author: SMITH, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Robert Allen KING, Defendant-Appellant
    No. 15-3611
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 20, 2016
    Filed: April 14, 2017

      Counsel who represented the appellant was Jennifer Marie Macaulay of Saint Paul, MN.
    Counsel who represented the appellee was Michael L.. Cheever, AUSA, of Minneapolis, MN.
    Before WOLLMAN, SMITH, and COLLOTON, Circuit Judges.

      . The Honorable Lavenski R. Smith became Chief Judge of the United States Court of Appeals for the Eighth Circuit on March 11, 2017.

   SMITH, Circuit Judge.

A jury convicted Robert Allen King of possession with intent to distribute 50 grams or more of actual methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). The district court sentenced King to 180 months’ imprisonment, followed by five years of supervised release. King appeals his conviction and sentence. He asserts the following trial errors: (1) the district court erred in admitting a cooperation agreement into evidence at trial; (2) the district court erred by not ordering a mistrial based on his defense counsel’s conflict of interest as a potential •witness; and (3) sufficient evidence supports his public-authority defense. King also asserts the following sentencing errors: (1) the district court erred in denying his motion for retesting the purity of the methamphetamine and his motion for reconsideration of the denial of that motion; (2) the district court erred in applying an obstruction-of-justice enhancement; and (3) the district court erred in denying him an adjustment for acceptance of responsibility. For the reasons stated below, we affirm.

I. Background

In 1996, King pleaded guilty to conspiring to distribute and possess with intent to distribute cocaine. He served a total of 168 months’ imprisonment for this federal drug-trafficking offense. After his release from prison in 2012, King resumed selling drugs. Law enforcement discovered and investigated his new enterprise.

On July 10, 2013, the Southwest Henne-pin Drug Task Force (SWHDTF) executed search warrants at King’s home and at the home of his supplier, Marlon Bettencourt. The SWHDTF discovered a gallon-size plastic bag with methamphetamine residue at King’s home and heroin and other drugs at Bettencourt’s home. To avoid charges, King cooperated with law enforcement. On July 15, 2013, King and his longtime attorney, Allan Caplan, met with Sergeant Brady Sweitzer and Officer Todd Hinz of the SWHDTF. The SWHDTF enlisted King as a confidential reliable informant (CRI). King signed a cooperation agreement with the Hennepin County Sheriffs Office (HCSO). That cooperation agreement included a list of rules for King to follow (“Attachment B”). In Attachment B, King agreed “not to participate in any investigations or any criminal activities unless the investigation is being directly supervised by an investigator of the HCSO”; “not to break any laws or commit any crimes while working for the HCSO”; and “not [to] use any illegal drugs” or “handle any illegal drugs unless specifically authorized to do so by the HCSO.” SWHDTF officers reviewed the cooperation agreement with King, and King initialed each rule and signed the agreement. He also indicated his understanding “that the task force may terminate this agreement at any time” and that “[violation of any of the above enumerated provisions will be grounds for immediate removal as a Cooperating Individual and the possible filing of criminal charges.” In addition to Attachment B, the cooperation agreement included a few other documents, such as a signature page and a biographical information sheet.

For the next two months, King worked as a CRI for the SWHDTF. He made two controlled deliveries of cash, participated in a controlled buy of cocaine, and arranged for the takedown of a load car. Bung’s status as a CRI ended after the takedown of the load car carrying 20 pounds of methamphetamine in September 2013. After this investigation concluded, “it was made clear to King that his status as a CRI was terminated.” King told the SWHDTF officers that he was moving to Spokane, Washington, with his girlfriend to work in a friend’s computer-software business.

King, however, did not move at that time to Spokane, Washington. On October 22, 2013, at 2:20 a.m., King called Officer Hinz and told Officer Hinz that he wanted to provide information about a heroin dealer staying in a Minneapolis hotel who was selling heroin and possessed a handgun. King told Officer Hinz that he had learned the information when “he had taken somebody over to the hotel presumably to pick up heroin.” Officer Hinz “explained to King that his status as a CRI was complete” and “asked him why he was in Minneapolis” because King had previously told Officer Hinz that he was moving to Washington. According to Officer Hinz, King replied “that he was back in town for a couple of days taking care of some things. - He then said that he didn’t like people selling heroin and to consider his information as a ‘Freebie.’ ”

In January 2014, King, with the aid of attorney Caplan, sought to resume work as a drug informant. He offered to provide information regarding heroin dealers as third-party cooperation on behalf of his girlfriend, who was facing revocation of her probation in Hennepin County. The Hennepin County Attorney’s office, however, declined King’s proposed third-party cooperation offer. Thereafter, King stopped contacting the SWHDTF officers.

After learning that King had resumed his own methamphetamine trafficking in December 2013 or January 2014, the special investigations unit of the Richfield Police Department began investigating him. A confidential informant told Richfield officers that King was selling methamphetamine from his home in south Minneapolis. After determining that King no longer worked as- an informant for Hennepin County, Richfield Police Officer Dustin Schwarze obtained a search warrant for King’s'home in February 2014.

The Minneapolis Special Weapons and Tactics team (SWAT) executed the search warrant during the early morning hours. SWAT entered the house and identified itself. In reaction, King began throwing methamphetamine and other items out of his bedroom window. Officer Schwarze saw King open the window and throw the methamphetamine out using both hands. Although Officer Schwarze yelled at King to show his hands and stop, King ignored this command and continued throwing the drugs out of the window. King stopped only when SWAT apprehended him.

Law enforcement recovered large, un-packaged crystalline chunks of methamphetamine, packaged methamphetamine, and other evidence from the roof, sidewalk, and window sill of King’s home. Officers recovered additional methamphetamine in King’s bedroom, as well as packaging materials and over $4,500 in cash.

SWHDTF officers interviewed King after his arrest. In that recorded interview, King admitted owning the methamphetamine found at the house. He said that he had been selling about a pound per week. King said that when he heard SWAT enter and announce its presence, he tried to dispose of the methamphetamine by throwing it out of his bedroom window. After the officers stopped recording the interview, King told them that he wanted to cooperate to avoid charges or perhaps receive a lower sentence, if charged. King never claimed that he thought that he was still working as an informant.

The Richfield Police Department told King and attorney Caplan that it would not work with King as a cooperator. King then had Caplan contact the Drug Enforcement Agency and the United States Attorney’s Office. Caplan was told that King would not be permitted to cooperate in the case. After his indictment, King met with Ca-plan, who suggested a public-authority defense strategy. King thereafter claimed that he had “total immunity” for selling drugs based on a cooperation agreement with law enforcement.

At trial, the jury rejected King’s public-authority defense and found him guilty. Prior to sentencing, King moved to retest the methamphetamine, but the district court ultimately denied that motion, as well as King’s subsequent motion for reconsideration. The presentence investigation report (PSR) stated that King was “responsible for a quantity ranging from 175.019 to 205.235 grams of methamphetamine (actual)” and calculated a base offense level of 32. At sentencing, the Minnesota Bureau of Criminal Apprehension (BCA) chemist who tested the methamphetamine confirmed that amount, and the district court accepted it. After applying an obstruetion-of-justice enhancement and denying an adjustment for acceptance of responsibility, the district court calculated a Guidelines range of 188 to 235 months’ imprisonment. After hearing argument from counsel, the district court sentenced King to 180 months’ imprisonment, followed by five years of supervised release.

II. Discussion

King appeals his conviction and sentence. He asserts that three trial errors and three sentencing errors warrant reversal.

A. Trial

First, King asserts the following trial errors: (1) the district court erred in admitting a cooperation agreement into evidence at trial; (2) the district court erred by not ordering a mistrial based on his defense counsel’s conflict of interest as a potential witness; and (3) sufficient evidence supports his public-authority defense.

1. Cooperation Agreement

King first challenges the district court’s admission of Attachment B of the cooperation agreement. At trial, the government moved to introduce Attachment B. King’s counsel initially objected, arguing that it was “not the entire agreement.” The court asked the government to “lay some more foundation.” The government then asked King whether he was “given a single page that had all the rules that [he] had to follow on it,” and King replied, “I was given a packet of papers.” The government then clarified that it was “asking about the rules that [King] w[as] required to follow.” King replied, “This is one piece of the packet, yes.” The government again moved to admit Attachment B, and King’s counsel replied, “No objection.”

On appeal, King argues that the district court abused its discretion by permitting the government to establish the details of King’s written cooperation agreement by submitting a single page of a multiple-page document and supplementing that evidence with testimony from law enforcement officers based on their “foggy” recollection about the remainder of the agreement.

In response, the government points out that King’s counsel stated that she had “[n]o objection” to Attachment B and argues that King waived any claim regarding its admission. King counters that his counsel never withdrew the original objection but instead just never “reasserted” that objection after the government laid more foundation.

We have previously “found pretrial objections waived when an appellant’s counsel affirmatively stated ‘no objection’ at trial to the admission of evidence previously sought to be suppressed.” United States v. Comstock, 531 F.3d 667, 675 (8th Cir. 2008) (quoting United States v. Gonzalez-Rodriguez, 239 F.3d 948, 951 (8th Cir. 2001)). For example, in Comstock we held that the “[defendant ‘consciously and intentionally waived any objection’ to the district court’s receipt of the evidence at issue in his pretrial suppression motion” when defense counsel responded “no objection” “each time the Government moved to admit evidence that [defendant's pretrial motion sought to suppress.” Id. (quoting United States v. Wedelstedt, 589 F.2d 339, 345-46 (8th Cir. 1978)).

We find the present case similar to Comstock. King’s counsel affirmatively stated “no objection” to the admission of the same evidence that counsel initially sought to exclude. As a result, King unconditionally, consciously, and intentionally waived any objection to the district court’s admission of Attachment B.

2. Counsel as Potential Witness

King next argues that the district court erred by failing to declare a mistrial sua sponte when it became clear at trial that his trial counsel would need to testify in response to the testimony of King’s prior counsel, Allan Caplan.

