1

The Honorable Dean Whipple, Chief Judge of the United States District Court

for the Western District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

________________

No. 06-2214

________________

United States of America,

Appellee,

v.

Loren W. May, Sr.,

Appellant.

*

*

*

*

*

*

*

*

*

Appeal from the United States

District Court for the 

Western District of Missouri.

________________

Submitted: January 11, 2007

 Filed: February 13, 2007

________________

Before COLLOTON, BRIGHT and GRUENDER, Circuit Judges. 

________________

GRUENDER, Circuit Judge.

A jury found Loren W. May, Sr. (“May”) guilty of conspiracy to distribute 50

grams or more of cocaine base (“crack cocaine”) in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(A) and 846. May appeals, arguing that the evidence was insufficient

to support the conviction. For the reasons discussed below, we affirm the entry of

judgment on the verdict by the district court.1
-2-

I. BACKGROUND

Law enforcement officers executed a search warrant on a St. Joseph, Missouri

residence owned by May’s father, Oscar May (“Oscar”), in March 2004. May, his

sons Jorael and Derrick May, Karlo Ginn and five other people were found inside.

The officers recovered approximately 119 grams of crack cocaine from various

locations throughout the residence, as well as drug paraphernalia, an electronic scale

and a loaded firearm. May was discovered in a corner of the basement with his pants

pockets pulled out. May was charged, along with nine other individuals, with

conspiracy to distribute crack cocaine.

At May’s trial, Ginn served as a cooperating witness for the Government,

testifying that he and Jorael routinely purchased cocaine in Kansas City, converted it

to crack cocaine and sold it in St. Joseph from Oscar’s residence. Ginn testified that

he personally observed May selling crack cocaine hundreds of times at the residence

over a period of several years. According to Ginn, May usually obtained the crack

cocaine for resale from his sons, although occasionally he obtained it from Ginn or

another source. Ginn could not give a reliable estimate of the total amount of crack

cocaine he had seen May sell.

Lawanda Roath, who described herself as Oscar’s girlfriend, testified that she

had purchased crack cocaine from May at the residence on numerous occasions.

Roath agreed to work as a paid informant for the St. Joseph police. On November 16

and November 23, 2004, while wearing a concealed audio recording device, she

purchased small quantities (roughly one-quarter and one-tenth of a gram) of crack

cocaine from May at the residence. The recording of the second purchase was played

for the jury, with Roath identifying her own voice and May’s. On the recording, May

stated that Jorael recently had obtained 19 ounces (approximately 530 grams) of crack

cocaine and that May could procure the drug from Jorael to sell to her. However,

May did not succeed in contacting Jorael and instead used an unidentified source to

provide the crack cocaine for Roath on that occasion.
2

May does not appeal the reasonableness of his sentence or the associated

advisory guidelines calculation.

-3-

At the conclusion of the Government’s evidence, May moved for judgment of

acquittal. The district court denied the motion, and May presented no evidence. The

jury returned a guilty verdict. At sentencing, the district court found May responsible

for at least 500 grams but less than 1.5 kilograms of cocaine base, yielding a base

offense level of 36. See United States Sentencing Guidelines § 2D1.1(c)(2). The

district court also applied a § 3B1.2 two-level minor role reduction and declined to

apply a § 2D1.1(b)(1) two-level enhancement for the firearm in the residence,

resulting in a total offense level of 34. With a criminal history category of IV, the

advisory guidelines range was 210 to 262 months. After considering arguments based

on the other sentencing factors in 18 U.S.C. § 3553(a), the district court imposed a

sentence at the high end of the advisory range.2

II. DISCUSSION

On appeal, May renews his argument that the evidence was insufficient to

support his conviction. May’s motion for judgment of acquittal at the close of the

Government’s evidence serves to preserve this argument for appeal. United States v.

Vinton, 429 F.3d 811, 815 (8th Cir. 2005). “We review the sufficiency of the

evidence de novo, viewing evidence in the light most favorable to the government,

resolving conflicts in the government’s favor, and accepting all reasonable inferences

that support the verdict.” United States v. Washington, 318 F.3d 845, 852 (8th Cir.

2003). “We may reverse only if no reasonable jury could have found the defendant

guilty beyond a reasonable doubt.” Id. 

To obtain a conviction for conspiracy, the Government must prove (1) the

existence of an agreement to achieve an illegal purpose, (2) the defendant’s

knowledge of the agreement, and (3) the defendant’s knowing participation in the
-4-

agreement. United States v. Johnson, 439 F.3d 947, 954 (8th Cir. 2006). The

agreement may be a tacit understanding rather than a formal, explicit agreement. Id.

