## TheHo norable Pasco M. Bowman became Chief Judge of the United State s 1 

## Court of Appeals for the Eighth Circuit on April 18, 1998. United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 97-1672

___________ United States of America, *

Plaintiff-Appellee, * Appeal from the United States

v. * Western District of Missouri. Ernest Ray Eads, *

Defendant-Appellant. * *

* District Court for the

*

*

*

___________ Submitted: April 14, 1998 Filed: May 22, 1998

___________ Before BOWMAN, Chief Judge, McMILLIAN, and MURPHY, Circuit Judges. 1

___________ MURPHY, Circuit Judge. Ernest Eads fled from the Western District of Missouri while th e jury was deliberating on d rug charges against him and was later apprehended in Oklahoma where he was charged with being a felon in possession of a firearm. The firearm case

## Eads had been found guilty of the drug charges by the jury, but while he was a 2 

## fugitive it was learned that his trial counsel had been involved in the drug activities and had subsequently surrendered his license. The Honora

ble Russell G. Clark, United States District Judge for the Western 3 

## District of Missouri. -2- was transf erred to Missouri where he was granted a new trial in the dru g case. New counsel was appointed, and a plea agreement was negotiated

.

2 Eads then pled guilty to conspiracy to distribute methamphetamine, 21 U. S.C. §§ 841(a)(1), 846, and felon in possession of a firearm, 18 U.S.C. § 922. He subs equently tried to withdraw his plea, but the district court denied 3 the motion and sentenced him to life on the conspiracy conviction and tw elve months consecutive on the firearm conviction. Eads appeals, and we affirm.

Law enforcement officials developed evidence against Eads afte r intercepting three packages with the same ret urn address. An anonymous tip had indicated the shipments would be cocaine, but the packages proved t o contain methamphetamine. They were resealed, and controlled deliveries were arranged. Arlene Rainwater indicated that th e package addressed to her was for Eads , and she agreed to cooperate and called Eads to tell him it ha d arrived. Eads was arrested after he picked it up. Only one of the other two packages was s uccessfully delivered; it led to the arrest of Bobby Joe Green. T he two packages contained a total of 735.7 grams of prepare d methamphetamine, which amounted to 158.318 grams of pure methamphetamine.
Eads gave a statement to law enforcement officials in which he sai d that Green had app roached him about purchasing methamphetamine which would be obtained from an Arizona supplier. Green told Eads that he and Tor y Tygart had previously transported methamphetamine taped to their bodies but that they would ha ve it shipped this time after he and Tygart arranged the purchase in Phoenix. Eads told the officers that each man was to have a package shipped to him in a different Missouri town and

## The guideline range for this conviction was 110 to 137 months. 4 

## -3- that he had agreed to purchase a quarter poun d of uncut methamphetamine and hadpaid Green $3,800 in advance. Green also made a statement to la w enforc ement officials in which he said that he had been buyin g methamphetamine from Eads since October 1994 and that Eads’ financia l contributionwas necessary for the conspirators to make bulk purchases of the drug.
Wh enEads reappeared in the Western District of Missouri, a ple a agreement was worked out. The government agreed to dismiss a pending ch arge of attempt to possess with intent to distribute methamphetamine and t o eliminate sentenci ng consideration of a prior conviction for conspiracy to possess with inten t to distribute methamphetamine, and Eads pled guilty to the methamphetamine conspiracy and firearm charges. The district cour t ca lculateda base offense level of 32 for the conspiracy, finding thi s conduct involved between 100 and 300 grams of actual methamphetamine. A two level adjustment was imposed for obstruction of justice and three level s were added because of a finding that he was a career offender under U.S. S.G. § 4B1.1 because of two prior felony drug convictions. This gave him a t otal offense level of 37 with a criminal history score in category VI based on three drinking related driving convictions and three earlier dru g violations. His base offense level of 24 on the firearm charge was adju sted to 25 b ecause the charge involved three firearms. The district cour t sentence dEads on the conspiracy conviction at the top of the guidelin e range of 360 months to life and to a consecutive twelve month term on the firearm conviction. 4
Eads argues that the district court erred in denying his motion t o withdr awhis guilty plea because he had not understood that he faced a pot ential life sentence. Eads told the court at his sentencing hearing , however, that prio r to entering his plea counsel had informed him that his se ntence could range from twenty years to life, and his plea agreemen t stated that he could be imprisoned for not le ss than twenty years and up to

## -4-

life. The court also advised him of this range and maximum during the plea hearing. The reco rd shows that Eads was advised of the potential maximum. He has failed to demonstrate a just reason to permit withdrawal of his p lea, Fed. R. Crim. P. 32(e), and the district cour t did not abuse its discretion in denying the mot ion. U.S. v. Capito , 992 F.2d 218, 220 (8th Cir. 1993). Eads objects that his sentence was improperly calculated upo n the full amount of methamph etamine that was shipped in the conspiracy. In his plea agreement, Eads ac cepted without objection this quantity as the basis for calculating his sentence, however, and he cannot successfully object forthe first time on appeal. U.S. v. Karam , 37 F.3d 1280, 1285 (8th Cir. 1994). Moreov er, Eads admitted that he received more than 33 grams of pur e methamph etamine for resale and that he was aware Green and Tygart woul d receive comparable shipments for the same purpose. His demonstrate d kno wledge of the nature and scope of the conspiracy permitted a sentenc e based on the total amount of drugs. U.S. v. Escobar , 50 F.3d 1414, 1424-25 (8th Cir. 1995).

Ano ther sentencing objection raised on appeal is that the distric t court erred by denying Eads a reduction for acceptance of responsibility. He did not object to the presentence report recommendation against a n acce ptance of responsibility reduction, however, and we therefore revie w only for plain error. Karam , 37 F.3d at 1280. While Eads initiall y confessed his involvement in the conspiracy, he later fought to suppress the confessionand fled from custody during jury deliberations, remaining a t large for almost six months and committing an other felony during that time. After again admitting his involvement at the plea hearing upon returning to Missouri, Eads attempted to minimize his role. The court did not plainly err in rejecting a n acceptance of responsibility reduction on this record.
Eads contends that the imposition of a life sentence was improperl y based on a prior offense to which he had pled guilty with inadequate cou nsel and that it was a gross miscarriage of justice because it wa s disproportionate to the sentences of his co-

## -5-

conspirators. He contends his earlier guilty plea to conspiracy to possess methamphetamine wi th intent to distribute should not be used to make him a career o ffender because his lawyer at the time later became involved i n criminal activity with Eads and surrendered his license. This plea wa s enteredover five years before the lawyer’s fall from grace, and Eads has not shown he was disqualified at the time or that he did not provid e competent representation. Eads’ sentence is not invalidated merely because it was greater tha n those of his co-conspirators, U.S. v. Polanco , 53 F.3d 893, 897 (8th Cir. 1995), and it properly reflected his status as a career offender who must be sentenced at or near the upper limit of the applicable sentencing guideli ne range. U.S. v. LaBonte , 117 S.Ct. 1673, 1677 (1997). We see no error in the sentence. Lastly, Eads argues that remand is required because the dist rict court did not properly state the reasons supporting his sentence. During th e sentencing hearing the district court noted o n the record that the offenses were of a serious nature, that Eads had fled during his initial trial, had been unduly argumentative and disrespectful, and had at least two prior drug offense convictions. These findings provided an adequate statement o f reasons for the sentence imposed. 18 U.S.C. § 3553(c)(1); U.S. v. Dumor ney , 949 F.2d 997, 997-98 (8th Cir. 1991). The judgment of the district court is affirmed.
A true copy.

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