United States v. Gary A. Ebeck

33 F.3d 57

NOTICE: Eighth Circuit Rule 28A(k) governs citation of unpublished opinions and provides that no party may cite an opinion not intended for publication unless the cases are related by identity between the parties or the causes of action. UNITED STATES OF AMERICA, Appellee, v. Gary A. EBECK, Appellant.

No. 94-1905WM.

United States Court of Appeals, Eighth Circuit.

Submitted: August 8, 1994. Filed: August 12, 1994.

Before McMILLIAN, FAGG, and BOWMAN, Circuit Judges.

PER CURIAM.

1

Gary A. Ebeck pleaded guilty to kidnapping on government land and to using firearms in relation to the kidnapping. At Ebeck's sentencing, the district court found Ebeck was a leader of the group that committed the kidnapping and enhanced Ebeck's sentence under U.S.S.G. Sec. 3B1.1(c). On appeal, Ebeck contends the district court's finding of his leadership role is clearly erroneous. See United States v. Horne, 4 F.3d 579, 590 (8th Cir. 1993) (standard of review), cert. denied, 114 S. Ct. 1121 (1994).

2

Having carefully reviewed the record, we disagree. Ebeck's codefendants testified that Ebeck made decisions, played a major part in planning and committing the kidnapping, and exercised control over others-all relevant factors in the leadership determination. See U.S.S.G. Sec. 3B1.1 n. 4. Although Ebeck disputed his codefendants' testimony, the district court's findings as to witness credibility "are 'virtually unreviewable on appeal.' " United States v. Adipietro, 983 F.2d 1468, 1472 (8th Cir. 1993) (quoted citations ommitted). Accordingly, we affirm Ebeck's sentence.