United States Court of Appeals

                            FOR THE EIGHTH CIRCUIT



           No. 96-1292


United States of America,                *
                                         *
     Appellee,                           *
                                         *      Appeals from the United
     v.                                  *      States District Court for
                                         *      the Eastern District of
Rodrigo Q. Rodriguez, Also Known         *      Missouri.
as Poncho, Also Known as Jose            *
Luis Camacho Diaz,                       *
                                         *
     Appellant. *




           No. 96-1735


United States of America,                *
                                         *
     Appellee,                           *
                                         *
     v.                                  *
                                         *
Steven A. Glaus,                         *
                                         *
     Appellant. *




                    Submitted:    November 21, 1996

                         Filed:   May 5, 1997
Before McMILLIAN and MORRIS SHEPPARD ARNOLD,     Circuit Judges, and BOGUE,1
      District Judge.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

     Rodrigo Rodriguez and Steven Glaus were indicted, along with eight
others, for conspiracy to distribute, and to possess with the intent to
distribute, more than one kilogram each of heroin and methamphetamine.   See
21 U.S.C. § 841(a)(1), § 846.   The conspiracy was alleged to have existed
between December, 1992, and June, 1995.      After a seven-day trial, a jury
convicted both defendants and three co-defendants whose cases we do not
address in this opinion (a fourth co-defendant whose case we do not address
here was convicted after a separate two-day trial).   See also United States
v. Bryson, Nos. 96-1265/1359/1362 (8th Cir. Apr. 7, 1997).


     The trial court sentenced Mr. Rodriguez to 292 months in prison,
Mr. Glaus to 300 months in prison and a $2,700 fine.         Both defendants
appeal their sentences.   We remand both cases for resentencing by the trial
court.
                                     I.
     At sentencing, the trial court attributed from three to ten kilograms
of heroin and/or methamphetamine to Mr. Rodriguez, which meant that his
base offense was set at level 34 under the federal sentencing guidelines.
See U.S.S.G. § 2D1.1(a)(3), § 2D1.1(c)(3).    The trial court also found that
Mr. Rodriguez was an organizer or leader in a crime that involved five or
more participants or was otherwise extensive; that finding added four
levels   to Mr. Rodriguez’s offense level.        See U.S.S.G. § 3B1.1(a).
Finally, the trial court refused to allow a two-level decrease for




     1
      The Honorable Andrew W. Bogue, United States District Judge
for the District of South Dakota, sitting by designation.

                                    -2-
acceptance of responsibility, see U.S.S.G. § 3E1.1, and instead imposed a
two-level increase for obstruction of justice, see U.S.S.G. § 3C1.1.


        Mr. Rodriguez challenges all of those decisions by the trial court
and argues in addition that the trial court should have applied to him a
provision in the drug laws that requires a trial court to impose a sentence
below a statutory minimum if the defendant meets certain criteria.            See 18
U.S.C. § 3553(f).    We consider Mr. Rodriguez’s arguments in turn and look
first    to   the   amount   of   drugs    appropriately    attributed   to     him.
(Mr. Rodriguez’s given name is actually Jose Luis Camacho Diaz, but since
he was indicted, tried, convicted, and sentenced under the name "Rodrigo
Rodriguez," we use it in this opinion for the sake of simplicity.)


        Robert Avila (a co-defendant who pleaded guilty and testified for the
government) testified that Mr. Rodriguez was his sole source for heroin and
his primary source for methamphetamine.         Mr. Avila also testified that when
he personally did not send to others the heroin and methamphetamine that
he got from Mr. Rodriguez, he gave Mr. Rodriguez the addresses where the
drugs should go and that Mr. Rodriguez then packed the drugs and sent them
to those addresses through a private shipping service.           The owner of the
private shipping service testified that in the relevant 22-month period,
Mr. Avila or someone who was sent by Mr. Avila (whom for the purposes of
this opinion we will presume to be Mr. Rodriguez or one of his workers)
used the service approximately six times per month (which would total 132
packages).
        Even assuming, however, that most of those packages contained heroin
or methamphetamine from Mr. Rodriguez, we have no evidence of how much of
either drug was in any individual package, despite Mr. Avila’s testimony
that he bought from fifteen to eighteen grams




                                          -3-
of heroin from Mr. Rodriguez in the last six months of 1993, that he sent
from four to six ounces of heroin and approximately four ounces of
methamphetamine to St. Louis in the first six months of 1994, that he sent
from eight to twelve ounces of heroin and from four to eight ounces of
methamphetamine to St. Louis in the last six months of 1994, and that he
sent from four to five ounces of heroin and from eighteen to twenty ounces
of methamphetamine to St. Louis in the first three months of 1995 (for a
maximum total of almost twenty-four ounces of heroin and approximately
thirty-two ounces of methamphetamine -- or 1,588 grams, for sentencing
purposes).   That total is far less than the three kilograms necessary to
sustain the base offense level given to Mr. Rodriguez.