In the instant case, there was sufficient evidence to show that May was a member of

a conspiracy to distribute 50 or more grams of crack cocaine. Ginn testified that May

procured crack cocaine from his sons and other sources and resold it at the residence

literally hundreds of times. In addition, Roath testified that she made multiple

purchases from May at the residence, including two controlled purchases. Roath also

testified to the authenticity of a recording of the second controlled purchase in which

May asserted he could obtain crack cocaine from his son Jorael for resale because

Jorael recently had obtained 19 ounces (more than 500 grams). This evidence is more

than sufficient to allow a reasonable jury to conclude beyond a reasonable doubt that

at least a tacit agreement to distribute crack cocaine existed and that May knowingly

participated in that agreement with Jorael, Ginn and the others. See United States v.

Detweiler, 454 F.3d 775, 777 (8th Cir. 2006) (finding sufficient evidence to support

a conviction for conspiracy to distribute narcotics where the defendant “repeatedly

purchased methamphetamine from [a regular source], then sold methamphetamine to

regular customers”).

May argues that the evidence shows only that May sold small amounts of crack

cocaine to support his own crack cocaine habit and did not profit otherwise from the

conspiracy. May contends that the evidence therefore demonstrates only a buyerseller relationship. This argument is foreclosed by the evidence of his numerous

purchases of crack cocaine for resale. See Vinton, 429 F.3d at 815 (“Evidence of a

‘single transient sales agreement’ and small amounts of drugs consistent with personal

use may indicate that a defendant is only involved in a buyer-seller relationship, rather

than a member of the conspiracy.”); United States v. Romero, 150 F.3d 821, 826 (8th

Cir. 1998) (“The evidence is sufficient to support a conspiracy where the drugs were

purchased for resale.”). In addition, May argues that the source of the crack cocaine

he sold to Roath in the two controlled buys was never identified as a member of the

conspiracy. However, “[t]he fact that the identity of some or all other members of the
-5-

conspiracy remains unknown will not preclude a conspiracy conviction.” United

States v. Agofsky, 20 F.3d 866, 870 (8th Cir. 1994). Finally, May claims there is no

evidence connecting him to the 119 grams of crack cocaine recovered from the search

of Oscar’s residence because no evidence shows that May himself resided there. We

note first that Roath did testify that May lived at the residence, and she was not

challenged on this point during cross-examination. In any event, May’s non-residency

at Oscar’s house would do nothing to detract from the other evidence tending to show

May’s participation in the conspiracy. Therefore, the evidence was sufficient to

sustain May’s conviction.

III. CONCLUSION

We conclude that the evidence was sufficient to support the jury’s verdict

finding May guilty of conspiracy to distribute 50 or more grams of crack cocaine.

Accordingly, we affirm the entry of judgment on the verdict by the district court.

BRIGHT, Circuit Judge, concurring separately.

As the majority states, slip. op. at 3 n.2, no appeal was taken regarding the

reasonableness of May’s sentence of 262 months’ (21 years, 10 months’)

imprisonment. Such an issue, if it were raised, likely would be unavailing. See

United States v. Jones, 145 F.3d 959, 966 (8th Cir. 1998) (Bright, J., concurring in

part and dissenting in part). 

However, as the dissenter against Jones’s sentence, I must observe that May,

who like Jones was a minor offender who went to trial, received the heaviest sentence

of his co-defendants, all of whom pleaded guilty. Here, the two principal members

of the conspiracy received sentences of 220 months’ (18 years, 4 months’)

imprisonment, and lesser members received sentences of 210 (17 years, 6 months), 70,

57, 50, 48, and 24 months. 
-6-

In this case, as in other cases where the guidelines serve to measure a sentence,

sometimes the less culpable receive heavier sentences. When a conspiracy exists, the

entire weight of drugs can be attributable to all members. If a minor offender

exercises his Constitutional right to a trial, the penalty of losing is a heavier sentence

than others, who may be more culpable but plead guilty and provide useful

information to the Government by informing on others. I continue to observe that,

[r]egrettably, the primary consideration under our present sentencing

scheme is not criminality, but rather on the weight of the drugs charged

to a defendant plus the information a defendant will give to his or her

prosecutor. . . . For their part, the underlings are rarely privy to workings

of the overall conspiracy and consequently have nothing to sell to the

prosecutor. 

Id. Cases such as this dispel the myth that the sentencing guidelines will “avoid

unwarranted sentence disparities,” see 18 U.S.C. § 3553(a)(6), in drug cases.

Disparity is built into the system.

______________________________