## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2482

___________

United States of America, * * Appellee, *

* v. * * Arlie D. Maggard, * * Appellant. *

___________ Appeals from the United States District Court for the No. 97-2483 Western District of Missouri.

___________ United States of America, * * Appellee, *

* v. * * Daisy Dawn Maggard, * * Appellant. *The HONORABLE RUSSELL G. CLARK, United States District Judg e for the 1 Western District of Missouri. -2-

___________ No. 97-3180

___________ United States of America, * * Appellee, *

* v. * * Timothy J. Maggard, * * Appellant. *

___________ Submitted: January 15, 1998 Filed: September 18, 1998

___________ Before LOKEN, FLOYD R. GIBSON, and MURPHY, Circuit Judges.

___________ FLOYD R. GIBSON, Circuit Judge.
In these direct criminal appeals, Arlie D. Maggard, Daisy Dawn Maggard, and Timo thy J. Maggard, (collectively "the appellants") challenge their convictions an d sentences, claiming the district court c ommitted the following errors. Arlie and Daisy 1 each challenge the sufficiency of the evidence against them and various sentencingAr lie and Daisy both challenge the drug quantities that the district court 2 at tributedto them at sentencing. Arlie challenges the district court's upwar d adjustment of his sentence based upon his role in the offen se and obstruction of justice. Additionally, Arlie challenges the district court's failur e to make a finding regarding the type of methamphetamine attributed to him. Ti m challenges the drug quantity that the district court attributed to him, th e 3 c o urt's failure to make a finding regarding the type of methamphetamine attributed to him, and his classification under the Sentencing Guidelines as a career offender. Arlie and Daisy Maggard are husband and wife. Tim and Arlie Maggard ar e 4 brothers. -3- issues. Tim Maggard challenges the admission of evidence of prior offenses, th e

2 court's refusal to offer an addict instruction, and several sentencing issues. For th e 3 reasons set forth below, we affirm.

I. BACKGROUND Arlie, Daisy and Ti m challenge their convictions and sentences which resulted 4 from an investigation into methamphetamine distribution in the Springfield, Missouri
area. Between March 3, 1995 and July 11, 1996, local law enforcement agent s executed several search warrants at theappellants' residences. Searches of Arlie's and Dai sy's residence uncovered a plastic baggy containing 8.31 grams of a substanc e
con taining methamphetamine and syringes containing methamphetamine residue. A July 11, 1996 search of Arlie's truck uncovered sever al baggies containing a total of 10 grams of methamphetamine. Searches of Tim's residence resulted in the seizure o f d r ug scales, plastic baggier, a cutting agent commonly added to methamphetamine, a drug ledger, and over $3,000 in cash.
Following a September 23, 1995, search of Tim's residence, Tim was charged with and pleaded guilty to the state offense of distribution, delivery and manufactureThere fore, Tim was incarcerated during the last nine months of the charge d 5 conspiracy. Roge r Hilburn, Mary Schumacher, Leo Willis, and Clarence Van Zant wer e 6 each charged with conspiracy to distribute metha mphetamine. Roger Hilburn was also charged with one count of possession with intent to distribute metha mphetamine. Mary Schumacher was charged with three counts of distribution of methamphetamine. Leo Wi llis was charged with one count of possession with intent to distribut e methamphetamine and one count of distribution of methamphetamine. Roger Hilburn and Mary Schumacher each pleaded guilty to conspiracy charges 7 and tes tified for the prosecution in exchange for a downward departure in thei r sentences. Mar tinBean, John Mahan, Patty Bristol, and Sue Ann Evans testified for th e 8 government. Bean, Mahan and Evans each testified under an agreement with th e governmen

t that they would not be prosecuted for any incriminating statements made -4- of a co ntrolled substance. Tim began serving the five-year sentence imposed for that offense on October 18, 1995. 5

On Se ptember 18, 1996, a Grand Jury returned a twelve-count, secon d supersedi ng indictment in which Arlie, Daisy and Tim, along with four othe r indiv iduals, were charged with participating in a conspiracy to distribut e

6 methamphetamine between October, 1994 and July 11, 1996. See 21 U.S.C. § 84 6 (1994). The indictment also charged Arlie w ith two counts of possession with intent to distribute methamphetamine and Daisy with one count of possession with intent t o distribute methamphetamine. See21 U.S. C. §841(a)(1) (1994). Tim was also charged with two counts of being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1) (199 4), and with one count of criminal forfeiture, see 21 U.S.C. § 853 (1994). Th e district court tried the appellants simultaneously.

