## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2600

___________ United States of America, * * Appellee, * * v. * * Demetrius Brown, also known as * Pondo, also known as Darius Dixon, * also known as Antoine Deonte Moore, * * Appellant. *

___________ Appeals from the United States District Court for the No. 97-2997 District of Minnesota.

___________ United States of America, * * Appellee, * * v. * * Carlos Laron Hewitt, also known as * Lo, also known as Laron Stable, * also known as Laron Smith, also * known as Laron Stewart, * * Appellant. *The HONORABLE JOSEPH H. BATAILLON, United States District Judg e for 1 the District of Nebraska, sitting by designation. The Honorable James M. Rosenbaum, United States District Judge for th e 2 District of Minnesota. -2- ___________ No. 97-3093

___________ United States of America, * * Appellee, * * v. * * Michael Lynn Flowers, * * Appellant. *

___________ Submitted: March 10, 1998 Filed: July 7, 1998

___________ Before WOLLMAN and LOKEN, Circuit Judges, and BATAILLON, District Judge. 1

___________ WOLLMAN, Circuit Judge.
Carlos Laron Hewitt and Michael Lynn Flowers appeal from their sentence s imposed in district court subsequent to plea agreements entered on various drug

2 related offenses. Demetrius Brown appeals from both his conviction and sentenc e following a jury verdict on similar charges. We affirm.James Horton, Bridgette Stewart, Kimberly Deveroax Flowers, Earl Fleming, 3 Christopher

Taylor, Jermain Morrow, Tonya Frost, and Christopher Williams. All of thes e defendants pled guilty to various drug-related offenses, with the exception o f Williams, who was convicted by a jury of conspiracy to distribute cocaine and use of a telephone in connection with a felony drug offense. -3- I.
In early 1994, a street gang, self-described as “The Detroit Boys,” began to take over much of the crack cocaine trade i n south Minneapolis, Minnesota. The gang was known for a high level of violence and for its modus operandi of using duct tape t o restrain and sil ence victims before assaulting or murdering them. In addition to being violent, the Detroit Boys were a well-organized and highly profitable criminal venture. At the height of its activity, the gang was importing at least one kilogram of powde r cocaine per week from sources in Los Angeles, Oakland, and Houston, converting it to crack, and selling the drug through its network of street dealers and crack houses.
Hewitt and Brown sat atop the gang’s stratified l eadership. Hewitt managed the finances and coordinated all aspects of drug distribution, overseeing in particular the purchase of cocaine from out-of-state sources. Brown was Hewitt’s partner and rightha ndman. He was involved most heavily in sales, managing the gang’s man y lieutenants and the workers in its crack houses. Flowers was the gang’ s primary source of cocaine in Los Angeles. In late 1994, p olice initiated an investigation of the Detroit Boys. On June 19, 1996, Hewitt, Brown, and Flowers, together with eight othe r defendants, were charged in a thirteen-count superseding indictment.

3Hewitt is also known as “Lo,” “Laron Stable,” “Laron Smith,” and “Laro n 4 Stewart.” -4- II. Carlos Laron Hewitt 4
Hewitt was charged

with: (1) one count of conspiracy to distribute and possess with intent to dist

ribute cocaine and cocaine base (crack) in violation of 21 U.S.C. §§ 846 and 841(a)(1) (1995); (2) two counts of aiding and abetting possession with intent to di stribute cocaine and crack (998 and 340 grams); (3) five counts of using a telephone in connection wi th a felony drug offense in violation of 21 U.S.C. § 843(b); (4) one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1); and (5) one count of money laundering in violation of 18 U.S.C. § 1956( a)(1)(A)(I). On the day his trial was scheduled to begin, he entered into a n agreement to plead guilty to all but the firearm charge, which the government the n voluntarily dismissed.