At trial, King called Caplan as a witness. Caplan testified that King entered the cooperation agreement with the SWHDTF so that King would not be charged for drug trafficking that he conducted “before” the agreement was reached. Caplan stated that the cooperation agreement did not give King permission to sell drugs on his own. He testified that if King had such an agreement, Caplan, as King’s attorney, would have contacted the SWHDTF as soon as he found out about the arrest and tried to enforce the agreement. Instead, Caplan stated that he worked with King in an attempt to arrange for King to cooperate in his new case to reduce his charges or his sentence. King’s trial counsel did not ask Caplan about prior statements that Caplan might have made that were inconsistent with his trial testimony.

After Caplan’s testimony was complete, and after a 15-minute break, King’s trial counsel told the district court that she had no more witnesses. The government then indicated -that it would call rebuttal witnesses. But before the government put on its first witness, King’s trial counsel told the court, out of the jury’s presence, “I have never faced this experience in 23 years, but the witness I just called did not say anything on the stand that I had expected him to. He told me something very different in my meeting with him Saturday.” King’s counsel explained that Caplan had, prior to trial, offered to corroborate King’s testimony that he worked for the authorities when he was arrested. King’s trial counsel expressed concern that she might have to become a witness herself to impeach Caplan’s testimony. The court allowed the government to proceed with its witnesses, advising King’s counsel that the court could take up the issue during surre-buttal, if any.

King’s trial counsel, however, never recalled Caplan to ask him about any prior statements. Nor did she allege during trial that any error occurred regarding Ca-plan’s testimony or move for a mistrial based on Caplan’s testimony. It was not until sentencing that King moved for a new trial based on Caplan’s allegedly inconsistent testimony. The district court denied the motion.

King now argues that the district court erred by not resolving whether his trial counsel was disqualified after Caplan, his former attorney, purportedly testified differently than his prior statement to trial counsel. According to King, his trial counsel would have had to testify as a defense rebuttal witness as to her recollection of that prior statement. King asserts that although his trial counsel brought this conflict to the court’s attention after the defense rested, the court never resolved the conflict. King contends that by failing to further address the issue, his trial counsel’s representation fell below an objective standard of reasonableness and that if counsel had followed up on this issue, she could have requested a mistrial.

To the extent that King asserts that he received ineffective assistance of counsel, we decline to consider this claim, as King’s case is not exceptional and should be raised in a habeas corpus action. See United States v. Golliher, 820 F.3d 979, 984 (8th Cir. 2016) (noting that we review Strickland claims on direct appeal only in exceptional cases).

And, because trial counsel never confronted Caplan with his prior inconsistent statements pursuant to Federal Rule of Evidence 613(b), trial counsel could not have testified that Caplan made prior inconsistent statements to her. See Fed. R. Evid. 613(b) (“Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires.”). At no time did King re-call Caplan to ask him about his prior statements, nor has King argued that any error occurred regarding Ca-plan’s testimony. At sentencing, King moved for a new trial based on Caplan’s allegedly inconsistent testimony, but the district court found that Caplan testified credibly and that contrary statements were not even plausible. On appeal, King has not identified any trial error that occurred regarding Caplan’s testimony.

Accordingly, we hold that the district court committed no error in not declaring a mistrial sua sponte.

3. Public-Authority Defense

King’s final allegation of trial error is that sufficient evidence exists to support his public-authority defense. King admits that he was guilty of possessing the methamphetamine and that it was at least 50 grams of actual methamphetamine. He contends that the real trial issue was whether he had public authority to possess the methamphetamine in question. He concedes that the burden of proof for this affirmative defense was on him, but he argues that his burden of proving the defense was not as high as the government’s burden of proof. He argues that sufficient evidence exists that he had a reasonable belief that he was permitted to possess the methamphetamine under the authority of law enforcement.

During trial, King moved the district court to enter judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29 at the close of the government’s case, and the district court denied the motion. He did not renew his motion for judgment of acquittal, pursuant to Rule 29 of the Federal Rules of Criminal Procedure, at the close of all evidence.

We hold that King’s claim fails whether we review de novo or under a plain-error standard. Compare United States v. Timlick, 481 F.3d 1080, 1082 (8th Cir. 2007) (providing motion for judgment of acquittal at close of government’s evidence preserves argument for appeal); United States v. May, 476 F.3d 638, 640 (8th Cir. 2007) (same); United States v. Vinton, 429 F.3d 811, 815 (8th Cir. 2005) (same), with United States v. Wadena, 152 F.3d 831, 853 (8th Cir. 1998) (providing failure to renew motion for judgment of acquittal at the close of all evidence results in plain-error review); Edwards v. United States, 333 F.2d 588, 589 (8th Cir. 1964) (same). King admits that he was guilty of possessing the methamphetamine and that it was at least 50 grams of actual methamphetamine. He has not argued on appeal that the government failed to present sufficient evidence to convict him of possession of methamphetamine; instead, his argument is that he produced sufficient evidence of his affirmative defense. Even King admits that “[h]e asserted a public authority affirmative defense, and apparently the jury ... did not believe the defense.” This defense turned on factual issues within the jury’s purview. Accordingly, we reject King’s argument that we should vacate his conviction based on his public-authority defense.

B. Sentencing

King next asserts the following sentencing errors: (1) the district court erred in denying his motion for retesting the purity of the methamphetamine and his motion for reconsideration of the denial of that motion; (2) the district court erred in applying an obstruction-of-justice enhancement; and (3) the district court erred in denying him an adjustment for acceptance of responsibility.

1. Retesting of Methamphetamine

The methamphetamine seized from King’s home was collected in eight packages that the government offered as exhibits at trial. Exhibits 16 and 17 contained methamphetamine found in sealed packages in King’s bedroom. Exhibit 7 was a sealed package of methamphetamine found in a laptop bag that King had thrown into the front yard. Exhibit 5 was methamphetamine contained in a package that had be'en torn open and was found on the front sidewalk. Exhibit 15 contained loose methamphetamine that was found on and around the window sill in King’s bedroom. Exhibits 8, 10, and 11 contained loose methamphetamine that was collected from the first-floor roof outside King’s bedroom. The eight drug exhibits were tested by the BCA forensic science laboratory in August 2014. All eight drug exhibits seized from King’s home were found to contain methamphetamine. The four largest exhibits (Exhibits 10, 11, 15, and 16) were further tested for purity and found to be 92 and 94 percent pure and to contain 175.019 to 202.235 grams of actual methamphetamine. The PSR reflected this drug quantity and recommended a base offense level of 32 pursuant to U.S.S.G. § 2D1.1(c)(4).

Prior to sentencing, King moved to have the four packages of methamphetamine that the BCA chemist had previously tested for purity retested by an independent laboratory. He asserted that the BCA chemist had “not tested the samples in a uniform manner.”

The district court ordered that King provide it with “supplemental information.” It ordered King to address four issues: (1) the fact that the drugs were in evidence as trial exhibits; (2) the untimeliness of King’s sentencing submissions, which “were due on August 28, 2015, with no further extensions to be granted”; (3) “why supplemental testing could not have been requested in advance of trial” given that discovery was ordered in July 2014; and (4) a “non-speculative basis to believe that the testing conducted by the [BCA] chemist who testified at trial is not reliable.” The district court directed that “[u]nless the defendant flies a supplemental memorandum by September 22, 2015, the motion will be denied.” On September 29, 2015, after receiving nothing further from King, the district court denied the motion.

King moved for reconsideration of his retesting motion. King’s counsel explained that she “did not address the Court’s Order requiring supplemental information because she was in trial when the Government filed its objections and when the Court issued the Order.” Counsel then addressed the four issues set forth in the district court’s prior order. The district court denied King’s motion for reconsideration.

At sentencing, King asserted for the first time that “one of the samples.... is pure cut, meaning it’s not methamphetamine at all. It’s literally just a powdered substance that’s used to mix with methamphetamine to reduce its purity.” The government then, called the BCA chemist to testify about her testing of the methamphetamine. The chemist explained the drug-testing process and confirmed that the four samples were each determined to be between 92 and 94 percent pure and that “the range of actual methamphetamine was 175.019 grams to 205.235 grams.” The chemist also testified that the type of “cut” that King claimed to have added to most of the methamphetamine was not present in the four samples that she tested for purity. Following the chemist’s testimony, King’s counsel made no further argument regarding the drug quantity and rested on King’s prior submissions.

The district court concluded that the PSR accurately reflected the drug quantity, as confirmed by the chemist’s testimony. The court also cited King’s testimony “that he was selling a pound of methamphetamine a week,” which further supported the drug-quantity finding. Based on the drug quantity, the district court calculated a base offense level of 32.

On appeal, King argues that the district court erred in denying his motion for retesting the purity of the methamphetamine and his motion for reconsideration of the denial of that motion. According to King, he specifically reserved the right to contest the purity and quantity for sentencing purposes despite his stipulation at trial that the drugs in question were at least 50 grams of actual methamphetamine. King admits that he missed the deadline to file a supplemental brief on his motion for retesting. He bases his argument on a Confrontation Clause violation. King contends that although the district court has the discretion to deny an untimely motion, the district court abused its discretion because denying the motion undermined his ability to confront the evidence against him in a meaningful way.

As King concedes, a district court has discretion to deny an untimely motion. See United States v. Zidar, 178 Fed.Appx. 673, 676 n.2 (9th Cir. 2006) (“We review a district court’s decision to deny an untimely motion for abuse of discretion.”). Furthermore, we review for an abuse of discretion a district court’s denial of a motion for reconsideration. United States v. Luger, 837 F.3d 870, 875 (8th Cir. 2016).

