John Dame v. First Natl. Bank

1The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-3309
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
David Almanza, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: June 6, 2000
Filed: June 9, 2000
___________
Before RICHARD S. ARNOLD, BOWMAN, and BEAM, Circuit Judges.
___________
PER CURIAM.
David Almanza pleaded guilty to conspiring to distribute and possess with intent
to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1994
& Supp. IV 1998). Based in part on the testimony of two witnesses—Mary Gahman
and Axel Rohe—the District Court1 held Almanza responsible for 1,078 grams of
methamphetamine, and sentenced him to 135 months imprisonment and 5 years
supervised release. On appeal, Almanza argues the District Court abused its discretion

-- 1 of 3 --

-2-
in denying his oral motion for a continuance of sentencing; challenges the Court’s
attribution to him of 624 grams of methamphetamine based on Gahman’s “biased” and
“unreliable” testimony, and notes the record’s silence on how the Court calculated that
figure; and contends the Court abused its discretion in allowing Rohe to testify
regarding drug transactions not described in the presentence report.
We conclude the District Court did not abuse its discretion in denying a
continuance as Almanza did not indicate in his oral motion how an additional week
would enable him to provide substantial assistance. Also, Almanza’s plea agreement
explicitly stated that the decision whether to file a substantial-assistance departure
motion was within the government’s sole discretion. See United States v. Speed, 53
F.3d 643, 645 (4th Cir. 1995). We reject Almanza’s challenge to Gahman’s credibility,
as the District Court’s findings regarding witness credibility are virtually unreviewable
on appeal. See United States v. Jones, 160 F.3d 473, 480 (8th Cir. 1998). We
conclude the 624 grams of methamphetamine attributed to Almanza based on
Gahman’s testimony is a very conservative estimate and is not clearly erroneous. Cf.
United States v. Randolph, 101 F.3d 607, 609 (8th Cir. 1996) (when sentencing court’s
failure to chart path through disputed or equivocal evidence leaves appellate court
unable to meaningfully review drug-quantity determination, remand is required).
Finally, we conclude the issue regarding Rohe’s testimony at sentencing concerning
transactions not described in the presentence report is unreviewable. Even if the 255
grams of methamphetamine based on Rohe’s testimony were excluded from the drug
quantity attributed to Almanza, he would still be accountable for well over the 500
grams necessary for his base offense level of 32. See U.S.S.G. § 2D1.1(c)(4) (1998);
United States v. Williams, 74 F.3d 872, 872 (8th Cir. 1996) (per curiam).
Accordingly, we affirm.

-- 2 of 3 --

-3-
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

-- 3 of 3 --