     At sentencing, the government suggested that it would be reasonable
to attribute one ounce of drugs to each package.   The difficulty with that
approach, as we see it, however, is that it amounts to little more than
speculation, especially since the owner of the private shipping service
testified that sometimes Mr. Avila brought in unsealed packages that
contained only "clothes, personal items, that sort of thing."     There is
nothing in the record from which we can discern how many packages had drugs
and how many did not.
     In addition, the government relied exclusively on its suggested
method of calculating the drug amounts and disclaimed reliance on drug
amounts attributable to Ronnie and Henrietta Furnish (co-defendants whose
cases we do not address here).     We are therefore unclear about whether
amounts attributable to the Furnishes could be used with respect to
Mr. Rodriguez.   Finally, because the trial court made no specific findings
with respect to whether drugs attributable to Linda Bryson and Paul Logan
(co-defendants whose cases we do not address here) could also be attributed
to Mr. Rodriguez, we are uncertain on that question as




                                    -4-
well.    We therefore remand Mr. Rodriguez's case for resentencing in light
of all of these uncertainties.       See, e.g., United States v. Randolph, 

, 609 (8th Cir. 1996), and United States v. Caldwell, 

,
527 (8th Cir. 1996), cert. denied, 

(1996).


                                        II.
        The trial court found that Mr. Rodriguez was an organizer or leader
in a crime that involved five or more participants or was otherwise
extensive.    See U.S.S.G. § 3B1.1(a).     Mr. Rodriguez contends that the trial
court's determination in that respect was clearly erroneous.           See, e.g.,
United States v. Maxwell, 

, 1399 (8th Cir. 1994), cert. denied,

(1994).      We disagree.


        The adjustment for being an organizer or leader is intended to
reflect relative responsibility compared to other participants in the
crime.    See U.S.S.G. § 3B1.1, background.     In deciding whether to apply the
adjustment,    a   court   should   consider   the   defendant's   decision-making
authority, the nature of the defendant's participation in the crime,
whether the defendant recruited accomplices, whether the defendant claimed
a right to more profits from the crime, the degree of the defendant's
participation in planning or organizing the offense, the nature and scope
of the crime, and the degree of the defendant's control and authority over
others.    See U.S.S.G. § 3B1.1, application note 4.       We also note that the
five-participant requirement does not necessarily mean five participants
under Mr. Rodriguez's direction (as he seems to contend in his brief) but,
instead, five persons (including Mr. Rodriguez) involved in the overall
crime, only one of whom need have been under Mr. Rodriguez's direction.
See U.S.S.G. § 3B1.1, application note 1, application note 2; and United
States v.




                                        -5-
Boutte, 

, 860 (5th Cir. 1994), cert. denied, 

(1994).


        Evidence was presented at trial (no additional evidence was presented
at sentencing) from which the trial court could infer that, at one time or
another during the period of the conspiracy, Mr. Rodriguez was in charge
of at least four houses where people could order heroin by telephone.     At
Mr. Rodriguez's direction, runners would then deliver the drugs to the
customer at some other place.     There were at least two runners at two of
the houses and possibly three runners at one house.           Mr. Avila and
Mr. Rodriguez acted together to arrange shipments of drugs to various
people in St. Louis, including Steven Glaus (a co-defendant), who received
some packages of two to three ounces of heroin, an amount from which the
trial court could easily infer an intent for or knowledge of, on the part
of Mr. Rodriguez, further distribution by the recipient of the drugs.     We
believe that all of that evidence is sufficient to sustain the trial
court's finding that Mr. Rodriguez was an organizer or leader in a crime
that involved five or more participants or was otherwise extensive.     See,
e.g., United States v. Flores, 

, 86-87 (8th Cir. 1992), cert.
denied, 

(1992).
                                     III.
        In deciding whether to grant a two-level decrease in offense level
for acceptance of responsibility, a court should consider whether the
defendant truthfully admitted the acts involved in the crime and in any
additional relevant conduct and whether the defendant did so in a timely
manner.     See U.S.S.G. § 3E1.1, application note 1(a), application note
1(h).     We review for clear error a trial court's refusal to grant a
decrease for acceptance of responsibility.      See, e.g., United States v.
Johnigan, 

, 1338 (8th Cir. 1996).