Over the course of a three-day trial, the government offered the testimony o f fourteen law enforcement officers, two participants in the charged conspiracy, and four 7 other individuals admittedly involved in the methamphetamine culture in southern 8during t heir testimony. Bristol testified under an agreement with the government t o

reduce her sentence in another case in which she had pleaded guilty to conspiracy to distribute and manufacture methamphetamine. -5- Missouri. The government's witn esses testified that Arlie and Daisy were at the center of a large methamphetamine distribution conspiracy and th at the husband and wife team providedmethamphetamine to at least four people who acted as distributors of th e drugs. Tim Maggard, Arlie's brother, was one of those distributors. This testimony also
na med Roger Hilburn, Leo Willis and Clarence Van Zant as distributors o f methamphetamine supplied by Arlie.

Followin g the presentation of the government's evidence, Arlie and Dais y submit ted motions for judgment of acquittal which the district court denied. After the presentation of the defendants' evidence, Arlie and Tim submitted motions for judgment of acquittal. The district court also denied these motions.

On January 9, 1997, the jury found Arlie, Daisy and Tim guilty of participating in a conspiracy to distribute methamphetamine. See 21 U.S.C. § 846. The jury found Arl ie and Daisy guilty of one count of possession with intent to distribut e methamphetamine. See 21 U.S.C. §841(a)(1). Tim was found guilty of crimina l forfeiture

. See 21 U.S.C. § 853. The trial judge sentenced Arlie to 360 month s imprisonme nt

for his role in the conspiracy and 240 months imprisonment fo r posses sion with intent to distribute methamphetamine, both sentences to ru n
conc urrently. The trial judge sentenced Daisy to 235 months imprisonment for th e conspiracy and possession ch arges, sentences to run concurrently. Tim was sentenced to 360 months imprisonment for his role in the conspiracy. In this consolidated appeal, the appellants challenge their convictions and sentences.-6-

II. DISCUSSION A. Arlie and Daisy Maggard 1. Sufficiency of the Evidence

Ar lie and Daisy each contend that the evidence is insufficient to support thei r convictions and that the district court erred in denying their motions for judgments of acquittal. "In reviewing the sufficiency of the evidence to support a guilty verdict, we view the evidence in the light most favorable to the v erdict and accept as established all reasonable inferences supp orting the verdict." United States v. Padilla-Pena , 129 F.3d 457, 464 (8th Cir. 1997), cert. denied 118 S. Ct. 2063 (1998). We will uphold a
con victionwhich is supported by substantial evidence. See United States v. Blac k Cl oud , 101 F.3d 1258, 1263 (8th Cir. 1996) (citations omitted). Substantial evidence need not exclude every reasonable hypothesis of innocence, but must be sufficient t o convince the jury of the defendants' guilt beyond a reas onable doubt. See United States
v. Har rison , 133 F.3d 1084, 1085 (8th Cir. 1998) (internal citations and quotation s omitted).
Arlie's and Daisy's challenge to the sufficie ncy of the evidence rests largely upon the fact t hat the most damaging testimony against them is attributable to othe r parti cipants in the conspiracy or witnesses whose testimony the government secure d
w ith plea agreements or immunity deals. Both appellants argue that the government's evidence was limited to "what some snitches, who clearly were given a motive in their plea deals to say whatever they could against Daisy and Arlie Maggard, co uld contrive." Appellant's Br. at 23. Arlie and Daisy attack the testimony of the government' s witne sses as uncorroborated and generally unreliable. Due to the identity of th e go vernment

witnesses, the appellants claim that the government failed to produc e sufficient evidence upon which to base their convictions.

