UNITED STATES of America, Appellee, v. Roberto Gallardo CHAVEZ, Appellant, 230 F.3d 1089

WOLLMAN, Chief Judge. Roberto Gallardo Chavez was convicted of one count of conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 8’46, two counts of distribution of methamphetamine in violation of 21 U.S.C. § 841(a)(1), and one count of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). Through its verdict form, the jury found that the quantity of methamphetamine involved was at least 1700 grams.

Relying on the pre-sentence investigation report, which suggested that the actual quantity was approximately 81 kilograms, the district court sentenced Chavez to a life sentence on each count. Chavez appeals, and we affirm. Chavez makes two arguments. First, he contends that the district court erred in denying his motion for a verdict of acquittal at the close of the State’s evidence because the State failed to offer evidence sufficient to prove the elements of the crimes charged beyond a reasonable doubt. Second, he argues that Apprendi v.

New Jersey, — U.S.—, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), requires that the drug quantities used in sentencing be found by a jury. In reviewing a district court’s denial of a motion for acquittal based on insufficiency of the evidence, we consider the evidence in the light most favorable to the verdict and reverse only if no reasonable jury could have found that the defendant is guilty beyond a reasonable doubt. See United States v. Lacey, 219 F.3d 779, 783 (8th Cir.2000).

Although Chavez does not specify the alleged defects in the State’s evidence, his arguments center on two contentions: (1) the State failed to prove the agreement element of the conspiracy charges, and (2) the State’s witnesses were so lacking in credibility that their testimony was insufficient to support a guilty verdict. To be guilty of conspiracy, a defendant must have knowingly entered into an agreement with at least one other person to violate the law. See id. The government may prove facts in issue in a criminal case by circumstantial as well as by direct evidence. See United States v.

Thomas, 914 F.2d 139, 141-42 (8th Cir.1990). “The facts and circumstances relied on by the government must be consistent with guilt, but they need not be inconsistent with any other reasonable hypothesis, and it is enough to convict if the entire body of evidence is sufficient to convince the jury beyond a reasonable doubt that the defendant is guilty.” Id. (quoting United States v. Wisdom, 534 F.2d 1306, 1309 (8th Cir.1976)). Sixteen witnesses appeared for the Government.

Collectively, they testified that Chavez sold, distributed, and possessed methamphetamine, that he arranged for its delivery to Des Moines, that he Had a money collection system, and that he associated and conducted business with other known drug dealers. Because this evidence was more than sufficient for the jury to conclude that Chavez knowingly entered into an agreement to violate the law, the district court properly declined to grant the motion for a verdict of acquittal on those grounds.

Chavez also claims that the district court should have granted his motion because the Government’s witnesses were unreliable. Among other things, he argues that various witnesses had improper interests in testifying, gave testimony that conflicted with that of other witnesses, or were categorically untrustworthy. He also contends that certain witnesses were improperly permitted to give testimony for which no proper foundation had been laid.

In ruling on a motion for acquittal, the role of the district court is not to weigh evidence or consider the credibility of the witnesses, but rather to determine whether the Government has presented evidence on each element sufficient to support a jury verdict. See Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); United States v. Bredell, 884 F.2d 1081, 1082 (8th Cir.1989). Questions of credibility are the province of the jury. See United States v. Fuller, 942 F.2d 454, 458 (8th Cir.1991).

The district court had neither the duty nor the authority to grant Chavez’s motion based on witness credibility. Because we have also reviewed Chavez’s claims that certain testimony should have been excluded for lack of proper foundation and find them to be without merit, we conclude that the district court committed no error in denying Chavez’s motion for a judgment of acquittal. We turn, then, to Chavez’s Apprendi claim.

According to Apprendi, the constitution requires that “... any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” - U.S. at-, 120 S.Ct. at 2363; see United States v. Aguayo-Delgado, 220 F.3d 926, 930 (8th Cir.2000). Chavez was convicted of possession with intent to distribute methamphetamine, two counts of distribution of methamphetamine, and conspiracy to distribute methamphetamine. The statutory maximum for each of these crimes, even assuming the minimum quantities of methamphetamine found by the jury, is a life sentence.

See 21 U.S.C. §§ 841(b)(1)(

A) and 846. Therefore, because none of Chavez’s sentences exceeds the statutory maximum, Apprendi is inapplicable. See Aguayo-Delgado, 220 F.3d at 929-30 (upholding sentence based on judge’s findings of drug quantities where sentence was within range authorized by statute for defendants with prior convictions without regard to drug quantity); accord United States v. Hernandez-Guardado, 228 F.3d 1017, 1026-27 (9th Cir. 2000); United States v. Corrado, 227 F.3d 528, 541 (6th Cir.2000); United States v. Smith, 223 F.3d 554, 565-66 (7th Cir.2000). Cf. United States v.

Nordby, 225 F.3d 1053, 1058-59 (9th Cir.2000) (holding Apprendi mandated reversal where only finding of drug quantity was by preponderance of the evidence by sentencing judge and sentence exceeded statutory maximum prescribed for minimal drug quantities). The judgment is affirmed. . The Honorable Harold D, Vietor, United States District Judge for the Southern District of Iowa.