We hold that the district court did not abuse its discretion in denying King’s untimely motions because the district court had already given King ample opportunity to raise his motion for retesting in a timely manner. The district court gave King a four-week extension of time to file his sentencing materials; they were due on August 28, 2015. But King did not file his sentencing memorandum until August 31, 2015, and he did not file his motion for retesting until September 5, 2015. Although that motion was already untimely, the district court gave King until September 22, 2015, to file a supplemental memorandum in support of his motion for retesting. King did not file a supplemental memorandum during that time, and the district court denied his motion for retesting on September 29, 2015. King did not file the motion for reconsideration until October 7, 2015.

2. Obstruction of Justice

King next contests the district court’s imposition of an obstruction-of-justice enhancement. The PSR did not recommend it, but the government requested application of the enhancement based on King’s testimony at trial. At sentencing, the government argued that King’s “defense is a lie.” In support of this argument, the government asked the court to

recall that Mr. King testified about when he was working as a Cl on the Lagunas matter. Law enforcement found a small amount of methamphetamine shoved in a back seat of a car that he had rented, and they confronted him about it. And when they did that, he lied to them. He said, oh, that’s not my meth. I don’t know anything about it. If he had permission, he wouldn’t have had to lie about it. It would have been, oh, you know, that’s what I got to do to stay in the game, officer; instead he lied about it.
When law enforcement showed up at his house, he threw the drugs out the window. If he had permission to sell drugs, there was absolutely no need for him to get rid of them, which is what he testified he said he was doing.
Additionally, .... at the time of his arrest, he did not say anything to law enforcement about the fact that he was authorized to be selling these drugs. Instead what he did is tried to cooperate again, and he would not need to have cooperated again if this is all part of his lawful activity that he was engaged in.

King’s counsel replied that the officers’ behavior during the questioning of King indicated that King was cooperating with law enforcement all along. Counsel first made “clear” that she was “not asking for a retrial on this” because “[t]he jury found him guilty.” The court concluded that the enhancement applied, stating, “The obstruction is worth considering because the testimony that the defendant gave was unnecessarily perjurious. The testimony of the defendant took unfair and unreasonable advantage of this Court’s determination that the defendant’s prior federal drug conviction would not be part of the trial.” Specifically, King had the 1996 drug-trafficking conviction for which he served a total of 168 months’ imprisonment. During trial, the government did not cross examine him about that prior conviction. The court pointed out that King said, for example, with respect to the methamphetamine in the trunk of his car, the defendant’s testimony was that he was surprised by being there. That’s fine. That’s consistent with his defense that he didn’t know it was there.

But then he said, but he was also a little fearful because, quote, “I didn’t know what was going to happen because I had never been in that actual situation with law enforcement before in all my time of working with them. It just had never happened before.”

And throughout the testimony, Mr. King gave the impression that he was a long-time drug informant, which he does have a history of getting arrested and working it off. But the assertions that he was given carte blanche complete immunity to sell what he wanted, keep the money, and so on, were not supported by any credible testimony.

So the testimony that he’s been cooperating since 1987. So here this is on page 11 of the trial transcript to the question:

“What promise did they give you?” The defendant answered, “I would get total immunity, and I would walk away.” Well, that was untrue. But then another question:

“And you mentioned a minute before that you had cooperated with law enforcement before, is that correct?”

Answer: “Yes, I have. Since 1987 the first time.

Question: I’m sorry?
Answer: The first time in 1987.
Question: About how many times?
Answer: I had an ongoing agreement with the BCA, the Minnesota Bureau of Criminal Apprehension from 1987 to about 1992. I assisted them on probably 20 investigations responsible for many loads of dope, ten kilos of cocaine.
Question: Any other organization you worked for besides the BCA since 1987?
Answer: BCA, DEA, U.S. Marshals. I provided assistance to U.S. Marshals in a fugitive apprehension in California in 1993. I’ve worked with the DEA. I was assigned by the DEA in 2009.”
All of that is designed to leave the impression that the defendant has been a helper of law enforcement over all these years, whereas in truth and in fact, and as he well knew, he had spent some 168 of those months in federal custody related to his prior drug charge.
So going to trial is his absolute right. There’s no difficulty at all going to trial. And there’s no obstruction in going to trial. But testifying falsely, and we’re not even talking about the post-conviction affidavit submitted by the defendant, which contains assertions about the drug purity that are simply not plausible given the testimony that we’ve had here from the chemist. Or common sense, for that matter.
The defendant testified that he had a college GPA of 3.97. I was very curious to see that borne out in the presentence investigation report, but there’s no indication of any college at all, let alone college with a GPA of 3.97 in the PSR. And there were no formal or informal requests to correct that. So that seems to have been an attempt to begin the testimony with something that would impress the jury. So those are the factors that are of concern to the Court. Not the fact that he went to trial.
It’s not even that he testified about his understanding with the government about cooperation. It would even be one thing to testify I thought I had this deal. I thought Mr. Caplan told me I had absolute immunity, and I could do whatever I want. Sell pounds a week, do whatever I wanted. You know, maybe I’m wrong about that, but that was my legitimate understanding. That’s one thing.
But in the details that I’ve talked about, the testimony seemed to go beyond that defense....

(Emphases added.)

The district court concluded that King had “attempted to obstruct justice” and, after applying that adjustment, found a total offense level of 34.

On appeal, King argues that none of the grounds that the district court identified as a basis for obstruction of justice justify application of the enhancement. King contends that, even assuming the court raised valid concerns about his testimony, they still do not justify the enhancement because “it cannot be sufficient to find that Mr. King obstructed • justice merely because the district court disbelieved his testimony or found it to be misleading.”

“We review the district court’s factual findings underlying an adjustment for obstruction of justice for clear error, giving great deference to the sentencing court’s determination.” United States v. Brown, 539 F.3d 835, 839 (8th Cir. 2008). Section 3C1.1 of the Guidelines states:

If (1) the defendant, willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense, increase the offense level by 2 levels.

U.S.S.G. § 3C1.1. “Application note 4 to § 3C1.1 is a non-exhaustive list of examples of the types of conduct to which the enhancement applies.” United States v. Edwards, 820 F.3d 362, 365 (8th Cir. 2016). “[Cjommitting, suborning, or attempting to suborn perjury” constitute types of conduct to which the enhancement applies. U.S.S.G. § 3C1.1 cmt. n.4(B). A district court may apply the two-level increase under § 3C1.1 if it “finds by a preponderance of the evidence that a defendant committed perjury, i.e., that he willfully testified falsely as to a material matter.” United States v. Reid, 827 F.3d 797, 801 (8th Cir. 2016); see also United States v. Waters, 799 F.3d 964, 974 (8th Cir. 2015) (“Perjury occurs when a witness ‘gives false testimony concerning a material matter with the wilfull intent to provide false testimony.’ ” (quoting United States v. Petrovic, 701 F.3d 849, 859 (8th Cir. 2012))).

“‘Material’ evidence, fact, statement, or information, as used in this section, means evidence, fact, statement, or information that, if believed, would tend to influence or affect the issue under determination.” U.S.S.G. § 3C1.1 cmt. n.6. Even if “the district court neglect[s] to address whether the false testimony was material,] ... this court has affirmed a finding of obstruction of justice where the finding is ‘strongly supported by the record.’ ” United States v. McDonald, 826 F.3d 1066, 1071 (8th Cir. 2016) (quoting United States v. Nshanian, 821 F.3d 1013, 1019 (8th Cir. 2016)). The false testimony or statements need not have caused the government actual prejudice to be material. See Edwards, 820 F.3d at 365-66 (holding district court properly applied obstruction of justice enhancement even though the defendant’s actions did not actually prejudice government; although one example given in application notes to Sentencing Guidelines provided that a defendant had to actually obstruct or impede an investigation for the obstruction of justice enhancement to apply, two other examples, which were relevant to defendant’s conduct, involving an attempt to suborn testimony or influence a co-defendant, permitted application of the enhancement based only on an attempt to obstruct justice, regardless of whether the attempt was successful).

“The enhancement does not apply when the false testimony is simply due to the defendant’s ‘confusion, mistake, or faulty memory.’ ” Waters, 799 F.3d at 974 (quoting U.S.S.G. § 3C1.1 cmt. n.2). “Before imposing an enhancement under § 3C1.1, the district court ‘must review the evidence and make independent findings necessary to establish a willful impediment to, or obstruction of, justice.’ ” United States v. Whiting, 522 F.3d 845, 850 (8th Cir. 2008) (quoting United States v. Dunnigan, 507 U.S. 87, 95, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993)). “To apply the adjustment, the district court must make a finding of perjury that is independent of the jury’s verdict.” Reid, 827 F.3d at 801.

Here, the district court identified a false statement that King made at trial and made the independent finding that King’s testimony “was unnecessarily perjurious.” Cf. Whiting, 522 F.3d at 850. The court identified as “untrue” King’s statement “I would get total immunity, and I would walk away” when asked what law enforcement promised him. This finding of falsity is supported by King’s conduct when law •enforcement executed the search warrant at his home. King threw the drugs out of the window and, when questioned, never mentioned that he was authorized to sell drugs.

We conclude that district court’s finding that King committed perjury at trial was not clearly erroneous. In making its decision, the district court stated that King did not obstruct justice by “going to trial” but did obstruct justice by “testifying falsely.” The court found that King’s “testimony seemed to go beyond [the public authority] defense.” Although the district court did not discuss the materiality of the false testimony that it identified, we conclude that the record strongly supports such a finding. See McDonald, 826 F.3d at 1071. Had the jury believed King’s testimony that the district court identified as false, such belief would have influenced the jury’s determination of whether King was acting under public authority in possessing the methamphetamine. See U.S.S.G. § 3C1.1 cmt. n.6.

3. Acceptance of Responsibility

Finally, King argues that the district court erred in denying him an adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. According to King, he accepted responsibility for his actions and actually assisted the government prior to his arrest. He points out that he confessed to possessing the drugs and stipulated to the quantity and purity for trial purposes. He also maintains that he conveyed genuine remorse for his actions by confessing to the possession of the drugs.

