Submitted: November 14, 2016
from United States District Court for the Western District of
Missouri - St. Joseph
RILEY, Chief Judge, SMITH and KELLY, Circuit Judges.
Mannings appeals his sentence, challenging the district
court'sfindings regarding drug quantity and two
Sentencing Guidelines enhancements, as well as the
reasonableness of the sentence. Having jurisdiction under 28
U.S.C. § 1291, we affirm.
February 25, 2013, a federal grand jury for the Western
District of Missouri returned a superseding indictment
against Mannings and seven other defendants. Mannings was
charged with seven counts related to the distribution of
cocaine base (crack cocaine) and powder cocaine in the St.
Joseph, Missouri, area from January 1, 2009 to February 20,
2013. Mannings initially pleaded guilty to one count of
conspiracy to distribute crack cocaine and powder cocaine
pursuant to a binding written plea agreement executed under
Rule 11(c)(1)(C) of the Federal Rules of Criminal
Procedure. In the agreement, the parties stipulated
that Mannings' base offense level was not less than 38.
The agreement prescribed a sentence of 300 months'
imprisonment, with 5 years of supervised release to follow. A
presentence investigation report (PSR) was prepared that
calculated Mannings' sentencing guideline range as 360
months to life.
receiving the PSR, Mannings moved to withdraw his guilty
plea. He was allowed to withdraw his plea on July 9, 2014,
and trial was reset for January 12, 2015. On January 8, 2015,
however, Mannings pleaded guilty to one count of conspiracy
to distribute a mixture or substance containing crack cocaine
in an amount of 280 grams or more, and powder cocaine in an
amount of 5 kilograms or more. Although there was no written
plea agreement, the government agreed to dismiss the
remaining six counts against Mannings and to move to withdraw
an Information to Establish Prior Conviction that had been
filed on March 4, 2013. An amended PSR was prepared, which
recommended a drug quantity that resulted in a base offense
level 36, and assessed a two-level enhancement because a
firearm "was possessed" and a three-level
enhancement for Mannings' aggravating role in the
offense. After a three-level reduction for acceptance of
responsibility, Mannings' total offense level was 38. At
a criminal history category III, the recommended sentencing
guideline range was 292-365 months. Mannings objected to the
drug quantity calculation and both enhancements.
sentencing hearing held on December 3, 2015, the government
presented two witnesses-a cooperating co-conspirator, Andre
Turner, and Special Agent (SA) Dimechi Herring from the
Bureau of Alcohol, Tobacco, Firearms, and Explosives. Taking
the matter under advisement, the court continued the
sentencing hearing to February 9, 2016, so it could review
the transcript of testimony. At the February 9 hearing, the
court overruled Mannings' objections and sentenced him to
292 months imprisonment, followed by a five-year term of
government bears the burden of proving by a preponderance of
the evidence the facts that support drug quantity and
sentencing enhancements. See United States v.
Gamboa, 701 F.3d 265, 267 (8th Cir. 2012) (role
enhancement); United States v. Muniz Ochoa, 643 F.3d
1153, 1156 (8th Cir. 2011) (enhancement for possession of
firearm); United States v. Payton, 636 F.3d 1027,
1046 (8th Cir. 2011) (drug quantity). "We review the
district court's application of the Guidelines to the
facts de novo; its factual findings for clear error; and the
ultimate sentence for reasonableness." United States
v. Hatcher, 501 F.3d 931, 933 (8th Cir. 2007).
first challenges the district court's calculation of drug
quantity, alleging the government's evidence was
unreliable and uncorroborated. The government's first
witness, Andre Turner, testified to his own firsthand
knowledge of Mannings' drug trafficking activity in the
St. Joseph area. He saw Mannings sell crack cocaine to
customers and knew how much Mannings charged. Turner
testified that he also purchased crack cocaine from Mannings,
which Turner would "break  down and distribute"
to others. Turner saw Mannings "cook" powder
cocaine into "ounces" of crack cocaine on a regular
basis, and described where and how Mannings did the cooks.
Turner's testimony was corroborated by SA Herring, the
case agent. SA Herring testified about surveillance
operations targeting Mannings and undercover buys of crack
cocaine from Mannings. SA Herring also testified about
interviews with other cooperating witnesses whose statements
were consistent with Turner's testimony about
Mannings' drug trafficking activity.
notes this testimony was not corroborated by evidence such as
audio or video recordings, fingerprint or DNA analysis, or
polygraphs of informants. But a court may "consider
uncorroborated hearsay evidence so long as the evidence has
sufficient indicia of reliability to support its accuracy and
the defendant is given a chance to rebut or explain it."
United States v. Garcia, 774 F.3d 472, 475-76 (8th
Cir. 2014) (per curiam). Here, the district court considered
the testimony of both a co-conspirator and an investigating
officer. See United States v. Walker, 688 F.3d 416,
421 (8th Cir. 2012) ("A sentencing court may determine
drug quantity based on the testimony of a co-conspirator
alone." (quoting United States v.
Sarabia-Martinez, 276 F.3d 447, 450 (8th Cir. 2002))).
Nevertheless, Mannings argues that neither witness was
credible: Turner because he testified in the hope of reducing
his own sentence; and SA Herring because his testimony was
based on statements from individuals who had a motive to
fabricate information. However, Mannings cross-examined both
witnesses on these purported weaknesses at sentencing and
argued the point to the district court. We afford district
courts wide latitude in choosing what information to consider
in determining drug quantity, and "the sentencing
court's assessment of the credibility of witnesses is
nearly unreviewable." United States v.
Mickelson, 378 F.3d 810, 822 (8th Cir. 2004) (quoting
United States v. Dierling, 131 F.3d 722, 736 (8th
Cir. 1997)). The district court did not err in relying on the
testimony presented to determine the total drug quantity for
purposes of establishing Mannings' base offense
Mannings asserts the district court erred in imposing a
two-level enhancement for possession of a firearm.
See USSG § 2D1.1(b)(1) ("If a dangerous
weapon (including a firearm) was possessed, increase by 2
levels."). Mannings points out he was not found in
possession of a firearm when he was arrested. But it is not
necessary that a defendant be seen with or using a firearm
for this enhancement to apply. United States v.
Anderson, 618 F.3d 873, 880 (8th Cir. 2010). Nor is the
government required to prove ownership of a firearm or the
premises on which it is found for a § 2D1.1(b)(1)
enhancement to apply. Id. SA Herring testified that
two firearms, along with a bulletproof vest, loose
ammunition, and approximately 37 grams of crack cocaine, were
found in a car Mannings had been seen driving during the
course of surveillance-a car registered to the mother of
Mannings' children. Turner testified that Mannings
carried a gun when he was "out in traffic or doing [drug
trafficking] business, " and that Mannings had been
involved in shootouts with other ...