                                     -6-
      Mr. Rodriguez testified at trial.       He stated that beginning in mid-
1993, even though he "didn't want to," he worked for Mr. Avila in various
houses where people could order drugs by telephone, specifically heroin
(and cocaine).       Mr. Rodriguez contended that the houses were rented and
furnished by Mr. Avila, who also supplied the drugs.          Mr. Rodriguez stated
that he worked alone but knew of one house where two people worked.           Later,
he testified, he worked at a few different houses with his cousin as a co-
worker.      Mr. Rodriguez specifically denied packing and sending drugs
through the private shipping service; he contended, moreover, that he never
provided or sold any methamphetamine to Mr. Avila.       In contrast, Mr. Avila
testified at trial that his sole source for heroin and his primary source
for methamphetamine was Mr. Rodriguez and that Mr. Rodriguez packed and
sent both types of drugs through the private shipping service at his
direction.


      Obviously, the testimony of Mr. Avila and that of Mr. Rodriguez are
in   conflict   in    several   material   ways.   It   was    the   trial   court's
prerogative, however, to credit the testimony of Mr. Avila and to discount
the testimony of Mr. Rodriguez.        See, e.g., United States v. Campos, 

, 264 (8th Cir. 1996), cert. denied, 

(1996).               In
doing so, the trial court necessarily also determined that Mr. Rodriguez
was not completely truthful about his actions in support of the crime and,
accordingly, that Mr. Rodriguez had not accepted responsibility for those
actions.   We see no clear error in that determination.         See, e.g., United
States v. Thomas, 

, 489 (8th Cir. 1996); United States v.

; and United States v. Contreras, 

,
1059 (8th Cir. 1991), cert. denied, 

(1991).
      A court may increase a defendant's offense level by two levels for
obstruction of justice if the court decides that the defendant




                                       -7-
committed perjury.    See U.S.S.G. § 3C1.1, application note 3(b).           We review
for clear error a trial court's determination         in that regard.       See, e.g.,
United States v. Kime, 

, 886 (8th Cir. 1996), cert. denied, 

(1997).


        At sentencing, after discussion with the lawyers for the government
and for Mr. Rodriguez in which they argued about both the extent of
"deceit"    associated   with    Mr.    Rodriguez's   trial     testimony     and   the
contradictions between his testimony and Mr. Avila's testimony, the trial
court    simply   "den[ied]"    Mr.   Rodriguez's   objection    to   the    two-level
increase.    Ordinarily, we believe that in considering whether a defendant
obstructed justice, it is preferable for a court to make specific findings
with respect to instances of perjury by a defendant.          The nature and extent
of the discussion in this case, however, are sufficient for us to hold that
the trial court's decision to impose the two-level increase for obstruction
of justice is not clearly erroneous.        See, e.g., United States v. 

; United States v. Wonderly, 

, 1025 (8th Cir.
1995), cert. denied, 

(1996); United States v. Maxwell, 

, 1400 (8th Cir. 1994), cert. denied, 

(1994); and
United States v. Ryan, 

, 672-73 (8th Cir. 1993), aff'd in
pertinent part, 

(8th Cir. 1994) (en banc), cert. denied, 

(1995).
        We note that among the criteria for the imposition of a sentence
below a statutory minimum is the requirement that the defendant was not an
organizer or leader in the crime.              See 18 U.S.C. § 3553(f)(4).           As
discussed above, we see no clear error in the trial court's finding that
Mr. Rodriguez was an organizer or leader in this case.          He is therefore not
eligible for the imposition of a sentence below the statutory minimum
applicable in this case.