Section 3E1.1 of the Guidelines provides, “If the defendant clearly demonstrates acceptance of responsibility for his offense, decrease the offense level by 2 levels.” U.S.S.G. § 3E1.1(a).

This adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse. Conviction by trial, however, does not automatically preclude a defendant from consideration for such a reduction. In rare situations a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial. This may occur, for example, where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct). In each such instance, however, a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct.

Id. cmt. n.2 (emphases added); see also United States v. Petruk, 836 F.3d 974, 977 (8th Cir. 2016) (“It is a ‘rare situation’ where a defendant who contests his guilt at trial can meet his burden to clearly demonstrate acceptance of responsibility.” (quoting United States v. Spurlock, 495 F.3d 1011, 1014 (8th Cir. 2007))).

Where a defendant raises a public-authority defense, testifies at trial, and the district court makes its own findings at sentencing that the defendant committed perjury, a district court does not clearly err in denying acceptance of responsibility. See, e.g., United States v. Warren, 454 F.3d 752, 762 (7th Cir. 2006) (holding district court did not clearly err in denying defendant a downward sentence adjustment for acceptance of responsibility, given that defendant received sentence enhancement for obstruction of justice, failed to explain what was extraordinary about his case, and put the government to its burden of proof by maintaining that his conduct was not unlawful because he was acting as confidential informant); United States v. Rivera, 86 Fed.Appx. 922, 924 (6th Cir. 2004) (holding defendant clearly maintained his public-authority defense to being a felon in possession of a firearm, despite overwhelming evidence to the contrary, and thus was not entitled to sentencing reduction for acceptance of responsibility).

Here, the district court made specific findings at sentencing that King lied when he testified that he was promised total immunity from drug dealing. Although there may “be extraordinary cases in which adjustments under both §§ 3C1.1 and 3E1.1 may apply,” “[cjonduct resulting in an enhancement under § 3C1.1 ... ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct.” U.S.S.G. § 3E1.1 cmt. n.4. We therefore hold that King has not shown that his case is “extraordinary,” especially considering that King put the government to its burden of proof at trial.

III. Conclusion

Accordingly, we affirm the judgment of . the district court.

      . The Honorable Joan N. Ericksen, United States District Judge for the District of Minnesota.

      . King and his girlfriend did not move to Spokane, Washington, until December 30, 2013.

      . King and his girlfriend returned to Minnesota in January 2014.

      . The methamphetamine was originally tested for purity in August 2014; thereafter, a superseding indictment was filed on September 11, 2014. The drug charged remained the same, but the statutory minimum sentence of imprisonment for the offense increased to ten years because of the "actual” methamphetamine seized from King’s home — over 150 grams.

      . Even if we were to address the substance of King’s claim, his assertion that his motion for retesting was based on a Confrontation Clause rationale is without merit. "We have held that the admission of hearsay during sentencing proceedings does not violate a defendant’s rights under the Confrontation Clause.” United States v. Pepper, 747 F.3d 520, 525 n.5 (8th Cir. 2014).

      . Because we have identified one of the district court's findings that supports the obstruction-of-justice enhancement, we need not address the other grounds that the district court cited in support of the enhancement, such as whether King gave a false impression that he "has been a helper of law enforcement” over the last 30 years and lied when he testified that he had a college GPA of 3.97.


source: Caselaw Access Project

author: RILEY, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Lewis PATE, True Name Lewis Antwhane Pate, III, Defendant-Appellant
    No. 15-3991
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 17, 2016
    Filed: April 14, 2017

      Counsel who represented the appellant was Douglas Olson, AFPD, of Minneapolis, MN.
    Counsel who represented the appellee was Jeffrey S. Paulsen, AUSA, of Minneapolis, MN.
    Before RILEY, Chief Judge, WOLLMAN and BENTON, Circuit Judges.

      . The Honorable William Jay Riley stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on March 10, 2017. He has been succeeded by the Honorable Lavenski R. Smith.

   RILEY, Chief Judge.

In 2012, a jury found Lewis Pate guilty of being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1); United States v. Pate, 754 F.3d 550, 553 (8th Cir. 2014). Based on its designation of Pate as an armed career criminal, the district court sentenced Pate to 200 months imprisonment. See Pate, 754 F.3d at 553. After the United States Supreme Court invalidated the residual clause of the Armed Career Criminal Act (ACCA), see Johnson v. United States, 576 U.S. -, -, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015), the district court vacated Pate’s original sentence and imposed a 120-month sentence. Pate appeals his revised sentence, see 28 U.S.C. § 1291 (appellate jurisdiction), challenging the district court’s application of a four-level sentencing enhancement and classification of one of his previous convictions for burglary as a crime of violence. See United States Sentencing Guidelines (U.S.S.G. or Guidelines) §§ 2K2.1(a)(2), (b)(6)(B), 4B1,2(a)(1). We affirm.

1. BACKGROUND

Pate was arrested on March 20, 2012, after police officers in St. Paul, Minnesota, responded to a report of gunfire exchanged between two men wearing black hooded sweatshirts and a third man. See Pate, 754 F.3d at 552. Responding officers learned one of the shooters had fled to a nearby residence. See id. As the officers prepared to enter the residence, Pate, who was inside, came toward the officers, stating, “ ‘I’m the one that was being shot at.’ ” Id. Officers executed a search warrant and discovered a .38 caliber revolver hidden in a laundry hamper and a black hooded sweatshirt in the living room behind a couch. See id. Pate later admitted the gun found in the hamper was his, but “insisted he was not carrying the firearm at the time of the shooting.” Id. We concluded Pate’s version of the events “was inconsistent with eyewitness testimony and physical evidence” and affirmed his conviction Id. at 553.

In June 2015, Pate moved under 28 U.S.C. § 2255 to vacate his sentence. The district court granted his petition to the extent it “ehallenge[d] his designation as an Armed Career Criminal” under the ACCA. The United States Probation Office prepared a revised presentence investigation report (PSR). The PSR found Pate had two prior felony convictions for crimes of violence, aggravated robbery and third-degree burglary, and calculated his base offense level as 24. See U.S.S.G. § 2K2.1(a)(2). The PSR recommended a 4-level enhancement pursuant to § 2K2.1(b)(6)(B) for use or possession of “any firearm ... with another felony offense,” or possession of “any firearm ... with knowledge, intent, or reason to believe that it would be used in connection with another felony offense.” Specifically, the PSR found that witnesses at trial had “observed [Pate] holding and firing a weapon at others.” With a total offense level of 28 and category VI criminal history, Pate’s advisory Guidelines sentencing range was 140-175 months. Because that range exceeded the statutory maximum of ten years, the PSR recommended a 120-month sentence. See 18 U.S.C. § 924(a)(2); U.S.S.G. § 5G1.1(a). Over Pate’s objections, the district court adopted the PSR’s recommendation and sentenced Pate to 120 months imprisonment.

II. DISCUSSION

“ We review the district court’s interpretation of the guidelines de novo, and its factual findings ... for clear error.’ ” United States v. Ewert, 828 F.3d 694, 697 (8th Cir. 2016) (omission in original) (quoting United States v. Howard, 759 F.3d 886, 889 (8th Cir. 2014)). Pate first challenges the district court’s application of the 4-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B). Section 2K2.1(b)(6)(B) states that a defendant’s offense level is increased by four levels if the defendant “[u]sed or possessed any firearm or ammunition in connection with another felony offense; or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). “Another felony offense” is defined as “any Federal, state, or local offense ... punishable by imprisonment for a term exceeding one’ year, regardless of whether a criminal charge was brought, or a conviction obtained.” Id. § 2K2.1 cmt. n.l4(C). When § 2K2.1(b)(6)(B) is applied and “ ‘the defendant has not been convicted of another state or federal felony offense,’ ” as is the case here, “ ‘the district court must find by a preponderance of the evidence that another felony offense was committed, and that use or possession of the firearm “facilitated” that other felony.’ ” United States v. Holm, 745 F.3d 938, 940 (8th Cir. 2014) (quoting United States v. Littrell, 557 F.3d 616, 617 (8th Cir. 2009)).

At the resentencing hearing, Pate argued, because no one was injured and no charges were brought in relation to the shooting, his conduct could, at most, qualify as a gross misdemeanor — but not a felony. While the district court never explicitly addressed this argument, in response to Pate’s argument, the district court did explain the trial record supported the application of the enhancement. The district court reasoned, “even without strong proof that Mr. Pate was the shooter on the night in question, ... there is a sufficient basis to find that he possessed the firearm in connection with another felony offense or possessed the firearm with knowledge, intent or reason to believe it would be used in connection with another felony offense.” The district court noted that, even if the four-level enhancement did not apply, and the total offense level moved down to 24, resulting in an advisory Guidelines sentencing range of 100-120 months, it would “still think that the 120 months’ sentence would be appropriate under the circumstances.”

Pate complains the government never proved — nor attempted to prove — he was present during the shooting. Pate points out the lack of physical evidence connecting Pate and the gun found in the laundry hamper, as well as the fact that the shell casings discovered at the shooting location did not match that gun. Although during closing arguments the government remarked it did not “have to prove” that Pate possessed the gun during the shooting or shot anyone with it, the government cast doubt on Pate’s version of events, which we determined was inconsistent with testimony at trial. See Pate, 754 F.3d at 553. A government witness observed the shooting and described two men wearing black hooded sweatshirts shooting at a third man who returned their fire. The witness could not state with certainty which men were shooting, but he stated the shooting went on for a minute or less before the shooters fled. And when officers arrived at the residence where Pate was found, Pate appeared at the front door with his hands up and announced “ ‘Pm the one that was being shot at.’ ” In addition, although the casings found at the scene of the shooting did not match the gun determined to be in Pate’s possession, Pate’s gun was a revolver and would not have expelled cartridges like a semiautomatic or automatic weapon would have. It also had two rounds missing from its six-shot cylinder.

