United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-2482 

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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 Judge for the 1

Western District of Missouri.

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___________

No. 97-3180

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United States of America, *

*

Appellee, *

*

v. *

*

Timothy J. Maggard, *

*

Appellant. *

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Submitted: January 15, 1998

Filed: September 18, 1998

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

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FLOYD R. GIBSON, Circuit Judge.

In these direct criminal appeals, Arlie D. Maggard, Daisy Dawn Maggard, and

Timothy J. Maggard, (collectively "the appellants") challenge their convictions and

sentences, claiming the district court committed the following errors. Arlie and Daisy 1

each challenge the sufficiency of the evidence against them and various sentencing
Arlie and Daisy both challenge the drug quantities that the district court

2

attributed to them at sentencing. Arlie challenges the district court's upward

adjustment of his sentence based upon his role in the offense and obstruction of justice.

Additionally, Arlie challenges the district court's failure to make a finding regarding the

type of methamphetamine attributed to him. 

Tim challenges the drug quantity that the district court attributed to him, the

3

court'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 are

4

brothers.

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issues. Tim Maggard challenges the admission of evidence of prior offenses, the

2

court's refusal to offer an addict instruction, and several sentencing issues. For the

3

reasons set forth below, we affirm.

I. BACKGROUND

Arlie, Daisy and Tim 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 agents

executed several search warrants at the appellants' residences. Searches of Arlie's and

Daisy's residence uncovered a plastic baggy containing 8.31 grams of a substance

containing methamphetamine and syringes containing methamphetamine residue. A

July 11, 1996 search of Arlie's truck uncovered several baggies containing a total of 10

grams of methamphetamine. Searches of Tim's residence resulted in the seizure of

drug 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 manufacture
Therefore, Tim was incarcerated during the last nine months of the charged

5

conspiracy.

Roger Hilburn, Mary Schumacher, Leo Willis, and Clarence Van Zant were

6

each charged with conspiracy to distribute methamphetamine. Roger Hilburn was also

charged with one count of possession with intent to distribute methamphetamine. Mary

Schumacher was charged with three counts of distribution of methamphetamine. Leo

Willis was charged with one count of possession with intent to distribute

methamphetamine and one count of distribution of methamphetamine. 

Roger Hilburn and Mary Schumacher each pleaded guilty to conspiracy charges 7

and testified for the prosecution in exchange for a downward departure in their

sentences.

Martin Bean, John Mahan, Patty Bristol, and Sue Ann Evans testified for the

8

government. Bean, Mahan and Evans each testified under an agreement with the

government that they would not be prosecuted for any incriminating statements made

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of a controlled substance. Tim began serving the five-year sentence imposed for that

offense on October 18, 1995.5

On September 18, 1996, a Grand Jury returned a twelve-count, second

superseding indictment in which Arlie, Daisy and Tim, along with four other

individuals, were charged with participating in a conspiracy to distribute

6

methamphetamine between October, 1994 and July 11, 1996. See 21 U.S.C. § 846

(1994). The indictment also charged Arlie with two counts of possession with intent to

distribute methamphetamine and Daisy with one count of possession with intent to

distribute methamphetamine. See 21 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)

(1994), and with one count of criminal forfeiture, see 21 U.S.C. § 853 (1994). The

district court tried the appellants simultaneously. 

Over the course of a three-day trial, the government offered the testimony of

fourteen law enforcement officers, two participants in the charged conspiracy, and four 7

other individuals admittedly involved in the methamphetamine culture in southern 8
during their testimony. Bristol testified under an agreement with the government to

reduce her sentence in another case in which she had pleaded guilty to conspiracy to

distribute and manufacture methamphetamine.

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Missouri. The government's witnesses testified that Arlie and Daisy were at the center

of a large methamphetamine distribution conspiracy and that the husband and wife team

provided methamphetamine to at least four people who acted as distributors of the

drugs. Tim Maggard, Arlie's brother, was one of those distributors. This testimony also

named Roger Hilburn, Leo Willis and Clarence Van Zant as distributors of

methamphetamine supplied by Arlie. 

