United States Court of Appeals

For the Eighth Circuit

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No. 11-3405

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Steve Buchanan

lllllllllllllllllllllPetitioner - Appellant

v.

United States of America

lllllllllllllllllllllRespondent - Appellee

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 Appeal from United States District Court 

for the District of South Dakota - Rapid City

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 Submitted: December 12, 2012

 Filed: April 8, 2013

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Before LOKEN, MELLOY, and COLLOTON, Circuit Judges.

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MELLOY, Circuit Judge.

Steve Buchanan filed a motion for post-conviction relief under 28 U.SC.

§ 2255, alleging his trial counsel provided constitutionally ineffective assistance of

counsel. The district court denied Buchanan's motion. We affirm.

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The Honorable Karen E. Schreier, United States DistrictJudge for the District 1

of South Dakota. 
I.

In November 2007, Buchanan was charged with attempting to manufacture

methamphetamine on or about February 2006. Buchanan's jury trial began on July

8, 2008. During trial, the prosecution introduced evidence that Buchanan had access

to, used, and knew how to manufacture methamphetamine in 2005 and that two

women had purchased pseudoephedrine for Buchanan to use to manufacture

methamphetamine (collectively, "the 2005 evidence"). On July 9, 2008, the jury

found Buchanan guilty. 

Following unsuccessful direct appeal, Buchanan filed a § 2255 motion in

December 2010, alleging his trial counsel was deficient for failing to object to the

2005 evidence asimproper evidence of prior bad acts under Federal Rule of Evidence

404(b). After an evidentiary hearing, the district court denied relief. The district

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court found that the 2005 evidence did not fall within Rule 404(b) and that

Buchanan's actions in 2005 were sufficiently close in time to the charged conduct to

be relevant and admissible under Federal Rules of Evidence 402 and 403. Buchanan

timely appealed. 

II.

"We review ineffective-assistance issues de novo and the district court's

findings of predicate facts for clear error." Rodela-Aguilar v. United States, 596 F.3d

457, 461 (8th Cir. 2010). To succeed on a claim of ineffective assistance of counsel,

a defendant must show (1) trial counsel was deficient and (2) the defense was

prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687 (1984). "A court

'must indulge a strong presumption that counsel's conduct falls within the wide range

Buchanan raised additional claims in the district court which he does not raise 2

on appeal. 

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of reasonable professional assistance.'" Rodela-Aguilar, 596 F.3d at 461 (quoting

Strickland, 466 U.S. at 689).

The district court held "Buchanan's use of methamphetamine in 2005,

knowledge of the process of manufacturing methamphetamine in 2005, and

procurement of the ingredients necessary to manufacture methamphetamine explains

the circumstances of the indicted charge of attempting to manufacture

methamphetamine in February of 2006." We agree. "Our cases have firmly

established that crimes or acts which are 'inextricably intertwined' with the charged

crime are not extrinsic and Rule 404(b) does not apply." United States v. O'Dell, 204

3

F.3d 829, 833–34 (8th Cir. 2000). The 2005 evidence was sufficiently close in time

and related to the February 2006 "conduct that[wa]s charged in the instant indictment

and, therefore, [wa]s not 404(b) evidence." United States v. Karam, 37 F.3d 1280,

1288 (8th Cir. 1994); see also United States v. Ruiz-Chavez, 612 F.3d 983, 988 (8th

Cir. 2010) (evidence not 404(b) evidence where it "completes the story or provides

a total picture of the charged crime") (quoting United States v. Johnson, 463 F.3d

803, 808 (8th Cir. 2006). Since the 2005 evidence was not Rule 404(b) evidence, we

cannot sayBuchanan's trial counsel rendered constitutionally defective assistance by

failing to object to the 2005 evidence on Rule 404(b) grounds.

III.

For the reasons above, we affirm the judgment of the district court. 

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Buchanan asks usto reject or modify the "inextricably intertwined" test. That

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test is well-established in our circuit, and "[i]t is a cardinal rule in our circuit that one

panel is bound by the decision of a prior panel." Owsley v. Luebbers, 281 F.3d 687,

690 (8th Cir. 2002). 

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