Hewitt was sentenced pursuant to the U.S. Sentencing Guidelines Manua l (U.S.S .G.) incorporating the amendments effective November 1, 1996. In imposin g sentence, the district court essentially adopted the factual findings and application of the Gu idelines set forth in Hewitt’s presentence report. Hewitt’s convictions wer e separated into two groups of closely related offenses pursuant to Part D of Chapte r Three (Multiple Counts). Regarding the first group (c onspiracy, possession with intent to distribute, and use of a telephone in connection with a fel ony drug offense), Hewitt’s base offen se level was calculated according to the drug quantity table set forth i n
sec tion2D1.1(c). See U.S.S.G. § 2D1.1(a)(3). Hewitt was held accountable for al l drugs pr oved to have been distributed during the conspiracy, which amounted to a t le ast5.4 kilograms of powder cocaine. He was also connected to at least 1.0 7 kilograms o f crack. The two substances were then converted to their equivalen t quantities in marijuana pursuant to the dru g equivalency tables. See U.S.S.G. § 2D1.1 cmt. (n.10). This calculation resulted in equivalency amounts of 200 kilogramsBeca use 5.4 kilograms of cocaine is the equivalent of 1,080 kilograms o f 5 marijuana rather tha

n only 200, the total equivalent quantity of marijuana should have been 22,480 kilograms. That error, however, had no effect on Hewitt’s base offense level, which would be 36 in either circumstance. The court calculated Hewitt’s adjusted offense l evel for the second group of his 6 convictions (money launde ring) to be 28, and thus ultimately used the level calculated for the first grouping, which was the higher of the two. He witt’s criminal history included convictions in Michigan for larceny an d 7 armedrobbery. His armed robbery conviction resulted from an incident in which h e confr onted a woman and her infant child just after they had exited a bank. Hewit t demand ed her money, then placed a revolver to the child’s head, cocked it, an d warned, “or the baby dies.” He escaped with $179 before being arrested. -5- (co caine) and 21,400 kilograms (crack) for a total equivalent quantity of 21,60 0 kilogr ams of marijuana. The attribution of at least 10,000 but less than 30,00 0 5 kilograms of marijuana results in a base offense level of 36.
As a result of the finding that he had possessed a firearm in connection with his cri mes, Hewitt’s base offense level was increased by two pursuant to sectio n 2D1.1(b)(1). In addition, he was found to have been a leader of a criminal activit y sufficiently extensive to warrant a four-level increase pursuant to section 3B1.1(a ) (Aggravating Role), bringing his adjusted offense level to 42. Finally, he received a 6 two-level downward adjustment pursuant to section 3E1.1(a) (Acceptance o f Responsibility). Thus, with a total offense level of 40 and a criminal history category of IV, he faced a sentencing range of 360 months to life imprisonment. The district 7 court sen tenced him to terms of 420, 48, and 240 months to be served concurrently , five years of supervised release, and a $650 special assessment.

Hewitt raises four arguments in his appeal. Each involves a challenge to th e court’s application of the Guidelines based on its factual findings, which we will not disturb absent clear error. See United States v. Ngo , 132 F.3d 1231, 1233 (8th Cir.-6-

1997) (stan dard of review for appeal from district court’s denial of acceptance o f responsibi lity reduction); United States v. Moss , 138 F.3d 742, 745 (8th Cir. 1998 ) (drug quantity determination); United States v. Rodger s , 122 F.3d 1129, 1133 (8th Cir. 1997), cert. denied , 118 S. Ct. 721 (1998) (enhancement for leadership role); United States v. McCracken , 110 F. 3d 535, 542 (8th Cir. 1997) (enhancement for possession of dangerous weapon).
Hewitt first argues that t