Pate also argues the evidence was insufficient to support the enhancement because “neither the PSR nor the Court determined that there was in fact a felony offense committed by anyone that day.” True, neither the government nor the district court identified an underlying state or federal statute Pate could have been charged with violating. But the unopposed PSR clearly indicated the relevant conduct supporting the enhancement was “firing a weapon at others,” and the government argued at sentencing that the trial evidence “proved there was a shootout on the street and Mr. Pate was part of it by his own admission.” The government witness stated the men were shooting guns at each other — not merely discharging their firearms in a fashion that would have supported only a misdemeanor charge. Even if the government found the underlying conduct — which it describes as the “gun battle” in its brief — obviously felonious, without a specific identification of the felony we are forced to work backward from the district court’s findings, which here is no easy task. During the resentencing hearing, the district court merely concluded that Pate “possessed the firearm in connection with another felony.” We decline to find clear error on the part of the district court, given that (1) the district court concluded Pate “shot the firearm” at the initial sentencing; (2) Pate’s statement that he was “ ‘the one ... being shot at’ ” supports the conclusion he was present during the shootout; and (3) the evidence is consistent with the eyewitness’s testimony at trial. See United States v. Battle, 774 F.3d 504, 516 (8th Cir. 2014) (determining the district court did not clearly err where it “conduct[ed] its own fact-finding for the purposes of applying the [§ 2K2.1(b)(6)(B) ] enhancement” and found by a preponderance of the evidence the defendant had committed a shooting); United States v. Walker, 771 F.3d 449, 452 (8th Cir. 2014) (deciding the omission of a reference to the underlying offense was “harmless” — “if an error at all” — “because the facts as found by the court obviously supported a charge that Walker had violated [the state statute at issue]”).

Pate next argues the district court erred when it concluded his prior conviction for third-degree non-residential burglary under Minnesota law was a crime of violence. See U.S.S.G. §§ 2K2.1(a)(2), 4B1.2(a)(2). In June 2016, we vacated our judgment in United States v. Benedict, where we held “[cjommercial burglary should ... properly be classified as an enumerated crime of violence under the guidelines.” United States v. Benedict, 815 F.3d 377, 385 (8th Cir. 2016); see also United States v. Stymiest, 581 F.3d 759, 768 (8th Cir. 2009) (“[W]e have repeatedly held that any generic burglary is a crime of violence under the ‘otherwise involves’ residual provision in U.S.S.G. § 4B1.2(a)(2).”). Had Pate’s prior .conviction for third-degree burglary not been considered a crime of violence under the Guidelines, his base offense level would have been four levels lower. See U.S.S.G. § 2K2.1(a)(4)(A). As a result, Pate’s total offense level would have been 24 (including the § 2K2.1(b)(6)(B) enhancement) as opposed to 28, and his advisory Guidelines sentencing range would have been 100 to 120 months — instead of 140 to 175. Yet here, the district court plainly stated that “were the case law to develop such that the appropriate level would move the defendant from 28 down to 24 points, the sentence that this Court would impose would still be 120 months, which would be within the applicable range.” “ ‘When the guidelines are incorrectly applied, we remand for resentencing unless the error was harmless, such as when the district court would have imposed the same sentence absent the error.’ ” Ewert, 828 F.3d at 697 (emphasis added) (quoting United States v. Idriss, 436 F.3d 946, 951 (8th Cir. 2006)). Any error in the classification of this prior conviction was harmless because the district court expressly determined it would have imposed the same sentence.

III. CONCLUSION

We affirm Pate’s sentence.

      . The Honorable Ann D. Montgomery, United States District Judge for the District of Minnesota.

      . The four-level enhancement was also applied in Pate's original sentence. The district court made a more thorough factual finding in imposing the enhancement then, stating: Although the shooting of the firearm was not an element to be considered by the jury, there was the testimony adduced surrounding the incident which convinces me by the preponderance of the evidence ... that the firearm was possessed in connection with the crime of violence and that the defendant shot the firearm during the course of the earlier part of the offense prior to the retrieval of the gun from the bathroom.

      . Minn. Stat. § 609.66, subdiv. la(a)(2), (b)(1) states whoever “intentionally discharges a firearm under circumstances that endanger the safety of another” may be sentenced "to imprisonment for not more than five years.” Reckless discharge of a firearm within a municipality carries a sentence of up to two years. See id. subdiv. la(a)(3), (b)(2).

      . The government posits the district court’s discussion of a different offense level was in regard to the application of § 2K2.1(b)(6)(B), not the definition of "crime of violence” under the Guidelines. Even if existing precedent were to change and Pate's base offense level should have been four levels lower, because we affirm the application of the four-level enhancement, his total offense level would still be 24. Furthermore, the sentence was not based solely on the district court's application of the Guidelines. At resentencing, the district court discussed Pate’s ongoing rehabilitation and described “other incidents of [Pate’s] as-saultive behavior within prison [as] worrisome.”


author: COLLOTON, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William B. AOSSEY, Jr., Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Midamar Corporation, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jalel Aossey, Defendant-Appellant.
    No. 16-1611, No. 16-1688, No. 16-1761
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 23, 2016
    Filed: April 14, 2017

      Counsel who presented argument on behalf of the appellants was Albert Linch Jordan, of Birmingham, AL. The following attorney(s) appeared on the appellants’ brief; Jason Ryan Klinowski, of Birmingham, AL.
    Counsel who presented argument on behalf of the appellee was Timothy Vavricek, AUSA, of Cedar Rapids, IA. The following attorney(s) appeared on the appellee brief; Richard L. Murphy, AUSA, of Cedar Rapids, IA.
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
   COLLOTON, Circuit Judge.

A grand jury charged Midamar Corporation, William Aossey, and Jalel Aossey with several criminal offenses arising from their sale of falsely labeled halal meat. The defendants moved to dismiss the indictment for lack of jurisdiction. Their theory was that Congress had reserved exclusive enforcement authority over the alleged statutory violations to the Secretary of Agriculture, and that the United States Attorney could not proceed against the defendants in a criminal prosecution. The district court denied the motion, concluding that it was both untimely and incorrect on the merits.

Midamar Corporation and Jalel Aossey then pleaded guilty conditionally to one count of conspiracy to commit several offenses in connection with the scheme, while reserving the right to appeal the denial of their motion to dismiss. William Aossey proceeded to trial, and a jury convicted him of conspiracy, making false statements on export certificates, and wire fraud. The defendants appeal the district court’s denial of their motion to dismiss for lack of jurisdiction. The government does not assert that the motion was untimely, but defends the district court’s decision on the merits, and we affirm.

I.

Midamar Corporation sells and distributes halal-certified meat and other food products in the United States and internationally. William Aossey founded Midamar in 1974; in 2007, he transferred ownership of Midamar to his sons, Jalel and Yahya Aossey. The United States Department of Agriculture regulates the company, and Midamar’s meat labeling is governed by the Federal Meat Inspection Act. 21 U.S.C. § 601, et seq. Under the Act, the Food Safety and Inspection Service is responsible for the inspection and oversight of meat packaging and labeling.

In February 2010, the USDA Office of Program Evaluation, Enforcement, and Review started an investigation into Mida-mar and its labeling practices. The Office concluded that between April 2007 and January 2010, Midamar employees, under the direction and supervision of the owners and managers, knowingly forged and falsified USDA export documents and certificates for shipments of purported halal beef. As a result of this investigation, the Inspection Service withdrew its services from Midamar. This withdrawal temporarily prevented Midamar from exporting meat products from its own facility. After Midamar proposed corrective and preventative measures, the Inspection Service gave notice in July 2011 that it intended to reinstate services for the company.

Three years later, the government obtained an indictment against the defendants. A grand jury charged Midamar, Jalel Aossey, and others with conspiracy to make and use false statements, sell mis-branded meat, and commit mail and wire fraud, in violation of 18 U.S.C. § 371. The indictment also charged them with making false statements on export certificates, in violation of 21 U.S.C. § 611(b)(5), wire fraud, in violation of 18 U.S.C. § 1343, money laundering, in violation of 18 U.S.C. § 1956(a)(2)(A), and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). The grand jury charged William Aossey with the same violations in a separate indictment.

The defendants moved to dismiss, arguing that the district court lacked jurisdiction over the criminal case because the Meat Inspection Act gave the Secretary of Agriculture exclusive jurisdiction to address the specified violations. The district court denied the motion. Midamar and Jal-el Aossey entered conditional guilty pleas, and William Aossey was convicted after a jury trial. The district court imposed sentences, and this appeal followed.

II.

The issue joined on appeal is whether two provisions of the Meat Inspection Act, 21 U.S.C. §§ 674 and 607(e), removed this case from the district court’s jurisdiction. Although we have upheld convictions based on violations of the Meat Inspection Act in previous cases, e.g., United States v. Jorgensen, 144 F.3d 550 (8th Cir. 1998) (addressing misbranding in violation of 21 U.S.C. § 610), the jurisdictional argument advanced here has not been raised and decided, so we must consider it as an original matter. See Fed. Election Comm’n v. NRA Political Victory Fund, 513 U.S. 88, 97, 115 S.Ct. 537, 130 L.Ed.2d 439 (1994). We review the district court’s conclusion on this legal issue de novo.

Under 18 U.S.C. § 3231, “[t]he district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.” The grand jury charged the defendants with committing such offenses, and the district court asserted jurisdiction under § 3231. Section 3231 is generally the “beginning and the end of the ‘jurisdictional’ inquiry,” United States v. White Horse, 316 F.3d 769, 772 (8th Cir. 2003) (quotation omitted), but Congress can remove the district courts’ jurisdiction over criminal prosecutions if it makes a “clear and unambiguous expression of the legislative will.” United States v. Morgan, 222 U.S. 274, 282, 32 S.Ct. 81, 56 L.Ed. 198 (1911). The question here, therefore, is whether Congress unambiguously limited the district court’s jurisdiction.

