1

The Honorable Ronald E. Longstaff, Chief Judge, United States District Court

for the Southern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-3387

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Rodney Phillip Hill, *

*

Appellant. *

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Submitted: May 11, 2004

Filed: June 8, 2005

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Before WOLLMAN, HANSEN, and BYE, Circuit Judges.

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WOLLMAN, Circuit Judge.

Rodney Phillip Hill was indicted on one count of conspiracy to manufacture

and distribute methamphetamine and marijuana in violation of 21 U.S.C. § 846. After

a trial at which nearly 20 non-law enforcement witnesses testified about their drugrelated interactions with, and observations of, Hill, he was convicted and sentenced

to life in prison. On appeal, Hill argues (1) that the district court1

 erred in admitting

testimony that Hill tried to have a number of people, including two grand jury

witnesses, murdered; (2) that the evidence was insufficient to support the jury’s
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conclusion that there was a single, large drug conspiracy; and (3) that the sentencing

enhancements found by the district court were unconstitutional in light of Blakely v.

Washington, 124 S. Ct. 2531 (2004). We affirm.

I.

Hill first argues that the district court erred in denying his in limine motion to

exclude co-conspirator Greg Gilley’s testimony that on three occasions Hill provided

Gilley with a firearm and asked that he use the firearm to kill or maim an individual.

Hill argues that Gilley’s testimony constituted “other crimes, wrongs, or acts”

evidence, the admission of which is governed by Fed. R. Evid. 404(b). The

government contends that Rule 404(b) is inapplicable because evidence of violent

acts committed in furtherance of a drug conspiracy is admissible as substantive

evidence of the existence of the alleged conspiracy. We agree with the government’s

position and conclude that Gilley’s testimony was properly admitted by the district

court.

Gilley testified about actions that were clearly intended to further the drug

conspiracy. Two of the intended victims were slated to testify before a grand jury.

Another intended victim had stolen drugs and other property from the conspiracy.

The final intended victim had created problems for the conspiracy by drawing police

attention to a location where members of the conspiracy manufactured

methamphetamine. Because Gilley testified that Hill ordered him to commit these

shootings in furtherance of the conspiracy, the testimony was admissible as

substantive evidence of the existence of the conspiracy and was probative of the

charged crime. United States v. Maynie, 257 F.3d 908, 915-16 (8th Cir. 2001).

Accordingly, Rule 404(b) is inapplicable. Id. The district court did not abuse its

discretion in concluding that Gilley’s testimony was not unfairly prejudicial, because

the details of his interactions with Hill tended to illustrate the nature of Hill’s

involvement in the conspiracy and the lengths to which he would go to further it. Id.
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Even if Gilley’s testimony constituted “other crimes, wrongs, or acts” evidence

it would still be admissible. Rule 404(b) is a rule of inclusion, meaning that we

presume that other crimes evidence is admissible to prove motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident, unless the

party seeking its exclusion can demonstrate that it serves only to prove the

defendant’s “criminal disposition.” United States v. Campa-Fabela, 210 F.3d 837,

840 (8th Cir. 2000). Other crimes evidence is admissible if it is relevant to a material

issue, the other crimes are similar and reasonably close in time to the charged crime,

the evidence is sufficient to support a jury’s finding that the defendant committed the

other crimes, and the probative value of the evidence is not substantially outweighed

by unfair prejudice. United States v. Carroll, 207 F.3d 465, 469 n. 2 (8th Cir. 2000).

Here, Gilley’s testimony was clearly probative of the existence, extent, and

duration of the alleged drug conspiracy as well as Hill’s involvement in the

conspiracy and was thus relevant to a material issue. Additionally, the acts Gilley

testified about were closely related in time to the charged crime because they

occurred in the midst of the conspiracy and were intended to extract retribution for

drugs stolen from the conspiracy or to ensure the security of the enterprise. It was for

the jury to judge Gilley’s credibility based on all available evidence, including the

fact that Gilley testified pursuant to a limited immunity agreement. Finally, although

the testimony was prejudicial to Hill (as is all evidence tending to prove a defendant’s

guilt), it was not unfairly so because the evidence was closely related to the charged

crime and the detail given was necessary to show that relation. United States v.

Shoffner, 71 F.3d 1429, 1433 (8th Cir. 1995).

II.

Hill next argues that the evidence adduced at trial was insufficient as a matter

of law to support the jury’s conclusion that he was a member of a single drug

conspiracy. We review de novo the sufficiency of the evidence, viewing the evidence

in the light most favorable to the verdict and upholding it if, based on all the evidence
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and all reasonable inferences in favor of the verdict, any reasonable juror could find

the defendant guilty beyond a reasonable doubt. United States v. Martin, 369 F.3d

1046, 1059 (8th Cir. 2004); United States v. Hamilton, 332 F.3d 1144, 1148-49 (8th

Cir. 2003). To establish the existence of a conspiracy, the government must prove

that an agreement was made to do something illegal—in this case, that Hill and others

agreed to manufacture and distribute drugs. United States v. Hester, 140 F.3d 753,

760 (8th Cir. 1998). A person must intentionally enter into the conspiracy and must

know its ultimate goal. Id. However, it is not necessary that the participants or

activities remain static throughout the duration of the conspiracy. United States v.

Pullman, 187 F.3d 816, 821 (8th Cir. 1999). Indeed, participants may be uninvolved

in, or even unaware of, all acts committed in furtherance of the conspiracy. The jury

must simply be able to find that there was an overall agreement to pursue a common,

unlawful end. Id.

