United States v. Douglas Shumny ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-4097
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Douglas J. Shumny, *
* [UNPUBLISHED]
Appellant. *
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Submitted: October 5, 2000
Filed: October 13, 2000
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Before McMILLIAN, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
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PER CURIAM.
Douglas Shumny pleaded guilty to conspiring to distribute and possess with
intent to distribute methamphetamine, in violation of 21 U.S.C. § 846. The district
court1 sentenced him to 210 months imprisonment and five years supervised release,
and Mr. Shumny appeals his sentence.
1
The Honorable D. Brook Bartlett, late the Chief Judge, United States District
Court for the Western District of Missouri.
We reject Mr. Shumny’s first argument, that the district court should have
credited two particular witnesses’ testimony and discredited two other witnesses’
testimony when determining what quantity of methamphetamine to attribute to Mr.
Shumny. See United States v. Milton, 153 F.3d 891, 898 (8th Cir. 1998) (clear-error
standard of review), cert. denied, 525 U.S. 1165 (1999); Anderson v. City of Bessemer
City, 470 U.S. 564, 575 (1985) (findings based on credibility determinations are
virtually never clear error); United States v. Sample, 213 F.3d 1029, 1034 (8th Cir.
2000) (credibility determinations are committed squarely to domain of sentencing court
and are virtually unreviewable on appeal).
We also reject Mr. Shumny’s other argument, that the district court should have
applied the 1995 rather than the 1998 Sentencing Guidelines. The Guidelines were
amended November 1, 1997, to increase the penalties for methamphetamine offenses,
and this affected Mr. Shumny’s sentence. See U.S.S.G. App. C (amendment 555);
United States v. Reetz, 18 F.3d 595, 597-98 (8th Cir. 1994) (if Guidelines in effect at
time of sentencing are harsher than those in effect at time defendant committed offense,
then earlier Guidelines must be applied to avoid violating Ex Post Facto Clause; when
conspiracy began prior to effective date of new Guidelines, and was completed after
effective date of new Guidelines, new Guidelines apply). Although Mr. Shumny
temporarily abandoned the drug conspiracy in 1997, he resumed his involvement in
1998 by repaying a substantial portion of the debt he owed for methamphetamine
fronted to him during his earlier participation in the conspiracy. See United States v.
Jones, 913 F.2d 1552, 1563 (11th Cir. 1990) (drug conspiracy continued through date
of last collection of drug debt); United States v. Posner, 865 F.2d 654, 659 (5th Cir.
1989) (drug conspiracy continued through negotiations to repay drug debt); accord
United States v. Beckman, 222 F.3d 512, 522 (8th Cir. 2000) (defendant’s involvement
in drug conspiracy was demonstrated by, inter alia, his carrying of debt on past drug
purchases in amount suggesting more than personal-use quantities).
Accordingly, we affirm the judgment of the district court.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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