The defendants contend that two sections of the Meat Inspection Act, 21 U.S.C. §§ 674 and 607(e), show that Congress removed these prosecutions from the jurisdiction of the district courts. Section 674 provides: “The United States district courts ... are vested with jurisdiction specifically to enforce, and to prevent and restrain violations of, this chapter, and shall have jurisdiction in all other kinds of cases arising under this chapter, except as provided in section 607(e) of this title.” Section 607(e), in turn, states that if the Secretary of Agriculture has reason to believe that a meat label is false or misleading, then the Secretary may direct that use of the label be withheld unless it is modified to conform to the Secretary’s prescription. A person using the label may challenge the Secretary’s determination by .appealing to the United States Court of Appeals for the appropriate circuit.

The defendants rely on the exception created in § 674 for matters described in § 607(e). They contend that when a party commits a violation concerning false or misleading labeling as described in § 607(e), the Secretary of Agriculture has exclusive authority to take enforcement action. On this view, the only remedy available to the government is an order of the Secretary to cease using false or misleading labels. Unless a party acts in contempt of an order of the Secretary, the argument goes, the United States Attorney may not prosecute a corporation for any false or misleading labeling violations under the Meat Inspection Act. The defendants then expand their argument to assert that the government also may not prosecute them for committing any other criminal offense, such as conspiracy or fraud, that arises from a set of facts involving false or misleading labels.

In our view, §§ 674 and 607(e) do not constitute a “clear and unambiguous expression” of the legislative will to deprive the district courts of jurisdiction over criminal prosecutions for violations of the Meat Inspection Act and related violations. Section 674 grants the district courts jurisdiction over violations of the Act, and over all kinds of cases arising under the relevant statutes, with one exception. Under that exception, where the Secretary of Agriculture directs a party to withhold use of a label, the party may appeal the Secretary’s determination to the court of appeals rather than the district court. But Congress’s choice to channel administrative appeals to the courts of appeals does not address the separate question whether administrative action is the only enforcement tool available to the Executive in this context. As the Supreme Court explained in Morgan, “[rjepeals by implication are not favored, and there is certainly no presumption that a law passed in the interest of public health was to hamper district attorneys, curtail the powers of grand juries, or make them, with evidence in hand, halt in their investigation and await the action of the Department.” 222 U.S. at 281-82, 32 S.Ct. 81.

The statute does not include a “clear and unambiguous expression” that Congress intended for the Secretary to have exclusive authority over false or misleading meat labeling. The better reading is that § 607(e) provides an administrative enforcement mechanism for the Secretary of Agriculture that supplements the authority of the United States Attorneys to pursue criminal prosecutions in the district courts. Congress thus afforded the Executive two independent avenues to address false or misleading meat labeling. The exception to the jurisdiction of the district courts in § 674 establishes only that administrative appeals are routed to the courts of appeals. Here, the Secretary did not act under § 607(e), and the United States Attorney properly proceeded in the district court pursuant to § 3231. The district court did not err in denying the motion to dismiss.

The judgment of the district court is affirmed.

      . The Honorable Linda R. Reade, United States District Judge for the Northern District of Iowa.

      . Section 607(e) provides in full:
      If the Secretary has reason to believe that any marking or labeling or the size or form of any container in use or proposed for use with respect to any article subject to this subchapter is false or misleading in any particular, he may direct that such use be withheld unless the marking, labeling, or container is modified in such manner as he may prescribe so that it will not be false or misleading. If the person, firm, or corporation using or proposing to use the marking, labeling or container does not accept the determination of the Secretary, such person, firm, or corporation may request a hearing, but the use of the marking, labeling, or container shall, if the Secretary so directs, be withheld pending hearing and final determination by the Secretary. Any such determination by the Secretary shall be conclusive unless, within thirty days after receipt of notice of such final determination, the person, firm, or corporation adversely affected thereby appeals to the United States court of appeals for the circuit in which such person, firm, or corporation has its principal place of business or to the United States Court of Appeals for the District of Columbia Circuit. The provisions of section 194 of Title 7 shall be applicable to appeals taken under this section.


author: MELLOY, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee v. Brandon Jermaine SYKES, Defendant-Appellant
    No. 16-1668
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 12, 2017
    Filed: April 14, 2017

      Counsel who presented argument on behalf of the appellant was David E. Mullin, of Cedar Rapids, IA.
    Counsel who presented argument on behalf of the appellee was William Reiser Ripley, AUSA, of Davenport, IA. The following attorney(s) appeared on the appel-lee brief; Ashley Corkery, AUSA, of Davenport, IA.
    Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
   MELLOY, Circuit Judge.

Brandon Sykes pleaded guilty to one count of conspiracy to distribute a mixture or substance containing a detectable amount of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. After calculating a Guidelines range of 360 months to life, the district court sentenced Sykes to 360 months in prison. On appeal, Sykes argues the district court improperly calculated the drug quantity determining his base offense level. He also argues the district court erred in applying three sentencing enhancements. We affirm.

I.

The written plea agreement describes Sykes’s offense as follows. Around April 2013, Sykes entered into an agreement with individuals living in Chicago and Mo-line, Illinois, and Davenport, Iowa, to distribute cocaine base. Sykes and his girlfriend, Shataria Beason, would “receive cocaine from a source in Chicago.” Beason would drive to Chicago to pick up the cocaine and then supply Sykes with cocaine base, which he sold. Sykes also “received two (2) ounces of powder cocaine from another source in Chicago and then converts [sic] it into four (4) ounces of [cocaine base].”

In March 2015, law enforcement used a confidential source to conduct four controlled buys of cocaine base from Sykes at his Davenport residence. On April 1, 2015, law enforcement executed search warrants at both Sykes’s and Beason’s residences. At Sykes’s residence, law enforcement seized packaging materials; $748 in cash; a nylon gun case; and two items, a measuring cup and razor blade, with cocaine residue. At Beason’s residence in Moline, law enforcement seized 28 grams of cocaine base; $6,000 in cash; a .380 caliber pistol; and a .45 caliber pistol.

Sykes was later arrested, pleaded guilty to one count of conspiracy to distribute a substance or mixture containing cocaine base, and stipulated to the above facts. At sentencing, the district court found that the drug-quantity evidence, including additional officer testimony at the sentencing hearing, supported a base offense level of 34. See U.S.S.G. § 2Dl.l(c)(3) (fixing a base offense level of 34 to offenses involving more than 2,800 grams but less than 8,400 grams of cocaine base). The district court also applied several sentencing enhancements. These included enhancements for managing or supervising criminal activity involving five or more participants, id. § 3Bl.l(b); using violence or making a credible threat to use violence, id. § 2Dl.l(b)(2); and maintaining a premises for the purpose of manufacturing or distributing a controlled substance, id. § 2Dl.l(b)(12). After applying other enhancements and adjustments, the district court found a total offense level of 40 and a criminal history category of VI. This resulted in a Guidelines range of 360 months to life in prison. Both the government and Sykes requested a sentence at the bottom of the Guidelines range, and Sykes was sentenced to 360 months in prison.

II.

We review the district court’s “factual findings for clear error and its interpretation of the Guidelines de novo.” United States v. Vickers, 528 F.3d 1116, 1120 (8th Cir. 2008). On appeal, Sykes argues the district court erred in finding the drug-quantity evidence supported a base offense level of 34. Instead, Sykes argues the drug-quantity evidence only supports a base offense level of 32. He also argues the district court erred in applying three sentencing enhancements. For the following reasons, we conclude the district court properly applied the sentencing enhancements. We further conclude that we need not reach the question of whether the district court erred in applying a base offense level of 34, rather than a base offense level of 32.

A.

A defendant is subject to a three-level role enhancement “[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive.” U.S.S.G. § 3Bl.l(b). On. appeal, Sykes argues he was not a manager or supervisor in the conspiracy to distribute cocaine base. Testimony at the sentencing hearing, however, established that Sykes “would bring the powder cocaine to Davenport where he had a 60-year-old female ... cook the powder cocaine into crack cocaine.” Additionally, the presentence investigation report (“PSR”) stated that Sykes did not store drugs at his residence at night because he worried law enforcement would perform a raid during that time; rather, Sykes “had Beason bring the drugs to his house every morning and he sold it all day. Each night, Beason picked up the drugs and took them back to her house so Sykes would not get caught with it at his residence.” Sykes did not object to these facts in the PSR, and the district court therefore was entitled to rely upon them. See United States v. Bledsoe, 445 F.3d 1069, 1073 (8th Cir. 2006). These facts were sufficient to support the district court’s finding that Sykes was a manager or supervisor under § 3B1.1(b). See United States v. Gaines, 639 F.3d 423, 428-29 & n.4 (8th Cir. 2011) (stating that the terms “manager” and “supervisor” are broadly construed under the Guidelines and that control over another participant is sufficient, but not necessary, for the enhancement); United States v. Cole, 657 F.3d 685, 687-88 (8th Cir. 2011) (per cu-riam) (upholding the enhancement where the defendant directed a participant to transport drugs).

As to the district court’s finding that five or more participants were involved, Sykes contends only that his two cocaine suppliers in Chicago were not participants under the Guidelines. An ongoing supplier relationship, however, is sufficient to support a finding that the supplier was a participant under § 3B1.1. United States v. Starks, 815 F.3d 438, 441 (8th Cir. 2016); United States v. Garcia, 703 F.3d 471, 475-76 (8th Cir. 2013). Further, in the plea agreement’s stipulation of facts, Sykes admitted to agreeing to distribute cocaine base with “individuals” living in Chicago, Moline, and Davenport. Although the plea agreement does not specify whether these “individuals” include the Chicago suppliers, the record strongly suggests, and the district court could have reasonably inferred, that the two Chicago suppliers were the Chicago parties to the agreement. We therefore conclude the district court did not err in applying the three-level role enhancement.