We find t he appellants' challenges unavailing for a number of reasons. I n appellants' trial, several witnesses testified to Arlie's and Daisy's role in the distribution-7-

and sale o f large quantities of methamphetamine. Roger Hilburn testified that Arli e supplied him with one ounce of methamphetamine per day from October, 1994 unti l Hilburn was ar

rested in mid-February, 1995. Hilburn testified that Arlie supplied Tim Maggard and Leo Willis with simi lar quantities of methamphetamine daily. According to Hilburn, Clarence Van Zant also regularly received methamphetamine from Arlie , although less frequently and in smaller quantities than the other con spirators. Regarding Da isy, Hilburn testified that Daisy regularly accompanied her husband when th e methamphe tamine was distributed and that Daisy kept track of money owed to th e Maggards. Hilburn also testified that Daisy was Arlie's partner in the conspiracy and that Daisy had occasionally hidden drugs on her body, presumably in order to avoi d detection.
Other government witnesses testified that Arlie supplied the methamphetamine eventu ally sold by Tim Maggard, Roger Hilburn, Leo Willis and Clarence Van Zant

. Alt hough the government's witnesses did not discuss Daisy's involvement in th e conspiracy to the same exten t as Arlie's and Tim's, more than one witness testified that Daisy was Arlie's partner in the distribution and sale of methamphetamine. Fo r example, testimony at trial revealed that Daisy would fre quently accompany Arlie when the drugs were distributed. Patty Bristol testified that Daisy had helped Bristo l manufacture methamphetamine on occasion.

It is well established that "it is the sole province of the jury to weigh th e credibility of a witness." United States v. Wright , 119 F.3d 630, 634 (8th Cir. 1997) (internal citations and quotations omitted). As the trial record makes clear, appellants'
coun sel cross-examined each witness with whom the government had made ple a agree ments and attempted to expose the witnesses' potential for bias and self-interest. Appel lants' counsel also appropriately attempted to raise questions regarding th e credibil ity of the government's witnesses in closing arguments. The jury's choice t o credit the testimony of those w itnesses was within its province, and we will uphold the conviction if substantial evidence supports it. See United States v. Bass , 121 F.3d-8-

1218, 12 21 (8th Cir. 1997); United States v. Cabrera , 116 F.3d 1243, 1245 (8th Cir

. 1997). A fter a thorough review of the record, we cannot say that the evidence wa s insufficie nt

to convince a reasonable juror of appellants' guilt beyond a reasonabl e doubt. We therefore affirm Arlie's and Daisy's convictions.

2. Sentencing Issues

Arlie and Daisy also challenge their sentences that the district court imposed , arguing tha t the court erred in the amount of drugs attributed to them. At appellants ' sentencing hearings, the district court found that Arlie and Daisy were each responsible forbetw een 10 and 30 kilograms of methamphetamine. In accordance with th e Sentencing Guidelines, Arlie received a 360 month sentence, and Daisy received a 235 month sentence for their offenses.

The law regarding the government's burden of proof, duties of the sentencin g court, and the standard of review concerning the determination of drug quantities and applicat ionof the Sentencing Guidelines is well established. The government mus t prov e, by a preponderance of the evidence, the quantities of drugs attributed to a def endant for sentencing purposes. See Padilla-Pena , 129 F.3d at 467. The distric t court i s required to make findings of fact and rule on unresolved objections to th e presen tence report. See Fed. R. Crim. P. 32(c)(1). A sentencing judge who als o presided ov er the trial, as in this case, may base his factual findings on the trial record and is not req uired to hold an evidentiary hearing prior to sentencing. See Unite d States v. Wiggin s , 104 F.3d 174, 178 (8th Cir. 1997). We review a sentencing court's findings of fa