                                         -8-
                                         IV.
        The difficulties with respect to the relevant amount of drugs, and
hence the appropriate base offense level, that infect Mr. Rodriguez's
sentence also infect Mr. Glaus's sentence.        The evidence at trial supports
a finding that Mr. Glaus was specifically associated with two sales to a
government informant, totaling roughly fifty-two grams of methamphetamine;
with almost twenty-four grams of heroin recovered after a burglary of his
house; and with almost forty-eight grams of heroin recovered from a package
that was intercepted by the police (for a total of approximately 124
grams).    Construed most harshly, the evidence also ties Mr. Glaus to six
or seven shipments of one ounce of methamphetamine (approximately 198
grams) and nine additional packages of drugs (documented by receipts).
Even assuming, however, that each of those nine packages contained three
ounces of heroin (the most that was ever sent to Mr. Glaus at one time,
according to the testimony of Mr. Avila), that total of approximately 765
grams plus the other amounts specified above (322 grams) aggregate to only
1,087 grams, far less than the three kilograms necessary to sustain the
base offense level given to Mr. Glaus.
        It is true that the owner of the private shipping service (through
which Mr. Avila sent the packages of drugs) testified that Mr. Avila or
someone who was sent by him used the service approximately six times per
month over the relevant 22-month period.         It is also true that Mr. Avila
testified that he eventually sent two to three ounces of heroin at a time
to Mr. Glaus.       Mr. Avila did not testify, however, about the frequency with
which he sent heroin to Mr. Glaus after the amounts increased to two to
three     ounces.       We   know,   moreover,   that   Mr.   Avila   was   sending
methamphetamine to Linda Bryson (a co-defendant whose case we do not
address here) during the same period.




                                         -9-
      Finally, at sentencing, although the probation officer testified that
she relied on "information provided by the government" to arrive at the
figure of three to ten kilograms of drugs attributable to Mr. Glaus, she
also testified that she did not read a trial transcript, that she did not
use   records of the private shipping service, that she did not use
Mr. Avila's testimony to find specific amounts, and that she did not
personally add up the total given to her by the government.                         The trial
court,   moreover,        made   no    specific       findings   with   respect     to   drugs
attributable        to   other   defendants      that    could   also   be   attributed     to
Mr. Glaus.     Under all of these circumstances, we are concerned that the
quantity of drugs that could or should be attributed to Mr. Glaus is just
too uncertain at this point to sustain a base offense level that requires
at least three kilograms.             We therefore remand his case for resentencing
in light of the uncertainties described.                   See, e.g., United States v.
Caldwell, 

, 527 (8th Cir. 1996), cert. denied, 

(1996), and United States v. Alexander, 

, 267-68 (8th Cir.
1992).


                                                V.
      Mr. Glaus challenges the trial court's imposition of a three-level
increase in offense level for being a manager or supervisor in a criminal
activity     that    involved    five     or    more    participants    or   was    otherwise
extensive.    See U.S.S.G. § 3B1.1(b).           Mr. Glaus contends that there was no
evidence showing his management or supervision of any other participant in
the conspiracy (he does not contest the size or scope of the conspiracy).
See U.S.S.G. § 3B1.1, application note 2.
      That argument borders on the frivolous, in our view.                         Two police
officers and a government informant testified at trial (no additional
evidence was presented on this point at sentencing) that the government
informant set up a methamphetamine purchase by




                                               -10-
paging Mr. Glaus, who instructed the government informant that the person
delivering the drugs would be wearing a jacket with "Arizona" on it.                A
person who was not Mr. Glaus subsequently arrived, wearing the jacket, in
what Mr. Glaus concedes was Mr. Glaus's car.         We see no clear error in the
trial court's determination that Mr. Glaus managed or supervised at least
one   other participant in the crime and was therefore a manager or
supervisor in a crime that involved five or more participants or was
otherwise extensive.      See, e.g., United States v. Skorniak, 

,
757 (8th Cir. 1995), cert. denied, 

(1995).


                                        VI.
      In determining the appropriate drug amounts to be attributed to a
defendant,   a    court   may   "approximate   the   quantity   of   the   controlled
substance" by considering such matters as "the price generally obtained for
the   controlled substance, financial or other records, [and] similar
transactions in controlled substances by the defendant."               See U.S.S.G.
§ 2D1.1, application note 12.      We understand the difficulty that the trial
court faced in attempting to approximate the relevant drug amounts for
Mr. Rodriguez and Mr. Glaus from trial testimony that was often imprecise
and   sometimes    even   contradictory.       We    believe,   however,    that   the
approximations reached by the trial court have simply too tenuous a
connection to the evidence presented at trial to sustain the base offense
levels that were assigned.        For the reasons stated, therefore, we remand
for resentencing the cases of Mr. Rodriguez and Mr. Glaus.
      A true copy.


             Attest:


                   CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                       -11-