he court erred in granting him a two-level reduction for acceptance of responsibility rather than the three to which he asserts he was entitled. Section 3E1.1(a) of the Guidelines provides that a defendant who “clearlydemonstrates acceptance of responsibility for his offense” is entitled to a two-level decrease in his base offense level. When a defendant has met this requirement and has a n offense level greater than 16, section 3E1.1(b )(2) allows for an additional one-level decrease where he ha s also “timely notif[ied] authorities of his intention to enter a plea of guilty , thereby permitting the government to avoid preparing for trial and permitting the court to allocate its resources e fficiently.” See also United States v. Hawkins , 78 F.3d 348, 352 (8th Cir.), cert. denied , 117 S. Ct. 126 (1996). Although he concedes that a plea of guilty en tered on the day of trial normally would not entitle a defendant to th e supplemental one-level reduction, Hewitt argues that because the government was also preparing similar cases involving substantially the same facts a gainst his co-defendants, Brown and Williams, his lengthy delay in pleading did not cause the government t o signif icantly squander its resources preparing for trial. He also argues that even hi s las t-minute plea furthered the court’s efficient allocation of resources by causing th e trial to be shorter in length.

We reject each of these arguments. The presence of an additional defendan t against w hom a case must be proved by no means suggests that the government’ s effort s to prepare that case for trial are somehow duplicative of efforts to prepar e similar cases against co-defendants, particularly where, as here, that defendant is the purported leader of a multiple-actor criminal conspiracy. The charges against Hewitt-7-

were more numerous and substantial than those against Brown or Williams and involved several transactions and occurrences in which they took no dire ct part. The government was forced to proceed, up until the very morning of tria l, as though it would be required to prove Hewitt’s guilt beyond reasonable doubt on no less than ten separate counts

. Without question, such preparation consumed substantial time, energy, and resources of the government. See United States v. Ayers , 138 F.3d 360, 364 (8th Cir. 1998).
Similarly, Hewitt’s eleventh-hour plea di d little to promote efficient allocation of the cour t’s resources, since the court, like the government, had to conduct its affair s based on the assumption that his case would be tried and to schedule its docke t accordingly. See id. That docket indicates that the co urt was forced to consider twelve motions from Hewitt prior to his decision to change his plea. Th us, the court committed
no error when it declined to increase the section 3E1.1 reduction from two levels t o three. S ee, e.g. , id. ; United States v. Chatman , 119 F.3d 1335, 1342 (8th Cir.), cert

. denied , 118 S. Ct . 434 (1997); United States v. Thompson , 60 F.3d 514, 517 (8th Cir. 1995); U.S.S.G. § 3E1.1 cmt. (n.6).
Next, Hewitt contends that the district court erred in holding him accountable for all of the drugs proved to have been involved in the conspiracy. Although he concedes that the qu antities of 998.4 grams and 227 grams of powder cocaine seized b y authorities on March 25 and April 21, 1996, respectively, were properly attributed to him, Hewitt disputes the court’s consideration of any other quantities of powder o r crack cocaine.

A defendant convicted of conspiracy is properly held accountable for al l reasonably foreseeable acts and omissions of any co-conspirator taken in furtheranc e of that conspiracy. See United States v. Tauil-Hernandez , 88 F.3d 576, 579 (8th Cir. 1996) , cert. denied , 117 S. Ct. 1258 (1997); United States v. Rice , 49 F.3d 378, 38 2 (8th Cir. 1995); U.S.S.G. § 1B1.3(a)(1)(B). Thus, in a drug conspiracy, the district-8-

cour t may consider amounts from drug transactions in which the defendant was no t directly involved, provided that those other dealings were part of the same course o f
co nduct or scheme. See United States v. Bieri , 21 F.3d 811, 817 (8th Cir. 1994)

