United States of America, Plaintiff-appellee, v. Amin Osorio-arce, Defendant-appellant, 35 F.3d 573 (9th Cir. 1994)

MEMORANDUM^** 

Amin Osorio-Arce appeals his sentence for violating 21 U.S.C. §§ 2, 841(a) (1) and 841(b) (1) (B). Judge Zilly enhanced his offense level under U.S.S.G. Sec. 1B1.3(a) based upon other relevant drug dealings. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm.

We review for abuse of discretion estimates of relevant drug quantities, United States v. Ayers, 924 F.2d 1468, 1481 (9th Cir. 1991), and find none. The district court's estimates are supported by testimony of two of Osorio-Arce's associates-turned-informants, Jerald Eck and Lonnie Sylvan.

Nor did the court err by allowing Eck to testify to cocaine deals beyond the 7 kilograms that the prosecutor disclosed before Osorio-Arce pleaded guilty. Under either the inconsistent results test or the less restrictive "fast and loose" test, use of judicial estoppel is discretionary. United States v. Yanez, 989 F.2d 323, 326 (9th Cir. 1993). Eck divulged additional dealings after Osorio-Arce pleaded guilty. The prosecutor disclosed all information available at the time and was not playing "fast and loose" with the courts.

The court also found that Eck's testimony was sufficiently reliable to use when calculating Osorio-Arce's base offense level. Credibility findings receive special deference under the clear error standard. United States v. Ramos, 923 F.2d 1346, 1356 (9th Cir. 1991). The record does not show that the court clearly erred in believing Eck. The judge saw and heard his testimony and his account was highly similar to Sylvan's, whose credibility is not attacked.

AFFIRMED.