B.

A defendant is subject to a two-level enhancement “[i]f the defendant used violence, made a credible threat to use violence, or directed the use of violence.” U.S.S.G. § 2Dl.l(b)(2). At the sentencing hearing, Detective Brandon Koepke testified as to three threatening or violent incidents that the confidential source (“CS”) reported to him.

First, the CS reported that, at a meeting with Sykes at an automotive shop, Sykes said he was going to find and shoot an individual who allegedly stole cocaine base from one of Sykes’s customers. When Sykes made this threat, the CS reported, Sykes had a .45 caliber pistol with a black handle and gray slide, and an unnamed passenger in Sykes’s vehicle had an all-chrome .380 caliber pistol. Second, the day after officers executed the search warrants, a “frantic” and “obviously excited” CS reported that Sykes threatened the CS with a firearm. The CS said he met with Sykes at a barbershop and, there, Sykes accused the CS of stealing cocaine base and cash. The CS reported that Sykes told the CS he had “some hours” to return the items before Sykes began killing the CS’s family members and that Sykes then lifted up the front of his shirt, revealing a black pistol. And, third, the CS reported an altercation with Sykes shortly after the barbershop incident. Specifically, the CS said Sykes pulled out into an intersection to stop the CS’s vehicle from moving; the CS exited his vehicle; and Sykes and the CS got into a fistfight in the middle of the street.

On appeal, Sykes argues the CS’s reports to Detective Koepke are incredible, uncorroborated, and illogical. Sykes notes that Detective Koepke testified the CS was the only witness to Sykes’s threats and the altercation in the street. Sykes also notes that Detective Koepke testified officers were not using the CS for any active investigations because they received reports the CS was selling cocaine base. This, according to Sykes, is evidence of the CS’s motive to eliminate Sykes as a competitor. Finally, Sykes argues the CS’s report that Sykes threatened him with a firearm at the barbershop is illogical. Specifically, Sykes argues that he could not have had a firearm that day because his firearms had already been seized during execution of the search warrants.

We find no error in the district court’s application of the enhancement for “us[ing] violence” or “mak[ing] a credible threat to use violence.” U.S.S.G. § 2Dl.l(b)(2). Detective Koepke testified that officers had not been able to corroborate allegations the CS was selling cocaine base. According to Detective Koepke, officers decided, as a precautionary matter, that it would be best not to use the CS as an informant again- until they could verify or discredit the allegations against the CS. Further, there were “sufficient indicia of reliability” to support the CS’s reports. See United States v. Agboola, 417 F.3d 860, 865 (8th Cir. 2005) (“When resolving a disputed sentencing factor, the court may consider relevant information without regard to its admissibility under evidentiary rules, and hearsay testimony is admissible, so long as sufficient indicia of reliability exist.” (citations omitted)). For example, Detective Koepke testified that the CS’s descriptions of the firearms at the automotive shop matched “to a T” the firearms seized during execution of the search warrants. Detective Koepke also testified that the CS had worked with other officers in the past and that there was no reason to believe the CS has ever lied to law enforcement. Additionally, Detective Koepke stated that, in a post-Miranda-warning interview, Sykes admitted he was at the barbershop on the day of the threat. According to Detective Koepke, Sykes admitted to asking a known crack dealer at the barbershop whether he could borrow the dealer’s revolver for a robbery. The dealer agreed, and Sykes planned on visiting the dealer’s residence that day to obtain the firearm. Thus, at the very least, Sykes admitted to having access to a firearm on the day of threat. Accordingly, we find no error in the application of the enhancement.

C.

A defendant is subject to a two-level enhancement “[i]f the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance.” U.S.S.G. § 2D1.1(b)(12). This enhancement “applies when a defendant uses the premises for the purpose' of substantial drug-trafficking activities, even if the premises was also her family home at the times in question.” United States v. Miller, 698 F.3d 699, 707 (8th Cir. 2012). Here, the facts stated above support a finding that Sykes used his residence for substantial drug-trafficking activities. We therefore find no error in the district court’s application of drug-premises enhancement.

D.

Finally, Sykes argues the district court erred in calculating the drug quantity determining his base offense level. He argues that, properly calculated, the drug-quantity evidence supports only a base offense level of 32, rather than the base offense level of 34 found by the district court. See U.S.S.G. § 2Dl.l(c).

We need not consider Sykes’s arguments. Even if the district court erred in calculating the drug quantity and a base offense level of 32 applied, such error would be harmless. With a base offense level of 32, in addition to the enhancements and adjustments applied by the district court, Sykes’s total offense level would only decrease from 40 to 38. Therefore, considering Sykes’s criminal history category of VI, the applicable Guidelines range of 360 months to life would not change. Both Sykes and the government, moreover, requested a sentence at the bottom of this range, and the district court granted those requests. In other words, even if we accepted the entirety of Sykes’s arguments regarding the drug-quantity calculation and concluded that the district court erred, such error did not substantially influence sentencing because the district court nevertheless arrived at the proper Guidelines range. See United States v. Dace, 842 F.3d 1067, 1069 (8th Cir. 2016) (per curiam) (“A failure to properly calculate the advisory Guidelines range is a significant procedural error.” (quoting United States v. Spikes, 543 F.3d 1021, 1023 (8th Cir. 2008))); United States v. Gray, 622 Fed.Appx. 601, 603 (8th Cir. 2015) (per curiam) (“Because [the defendant’s] sentencing Guidelines calculations were the same ..., any error in applying this Guideline was harmless.”).

III.

For the foregoing reasons, we affirm.

      . The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa.


text:
    UNITED STATES of America, Plaintiff-Appellee v. Martin Thomas LAWRENCE, Defendant-Appellant
    No. 16-2056
    United States Court of Appeals, Eighth Circuit.
    Submitted: January 13, 2017
    Filed: April 14, 2017

      Counsel who represented the appellant was Wallace L. Taylor of Cedar Rapids, IA.
    Counsel who represented the appellee was Lisa C. Williams, AUSA, of Cedar Rapids, IA.
    Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
   MELLOY, Circuit Judge.

A jury found Martin Lawrence guilty of conspiracy to distribute methamphetamine, possession with intent to distribute methamphetamine, and attempt to obstruct justice. The district court sentenced Lawrence to 300 months’ imprisonment. Lawrence appeals, arguing the district court improperly calculated the drug quantity attributable to him. We affirm.

I.

In July 2015, Lawrence was indicted for conspiracy to distribute at least 500 grams of a mixture or substance containing methamphetamine and 50 grams of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; and possession with intent to distribute at least five grams of actual methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). In October 2015, the Government filed a superseding indictment, adding a charge for attempt to obstruct justice, in violation of 18 U.S.C. §§ 1512(b)(1), 1512(b)(2)(A), and 1512(b)(2)(C). Lawrence proceeded to trial and a jury returned a guilty verdict on all three charges.

At trial, the Government presented testimony regarding the drug quantity attributable to Lawrence, including testimony from coconspirators and from law enforcement officers involved in the investigation. Testimony from officers described a number of controlled buys from Lawrence and Kevin Ridler, a coconspirator. During a controlled buy on October 1, 2013, Ridler sold 2.54 grams of actual methamphetamine. During two controlled buys, on October 13 and October 24, 2014, Lawrence sold 25.98 grams of actual methamphetamine and 36.45 grams of actual methamphetamine, respectively. Additionally, on October 11, 2013, officers executed a search warrant at Ridler’s residence and seized 28 grams of methamphetamine mixture.

Officers also testified regarding methamphetamine seized from Troy Lawrence, another coconspirator. On July 12, 2014, Troy Lawrence was stopped for a traffic violation and officers seized 6.56 grams of ice methamphetamine. On September 12, 2014, Troy Lawrence was involved in a traffic accident. Because the vehicle did not have insurance, officers impounded the car and, during an inventory search, found 28.29 grams of actual methamphetamine and 4.83 grams of methamphetamine mixture.

Finally, officers testified regarding a traffic stop of Mark Fuehrer, a third co-conspirator, on January 11, 2015. During the traffic stop, officers seized 25.58 grams of actual methamphetamine.

Ridler also testified at trial. Ridler had participated with law enforcement in the controlled buys from Lawrence. Ridler described his past drug use and his relationship with Lawrence. Specifically, Ridler testified he obtained ice methamphetamine from Lawrence for'three to four years. Ridler testified he bought ice methamphetamine from Lawrence at least 20 to 35 times, beginning with smaller quantities of a gram or two and increasing to as much as one ounce at a time. Ridler stated that he distributed ice methamphetamine for one and a half to two years and regularly used 0.5 to one gram per day during that period.

Finally, Carrie Maskewit, Troy Lawrence’s girlfriend, also testified at trial. Maskewit testified that Lawrence was Troy Lawrence’s supplier for ice methaim phetamine. Maskewit stated that Lawrence obtained methamphetamine from “Rusty” in Omaha, Nebraska. Maskewit also stated that she had observed Lawrence with half-full gallon-sized plastic Ziploc bags of ice methamphetamine. An investigator later testified that this was consistent with a pound of ice methamphetamine.

Following Lawrence’s conviction, the district court held two sentencing hearings. At the first hearing, on January 14, 2016, the court heard testimony from Daniel Grother, who had known Lawrence for a number of years and had bought a gram of methamphetamine from Lawrence on approximately six occasions. Grother testified that he had traveled with Lawrence to Omaha at least ten times in March and April 2015. During those trips, Grother stated, Lawrence would stop at Rusty’s home, where Grother observed drug activity between Lawrence and Rusty. Grother testified that over the course of those trips, he believed he observed Lawrence in possession of three to four pounds of ice methamphetamine.