ct regarding the quantity of drugs attributed to defendants for clear error. See Uni ted States v. Payne , 119 F.3d 637, 645 (8th Cir.), cert. denied , 118 S. Ct. 454 (1997).A s ampling of the testimony produced at trial includes evidence that Roge r 9 Hilburn, T im Maggard and Leo Willis each received approximately one ounce o f metha mphetamine daily at different time periods throughout the duration of th e conspiracy. Tim Maggard also confessed to one of t he agents involved in the case that forfo ur to five months he had been distributing approximately four ounces o f methamphetamine daily. Witnesses also testified to having been present and seen large quan tities (two pounds on one occasion, five pounds at another time) o f methamphetamine in Arlie's possession. -9- Arl ie and Daisy contend that their cases should be remanded for re-sentencin g because the sentencing judge fai led to specifically rule or estimate the amount of drugs attributable to them. We disagree.
Both appellants were convicted of conspiracy to distribute methamphetamine and are therefore responsible for "all reasonably foreseeable acts . . . of others in furtherance of the jointly undertaken criminal activity." United States Sentencing Commission , Guide lines Manual , §1B1.3(a)(1)(B) (Nov. 1995) [hereinafter U.S.S.G.]. Testimon y at trial demonstrated that appellants were at the center of a large methamphetamin e distribution ring. The sentencing judge could properly consider the total amount o f 9 drugs invo lved in the conspiracy in determining the quantity of drugs attributable t o these appellants. Furthermore, the Sentenci ng Guidelines provide that "[w]here . . . the amount seized does not reflect the scale of the offense, the court shall approximate the quantity of the controlled substance." U. S.S.G. §2D1.1, comment. (n.12) (Nov. 1995).
In appellants' cases, the government admittedly relied upon the testimony of coconspirators and immunized witnesses to establish the scale of the conspiracy because
a re latively small amount of drugs was actually seized by law enforcement agents

. Under these circumstances, the sentencing judge's use of witnesses' testimony t o establ ishdrug amounts was proper, see United States v. Dierling , 131 F.3d 722, 73 6 (8th Cir. 1997), cert. denied , 118 S. Ct. 1379 (1998). Although a more detailed recordAt Ar lie's sentencing hearing, in response to the government's state d 10 assumption that the district court had attributed between 10 and 30 kilograms o f metham phetamine to Arlie, the sentencing judge stated, "Well, I didn't make tha t finding, but there was between 10 and 30 kilograms of methamphetamine involved for which th is defendant is responsible." In sentencing Arlie, the judge also stated that , "The defendant did hav e more than five people distributing methamphetamine, and he con trolled those people. There is a two-point increase for obstruction of justice. The defendant is a career offender." Sent. Tr. at 6-7. At Daisy's sentencing hearing (which took place immediately prior to Arlie's) , the judge sta ted, "Well, the Court heard the evidence at the time of trial. And th e defendant is responsible for all drugs distributed during the conspiracy. The Court finds at least 10 to 30 kilograms of methamphetamine was distributed, and the Court finds the defendant is responsible for all methamphetamine distributed." Sent. Tr. at 12. The sentencing judge made his findings after hearing appellants' obj ections to the presentence investigation report and f ollowing a summary of the pertinent evidence by the government. The statements by the sentencing judge, while legally sufficient in this case, are not as precise nor expansive as we woul d prefer drug quantity determinations to be. -10- addressing trial testimony and specific amounts would have been preferable, w e 10 cannot say that the attribution to appellants of 10 to 30 kilograms of methamphetamine was not supported by a preponderance of the e vidence nor that the district court clearly erred when using this amount to determine appellants' sentences.
Arlie Maggard further argues that the district court erred in calculati ng his offense level. We review th e sentencing court's factual determinations for clear error while its interpretation of the Sentencing Guidelines are subject to de novo review. See United States v. Larson , 110 F.3d 620, 6 27 (8th Cir. 1997). The district court adjusted Arlie's offense level of 36, see U.S.S.G. §2D 1.1(c)(2) (Nov. 1995), upward four points for his role as a leader/organizer of the conspiracy, see U.S.S .G. §3B1.1(a), and two points for obstructi on of justice, see U.S.S.G. §3C1.1. These enhancements gave Arlie a tota l offense level of 42, which carries a sentencing range of 360 months to life. Se e U.S.S.G. Ch. 5, Pt. A. In response to Arlie's contentions, the government correctlyAr lie has a prior felony conviction for first degree sexual assault and a 11 conviction for burglary in the second deg ree. According to Eighth Circuit precedence, these prior convictions qualify as "crimes of violence" under U.S.S.G. §4B1.2. Se e United State s v. Hascall , 76 F.3d 902, 904-06 (8th Cir.), cert denied117 S. Ct. 35 8 (1996) (adopting classification of burglary of a commercial building as a crime o f violence for Sentencing Guideline purposes). The maximum term of imprisonment authorized for a defendant convicted of 12 possession with intent to distribute methamphetamine and conspiracy to distribut e methamphetamin e is life. 21 U.S.C. §§ 841(b), 846. According to U.S.S.G. §4B1.1, career offenders are subject to the higher offense level of 37 rather than the offens e level of 36 as provided by U.S.S.G. §2D1.1(c)(2). -11- no tes that the sentence imposed upon Arlie would be the same regardless of th e enhancements of which Arlie complains. As a career offender, Arlie's offense level 11 is 37 and his criminal history category is VI. See U.S.S.G. §4B1.1. Thus, th e 12 appropriatesentencing range for Arlie's convictions would be 360 months to life. See U.S.S.G. Ch. 5, Pt. A. (Nov. 1995). As our independent review of the record convinces
us tha t the sentence imposed was proper, we need not reach the issue of whether th e district court erred in adjusting Arlie's offense level upward.
Lastly, Arlie asserts that th e district court erred in failing to make a finding as to wh ether "l-" or "d-" methamphetamine was involved in the conspiracy. Prior t o November 1, 1995, the Sentencing Guidelines distinguished between the two types of
me thamphetamine and mandated harsher sentences for offenses involving d

