.

Finally, Russell objects to the District Court's application of United States

Sentencing Guidelines (U.S.S.G.) § 2J1.2, the guideline for obstruction of justice under

18 U.S.C. § 1503. Subsection (c) of § 2J1.2 required the court to use the provisions

of U.S.S.G. § 2X3.1, the accessory-after-the-fact guideline, to determine Russell's base

offense level. Russell's objection misunderstands the function of the guideline cross

reference found in § 2J1.2(c).

Section 2J1.2(a) establishes a base offense level of 12 for obstruction convictions

under § 1503. Subsections (b) and (c) set out offense characteristics that enhance the

base offense level. Specifically, subsection (c) provides that "[i]f the offense involved

obstructing the investigation or prosecution of a criminal offense, apply § 2X3.1

(Accessory After the Fact) in respect to that criminal offense, if the resulting offense

level is greater than that determined above." U.S. Sentencing Guidelines Manual §

2J1.2(c) (1998). Subsection (c) controls Russell's base offense level because his

actions involved the obstruction of an investigation or prosecution of a criminal offense,
-9-

and because the calculation using § 2X3.1 resulted in an offense level greater than the

highest possible level under § 2J1.2(a) and (b).

Section 2X3.1 states that the defendant's base offense level shall be six levels

lower "than the offense level for the underlying offense." U.S. Sentencing Guidelines

Manual § 2X3.1. In Russell's case, the District Court calculated Russell's base offense

level by using the dismissed drug charges as the applicable underlying offenses, making

drug-quantity findings, and then referring to the drug-quantity table to establish the base

offense level. See U.S. Sentencing Guidelines Manual § 2D1.1(c) (drug-quantity

table). This calculation placed Russell at level 34, from which the District Court

subtracted six levels to arrive at Russell's final base offense level of 28.

Russell contends that the District Court should not have applied § 2X3.1 at all,

arguing that use of this guideline as a cross reference first requires that the government

prove facts sufficient to establish Russell's guilt as an "accessory after the fact" in the

drug crimes used to calculate his sentence. While § 2X3.1 ordinarily applies to

convictions for acting as an accessory after the fact, see generally U.S. Sentencing

Guidelines Manual § 2X3.1 cmt. statutory provisions (listing 18 U.S.C. §§ 3, 757,

1071, 1072), it also serves as a tool for calculating the base offense level for

particularly serious obstruction offenses. Russell's argument misunderstands the

relationship between § 2J1.2(c) and § 2X3.1 in this context. Where the defendant has

obstructed the investigation or prosecution of a criminal offense, the government need

not charge or convict the defendant as an accessory after the fact. See U.S. Sentencing

Guidelines Manual § 2J1.2 cmt. background ("Use of this cross reference [to the

accessory-after-the-fact sentencing guideline] will provide an enhanced offense level

when the obstruction is in respect to a particularly serious offense, whether such

offense was committed by the defendant or another person."); United States v.

McQueen, 86 F.3d 180, 182 (11th Cir. 1996) ("The language of [§ 2J1.2(c)] is

mandatory when the offense involves 'obstructing the investigation or prosecution of

a criminal offense' without any qualification and without regard to whether defendant
-10-

or anybody else was convicted of the underlying offense, or whether an offense could

be shown to have been committed at all."). The guidelines base Russell's sentence

upon the acts he took in "obstructing the investigation or prosecution of a criminal

offense," and not upon criminal liability for acting as an accessory after the fact to any

drug offense. U.S. Sentencing Guidelines Manual § 2J1.2(c)(1). The cross reference

merely provides flexibility within the provisions of § 2J1.2 so that the guideline may

apply to both less and more serious forms of obstruction. We find that the District

Court properly applied the cross reference in determining Russell's sentence.

In sum, we find that none of Russell's sentencing issues has merit. We remand

to the District Court solely for the purpose of attaching to the PSR, if the District Court

has not done so already, a copy of its findings on the facts controverted at sentencing,

so that the findings may accompany the PSR to the Bureau of Prisons in accordance

with Federal Rule of Criminal Procedure 32(c)(1).

C.

As mentioned above, the District Court made findings concerning the drug

quantities used to calculate Russell's sentence, using the preponderance of the evidence

standard that this Court long has approved. During oral argument, counsel for Russell

called the Court's attention to the possible application of the Supreme Court's decision

in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).

The Supreme Court held in Apprendi that "[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt." 120 S. Ct. at 2362-63 (emphasis added). We conclude that Apprendi has no

application to Russell's case. As we observed in United States v. Aguayo-Delgado,

"[t]he rule of Apprendi only applies where the non-jury factual determination increases

the maximum sentence beyond the statutory range authorized by the jury's verdict."
9Russell received concurrent sentences of nine years and two months on the

obstruction count and five years on the perjury count.

-11-

220 F.3d 926, 933 (8th Cir. 2000). In Russell's case, the obstruction statute imposes

a ten-year statutory maximum sentence, and the perjury statute imposes a five-year

statutory maximum sentence. The District Court sentenced Russell to concurrent

sentences at or below these maximums.9 Thus, Russell's appeal does not raise a

meritorious Apprendi issue, as his sentence was not "beyond the prescribed statutory

maximum" on either count. Apprendi, 120 S. Ct. at 2362-63.

III.

Russell's conviction and sentence are affirmed. The case is remanded to the

District Court for compliance, if such compliance has not already been accomplished,

with Federal Rule of Criminal Procedure 32(c)(1) (requiring the attachment of findings

of fact to PSR).

A true copy.

Attest:

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