Following the presentation of the government's evidence, Arlie and Daisy

submitted 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

Arlie and Daisy guilty of one count of possession with intent to distribute

methamphetamine. See 21 U.S.C. §841(a)(1). Tim was found guilty of criminal

forfeiture. See 21 U.S.C. § 853. The trial judge sentenced Arlie to 360 months

imprisonment for his role in the conspiracy and 240 months imprisonment for

possession with intent to distribute methamphetamine, both sentences to run

concurrently. The trial judge sentenced Daisy to 235 months imprisonment for the

conspiracy and possession charges, 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.
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II. DISCUSSION

A. Arlie and Daisy Maggard

1. Sufficiency of the Evidence

Arlie and Daisy each contend that the evidence is insufficient to support their

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 verdict and accept as established all

reasonable inferences supporting 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

conviction which is supported by substantial evidence. See United States v. Black

Cloud, 101 F.3d 1258, 1263 (8th Cir. 1996) (citations omitted). Substantial evidence

need not exclude every reasonable hypothesis of innocence, but must be sufficient to

convince the jury of the defendants' guilt beyond a reasonable doubt. See United States

v. Harrison, 133 F.3d 1084, 1085 (8th Cir. 1998) (internal citations and quotations

omitted).

Arlie's and Daisy's challenge to the sufficiency of the evidence rests largely upon

the fact that the most damaging testimony against them is attributable to other

participants in the conspiracy or witnesses whose testimony the government secured

with 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, could contrive."

Appellant's Br. at 23. Arlie and Daisy attack the testimony of the government's

witnesses as uncorroborated and generally unreliable. Due to the identity of the

government witnesses, the appellants claim that the government failed to produce

sufficient evidence upon which to base their convictions.

We find the appellants' challenges unavailing for a number of reasons. In

appellants' trial, several witnesses testified to Arlie's and Daisy's role in the distribution
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and sale of large quantities of methamphetamine. Roger Hilburn testified that Arlie

supplied him with one ounce of methamphetamine per day from October, 1994 until

Hilburn was arrested in mid-February, 1995. Hilburn testified that Arlie supplied Tim

Maggard and Leo Willis with similar 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 conspirators. Regarding

Daisy, Hilburn testified that Daisy regularly accompanied her husband when the

methamphetamine was distributed and that Daisy kept track of money owed to the

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 avoid

detection. 

Other government witnesses testified that Arlie supplied the methamphetamine

eventually sold by Tim Maggard, Roger Hilburn, Leo Willis and Clarence Van Zant.

Although the government's witnesses did not discuss Daisy's involvement in the

conspiracy to the same extent as Arlie's and Tim's, more than one witness testified that

Daisy was Arlie's partner in the distribution and sale of methamphetamine. For

example, testimony at trial revealed that Daisy would frequently accompany Arlie when

the drugs were distributed. Patty Bristol testified that Daisy had helped Bristol

manufacture methamphetamine on occasion. 

It is well established that "it is the sole province of the jury to weigh the

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'

counsel cross-examined each witness with whom the government had made plea

agreements and attempted to expose the witnesses' potential for bias and self-interest.

Appellants' counsel also appropriately attempted to raise questions regarding the

credibility of the government's witnesses in closing arguments. The jury's choice to

credit the testimony of those witnesses was within its province, and we will uphold the

conviction if substantial evidence supports it. See United States v. Bass, 121 F.3d
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1218, 1221 (8th Cir. 1997); United States v. Cabrera, 116 F.3d 1243, 1245 (8th Cir.

1997). After a thorough review of the record, we cannot say that the evidence was

insufficient to convince a reasonable juror of appellants' guilt beyond a reasonable

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 that 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

for between 10 and 30 kilograms of methamphetamine. In accordance with the

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 sentencing

court, and the standard of review concerning the determination of drug quantities and

application of the Sentencing Guidelines is well established. The government must

prove, by a preponderance of the evidence, the quantities of drugs attributed to a

defendant for sentencing purposes. See Padilla-Pena, 129 F.3d at 467. The district

court is required to make findings of fact and rule on unresolved objections to the

presentence report. See Fed. R. Crim. P. 32(c)(1). A sentencing judge who also

presided over the trial, as in this case, may base his factual findings on the trial record

and is not required to hold an evidentiary hearing prior to sentencing. See United

States v. Wiggins, 104 F.3d 174, 178 (8th Cir. 1997). We review a sentencing court's

findings of fact regarding the quantity of drugs attributed to defendants for clear error.

See United States v. Payne, 119 F.3d 637, 645 (8th Cir.), cert. denied, 118 S. Ct. 454

(1997).
A sampling of the testimony produced at trial includes evidence that Roger

9

Hilburn, Tim Maggard and Leo Willis each received approximately one ounce of

methamphetamine daily at different time periods throughout the duration of the

conspiracy. Tim Maggard also confessed to one of the agents involved in the case that

for four to five months he had been distributing approximately four ounces of

methamphetamine daily. Witnesses also testified to having been present and seen large

quantities (two pounds on one occasion, five pounds at another time) of

methamphetamine in Arlie's possession. 