meth amphetamine. See U.S.S.G. §2D1.1, comment. (n.10) (Nov. 1994). Th e distinction between "l-" and "d-" methamphetamine was eliminate d by Amendment 518, wh ichbecame effective on November 1, 1995. See U.S.S.G. App. C (Nov. 1997)

. "Some offenses, such as consp iracy, are 'continuing offenses' for which the completion date controls which version of th e Sentencing Guidelines should apply." United States v. Reetz , 18 F.3d 595, 598 (8th Cir. 1994) (citations omitted) . The conspiracy of which-12-

Arlie was convicted occurred between October, 1994 and July 11, 1 996. Therefore, the Sentencing Guidelines applicable to Arlie are those in effect onTodd Bla ir stated, "I observed . . . a white male known as Timothy Maggard, 13 which I was familiar with through other drug investigations." Tr. at 115. Scott Lance testi fied that Tim Maggard was someone "which I was familiar with in the past." Tr. at 242. -13- July 11, 1996. Therefore , the district court's alleged failure to make a finding as to the type of methamphetamine involved in the conspiracy is not error because such a finding was unnecessary under the November, 1995 guidelines.
B. Tim Maggard 1. Evidentiary Issues

Tim first contends that his conviction s hould be reversed due to the admission of materially prejudicial testimony of four government witnesses regarding Tim's prio r wrongdoings. Mary Sc humacher testified on direct examination that the appellant and her boy friend had served time in prison together. Tr. at 76. Todd Blair and Scot t Lance, l aw enforcement agents who worked on the investigation of the Maggards , testi fied on direct examination that they were familiar with Tim Maggard. To m 13 Noye s, a deputy sheriff at the time of the investigation, testified on cross-examination that he felt that Tim "knew what methamphetamine wa s from prior investigations." Tr. at 285. These four statements by government witnesses comprise the basis for Tim' s request for reversal.

I n itially, we note that appellant failed to object to any of the statements at trial. We therefore review th e district court's admission of this evidence for plain error. See Un itedStates v. Millard , 139 F.3d 1200, 1203 (8th Cir. 1998). We will reverse fo r pl ainerror only if the error affected the appellant's substantial rights and "seriousl y aff ect[ed] the fairness, integrity, or public reputation of judicial proceedings." United States v. Robinson , 110 F.3d 1320, 1324 (8th Cir.), cert. denied , 118 S. Ct. 432 (1997) (internal citations omitted).The instruction offered by appellant stated: 14 The tes timony of a drug addict must be examined an d weighed by the jury with greater care than the testimony of a witness who does not abuse drugs. An addict may have a constant need for drugs, and fo r money to buy drugs, and may also have a greater fear o f imprisonment because his or her source of drugs may be cut off

