The Honorable Richard H. Kyle, United States District Judge for the 1 District of Minnesota, sitting by designation. The Honorable Warren Urbom, Senior United States District Judge for the District of 2 Nebraska. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

____________ No. 97-2960

____________ United States of America, * * Appellee, * Appeal from the United * States District Court for v. * the District of Nebraska. * James Kenneth Loveless, * * Appellant. *

___________ Submitted: January 13, 1998 Filed: March 12, 1998

___________ Before LOKEN and MURPHY, Circuit Judges, and KYLE, District Judge. 1 KYLE, District Judge.
A jury convicted James Loveless (“Loveless”) of conspiring to distribut e methamphetamine, in violati on of 21 U.S.C. § 846. The district court sentenced him to 360 months. Loveless challenges both his conviction and his sentence. We affirm.

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I. Background
This case involves a conspiracy to sell large quantities of methamphetamin e between September 1991 and April 1993 in Nebraska. Viewed in a light most favorable to the jury’s verdict, see United States v. Cunningham , 83 F.3d 218, 222 (8th Cir. 1996), the evidence reveals the following facts.

Inlate 1990, Loveless worked for Kevin Reber ("Reber") at a truck stop i n Fontana, California. Loveless approached Reber and told him that if he knew anyon e who neede d methamphetamine, Loveless could supply it. Although Reber initiall y r e fused this invitation, he and another person contacted Loveless in mid-1991 in order to obtain drugs for resale. Reber received one pound of methamphetamine and on e pound of cocaine from Loveless, for which he paid $ 15,000 per pound. Reber then sold the drugs in the Grand Island, Nebraska area.
Thereafter, Reber obtained between one to three pounds of methamphetamin e from Loveless every four to six weeks. Reber bought methamphetamine from Loveless in either Cal ifornia or Las Vegas, Nevada, and he resold it in Salt Lake City, Utah , Denver, Colorado, and Grand Island. When the drug sales occurred in Las Vega s, Reber usually met Reber at Ceasar’s Palace or another casino. In total, Reber obtained 291⁄2 pounds of methamphetamine and one pound of cocaine from Loveless. From mid-1991 through 199 2, Reber lived at Gary Fagan’s ("Fagan") home near Grand Island. Reber used Fagan’s truck to transport the methamphetamine that h e bought from Loveless to Nebraska. In Novem ber 1991, at Reber’s request, Fagan went-3-

to Salt Lake City to pick up methamphetamine from "Jimmy." Although Fagan could not identify Loveless at trial, FBI Special Agent Dave Burlew testified that Fagan had previously identified Loveless as “Jimmy,” the person who had sold him drugs in Salt Lake City in 1991.

In Se ptember 1991, Reber provided methamphetamine to Shari Trompke fo r resale in the Grand Island area. Between September 1991 and July 1992, Reber gave Shari Trompke between 12 to 15 pounds of methamphetamine. Shari Trompke accompanied Reber on some of his trips to buy met hamphetamine fromLoveless. In November 1991, Shari Trompke and Reber went to Bakersfield , California to buy methamphetamine from Loveless. In April 1992, they drove to La s Vegas, where Loveless sold Reber a pound of met hamphetamine at Caesar’s Palace. In June 1992, Reber and Shari Trompke went to Las Vegas again to buy methamphetamine fromLoveles s. On this trip, Loveless asked Shari Trompke if she could sell mor e methamphetamine. After Shari Trompke began selling methamphetamine, she asked her brother Allen Trompke to sell drugs that she would supply to him. Beginning i n the fall of 1991, Allen Trompke sold methamphetamine that Shari Trompke had given him. Shari Trompke told her brother that she received her drugs from Reber. Af ter Shari Trompke went to prison in J uly 1992, Reber asked Allen Trompke if he wanted to continue sellin g methamphe tamine. Reber then provided Allen Trompke with two pounds o f methamphetamine every month or two during the end of 1992 and the beginnin g of 1993. Reber had also given Allen Trompke an additional two pounds of-4-