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Arlie and Daisy contend that their cases should be remanded for re-sentencing

because the sentencing judge failed 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,

Guidelines Manual, §1B1.3(a)(1)(B) (Nov. 1995) [hereinafter U.S.S.G.]. Testimony

at trial demonstrated that appellants were at the center of a large methamphetamine

distribution ring. The sentencing judge could properly consider the total amount of

9

drugs involved in the conspiracy in determining the quantity of drugs attributable to

these appellants. Furthermore, the Sentencing 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 relatively small amount of drugs was actually seized by law enforcement agents.

Under these circumstances, the sentencing judge's use of witnesses' testimony to

establish drug amounts was proper, see United States v. Dierling, 131 F.3d 722, 736

(8th Cir. 1997), cert. denied, 118 S. Ct. 1379 (1998). Although a more detailed record
At Arlie's sentencing hearing, in response to the government's stated

10

assumption that the district court had attributed between 10 and 30 kilograms of

methamphetamine to Arlie, the sentencing judge stated, "Well, I didn't make that

finding, but there was between 10 and 30 kilograms of methamphetamine involved for

which this defendant is responsible." In sentencing Arlie, the judge also stated that,

"The defendant did have more than five people distributing methamphetamine, and he

controlled 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 stated, "Well, the Court heard the evidence at the time of trial. And the

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' objections to the

presentence investigation report and following 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 would prefer drug quantity determinations

to be.

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addressing trial testimony and specific amounts would have been preferable, we

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cannot say that the attribution to appellants of 10 to 30 kilograms of methamphetamine

was not supported by a preponderance of the evidence 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 calculating his offense

level. We review the 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, 627 (8th Cir. 1997). The district court adjusted Arlie's

offense level of 36, see U.S.S.G. §2D1.1(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

obstruction of justice, see U.S.S.G. §3C1.1. These enhancements gave Arlie a total

offense level of 42, which carries a sentencing range of 360 months to life. See

U.S.S.G. Ch. 5, Pt. A. In response to Arlie's contentions, the government correctly
Arlie has a prior felony conviction for first degree sexual assault and a

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conviction for burglary in the second degree. According to Eighth Circuit precedence,

these prior convictions qualify as "crimes of violence" under U.S.S.G. §4B1.2. See

United States v. Hascall, 76 F.3d 902, 904-06 (8th Cir.), cert denied 117 S. Ct. 358

(1996) (adopting classification of burglary of a commercial building as a crime of

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 distribute

methamphetamine 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 offense

level of 36 as provided by U.S.S.G. §2D1.1(c)(2).

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notes that the sentence imposed upon Arlie would be the same regardless of the

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, the

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appropriate sentencing 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 that the sentence imposed was proper, we need not reach the issue of whether the

district court erred in adjusting Arlie's offense level upward.

Lastly, Arlie asserts that the district court erred in failing to make a finding as to

whether "l-" or "d-" methamphetamine was involved in the conspiracy. Prior to

November 1, 1995, the Sentencing Guidelines distinguished between the two types of

methamphetamine and mandated harsher sentences for offenses involving dmethamphetamine. See U.S.S.G. §2D1.1, comment. (n.10) (Nov. 1994). The

distinction between "l-" and "d-" methamphetamine was eliminated by Amendment 518,

which became effective on November 1, 1995. See U.S.S.G. App. C (Nov. 1997).

"Some offenses, such as conspiracy, are 'continuing offenses' for which the completion

date controls which version of the Sentencing Guidelines should apply." United States

v. Reetz, 18 F.3d 595, 598 (8th Cir. 1994) (citations omitted). The conspiracy of which
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Arlie was convicted occurred between October, 1994 and July 11, 1996. Therefore, the

Sentencing Guidelines applicable to Arlie are those in effect on
Todd Blair 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

testified that Tim Maggard was someone "which I was familiar with in the past." Tr.

at 242.

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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 should be reversed due to the admission of

materially prejudicial testimony of four government witnesses regarding Tim's prior

wrongdoings. Mary Schumacher testified on direct examination that the appellant and

her boyfriend had served time in prison together. Tr. at 76. Todd Blair and Scott

Lance, law enforcement agents who worked on the investigation of the Maggards,

testified on direct examination that they were familiar with Tim Maggard. Tom

13

Noyes, a deputy sheriff at the time of the investigation, testified on cross-examination

that he felt that Tim "knew what methamphetamine was from prior investigations." Tr.

at 285. These four statements by government witnesses comprise the basis for Tim's

request for reversal.

Initially, we note that appellant failed to object to any of the statements at trial.