. Before a quantity of drugs may be attributed to a particular defendant, the sentencing
cou rt is required to find by a preponderance of the evidence that the transaction o r activity involving those drugs was in furtherance of the conspiracy and either known to that defend ant or reasonably foreseeable to him. See Rice , 49 F.3d at 382. Factor s relev ant to foreseeability include whether the defendant benefited from his co

conspirator’s activities and whether h e demonstrated a substantial level of commitment to the conspiracy. See id. at 382-83. The court may rely on any evidence, “including drug prices and organizat

ional capabilities to approximate total drug quantities beyond the amount of drugs actually seized.” United States v. Padilla-Pe na , 129 F.3d 457, 467- 68 (8th Cir. 1997), cert. denied , 66 U.S.L.W. 3772 (June 1, 1998); see also U.S.S.G. § 2D1.1 cmt. (n.12).
We find no error in the court’s drug quantity determination. If anything, the court was conservative in its findings. The evidence was more than suff icient to establish that each consid ered quantity was tied to the conspiracy entered into by Hewitt and th e Detroit Boys to profit from the distribution of illegal na rcotics. Each was either directly connected or imminently foreseeable to Hewitt, and each would surely have resulted in his profit had the conspiracy not been detected and foiled.
Hewitt also argues that the court erred in finding that he qu alified for a four-level enhancement for being “an organizer or leader of a criminal activity that involved five or more participants or was o therwise extensive,” rather than the two-level increase he suggests would have been more appropriate. U.S.S.G. § 3B1.1(a)-(c). Factors to be considered when determining whether a defendant played a leadership role include: (1) exercise o f decision making authority; (2) nature of participation in the offense; (3 ) recruitment of accomplices; (4) claimed rights to a larger share in the fruits of the crime; (5) degree of participation in planning or organizing the offense; (6) nature-9-

and scop e of illegal activity; and (7) degree of control and authority exercised ove r others. SeeU.S.S.G. § 3B1.1 cmt. (n.4); United States v. Garin , 103 F.3 d 687, 689 (8th Cir. 1996), cert. denied , 117 S. Ct. 1323 (1997).
Although we have broadly construed the scope of the “leader” or “organizer ” element of section 3B1.1, see United States v. Mayer , 130 F.3d 338, 340 (8th Cir

. 1997), no expansive reading is required in this case. Each of the factors listed above weighs in favor of a four-level enhancement. As the autho r, administrator, and overlord of a sophisticated, interstate conspiracy to distribute illegal narcotics, Hewitt was not only eligible for such an increase, he is precisely the sort of “leader” to which th e enhancement was intended to apply.
Last, Hewitt objects to his two-level enhancement for having possessed a dangerous weapon in connection with the conspiracy. See U.S.S.G. § 2D1.1(b)(1). To sup port such an enhancement, the government must prove by a preponderance of th e evidence that s uch a weapon was present and that it was not clearly improbable that it had some nexus to the charg ed offense. See United States v. Macklin , 104 F.3d 1046, 1048 & n.4 (8th Cir.), cert. denied , 118 S. Ct. 229 (1997); U.S.S.G. § 2D1.1 cmt. (n.3). Thus, the enha

ncement is implicated whenever the weapon is possessed in connection with the unde rlying crime, without regard to actual use. It is sufficient to establis h constructive possession, which encompasses “owne rship, dominion, or control over the item, or dominion over the pr emises” where the weapon was discovered. McCracken , 110 F.3d at 541.

The r ecord reflects that Hewitt possessed a number of firearms at the variou s houses at which he a

nd Brown cooked and sold crack cocaine, at least seven of which weapon s (two Ruger pistols, four other handguns, and one assault rifle) were seized

. “Just as weapons are kept at t he ready to protect military installations against potential enemy attack, so too may weapons be kept at the ready to p rotect a drug house, thereby safeguarding and facilitating illegal transactions.” United States v. Matra , 841 F.2dBrown’s true name is Darius Duane Dixson. He is also known as “Pondo” and 8 “Antoine Deonte Moore.” The court did not adopt in toto the findings set forth in the pre-sentence report 9 regarding the quantity of crack to be attributed to Brown. The court determined that he should not be

held accountable for the 42.4 grams seized on March 4, 1996. Thus, this total reflects only: 23.5 grams seized on June 14, 1995; 704.5 grams seized o n December 20, 1995; and 15.5 grams seized on March 14, 1996. -10- 837 , 842 (8th Cir. 1988). On one occasion, Hewitt pistol-whipped one of hi s lieutenants as punishment fo r making “dummies,” or imitation crack, and passing it off to un suspecting buyers. That incident in itself is enough to justify the two-leve l enhancement.
In sum, we find no merit in any of Hewitt’s challenges to his sentence.