methamphetamine while the two were in Denver in January 1992.
As par t of its case in chief, the government called Darold Hinsch ("Hinsch") t o testify about his drug dealings with Loveless. The district court overruled objections to Hinsch’s testimony as improper character evidence under Federal Rule of Evidenc e 404(b) and as unduly prejudicial under Rule 403. The district court found that Hinsch’s testi monywas admissible, under Rule 404(b), to show proof of opportunity, intent , preparation, knowledge, i dentity, and absence of mistake or accident. It also found that there was not a great likelihood of unfair prejudice because of the close identity of the modus operandi. The district court gave a limiting instruction to the jury before Hinsch testified and in the Court’s fin al instructions, advising the jury that it could not consider Hinsch’s testimony as evidence of Loveless’ character or his propensity to co mmit illegal acts. Hinsch testified that in late 1991, Lo veless asked him if he wanted to get "started up again" selli ng methamphetamine. Hinsch agreed, and from late 1991 through 1993, Hinsch distributed methamphetamine in the Salt Lake City area that Loveless ha d supplie dto him. After buying ounce quantities of the drug several times, he began t o purchase pound quantities of methamphetamine in 1992. Hinsch bought between one
an dthree pounds of methamphetamine from Loveless every month or two. Thes e transactions occurred in Las Vegas at "the Strip."
After the jury convicted Loveless of conspiring to distribute methamphetamine, the district court held an evidentiary hearing on unresolved sentencing issues. At thi s hearing, the government presented evidence regarding the type of methamphetamine-5-

involved in the conspiracy.
Aforensic chemist testified that the d-isomer found in d-methamphetamine was a much stronger stimulant than that found in l-methamphetamine. D- methamphetaminegives its users feelings of strength, keeps them awake for days , causes loss of appetite, and produces a very stimulating affect followed by sever e depression when the effects begin to wear off. L-methamphetamine does not produce these types of stimulating effects.
Several individual s testified about the effects of the methamphetamine they used which Loveless had suppl ied. At trial, Reber testified that Loveless had sold him all of the methamphetamine that he, in turn, sold to Shari and Allen Trompke between 1991 and1993. Chris Rasco testified that when she used methamphetamine that Shari Trompke had sold her, she hallucinated, her body did not function properly, she could nothave conversations with people, she had problems concentrating, and she staye d awake for days at a time. Allen Trompke testified that when he used methamphetamine tha t Shari Trompke or Reber had supplied to him, he experienced a severe loss o f appetite. Glen Schomer testified that when he used methamphetamine that Alle n Trompke had sold him, he had no desire to eat or sleep, felt paranoid, and stayed awake for "weeks at a time." Shari Trompke testified that when she used the methamphetamine that Reber had provided her, she stayed awake for long stretches and had no appetite. Allen and Shari Trompke and Schomer also testified that their customers did no t complain about the methamphetamine they sold them.
The forensic chemist also testified that he had tested two exhibits that the-6-

Nebraska State Patrol had sent him, and that the exhibits contained the d-isomer o f methamphetamine. The government present ed evidence that these exhibits were part of the methamphetamine tha

t Reber had bought from Loveless. The exhibits came from a sale that Allen Trompke had arranged to make to Tim Green, a confidential informant with the Nebraska State Patrol, in March 1993. II. Hinsch’s Testimony A. 404(b) Evidence
Loveless argues that the district court improperly admitted Hinsch’s testimon y under Federal Rule of Evidence 404(b) which provides:

