United States Court of Appeals

For the Eighth Circuit 

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No. 19-1645

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United States of America

 Plaintiff - Appellee

v.

Gary D. Timmons, also known as Mush

 Defendant - Appellant

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Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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Submitted: March 10, 2020

 Filed: March 30, 2020

[Unpublished]

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Before GRUENDER, ARNOLD, and SHEPHERD, Circuit Judges. 

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PER CURIAM.

After a jury trial, Gary D. Timmons was convicted of two counts of violating 

federal narcotics laws, including one count of conspiracy to distribute one kilogram 

or more of a mixture or substance containing a detectable amount of heroin. See 21

U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i), 846. Timmons appeals, challenging the 

sufficiency of the evidence against him on this count and requesting that we vacate 
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his conviction on this count and remand the matter to the district court1 for 

resentencing. We affirm.

In November 2015, inspectors with the United States Postal Inspection 

Service discovered 996.7 grams of heroin in a package that was shipped from 

Lakewood, California to Florissant, Missouri. Video surveillance of the Lakewood 

Post Office revealed that Timmons sent this package, and investigators later 

discovered his palm print on the package. After a controlled delivery of the package, 

investigators arrested the intended recipient, Laverne Adams, who agreed to 

cooperate with them. With Adams’s consent, investigators installed a wiretap on his 

phone so they could record calls between Timmons and Adams. On these calls, 

investigators heard Timmons discuss with Adams their past drug transactions as well 

as plans for Timmons to ship more heroin in the near future for Adams to sell. In 

February 2016, investigators also intercepted a package containing $40,000 that 

Timmons later admitted was payment for drugs he distributed, though he testified

that it was payment for marijuana. Law enforcement apprehended Timmons shortly 

thereafter. He ultimately was charged with one count of conspiracy to distribute one

kilogram or more of a mixture or substance containing a detectable amount of heroin, 

see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(i), 846, and one count of distribution of 

100 grams or more of a mixture or substance containing a detectable amount of 

heroin, see 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(i). 

 The foregoing evidence and more was presented to the jury, which returned a 

guilty verdict on both counts. The district court sentenced Timmons to the 

applicable mandatory minimums—180 months’ imprisonment on the first count, see

21 U.S.C. § 841(b)(1)(A), and 120 months’ imprisonment on the second count, see

21 U.S.C. § 841(b)(1)(B)—to run concurrently.

 

1

The Honorable Audrey G. Fleissig, United States District Judge for the 

Eastern District of Missouri. 
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On appeal, Timmons challenges the sufficiency of the evidence concerning 

only his conviction for conspiracy to distribute one kilogram or more of heroin, 

arguing that the amount of heroin is an element of the offense and that the 

Government failed to prove that element beyond a reasonable doubt.

2

 We review 

the sufficiency of the evidence de novo. United States v. Oliver, 950 F.3d 556, 565 

(8th Cir. 2020). In doing so, we evaluate “the evidence in the light most favorable 

to the verdict and draw[] all reasonable inferences in its favor.” United States v. 

Perkins, 948 F.3d 936, 938 (8th Cir. 2020). We will affirm if “the entire body of 

evidence” is “sufficient to convince the fact-finder beyond a reasonable doubt of the 

defendant’s guilt.” United States v. Kelley, 861 F.3d 790, 796 (8th Cir. 2017). 

“Reversal is warranted only where no reasonable jury could have found the 

defendant guilty beyond a reasonable doubt.” Oliver, 950 F.3d at 565. 

It is true that the amount of heroin is an element of the charged offense. See 

United States v. Brown, 331 F.3d 591, 595 (8th Cir. 2003); see also United States v. 

Tillmon, --- F.3d ---, 2019 WL 921534, at *7 (4th Cir. Feb. 26, 2019) (recognizing 

that a conviction under § 841(b)(1)(A)(i) requires proof that the crime “involved at 

least one kilogram of heroin”). As such, the Government had to prove beyond a

reasonable doubt that Timmons had conspired to distribute at least one kilogram of 

heroin. See United States v. Daniel, 887 F.3d 350, 360 (8th Cir. 2018). A reasonable 

jury could find beyond a reasonable doubt that the Government did so here. 

The Government presented direct evidence that Timmons had shipped the 

package containing 996.7 grams of heroin to Adams, including video surveillance 

showing Timmons was the sender as well as evidence that Timmons’s palm print 

was on the package. The Government also presented direct evidence of Timmons’s 

plans to ship more heroin to Adams in the form of recorded calls between the two. 

On these calls, Timmons made the following comments: (1) he could “open up the 

2

Timmons preserved this issue for appeal by moving for a judgment of 

acquittal at the close of the evidence. See United States v. Bruguier, 735 F.3d 754, 

763 (8th Cir. 2013).
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gates” for Adams, meaning Timmons had a large heroin supply he was willing to 

ship to Adams for Adams to sell, and he would do so once they had a “good 

relationship” so that both of them could “make plenty of money”; (2) he would have 

more heroin “sitting on [Adams’s] front door” in one week’s time if Adams sold the 

previously shipped heroin quickly and paid Timmons for it; and (3) he would send 

“bigger packages” of heroin to Adams if certain conditions were met. This evidence 

demonstrates that Timmons had previously shipped nearly one kilogram of heroin 

to Adams for Adams to sell and that Timmons planned to send Adams significantly 

more heroin for that same purpose in the near future, which suffices to support the 

jury’s verdict. See United States v. Ruvalcaba, 9 F.3d 41, 43 (8th Cir. 1993) (“When 

a conspiracy to supply drugs exists, the conspirators’ criminal liability is determined 

by the amount of drugs promised or negotiated, not the amount contained in a 

particular delivery.”).

Timmons asserts that the Government failed to proffer sufficient evidence “to 

make up the difference between the one kilogram it charged [him] with conspiring 

to distribute[] and the 996.7 grams it actually seized.” He maintains that the 

Government “offered no other evidence” to prove the additional 3.3 grams besides 

the package containing $40,000 that he testified was payment for marijuana, and he 

argues that any “inference” that this $40,000 was payment for heroin he had shipped 

to another person was not proven beyond a reasonable doubt. But he ignores the 

recorded calls evidencing his plans to ship more heroin to Adams that the 

Government presented to the jury. Based on these calls, a “reasonable jury could 

have found the defendant guilty beyond a reasonable doubt” of conspiring to 

distribute one kilogram or more of a substance or mixture containing heroin. See

Oliver, 950 F.3d at 565.

Therefore, we affirm. 

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