The Honorable Pasco M. Bowman became Chief Judge of the United States

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

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-1672

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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

*

*

*

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Submitted: April 14, 1998

Filed: May 22, 1998

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

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MURPHY, Circuit Judge.

Ernest Eads fled from the Western District of Missouri while the jury

was deliberating on drug 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 Honorable Russell G. Clark, United States District Judge for the Western 3

District of Missouri.

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was transferred to Missouri where he was granted a new trial in the drug

case. New counsel was appointed, and a plea agreement was negotiated.

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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 subsequently tried to withdraw his plea, but the district court denied 3

the motion and sentenced him to life on the conspiracy conviction and twelve

months consecutive on the firearm conviction. Eads appeals, and we affirm.

Law enforcement officials developed evidence against Eads after

intercepting three packages with the same return address. An anonymous tip

had indicated the shipments would be cocaine, but the packages proved to

contain methamphetamine. They were resealed, and controlled deliveries were

arranged. Arlene Rainwater indicated that the package addressed to her was

for Eads, and she agreed to cooperate and called Eads to tell him it had

arrived. Eads was arrested after he picked it up. Only one of the other

two packages was successfully delivered; it led to the arrest of Bobby Joe

Green. The two packages contained a total of 735.7 grams of prepared

methamphetamine, which amounted to 158.318 grams of pure methamphetamine.

Eads gave a statement to law enforcement officials in which he said

that Green had approached him about purchasing methamphetamine which would

be obtained from an Arizona supplier. Green told Eads that he and Tory

Tygart had previously transported methamphetamine taped to their bodies but

that they would have 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

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that he had agreed to purchase a quarter pound of uncut methamphetamine and

had paid Green $3,800 in advance. Green also made a statement to law

enforcement officials in which he said that he had been buying

methamphetamine from Eads since October 1994 and that Eads’ financial

contribution was necessary for the conspirators to make bulk purchases of

the drug. 

When Eads reappeared in the Western District of Missouri, a plea

agreement was worked out. The government agreed to dismiss a pending charge

of attempt to possess with intent to distribute methamphetamine and to

eliminate sentencing consideration of a prior conviction for conspiracy to

possess with intent to distribute methamphetamine, and Eads pled guilty to

the methamphetamine conspiracy and firearm charges. The district court

calculated a base offense level of 32 for the conspiracy, finding this

conduct involved between 100 and 300 grams of actual methamphetamine. A two

level adjustment was imposed for obstruction of justice and three levels

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 total

offense level of 37 with a criminal history score in category VI based on

three drinking related driving convictions and three earlier drug

violations. His base offense level of 24 on the firearm charge was adjusted

to 25 because the charge involved three firearms. The district court

sentenced Eads on the conspiracy conviction at the top of the guideline

range of 360 months to life and to a consecutive twelve month term on the

firearm conviction. 

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Eads argues that the district court erred in denying his motion to

withdraw his guilty plea because he had not understood that he faced a

potential life sentence. Eads told the court at his sentencing hearing,

however, that prior to entering his plea counsel had informed him that his

sentence could range from twenty years to life, and his plea agreement

stated that he could be imprisoned for not less than twenty years and up to
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life. The court also advised him of this range and maximum during the plea

hearing. The record shows that Eads was advised of the potential maximum.

He has failed to demonstrate a just reason to permit withdrawal of his plea,

Fed. R. Crim. P. 32(e), and the district court did not abuse its discretion

in denying the motion. U.S. v. Capito, 992 F.2d 218, 220 (8th Cir. 1993).

Eads objects that his sentence was improperly calculated upon the full

amount of methamphetamine that was shipped in the conspiracy. In his plea

agreement, Eads accepted without objection this quantity as the basis for

calculating his sentence, however, and he cannot successfully object for the

first time on appeal. U.S. v. Karam, 37 F.3d 1280, 1285 (8th Cir. 1994).

Moreover, Eads admitted that he received more than 33 grams of pure

methamphetamine for resale and that he was aware Green and Tygart would

receive comparable shipments for the same purpose. His demonstrated

knowledge of the nature and scope of the conspiracy permitted a sentence

based on the total amount of drugs. U.S. v. Escobar, 50 F.3d 1414, 1424-25

(8th Cir. 1995). 

Another sentencing objection raised on appeal is that the district

court erred by denying Eads a reduction for acceptance of responsibility.

He did not object to the presentence report recommendation against an

acceptance of responsibility reduction, however, and we therefore review

only for plain error. Karam, 37 F.3d at 1280. While Eads initially

confessed his involvement in the conspiracy, he later fought to suppress the

confession and fled from custody during jury deliberations, remaining at

large for almost six months and committing another 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 an acceptance of responsibility reduction on this record.

Eads contends that the imposition of a life sentence was improperly

based on a prior offense to which he had pled guilty with inadequate counsel

and that it was a gross miscarriage of justice because it was

disproportionate to the sentences of his co-
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conspirators. He contends his earlier guilty plea to conspiracy to possess

methamphetamine with intent to distribute should not be used to make him a

career offender because his lawyer at the time later became involved in

criminal activity with Eads and surrendered his license. This plea was

entered over 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 provide

competent representation. Eads’ sentence is not invalidated merely because

it was greater than 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 guideline 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 district court

did not properly state the reasons supporting his sentence. During the

sentencing hearing the district court noted on 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 of

reasons for the sentence imposed. 18 U.S.C. § 3553(c)(1); U.S. v. Dumorney,

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.