Ev idence of other crimes, wrongs, or acts is not admissible t o prov e the character of a person in order to show action i n conf ormity therewith. It may, however, be admissible for othe r purposes, such as proof of motive, oppor tunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . .
Fed. R. Evi d. 404(b). Rule 404(b) is a rule of inclusion; it allows a court to admi t evidence of prior bad acts unless it tends to prove only a defendant’s crimina l disposition. United States v. Tomberlin , 130 F.3d 1318, 1320 (8th Cir. 1997). In order for evidence of prior bad acts to be admissible, the evidence must be: (1) relevant to a material issue; (2) proved by a preponderance of the evidence; (3)-7-

higher in probative value than in prejudicial effect; and (4) similar in kind and close in time to the crime charged. United States v. Sills , 120 F.3d 917, 920 (8th Cir. 1997)
. This Court reviews a district court’s decision to admit evidence of a defendant’s prior bad acts under an abuse of discretion standard. Tomberlin , 130 F.3d at 1320.
We c onclude that the district court did not abuse its discretion in admittin g Hinsch’s t estimony. There was a marked similarity between when, how, where, an d how often Loveless supplied drugs to Reber a nd to Hinsch. This testimony was relevant to the material issues of Loveless’ intent to, knowledge of, and opportunity to commit the crime charged, as we ll as being relevant to a common scheme or plan that Loveless used to supply others with drugs. See United States v. Bryson , 110 F.3d 575, 583 (8th Cir. 1997) (finding evidence that defendant had a prior conviction for distributing drugs was admissible under Rule 404(b) as relevant to show her knowledge of and intent t o comm it current charge of conspiracy to distribute drugs); United States v. Moore , 9 8 F.3d 347, 350 (8th Cir. 1996) (noting that "many of this court’s prior decisions support the district court’s conclusion that evidence of prior drug o ffenses may be relevant to the issue of a defendant’s intent to commit a later drug offense"); United States v. Crouch , 46 F.3d 871, 875 (8th Cir.), cert. denied , 116 S. Ct. 193 (1995) (finding evidence that defendant committed prior illegal gun sale was admissible under Rule 404(b) as relevant both to defendant’s opportunity to commit current c harge and to common scheme to sell firearms).
Loveles s argues that the district court erred in admitting Hinsch’s testimon y because he was never charged with a ny offense related to it. We disagree. In order for evidence of prior bad acts to be admissible under Rule 404(b), the government must-8-

prove, by a preponderance of the evi dence, that the defendant committed the acts. Sills , 120 F .3d at 920. To meet this burden, the government must introduce evidence upo n whicha jury could "reasonably conclude that the acts occurred and that the defendant was the act or." United States v. Robinson , 110 F.3d 1320 (8th Cir.), cert. denied , 118 S
. Ct. 432 (1997) (holding that evidence of prior bad acts was admissible when police officers testified that defendant committed the act). Hinsch provided many details about the ex act nature and extent of his drug transactions with Loveless. Based upon thi s evidenc e, a reasonable jury could conclude that Loveless supplied Hinsch with methamphetamine.
B. Rule 403
Loveless argues that the district court improperly admitted Hinsch’s testimon y because its prejudicial effect substantially outweighed its probative value. Hinsch’ s testimony , Loveless contends, was extremely prejudicial because it had such a clos e id entity with the crime charged, and it had limited probative value in light of th e substantial evidence implicating Loveless in the charged conspiracy. Federal Rule of Evidence 403 permits a district court to exclu de relevant evidence if its probative value is s ubstantially outweighed by its prejudicial effect. Fed. R. Evid. 403. "The rule is concerned only with unfair prejudice, that is, an undue tendency t o suggest decision on an improper basis." United States v. Warfield , 97 F.3d 1014, 1027 (8th Cir. 1996), cert. denied , 117 S. Ct. (1997) (citation omitted). This Court gives broad deference to a district court’s determination under Rul e 403. "We do not reweigh the value of the material against its potential for harm to theWe reject as frivolous Loveless’ argument that "the record does not reflect 3 a careful consideration by the district court of the probative value and potential for unfair prejudice of Hinsch’s testimony after the government’s offer of proof." After listening to the offer of proof, the district court stated:

With respect to 403, there seems to me to be such close identity of the modus operandi that there is not great likelihood of unfair prejudice. Prejudice, yes, but I can’t see that it would be unfair or confusion of the issues or misleading the jury or undue delay or waste of time or needless presentation of cumulative evidence. So I don’t believe that the evidence should be excluded for any of those reasons. It seems to me to have probative value not substantially outweighed by other considerations. (Tr. at 419:8-19.) -9- defen dant, but determine only whether the district judge abused its discretion i n admitti ng it." United States v. Holmes , 822 F.2d 802, 806 (8th Cir. 1987) (citatio n omitted).
We find that the district court did not abuse its discretion in admitting Hinsch’s testimony. As previously noted, this testimony was relevant to several material issues

3 in the cas e. We disagree with Loveless’ contention that it was unfairly prejudicia l because of the sim

ilarity between the manner in which Loveless supplied drugs to both Hinsch and Reber. See United States v. McCarthy , 97 F.3d 1562, 1573 (8th Cir. 1996),
ce rt. denied , 117 S. Ct. 1011 (1997) (holding evidence that defendant had previousl y sm uggled marijuana was not unfairly prejudicial under Rule 403 and was properl y admitted in case where defendant was charged with conspiring to distribute marijuana); United States v. House , 939 F.2d 659, 663 (8th Cir. 1991) (holding-10-

evidence that defendant had sold crack on a daily basis during month before his arrest was not u nfairly prejudicial under Rule 403 and was properly admitted in case wher e defendant was charged with possessing cocaine with the intent to distribute). Moreover, this Court has "been reluctant to find that the evide nce was unfairly prejudicial when the district court gav e an appropriate limiting instruction, instructing the jury not to use the evidence as proof of the acts charged in the indictment." McCarthy , 97 F.3d at 1573. The distr ict court gave an appropriate limiting instruction before Hinsch testified an d again in its final instructions. Under these circumstances, it was within the discretion of the district court to allow Hinsch’s testimony. III. D-Methamphetamine
Loveless argues that the district court erroneously determined that th e methamp hetaminehe conspired to distribute was d-methamphetamine, and not l

methamphetamine.
Un der the applicable sentencing guidelines, a sentence for d-methamphetamin e is greater than a sentence for l-methamphetamine by a factor of 25. See U.S.S.G. § 2D1.1, n.10 . A district court must make a factual finding as to whether th e methamph etamine was d- or l-methamphetamine. United States v. Maza , 93 F.3 d 1390,1401 (8th Cir. 1996), cert. denied , 117 S. C t. 1008 (1997). The government bears the burden of proving by a preponderance of the evidence that the methampheta mine was d-methamphetamine, and it may do so using either direct or circumstantial evidence. Id. ; UnitedStates v. Bogusz , 43 F.3d 82, 91-92 (3rd Cir. 1994). We review the distric t court’s finding for clear error. Maza , 93 F.3d at 1401.-11-

The district court did not commit clear error when it determined that the dru g involved was d-methamphetamine. The government presented evidence that Reber sold the methamphetamine he had received from Loveless to Alle n and Shari Trompke. Allen Trompke then resold some of this methamphetamine to Sean Hansen, who resold it to Schomer. These individuals all testified that when they used this methamph etamine, they experienced stimulating effects that only d-methamphetamine would produce, such as s leeplessness for days at a time and severe loss of appetite. Moreover, these individuals also testified that they never received any co mplaints from their customers about the methamphetamine they sold them. This i s ample circumstantial evidence upon which the district court could conclude that Loveless conspiredto distribute d-methamphetamine. See Maza , 93 F.3d at 1041 (holding that government proved defendant dist ributed d-methamphetamine where drug dealers, who had bought methamphetamine from defendant, received no complaints from thei r customers about the drugs they sold them).
III. Loveless’ Role in the Offense
Loveless contends tha

t the district court erred when it enhanced his base offense level by three points for being a manager or supervisor of a criminal cons piracy, pursuant to U.S.S.G. § 3B1.1. U.S.S.G. § 3B1.1 provides for a three-point increase in a defendant ’s base offense level if he or she “ was a manager or supervisor (but not an organizer or leader) and the crimi nal activity involved five or more participants or was otherwise extensive. ” U.S.S.G. § 3B1.1. Factors the district court should consider in determining-12-

