United States v. Derrick D. Scott , 76 F. App'x 117 ( 2003 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-1142
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United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Derrick D. Scott, *
* [UNPUBLISHED]
Defendant-Appellant. *
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Submitted: September 9, 2003
Filed: October 2, 2003
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Before SMITH, LAY, and BRIGHT, Circuit Judges.
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PER CURIAM.
A jury found Derrick D. Scott guilty of a one count indictment charging him
with possession with the intent to distribute five grams or more of cocaine base in
violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Following a sentencing
hearing, the district court1 determined Scott’s base offense level to be 36 by applying
the relevant conduct provisions of U.S.S.G. § 1B1.3. The district court also found
that Scott should receive a two-level upward adjustment under U.S.S.G. § 3C1.1 for
1
The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
obstruction of justice based upon the district court’s finding that Scott had perjured
himself during his testimony at trial. Scott’s total offense level was therefore set at
38. His criminal history category was set at V. The guideline range dictated by these
determinations was 360 months to life imprisonment, and the district court sentenced
Scott to 360 months imprisonment.
On appeal, Scott challenges the court’s determination of the quantity of drugs
involved based upon the relevant conduct admitted at the sentencing hearing and also
the finding of the district court that he committed perjury during the trial. We affirm
the sentence imposed by the district court.
I. BACKGROUND
On February 8, 2002, at 11:30 a.m., Scott was pulled over by Sergeant Andrew
Cooper for driving with a suspended license. Scott was placed under arrest and
removed from the vehicle and a pat down search was conducted for weapons. At the
time of the search, Scott was found to have concealed hard, rock-like items Officer
Cooper believed to be crack cocaine. Upon arriving at the Sikeston Department of
Public Safety, a thorough search of Scott’s person was conducted by Officer Cooper.
During this search, Cooper noticed a clear plastic baggie sticking out from underneath
Scott’s boxer shorts which was later determined to have contained 3.5 grams of
cocaine base. Officer Cooper also uncovered a second baggie containing a total of
8 grams of powder cocaine and a third baggie containing 19 grams of cocaine base.
Scott thereafter talked to authorities and stated that he had obtained the cocaine from
an individual identified as John Henry Turner, Jr.
At trial, Scott took the stand and testified on his own behalf. He denied that
law enforcement officers had searched him at the police station and that any cocaine
had been removed from his person. He further denied that he gave any statement of
any kind to the officers. Various law enforcement officers took the stand in rebuttal
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and testified that Scott did in fact speak with them and that cocaine was removed
from Scott’s person. At the completion of the trial, the jury found Scott guilty of
possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1).
The Presentence Report recommended that Scott’s base offense level, including
all relevant conduct, should be set at 38 insofar as Scott was responsible for the
distribution of at least 1.5 kilograms of cocaine base. See U.S.S.G. § 2D1.1(c). The
report further recommended a two-level adjustment under U.S.S.G. § 3C1.1 on the
basis that Scott had perjured himself at trial. Scott objected to both of these
recommendations.
At the sentencing hearing, the Government produced four witnesses. Each had
a criminal record and each testified as to the amount of cocaine base and crack
cocaine that Scott had either purchased from or sold to them during a period of years.
Each of the witnesses stated that no promises of any kind had been made to them in
exchange for their cooperation, but each indicated that they were hopeful that their
cooperation could be of assistance to them concerning either pending charges or a
reduction in the amount of time to be served.
Scott’s rebuttal was in effect a complete denial of any purchases from or sales
to these four witnesses. The district court thereafter made findings that all of the
Government’s witnesses were credible and their testimony was found to be persuasive
by a preponderance of the evidence. The court found that the relevant conduct
demonstrated that Scott was responsible for the distribution of more than one-half
kilogram of cocaine base, resulting in a base level of 36. See U.S.S.G. § 2D1.1(c).
The district court further found that Scott had intentionally committed a material
falsehood under § 3C1.1 of the Guidelines, warranting a two-level enhancement. On
the basis of these findings, Scott’s total offense level was set at 38. With a criminal
history category V, the guidelines range was 360 months to life imprisonment. Scott
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was sentenced to 360 months imprisonment to be followed by eight years of
supervised release.
II. DISCUSSION
On appeal, Scott challenges the district court’s determination of his relevant
conduct. Scott argues that the four witnesses called by the Government to establish
the drug quantity involved were not credible. The district court found that these
witnesses were credible, however, and therefore it did not err in considering their
testimony. The district court’s finding regarding the credibility of these witnesses
concerning the drug quantity was a factual determination for the court to make and
will not be disturbed absent clear error. See United States v. Candie, 974 F.2d 61, 64
(8th Cir. 1992) (noting that determination of drug quantity based on witness
credibility is “virtually unreviewable on appeal”). The record demonstrates that the
testimony of each witness was detailed and specific and based upon their first-hand
knowledge. Under such circumstances, the district court’s finding of the drug
quantity was not clearly erroneous and must be affirmed.
The defendant also challenges the determination by the district court to apply
the two-level enhancement contained in U.S.S.G. § 3C1.1 on the basis that Scott
committed perjury during his testimony at trial. Scott contends that this finding was
clearly erroneous. We disagree. The overwhelming evidence at trial demonstrated
that cocaine was removed from Scott’s person and that he spoke with law
enforcement authorities. The district court based the obstruction of the administration
of justice on Scott’s denial of these facts. The district court found that Scott’s denial
was an intentional deception regarding material facts. Under such circumstances,
application of U.S.S.G. § 3C1.1 was proper. See United States v. Dunnigan, 507 U.S.
87, 96 (1993) (upholding application of U.S.S.G. § 3C1.1 where district court finding
of obstruction of justice “encompasse[d] all of the factual predicates for a finding of
perjury”).
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III. CONCLUSION
We find no other meritorious arguments in Scott’s appeal. On this basis, the
judgment and sentence of the district court are hereby AFFIRMED.
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