We therefore review the district court's admission of this evidence for plain error. See

United States v. Millard, 139 F.3d 1200, 1203 (8th Cir. 1998). We will reverse for

plain error only if the error affected the appellant's substantial rights and "seriously

affect[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 testimony of a drug addict must be examined and

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 for

money to buy drugs, and may also have a greater fear of

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 unsupported

testimony of such a witness, standing alone, unless you believe his

or her other testimony beyond a reasonable doubt.

Appellant's App. at 2.

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Assuming the admission of evidence concerning Tim's prior prison term and the

references to Tim's relationship with prior drug investigations could amount to plain

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 that

substantial evidence was produced at trial to support appellant's conviction and that

these four isolated statements could have had only a slight influence, if any, on the

verdict. See United States v. Mitchell, 31 F.3d 628, 632 (8th Cir. 1994).

2. Jury Instructions

Tim next argues that the district court's refusal to offer the jury an addict

instruction constituted reversible error. While the district court has broad discretion 14

in formulating jury instructions, see United States v. Hester, 140 F.3d 753, 757 (8th Cir.

1998), a defendant's request for a specific instruction will be granted if the instruction

is supported by the evidence and reflects a correct statement of the law. See United

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 viewed
The instruction stated: 15

You have heard evidence that Roger Hilburn, Mary

Schumacher, and Patricia Bristol have made plea agreements with

the government. Dependent upon the extent of their cooperation,

the government has agreed to move for a downward departure

pursuant to the Sentencing Guidelines. You have also heard

evidence that Martin Bean, John Mahan, and Sue Evans have

received a promise from the government that they will not be

prosecuted in federal court. Their testimony was received in

evidence and may be considered by you. You may give their

testimony such weight as you think it deserves. Whether or not

their testimony may have been influenced by the plea agreement or

the government's promise is for you to determine. 

The witnesses' guilty plea cannot be considered by you as

any evidence of the defendant's guilt. The witnesses' guilty plea

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.

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as a whole, correctly state the applicable law and adequately and fairly cover the

substance of the requested instruction." United States 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 the

15

testimony 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 each

witness as a drug addict, thus compelling 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, 645 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 the
Tim began serving a five-year prison sentence for a state offense on that date. 16

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informant's drug addiction; 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 the

witnesses regarding their drug use. The witnesses corroborated each other's testimony.

Other witnesses, including law enforcement agents, further corroborated the challenged

witnesses' testimony. After reviewing the record, we find that appellant's proposed

addict instruction was not supported by the evidence. The instruction given by the

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 issues on appeal. Tim claims the district court erred

in sentencing him under the Sentencing Guidelines that became effective on November

1, 1995. Tim also challenges the district court's calculation of the quantity of drugs

attributed to him. Lastly, Tim asserts that the district court erred in classifying Tim as

a career offender. We review the district court's factual findings at sentencing for clear

error while our review of the district 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 Sentencing

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

following the September 23, 1995 search of Tim's home which resulted in his

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.

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As discussed above in Part A.2. of this opinion, prior to November 1, 1995, the

Guidelines maintained a distinction between "l-" and "d-" methamphetamine which

Amendment 518 eliminated effective November 1, 1995. Tim contends his

incarceration on October 18, 1995 prevented his participation, past that date in the

conspiracy of which he was convicted. 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 coconspirators. . . . 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 the

conspiracy is being effected while he is incarcerated. See United States v. CasaresCardenas, 14 F.3d 1283, 1288 (8th Cir.), cert. denied, 513 U.S. 849 (1994). 

Tim bears the burden of proving his withdrawal from the conspiracy. See

Granados, 962 F.2d at 773. While Tim offered no evidence at trial to support his claim

of 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 are

17

controlled by the Sentencing Guidelines in effect at the time of the completion of the

conspiracy. See United States v. Reetz, 18 F.3d 595, 598 (8th Cir. 1994). Here, the

jury found Tim guilty of participating in a conspiracy that began in approximately

October of 1994 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.
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Next, Tim argues that the district court erred in calculating the quantity of drugs

attributed to him. The legal standards regarding drug quantity determinations is

addressed above at Part 2.A. of this opinion. After reviewing the record and again

noting that a co-conspirator is responsible for all reasonably foreseeable acts in

furtherance of the jointly undertaken criminal activity, see U.S.S.G. §1B1.3(a)(1)(B),

we cannot say 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 conviction 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 United

States v. Reynolds, 116 F.3d 328, 330 (8th Cir. 1997). We therefore find Tim's final

argument to be without merit.

III. CONCLUSION

For the reasons set forth in this opinion, we affirm the judgment of the district

court.

Affirmed.

A true copy.

Attest:

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