1 The Honorable Mark W. Bennett, United St ates District Judge for the Northern District of Iowa. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 07-2374

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. Alberto Villalpando, * * [UNPUBLISHED] Appellant. *

___________ Submitted: December 3, 2008 Filed: January 9, 2009

___________ Before MURPHY, BYE, and BENTON, Circuit Judges.

___________ PER CURIAM. Alberto Villalpando appeals the judgment of the district court 1 entered upon a jury verdict finding him guilty of conspi ring to distribute methamphetamine and cocaine, in violation of 21 U.S.C. §§ 841(a )(1), (b)(1)(A), (b)(1 )(C) and 846; and of distributing methamphetamine, in violati on of 21 U.S.C. § 841(a)(1), (b)(1)(A). He challenges the sufficiency ofthe evidence and the application of an obstruction-ofjustice sentencing enhancement. For the reasons that follow, we affirm.-2- The trial testimony of drug task force offi cers and forensic chemists established the following. A confidential informant (C I) arranged to make a controlled purchase of a pound of methamphetamine from Marg arito and Fernando Cortez at the CI’s residence on November 22, 2005. That day, the CI wore a hidden video camera and an audio device that recorded her convers ations and transmitted them to officers monitoring the events. Margarito was sta nding outside the CI’s residence when a car occupied by Villalpando and another person arrived. Margarito then went inside, where his delivery of a pack age to the CI was captured on the video camera and audio recording device. The CI gave the packag e to the officers, and forensic chemists determined it contained 434.2 grams of methamphetamine mixture, which at 19% purity amounted to 82.4 grams of actual methamphetamine.

In April 2006, officers executed a search warrant at the residence of Fernando and Margarito Cortez, rec overing a quantity of cocaine and a substance commonly used to “cut,” or dilute, cocaine. Upon Margarito’s arrest, he identified Villalpando as his cocaine supplier and contacted Villalpando to arrange a purchase. Officers observing Villalpando’s residence saw hi m leave, followed him to Margarito’s residence, arrested Villalp ando, and found five bags of cocaine in his pocket. Additional bags of cocaine we re found at Villalpando’s reside nce after he told officers where to look.

During Villalpando’s post-arrest intervie w, which was recorded and played for the jury, he stated that for about two months he had obtained cocaine from someone named Chango, and that he would deliver cocaine to Margarito Cortez, who would then cut it to double his quantity. V illalpando also acknow ledged selling a pound of methamphetamine several months earlier, and he described the details of the transaction. At trial, Villalpando testified that he had b een involved with cocaine, that he had delivered it to Margarito in the pa st, that he had cocaine on his person when he was arrested, and that cocai ne was found at his residence. He testified that he had never delivered methamphetamine, however, and that his contrary statements to the-3- police were false. The jury found him guilty of conspiring to distribute 50 grams or more (but less than 500 grams) of methamphetamine mixture, 50 grams or more of actual methamphetamine, and an unspecifi ed quantity of powder cocaine; and guilty of distributing 50 grams or more of actual methamphetamine.

The calculations for an advisory Gu idelines imprisonment range of 151-188 months included a 2-level increase to the ba se offense level for obstruction of justice, based on Villalpando’s having co mmitted perjury at trial. At sentencing, the district court overruled his objection to the enhan cement, finding by a preponderance of the evidence that Villalpando was untruthful at trial when he denied delivering methamphetamine. The district court se ntenced him to concurrent terms of 151 months in prison, and 5 years of supervised release.

First, we conclude that Villalpando’s post-arrest ad missions and his consistent trial testimony regarding his delivery of co caine sufficiently established that two or more persons reached an agreement to di stribute cocaine, that Villalpando voluntarily and intentionally joined the agreement, a nd that he knew its e ssential purpose. See United States v. Harris , 493 F.3d 928, 931 (8th Cir. 2007) (elements of conspiracy to distribute controlled substance); United States v. Titlbach , 339 F.3d 692, 696-97 (8th Cir. 2003) (slight evidence connecting defendant to conspiracy may be enough to sustain conviction; government need only provedefendant tacitly agreed to participate and intended conspiracy’s unlawful goal); United States v. Shepherd , 284 F.3d 965, 969 (8th Cir. 2002) (evidence is viewed in light most favorable to verdict, and is sufficient if any rational trier of fact c ould have found essential elements of crime beyond reasonable doubt).

We further conclude that the testimony of one of the forensic chemists, along with the testimony of the officers conduc ting surveillance and Villalpando’s postarrest admission--the retraction of which the jury apparently disb elieved--that he had delivered a pound of methamphetamine, c onstituted ample evidence supporting the-4- jury’s special verdict that Villalpando was responsible for less than 500 but at least 50 grams of methamphetamine mixture and more than 50 grams of actual methamphetamine, notwithstanding slight uncertainties based on samp le testing. See Gibson v. Bowersox , 78 F.3d 372, 374 (8th Cir. 1996) (proof of existence of controlled substance need not be by direct evidence; use of random testing is permissible to establish substance contai ned cocaine base fo r sentencing purposes; every particle of substance need not be tested); United States v. Stroh , 176 F.3d 439, 440 (8th Cir. 1999) (in reviewing sufficiency of evidence, reviewing court can neither weigh evidence nor assess credibility of witnesses); cf. Titlbach , 339 F.3d at 696 (chemist’s trial testimony about theoreti cal yields of methamphetamine based on precursor elements was sufficient to s upport jury’s special verdict on quantity).

Finally, we hold that the district court did not commit clear error in finding that Villalpando perjured himself at trial when he denied any involvement with methamphetamine, given the surveillance ev idence and his post-arrest admissions, and we conclude that the obstruction-of-jus tice enhancement was permissible. SeeUnited States v. Molina , 172 F.3d 1048, 1058 (8th Cir. 1999) (findings of fact in support of obstruction-of-justice enhancement reviewedfor clear error, and application of Guidelines reviewed de novo; perjury at trial constitutes obstruction of justice).

Accordingly, we affirm.

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