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The Honorable E. Richard Webber, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 09-3885

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Everette Simmons, *

* [UNPUBLISHED]

Appellant. *

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Submitted: December 16, 2010

Filed: December 21, 2010

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Before WOLLMAN, MELLOY, and GRUENDER, Circuit Judges.

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PER CURIAM.

A jury found Everette Simmons guilty of conspiracy to distribute and possess

with the intent to distribute cocaine, in violation of 21 U.S.C. § 846. The district

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 sentenced him within the calculated advisory Guidelines range to 110 months

in prison and 4 years of supervised release. His counsel has filed a brief under Anders

v. California, 386 U.S. 738 (1967), in which he seeks to withdraw and challenges the

government witnesses’ credibility in light of their cooperation agreements. In his pro

se brief, Simmons challenges the district court’s drug-quantity determination and
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imposition of enhancements under U.S.S.G. § 3B1.1(b) (manager or supervisor of

criminal activity) and U.S.S.G. § 3C1.1 (obstruction of justice).

We conclude that there was sufficient evidence to support Simmons’s

conviction. See United States v. Birdine, 515 F.3d 842, 844 (8th Cir. 2008) (this court

reviews sufficiency of evidence in light most favorable to government, resolving

evidentiary conflicts in favor of government, and accepting all reasonable inferences

that support jury’s verdict); see also United States v. Hernandez, 569 F.3d 893, 896

(8th Cir. 2009) (government must prove there was agreement to distribute drugs, and

defendant knew of conspiracy and intentionally joined it), cert. denied, 130 S. Ct.

1308 (2010). Assessing how the cooperation agreements affected the witnesses’

credibility, as well as resolving any inconsistencies in the testimony, were

determinations within the exclusive province of the jury. See United States v. Jones,

559 F.3d 831, 835 (8th Cir. 2009) (verdict may be based solely on testimony of

conspirators and cooperating witnesses; deciding credibility and resolving conflicting

testimony are within jury’s province, and appellate court does not review questions

involving witness credibility).

As to Simmons’s pro se arguments, we conclude that a preponderance of

evidence supports the district court’s finding attributing at least 500 grams of cocaine

to Simmons. See United States v. Plancarte-Vazquez, 450 F.3d 848, 852-53 (8th Cir.

2006) (standard of review; when calculating drug quantity in context of drugtrafficking conspiracy, sentencing court may consider all transactions known or

reasonably foreseeable to defendant that were made in furtherance of conspiracy;

affirming district court’s drug-quantity determination based on testimony of coconspirator that defendant and other co-conspirator supplied her with pound quantities

of drugs over course of conspiracy). We further conclude that the district court did

not clearly err in assessing the 2-level increase for obstructing justice upon finding,

based on personal recollection and assessment of Simmons’s trial testimony, that

Simmons testified falsely, see United States v. Williams, 557 F.3d 556, 560-61 (8th
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Cir.) (standard of review), cert. denied, 130 S. Ct. 237 (2009); and did not clearly err

in assessing the 3-level increase for being a manager or supervisor of a conspiracy,

because there were more than 5 participants and Simmons directed the actions of at

least 3 participants, see United States v. Mesner, 377 F.3d 849, 851-52 (8th Cir. 2004)

(standard of review).

Finally, having reviewed the record independently under Penson v. Ohio, 488

U.S. 75, 80 (1988), we find no nonfrivolous issue for appeal. Accordingly, we grant

counsel leave to withdraw, and we affirm the judgment of the district court.

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