III. Demetrius Brown 8

Bro wn was charged with: (1) one count of conspiracy to distribute and possess with i ntent to distribute cocaine and crack; and (2) one count of aiding and abettin g possession with intent to dis tribute cocaine (998 grams). A jury convicted him of both
c h arges. Brown was held accountable only for drugs proved to have been distributed up until March 25, 1996 (the date on which he began serving a prison sentence i n Michigan), amounting to 1,168.4 grams of powder cocaine and 743.5 grams of crack. 9 The substances were then converted to their marijuana equiva lents, resulting in amounts of 233.68 kilograms (cocaine) and 14,870 kilograms (crack) for a total equivalen t quantit y of 15,103.68 kilograms of marijuana. The court determined Brown’s bas e offense level to be 36. S ee U.S.S.G. § 2D1.1(c)(2). Next, the court found that Brown hadbeen a leader of the conspiracy and increased his offense level by four. Se e U.S.S.G. § 3B1.1(a). With a total offense level of 40 and a criminal history categoryBrown’s criminal history included two prior drug-related convictions i n 10 Michigan. We grant Brown’s motion for leave to file a supplemental pro se brief. 11
-11- of III, Brown faced a sentencing range of 360 months to life in prison. The distric t 10

co urt sentenced him to the minimum term of 360 months on each count to be serve d concurrently, ten years of supervised release, and a $100 special assessment.

Brown raises a number of issues on appeal. He contends that he is entitled to 11 a new trial because the district court admitted into evidence his 1991 felony conviction in Michigan for cocaine trafficking. The g overnment argued, and the court agreed, that the evidence was admissible under Rule 404(b) of the Federal Rules of Evidence (Other crimes, wro ngs, or acts). To be admissible under this rule, Brown’s prior dru g trafficking must be: (1) relevant to a material issue; (2) proved by a preponderance of the evi dence; (3) greater in probative value than prejudicial effect; and (4) similar i n kind and close in time to a charged offense. See United States v. Shoffner , 71 F.3 d 1429, 1432 (8th Cir. 1995). We review the admission of such evidence for abuse o f discretion, and w e will reverse only when such evidence clearly had no bearing on the case and was introduced solely t o prove the defendant’s propensity to commit criminal acts. See id.
Brown’s p rimary assertion on this point is that the court’s decision to admit the evidence was arbitrary because it did not specifically set forth how each factor detailed above weig hed toward its admission. We disagree. As the district court stated , Brown’s prior c ocaine trafficking conviction in Michigan was relevant to the issues of Brown’s knowledge, intent, lack of mi stake or accident, and opportunity to commit the char gedcrime of conspiracy to distribute cocaine, particularly since the curren t conspiracy was alleged to have had its genesis in Michigan. See id. ; United States v. Miller , 974 F.2d 953, 960 (8th Cir. 1992); United States v. Williams , 895 F.2d 1202,The government v igorously disputes that any such deal was ever discussed or 12 struck. The cour t also stated, however, that it would also rely on any evidence tha t

13 “has been provided fairly to the Court.” B.S.T. at 4-5. -12- 1205-06 (8th Cir. 1990). Brown’ s primary defense at trial was that he was associating with Hewitt and other members of the Detroit Boys for social reasons only and that he did not r ealize they were involved in a cocaine distribution scheme. His prio r
con viction, proved beyond reasonable doubt, did much to dispel his assertions o f naivete. Its probative value outweighed any prejudicial effect both because it was so factu ally similar to the current charges and because the district court gave a carefu l cautionary instruction to the jury. Thus, we conclude that the court did not abuse it s discretion in admitting the prior conviction under Rule 404(b).