. Think about these things and consider whether his or her testimony may have been influenced by the government's promise. Do not convict the defendant based on the unsupporte d testimony of such a witness, st anding alone, unless you believe his or her other testimony beyond a reasonable doubt. Appellant's App. at 2. -14- Assuming the admissi on of evidence concerning Tim's prior prison term and the refe rences to Tim's relationship with prior drug investigations could amount to plai n error, see Fed. R. Evid. 404(b), we find the error to be harmless. These four statements cannot be said to have affected Tim's substantial rights nor to have seriously affected the fairness of Tim's trial. After a thorough review of the record, we find tha t substantia levidence was produced at trial to support appellant's conviction and tha t these four is olated statements could have had only a slight influence, if any, on th e verdict. See United States v. Mitchell , 31 F.3d 628, 632 (8th Cir. 1994).

2. Jury Instructions

Ti m next argues that the district court's refusal to offer the jury an addict ins truction constituted reversible error. While the district court has broad discretion

14 in formulating jury instructions, see United States v. Hester , 1 40 F.3d 753, 757 (8th Cir. 1998 ), a defendant's request for a specific instruction will be granted if the instruction is supported b y the evidence and reflects a correct statement of the law. See Unite d States v . Tucker , 137 F.3d 1016, 1036 (8th Cir. 1998). "The defendant is not entitled to a particularly worded instruction where the instructions given, when viewedThe instruction stated: 15 You have heard evidence that Roger Hilburn, Mar y Schumacher, and Patr

icia Bristol have made plea agreements with the government. Dependent upon the extent of their cooperation, the g overnment has agreed to move for a downward departur e pu rsuant to the Sentencing Guidelines. You have also hear d evide nce that Martin Bean, John Mahan, and Sue Evans hav e receiv ed a promise from the government that they will not b e pros ecuted in federal court. Their testimony was received i n evid ence and may be considered by you. You may give thei r tes timony such weight as you think it deserves. Whether or no t their testimony may have been influenced by the plea agreement or the government's promise is for you to determine. Th e witnesses' guilty plea cannot be considered by you a s any ev idence of the defendant's guilt. The witnesses' guilty ple a can be considered by you only for the purpose of determining how much, if at all, to rely upon the witnesses' testimony. Appellant's App. at 3. -15- as a whole, correctly state the applicable law and adequately and fairly cover th e substance of the requested instruction." United St ates v. Parker , 32 F.3d 395, 400 (8th Cir. 1994) (citation omitted). We review the district court's formulation of jury instructions for an abuse of discretion. Id.

The district court gave the jury a general cautionary instruction regarding th e 15 testimon y of persons with whom the government had reached plea agreements

. Appellant argues that this instruction was insufficient and that the testimony of Roger Hilburn, Mary Schumacher, Martin Bean, and Patty Bristol clearly established eac h witness as a drug addict, thus comp elling an addict instruction. This court has adopted a case-by-case approach to determining whether an addict instruction is necessary. See United States v. Hoppe , 6 45 F.2d 630, 633 (8th Cir. 1980), cert. denied , 454 U.S. 849 (1981). Factors which will obviate the need for an addict instruction include: a dispute as to whether the informant is actually an addict; cross-examination regarding theTim began serving a five-year prison sentence for a state offense on that date. 16
-16- informant's drug addicti on; an instruction to the jury to view the informant's testimony with care; and corroboration of the informant's testimony. See id

. All four factors need not be present to dispense with the requirement of an addict instruction. See Parker , 32 F.3d at 401-02.
Here, we find that three of the factors are present. Each of the witnesses whom appellant claims are addicts testified that they were no longer using drugs at the time of trial. Appellant's and his co-defendants' counsel strenuously cross-examined th e witnesses regarding their drug use. The w itnesses corroborated each other's testimony. Other witnesses, including law enforcement agents, further corroborated the challenged witness es' testimony. After reviewing the record, we find that appellant's propose d addict instr uction was not supported by the evidence. The instruction given by th e district court was adequate, and the court did not abuse its discretion by refusing to give appellant's proposed instruction.