whether an upward adjustment is appropriate “i nclude the nature of the defendant’s role in the offense, the recruitment of accomplices, and the degree of partic ipation in planning or organ izing the offense.” United States v. Flores , 73 F.3d 826, 835 (8th Cir.), cert
. denied , 116 S. Ct. 2568 (1996) (citation omitted). This Court reviews a sentencin g court’s factual determination of a participant’s role in the offense for clear error. United States v. Padilla-Pena , 129 F.3d 457, 469 (8th Cir. 1997). Loveless argues that the district court erred in determining that he was a manager or supervisor of the conspiracy because the evidence at trial showed that he only sold drugs to Reber. Reber, Loveless contends, was the supervisor of the conspiracy. We reject this contention. The guidelines require “that [the defendant] supervised ‘ one or mo re other participants ’ to trigger this enhancement.” United States v. Pena , 67 F.3 d 153, 157 ( 8th Cir. 1995) (quoting U.S.S.G. § 3B1.1, comment. n.2) (emphasis added).

The evidence at trial indicated that Loveless recruited Reber to distribut e metham phetamine and that he attempted to recruit Shari Trompke to distribute large r quantities of methamphetamine. See United States v. Tran , 122 F.3d 670, 673 (8th Cir. 1997) (finding that defendant’s recruitment of others to participate in the conspirac y demonstrat ed that he was a manager or supervisor). Loveless also fronted drugs t o Reber, thus assuming a financial risk for some of the drug sales. See Pena , 67 F.3d at 156 (finding that defendant was a manager or supervisor of a drug conspiracy, in part, because he “retain[ed] the financial risk of distribution by fronting or consigning th e drugs”). More importantly, however, the evidence at trial demonstrated that Loveless exercised a great deal of control over Reber and the sales Loveless made to him;-13-

Loveless decided where the sales would t ake place, the price for the methamphetamine, and the method of payment. A defendant’s “determination of the price to be charged for narcotics is further evidence of his managerial or supervisory role.” United States v
. Pierce , 907 F.2d 56, 57 (8th Cir. 1990). Considering the record as a whole, we find that the district court’s determination that Loveless was a manager or supervisor under U.S.S.G. §3B1.1 was not clearl y erroneous. IV. Loveless’ Criminal History
Lov eless argues that the district court improperly enhanced his criminal history by t hree points for his California state conviction for possession of a controlle d
su bstance on May 7, 1993. This conviction, Loveless contends, is part of the instan t offense, and as such, it should not be considered in calculating his criminal history.

Indetermining a defendant’s criminal history category, the district court should
ass ess three points “for each prior sentence of imprisonment exceeding one year. ” U.S.S.G
. § 4A1.1(a). “Although conduct that is part of the current offense should b e counted as relevant conduct rather than as a prior sentence, conduct is not part of th e instant offense when it is a ‘severa ble distinct offense.’” United States v. Copeland , 45 F.3d254, 256 (8th Cir. 1995) (quoting United States v. Blumberg , 961 F.2d 878, 792 (8th Cir . 1992)). In making this determination, the district court should conside r “temporal and geographical proximity, common victims, and a common criminal plan.” Id. This Court reviews the sentencing court’s determination for clear error. United-14-

States v. Strange , 102 F.3d 356, 361 (8th Cir. 1996).
We find no clear error in the district court’s determination that Loveless ’ California state conviction for possessing methamphetamine and marijuana with th e intent to distribute was a “prior sentence of imprisonment exceedingone year.” U.S.S.G. § 4A1.1(a). This conviction occurred after Loveless’ last contact with Reber, and there is no ev idence indicating that Loveless intended to distribute these drugs to Reber o r anyone i n Nebraska. The government neither offered any evidence related to thi s convictionto prove the Nebraska conspiracy nor referenced this conviction in its case in c hief. Under these circumstances, the district court properly enhanced Loveless ’ criminal history for his California state conviction.
Affirmed. A true copy.
Attest: Clerk, U.S. Court of Appeals, Eighth Circuit.