Based on Grother’s testimony, the PSR attributed 1.3608 kilograms of methamphetamine to Lawrence. The PSR also attributed 424.4 grams of marijuana to Lawrence, based on marijuana seized during a search of Lawrence’s home on January 27, 2015. Finally, the PSR attributed 42.52 grams of cocaine base to Lawrence, based on a report to law enforcement by a man to whom Lawrence had sold that cocaine base. The PSR attributed a total of 27,-368.26 kilograms of marijuana equivalency to Lawrence, resulting in a base offense level of 34. See U.S. Sentencing Guidelines § 2Dl.l(c)(3). The PSR also added a two-level enhancement based on evidence that Lawrence had attempted to obstruct justice by persuading his girlfriend to avoid being subpoenaed. Based on a total offense level of 36 and a criminal history category of IV, the advisory guidelines sentencing range was 262-327 months’ imprisonment.

The Government also calculated a total offense level of 36 but was more conservative in its drug-quantity calculation. Noting concerns regarding Grother’s credibility, the Government attributed to Lawrence only one pound of ice methamphetamine based on Grother’s testimony. The Government calculated a total drug quantity attributable to Lawrence of 23,969.28 kilograms of marijuana equivalency. In addition to the pound of ice methamphetamine based on Grother’s testimony, this calculation relied on the drugs seized during controlled buys from Ridler and Lawrence, the search of Ri-dler’s home, the traffic stop and accident involving Troy Lawrence, the traffic stop of Mark Fuehrer, the search of Lawrence’s home, and the trial testimony of Ridler and Maskewit.

At the second sentencing hearing, on April 14, 2016, the district court accepted the Government’s drug-quantity calculation. Lawrence made a number of objections at the hearing, including generalized objections to the scoring of drug quantity in the PSR, reliance on Grother’s testimony in the drug-quantity calculation, and reliance on drugs seized outside the time frame of the conspiracy. Over Lawrence’s objections, the court found that the Government had met its burden of establishing drug quantity by a preponderance of the evidence. The court noted that the findings would be the same even if Lawrence’s objections to the PSR were sustained. The court also noted the credibility concerns regarding Grother but concluded that, though Grother’s testimony may-have been embellished in some respects, it was generally credible. Specifically, the court explained that credibility concerns were adequately addressed by the Government’s calculation, which included only one pound of ice methamphetamine based on Grother’s testimony rather than the three or four pounds to which he testified.

The court sentenced Lawrence to 300 months’ imprisonment for conspiracy to distribute methamphetamine, 300 months’ imprisonment for possession with intent to distribute methamphetamine, and 240 months’ imprisonment for attempt to obstruct justice, all to run concurrently. Lawrence appeals, arguing the court made three errors at sentencing: (1) relying on objected-to facts in the PSR; (2) considering drug quantity from acts after the end of the conspiracy; and (3) attributing any quantity of drugs to Lawrence based on Grother’s testimony.

II.

We review de novo the district court’s application of the sentencing guidelines. United States v. Miller, 511 F.3d 821, 823 (8th Cir. 2008). “The district court’s drug quantity and identity determinations are factual findings, which we review ‘for clear error, applying the preponderance-of-the-evidence standard.’ ” United States v. Walker, 688 F.3d 416, 420 (8th Cir. 2012) (quoting United States v. Turner, 603 F.3d 468, 471 (8th Cir. 2010)). “The district court’s ‘factual determinations will stand unless the decision is unsupported by substantial evidence, is based on an erroneous view of the applicable law, or in light of the entire record, we are left with a firm and definite conviction that a mistake has been made.’ ” Id. at 420-21 (quoting Miller, 511 F.3d at 823).

A.

Lawrence argues the district court relied on objected-to facts in the PSR. Specifically, Lawrence argues the only evidence introduced at sentencing was Grother’s testimony. Beyond that, Lawrence contends, the court relied on statements in the PSR.

“Sentencing courts have ‘wide discretion at sentencing as to the kind of information considered or its source.’ ” United States v. Rodriguez-Ramos, 663 F.3d 356, 364 (8th Cir. 2011) (quoting United States v. Pratt, 553 F.3d 1165, 1170 (8th Cir. 2009)). Information the court can consider at sentencing includes evidence produced at trial. See United States v. Wintermute, 443 F.3d 993, 1005 (8th Cir. 2006). The court cannot, however, rely on objected-to facts contained in a PSR. See id.

In this case, the district court did not rely on objected-to facts in the PSR. Rather, acknowledging those objections, the court stated:

I’m going to overrule all of the — actually, all of the objections by the defense with regard to drug quantity. Some of the objections I don’t think preserve anything because they’re general. Other objections, even if I were to sustain them — but I didn’t find a basis to sustain any of the objections — would have no impact on drug quantity, and those that would have an impact on drug quantity I’m able to rely on the trial testimony and the evidence in the case to make my findings.

The court thus indicated that its findings were not based on objected-to facts in the PSR but on trial testimony and evidence.

The court also addressed the differing drug-quantity calculations presented at sentencing. Acknowledging that the PSR found 27,368.26 kilograms of marijuana equivalency and the Government found 23,969.28 kilograms of marijuana equivalency, the court stated:

They’re both reasonable, but I’m going to go with the more conservative approach set out by the Government and I agree with the Government’s analysis of why the transcript and the trial testimony supports that drug quantity contained in their brief and I’m just going to adopt that as all of my findings of fact.

Thus, though Lawrence objected to the PSR, the relevant responsive evidence had already been produced at trial, which the Government relied on to meet its burden regarding drug quantity at sentencing. As a result, the court did not improperly rely on objected-to facts in the PSR in imposing Lawrence’s sentence.

B.

Second, Lawrence argues the district court erred in considering acts outside the scope of the conspiracy in its drug-quantity calculation. Specifically, Lawrence contends that because the conspiracy for which he was convicted ended on January 27, 2015, Maskewit’s testimony regarding drug activity in the summer of 2015 and (brother’s testimony regarding drug activity in March and April 2015 could not be considered relevant conduct at sentencing.

Section lB1.3(a) of the Guidelines instructs sentencing courts to consider relevant conduct when determining a defendant’s base offense level. Relevant conduct includes “all acts and omissions ... that were part of the same course of conduct or common scheme or plan as the offense of conviction.” U.S. Sentencing Guidelines § lB1.3(a)(2). “In drug conspiracies, the district court may consider amounts from other drug transactions, provided the other dealings are part of the same course of conduct or scheme.” United States v. Bieri, 21 F.3d 811, 817 (8th Cir. 1994). “For two or more offenses to constitute part of a common scheme or plan, they must be substantially connected to each other by at least one common factor, such as common victims, common accomplices, common purpose, or similar modus operandi.”' U.S.S.G. § 1B1.3 emt. n.5(B)(i). “Offenses that do not qualify as part of a common scheme or plan may nonetheless qualify as part of the same course of conduct if they are sufficiently connected or related to each other.” Id. § 1B1.3 cmt. n.5(B)(ii). Courts consider “the degree of similarity of the offenses, the regularity (repetitions) of the offenses, and the time interval between the offenses.... The nature of the offenses may also be a relevant consideration.” Id.

. The district court heard testimony that Lawrence traveled to Omaha to obtain methamphetamine during the conspiracy, from September 2013 through January 27, 2015. At trial, Maskewit testified that Lawrence brought methamphetamine back from Omaha in the summer of 2015. At sentencing, Grother testified that he traveled to Omaha with Lawrence a number of times in March and April 2015, during which trips Lawrence obtained methamphetamine. Lawrence’s conduct after the end of the time frame of the charged conspiracy largely remained the same as his conduct during the conspiracy: Lawrence’s source of supply, type of drug, and geographic region all remained the same. Thus, we conclude the district court did not clearly err in determining that the methamphetamine attributed to Lawrence based on Maskewit and Grother’s testimony was relevant conduct. See Bieri, 21 F.3d at 817.

C.

Finally, Lawrence argues the district court erred by including one pound of ice methamphetamine based on Grother’s testimony in its drug-quantity calculation. Lawrence contends it was improper for the district court to rely on Grother’s testimony because it was unreliable and inconsistent.

“[A] sentencing court may consider relevant information ... provided that the information has sufficient indicia of reliability to support its probable accuracy.” United States v. Luna, 265 F.3d 649, 652 (8th Cir. 2001) (second alteration in original) (internal quotation marks and citation omitted). Further, “[i]t is ... well established that in sentencing matters ‘a district court’s assessment of witness credibility is quintessentially a judgment call and virtually unassailable on appeal.’ ” Id. (quoting United States v. Causor-Serrato, 234 F.3d 384, 390 (8th Cir. 2000)).

In this case, Grother’s testimony regarding trips to Omaha during which Lawrence obtained ice methamphetamine was consistent with other testimony about Lawrence’s source. Thus, the testimony bore “indicia of reliability to support its probable accuracy.” Id.

Further, the district court did not take the drug quantity provided by Grother at face value. Rather, the court relied on the Government’s drug-quantity calculation, which included only one pound of ice meth-' amphetamine based on Grother’s testimony. The Government’s calculation was more conservative than the calculation in the PSR. Although, as the court noted, Grother may have embellished his testimony, the court found Grother’s testimony reliable. And because of possible embellishment, the court attributed only one pound of ice methamphetamine to Lawrence, discounting the three to four pounds of ice methamphetamine Grother testified to. See United States v. Taylor, 72 F.3d 533, 544 (7th Cir. 1995) (“This process of ‘discounting’ the estimates takes into account the possibility that drug use and other factors may have adversely affected perception and memory.”).

Finally, we observe that even if the district court had not attributed any methamphetamine to Lawrence based on Grother’s testimony, Lawrence would still have a base offense level of 34 and an adjusted total offense level of 36. As a result, the district court did not err in relying on Grother’s testimony in its drug-quantity calculation.

III.

Accordingly, we affirm the judgment of the district court.

      . The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa.

      . On appeal, Lawrence also asserts a claim for ineffective assistance of trial counsel. We decline to consider this claim on direct appeal. See United States v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir. 2006) (noting that ineffective-assistance claims should be raised in collateral proceedings).