3. Sentencing Issues
Tim raises three sentencing issu es on appeal. Tim claims the district court erred in sentencing him under the Sente ncing Guidelines that became effective on November 1, 19 95. Tim also challenges the district court's calculation of the quantity of drug s attributed to him. Lastly, Tim asserts that the district court erred in classifying Tim as a career offender. We review the distri ct court's factual findings at sentencing for clear error while our review of the distri ct court's interpretation of the Sentencing Guidelines is de novo. See United States v. Larson , 110 F.3d 620, 627 (8th Cir. 1997).

Tim asserts that his sentence should have been governed by the Sentencin g Guidelines in effect on October 18, 1995, and that the district court erred in failing to 16 make specific findings as to the type of methamphetamine involved in the conspiracy.Patty Bristol testified that she had been introduced to Arlie Maggard by Tim 17 fo llowing the September 23, 1995 search of Tim's home which resulted in hi s incarceration. Bristol stated that Tim told her that "[h]e believed he would be going up, . . . and just continue our business on with Arlie." Tr. at 8. -17- As discus sed above in Part A.2. of this opinion, prior to November 1, 1995, th e Gui delines maintained a distinction between "l-" and "d-" methamphetamine whic h Amendment518 eliminated effective November 1, 1995. Tim contends hi s incarc eration on October 18, 1995 prevented his participation, past that date in th e conspiracy of which he was conv icted. Conspiracy is a continuing offense from which
a participant must affirmatively withdraw in order to end his legal liability. " A defendant must take affirmative action, either making a clean breast to the authorities
or communicating his withdrawal in a manner reasonably calculated to reach co

con spirators. . . . Mere cessation of activities is not enough." United States v

. Granados , 962 F.2d 767, 773 (8th Cir. 1992) (internal citations and quotations omitted). Furthermore, a defendant may be guilty of conspiracy even if the purpose of th e conspira cy is being effected while he is incarcerated. See United States v. Casares

Cardenas , 14 F.3d 1283, 1288 (8th Cir.), cert. denied , 513 U.S. 849 (1994).

Tim bear s the burden of proving his withdrawal from the conspiracy. Se e Granados , 962 F.2d at 773. While Tim offered n o evidence at trial to support his claim
o f withdrawal from the conspiracy, there was testimony from Patty Bristol indicating that Tim did not take the affirmative action necessary to terminate his participation in the conspiracy. As a continuing offense, sentencing for conspiracy convictions ar e 17 control ledby the Sentencing Guidelines in effect at the time of the completion of th e conspiracy. See United States v. Reetz , 18 F.3d 595, 598 (8th Cir. 1994). Here, the jury fo und Tim guilty of participating in a conspiracy that began in approximatel y October of 1 994 and ended with Arlie and Daisy Maggard's arrest on July 11, 1996

. The district court sentenced Tim according to the Sentencing Guidelines in effect on that date. In so doing, we conclude that the district court did not err.-18-

Next, Tim argues that th e district court erred in calculating the quantity of drugs attributed to him. The legal standards regarding drug quantity determinations i s addresse d above at Part 2.A. of this opinion. After reviewing the record and agai n noting that a co-conspirator is responsible for all reasonably foreseeable acts i n furtherance of the jointly undertaken criminal activity, see U.S.S.G. §1B1.3(a)(1)(B), we cannot s ay that the sentencing judge clearly erred in attributing 10 to 30 kilograms of methamphetamine to Tim.

Tim also challenges his sentencing status as a career offender. Tim argues that his prior con viction for second degree burglary of an unoccupied residence should not be considered in assessing career offender status under the Sentencing Guidelines

. However, it is well-settled law in this Circuit that second degree burglary is considered
a "crime of violence" for career offender status under U.S.S.G. §4B1.2. See Unite d States v. Reynolds , 116 F.3d 328, 330 (8th Cir. 1997). We therefore find Tim's final argument to be without merit.

III. CONCLUSION

Forthe reaso ns set forth in this opinion, we affirm the judgment of the distric t court.

Affirmed.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.