Rаndy Fields pled guilty to one count of knowingly and intentionally distributing cocaine base, a Schedule II controlled substance, in violation of Title 21, U.S.C. § 841(a)(1), conditioned on his right to appeal the denial of his pretrial motion to suppress identification testimony. Fields now appeals the denial of the pretrial mоtion and, in addition, contends that the district court erred in its application of § 4B1.2(a) of the Sentencing Guidelines when it found that the *1190 defendant’s 1992 Missouri state court сonviction, for unlawful use of a weapon, was a crime of violence. We affirm.
Factual Background
A confidential informant was utilized by a drug task force officer to purсhase drugs in an area where drug trafficking was occurring. Following the drug buy, the confidential informant was shown a series of approximately 175 mug shots, and she identified dеfendant Fields as the one from whom she had purchased the drugs. She made a subsequent identification of the defendant as the seller of the substance from a photographic line-up prepared by the Missouri State Police. The defendant was indicted by the Grand Jury on one count of knowingly and intentionally distributing cоcaine base, a Schedule II controlled substance, in violation of Title 21, U.S.C. § 841(a)(1).
Following the arrest of the defendant, he filed a motion to suppress the identification and contended that the identification process utilized was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Following two separate hearings on the motion, the district court concluded that the identification procedure was appropriate and there was nothing in the procedure utilized that was impermis-sibly suggestive.
Discussion
When reviewing rulings on the motions, this Court must only reverse the findings below if the findings were clearly erroneous.
U.S. v. Johnson,
All parties agree that the test used in evaluating the reliability of identification testimony comes from the Supreme Court of the United States, as set out in
Manson v. Brathwaite,
The factors to be considered in the Court’s analysis of the reliability of identification testimony are the witness’s opрortunity to view the defendant at the time of the crime, the witness’s degree of attention at the time of the crime, the accuracy of the witness’s prior dеscription, the witness’s level of certainty at the line-up, and the length of time between the crime and the line-up.
U.S. v. Johnson,
The Magistrate found that the confidential infоrmant had never seen Randy Fields until she made the first drug buy on May 28, 1997. The confidential informant was not given the name of any particular individual, and she was not shown a photograph of Fields before she went to buy drugs. The confidential informant’s degree of attention was high because she was not a casual buyer in that her purрose in buying the drugs was to later identify the suspect to the police for potential arrest. The district court found that the period of time between the crime and the identification was about 15 to 20 minutes. Even assuming the procedure used was impermissibly suggestive, which we do not, we nonetheless conclude that under thе totality of the circumstances, as set out in Johnson, supra, the procedure was reliable.
We do not find that the identification procedures used were tainted by improper or suggestive procedures and AFFIRM the de- *1191 cisión of the United States District Court Judge.
The second issue involves the finding by the court that a 1992 state court conviction constituted a violent felony for sentencing purposes under the career offender provision of the Sentencing Guidelines. 2
The weapons charge was included within a three-count indictment filed in the Circuit Court of Pеmiscot County, Missouri, on August 6, 1991. Count One dealt with burglary in the first degree while armed with a weapon and Count Two was the class C felony of stealing certain firearms. Count Three of the indictment recited:
The Prosecuting Attorney of the County of Pemiscot, State of Missouri, charges that the defendant, in violation of Section 571.030.1(4), RSMo., cоmmitted the class D felony of unlawful use of a weapon, punishable upon conviction under Sections 558.011.1(4) and 570.111, RSMo., in that on or about June 16, 1991, in the County of Pemiscot, State of Missouri, the defendant knowingly exhibited, in the presence of one or more persons a pistol, a weapon readily capable of illegal use, in an angry or threatening manner.
The defendant argued that the information that was filed did not meet the definition of a crime of violence, for thеre was no use, attempted use, or threatened use of physical force against the person of another. Section 4B1.2 defines the term “crime of violence” as:
[A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the usе, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Following the arguments of the defendant’s counsel that the information did not recite a crime of violence, the government presented additional evidence, to include police reports concerning the acts and the ensuing investigation. At the conclusion of the hearing, the district court concluded that a proper faсtual basis for a crime of violence had been established and accordingly utilized that finding in computing the sentence of the defendant.
The commentary to § 4B1.2 of the United States Sentencing Commission Guidelines Manual makes it clear- that the district court need only analyze the conduct set forth and/or exprеssly charged in the information or indictment. It is not necessary to conduct any further hearings or receive any further evidence other than the information thаt was filed. Count Three of the indictment clearly reflects conduct presenting a serious potential risk of physical injury to one or more persons, and, accordingly, the judgment is AFFIRMED.
Notes
. The career offender guideline provides for enhanced penalties for defendants who have previously been cоnvicted of two or more “crimes of violence” or "controlled substance offenses,” and who are pending sentencing in federal court for a third сrime of violence or controlled substance offense. U.S.S.G. § 4B1.1. Appellant concedes that a prior felony conviction for the offense of resisting arrest was a violent felony within the meaning of the sentencing guidelines since it clearly had as an element of the offense the threatened use of physical force against the person of another. The issue, then, becomes whether Appellant's 1992 conviction for unlawful use of a weapon constituted a second "violent felony” in order to place him within the parameters of the career criminal guideline, U.S.S.G. § 4B1.1.