Based on the totality of the circumstances, id., we conclude that the evidence

in this case was sufficient to sustain the jury’s finding that Hill was a member of a

single, massive conspiracy. The record reveals the existence of a large, but typical,

“hub and spokes” conspiracy, with Hill as a hub: he purchased drugs and drug

precursors from a variety of individuals; he manufactured or processed the purchased

drugs and drug precursors; and he packaged and distributed the drugs to consumers

and lower-level dealers. This evidence is consistent with the finding of a single

conspiracy. United States v. Slaughter, 128 F.3d 623, 630 (8th Cir. 1997). 

Hill also briefly argues that the district court erroneously failed to give a

multiple conspiracy instruction and failed to find a variance between the indictment

and the proof at trial. Because Hill did not raise these issues before the district court,

we review them for plain error. Id. Because the evidence adduced at trial was

consistent with the jury’s finding that there was a single drug conspiracy, the district

court did not err in not giving a multiple conspiracy instruction. Id. Similarly,
2

We grant Hill’s motion to amend his supplemental brief and conclude that the

additional argument he raises regarding the appropriate base offense level has no

effect on our reasoning or the result we reach.

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because the evidence was consistent with the allegations made in the indictment,

there was no variance. United States v. Novak, 217 F.3d 566, 576 (8th Cir. 2000).

III.

We granted Hill’s post-oral-argument motion for supplemental briefing in light

of the Supreme Court’s decision in Blakely, 124 S. Ct. 2531. Hill argues that his

Fifth and Sixth Amendment rights were violated when the district court enhanced his

sentence under the United States Sentencing Guidelines Manual (U.S.S.G.) based on

facts not admitted by him or found by a jury.2

 The Supreme Court has since decided

United States v. Booker, 125 S. Ct. 738 (2005), in which it concluded that a sentence

imposed under a mandatory guidelines scheme based on judicially found facts

constitutes a violation of the Sixth Amendment. Id. at 756. The Booker Court

remedied the constitutional error in the sentencing scheme by excising the provisions

of the Sentencing Reform Act of 1984 that made the guidelines mandatory and

rendering advisory the guidelines scheme. Id. at 764.

Hill failed to preserve this issue before the district court, and we accordingly

review for plain error. See United States v. Pirani, No. 03-2871, slip op. at 6 (8th Cir.

Apr. 29, 2005) (en banc). In order for Blakely/Booker error to be preserved, a

defendant must have “argued Apprendi or Blakely error or that the Guidelines were

unconstitutional.” Id. (quoting United States v. Antonakopoulos, 399 F.3d 68, 76 (1st

Cir. 2005)). The only objections that Hill made at sentencing were in relation to the

adequacy and reliability of the evidence relied upon by the district court in making

the factual findings that resulted in the enhancements—challenges he has not raised

on appeal. Hill thus failed to preserve Booker error because he did not challenge the

constitutionality of the guidelines or their application below.
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The district court set Hill’s base offense level at 36 because it found that Hill’s

offense involved at least 500 grams but less than 1.5 kilograms of actual

methamphetamine. U.S.S.G. § 2D1.1. The district court also imposed a two-level

increase for possession of a firearm in connection with the offense, U.S.S.G. §

2D1.1(b)(1), a three-level increase for the creation of a substantial risk of harm to the

lives of others through the manufacture of methamphetamine, U.S.S.G. §

2D1.1(b)(5)(B), a four-level increase for being a leader or organizer of a group with

five or more participants, U.S.S.G. § 3B1.1(a), and a two-level increase for

obstruction of justice, U.S.S.G. § 3C1.1. These enhancements resulted in an offense

level of 47. The district court sentenced Hill to a life term of imprisonment, which

is the only sentence available at level 43, the highest offense level in the guidelines’

sentencing table.

In conducting plain error review, we consider the four-part test of United States

v. Olano, 507 U.S. 725, 732(1993), as applied in Pirani. We ask whether there is (1)

error (2) that is plain and (3) that affects substantial rights, but we may remedy the

error only (4) if it “seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Olano, 507 U.S. at 732 (quotation omitted). Hill has the

burden of demonstrating prejudicial plain error. See Pirani, slip op. at 11. The

district court committed constitutional error in this case due to the combination of the

enhancements and the fact that they were imposed under a mandatory regime. See

id. at 9. In other words, the resulting sentence itself would not be illegal under an

advisory scheme so long as the guidelines were properly applied, but was illegal in

this case because it was computed under a mandatory process. Id. at 13. This error

is plain under Booker. Our analysis therefore turns on the application of the third

Olano factor: whether the error affected Hill’s substantial rights. That factor is

established only if Hill can show that there is “a ‘reasonable probability,’ based on

the appellate record as a whole, that but for the error he would have received a more

favorable sentence,” Pirani, slip op. at 11, a fact-specific inquiry.
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No statement by the district court indicates that it would likely have issued a

different sentence had the guidelines been advisory at the time of sentencing. The

district court rejected the total offense level of 52 recommended in the presentence

investigation report, finding a lesser quantity of drugs and declining to apply one of

the recommended enhancements. In doing so, it stated that it was giving Hill the

benefit of the doubt. The guidelines, however, mandated a life sentence for any

offense level at or above 43. The district court noted as a general matter that it did

not take any pleasure in giving a life sentence, Sentencing Tr. at 44, but gave no

indication that it believed the sentence was unwarranted or unfair under the

circumstances or that it would have imposed a lesser sentence had it been free to do

so. We therefore conclude that Hill has failed to meet his burden of demonstrating

plain error.

The conviction and sentence are affirmed.

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