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The Honorable Mark W. Bennett, United States District Judge for the Northern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-2374

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Northern District of Iowa.

Alberto Villalpando, *

* [UNPUBLISHED]

Appellant. *

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Submitted: December 3, 2008

Filed: January 9, 2009

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Before MURPHY, BYE, and BENTON, Circuit Judges.

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PER CURIAM.

Alberto Villalpando appeals the judgment of the district court1

 entered upon a

jury verdict finding him guilty of conspiring 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 violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). He

challenges the sufficiency of the evidence and the application of an obstruction-ofjustice sentencing enhancement. For the reasons that follow, we affirm.
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The trial testimony of drug task force officers and forensic chemists established

the following. A confidential informant (CI) arranged to make a controlled purchase

of a pound of methamphetamine from Margarito 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 conversations and transmitted them to officers

monitoring the events. Margarito was standing outside the CI’s residence when a car

occupied by Villalpando and another person arrived. Margarito then went inside,

where his delivery of a package to the CI was captured on the video camera and audio

recording device. The CI gave the package 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, recovering 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 him leave, followed him to Margarito’s

residence, arrested Villalpando, and found five bags of cocaine in his pocket.

Additional bags of cocaine were found at Villalpando’s residence after he told officers

where to look.

During Villalpando’s post-arrest interview, 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. Villalpando also acknowledged selling a pound of

methamphetamine several months earlier, and he described the details of the

transaction. At trial, Villalpando testified that he had been involved with cocaine, that

he had delivered it to Margarito in the past, that he had cocaine on his person when

he was arrested, and that cocaine was found at his residence. He testified that he had

never delivered methamphetamine, however, and that his contrary statements to the
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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 unspecified quantity of powder cocaine; and guilty

of distributing 50 grams or more of actual methamphetamine.

The calculations for an advisory Guidelines imprisonment range of 151-188

months included a 2-level increase to the base offense level for obstruction of justice,

based on Villalpando’s having committed perjury at trial. At sentencing, the district

court overruled his objection to the enhancement, finding by a preponderance of the

evidence that Villalpando was untruthful at trial when he denied delivering

methamphetamine. The district court sentenced him to concurrent terms of 151

months in prison, and 5 years of supervised release.

First, we conclude that Villalpando’s post-arrest admissions and his consistent

trial testimony regarding his delivery of cocaine sufficiently established that two or

more persons reached an agreement to distribute cocaine, that Villalpando voluntarily

and intentionally joined the agreement, and that he knew its essential 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 prove defendant 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 could 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 conducting surveillance and Villalpando’s postarrest admission--the retraction of which the jury apparently disbelieved--that he had

delivered a pound of methamphetamine, constituted ample evidence supporting the
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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 sample 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 contained cocaine base for 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 theoretical yields of methamphetamine based on

precursor elements was sufficient to support 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 evidence and his post-arrest admissions, and

we conclude that the obstruction-of-justice enhancement was permissible. See United

States v. Molina, 172 F.3d 1048, 1058 (8th Cir. 1999) (findings of fact in support of

obstruction-of-justice enhancement reviewed for clear error, and application of

Guidelines reviewed de novo; perjury at trial constitutes obstruction of justice).

Accordingly, we affirm.

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