B rown contests his sentence on several grounds. The government had planned to call as a witness one of the police officers who arrested Brown and seized 704. 5 grams of crack from his motel room in Houston, Texas, in December of 1995. As the time t o do so approached, however, the government learned that this witness was still in Texas, as hi s flight had been delayed due to an ice storm. Brown claims that at this point he and the government entered into a “quasi-agreement,” whereby if th e gov ernment

agreed not to call the officer at all, Brown would agree not to cross

examine or recall Horton, the government’s primary witness against him. As a result, 12 Brown’s connection to the Houston cocaine was apparently never established at trial. Thus, Brown argues, the court improperly included the Houston cocaine whe n determinin g his base offense level. He also suggests that consideration of Housto n cocaine was improper because the court had stated t hat its findings would be based “on the things that it learned during the trial and found that were p roven at the trial.” Brown Sentencing Transcript (B.S.T.) at 2. 13-13-

The facts relied upon by the sentencing court need only be proved by a preponderance of the evi dence. See United States v. Whatley , 133 F.3d 601, 606 (8th Cir. 1998). We will not disturb a district co urt’s drug quantity determination unless we are of the definite and firm conviction tha t the court erred. See id. “No limitation shall be placed on the information concerning the background, character, and conduct of a person convi cted of an offense which a court of the United States may receive an d consid er for the purpose of imposing an appropriate sentence.” 18 U.S.C. 3661; se e also U.S.S.G. § 6A1 .3(a) (sentencing court may consider relevant information without regard to admissibility at trial provided it has sufficient indicia of reliability to support pr obable accuracy). “We believe that it is enough if a district court simply makes the factual findings necessary to support the relevant sentencing adjustments.” Whatley , 133 F.3d at 606. Brown’s connection to the cocaine seized from his Houston mote l room, concurrent with his arrest, was clearly es tablished during pretrial testimony. The district court appropriately found that Brown had been associated with this cocaine and therefore properly considered that quantity of drugs when it sentenced him.
Next, Brown contends that because the jury was not asked to make a specifi c finding regarding the nature of the drug or drugs involved in the conspiracy, the court should have assumed at sentencing t hat the jury must have concluded that only powder cocaine was involved, a result that would have produced a more lenient sentence. In support o f his argument, Brown cites United States v. Owens , 904 F.2d 411, 413-1 5 (8th Cir. 1990). There, we stated that where “theestablishment of [a defendant’s] base offense level required a determination of which drug t he conspiracy involved,” and “the Sentencing Guidelines p rovide disparate sentencing ranges” for the substances alleged to be i nvolved, the court should employ “a special verdict form to permit the jury t o indic ate which substance it found to be the object of the conspiracy.” Id. at 415. We did so because we concluded that, “[b]y instru cting the jury on an ‘either/or’ basis with respect to th e two substances and by failing to enable the jury to indicate which of the substances it found the conspiracy to have involved, the district court elicited a n ambiguous verdict of guilty with two possible interpretations.” Id. We held that the-14-

district court erred in se ntencing a defendant “based on the alternative which yielded a higher sentencing range.” Id. ; see also United St ates v. Wiggins , 104 F.3d 174, 177-78 (8th Cir. 1997); United States v. Baker , 16 F.3d 854, 857-58 (8th Cir. 1994); Unite d States v. Watts , 950 F.2d 508, 514-15 (8th Cir. 1991).

Brown ’s argument is foreclosed by the Supreme Court’s recent decision i n Edwards v. United States , 118 S. Ct. 1475, 1477-78 (1998), which eff ectively overruled Owens . In Edwards , as here, the defendant was charged with conspiring to distribute both powder and crack cocaine in violation of sections 841 and 846 of Title 21. See id. at 1476-77. “The jury returned a general verdict of guilty. And the judge impose d sentences bas ed on his finding that each petitioner’s illegal conduct had involved both cocaine and crack.” Id. at 1477.
The Court rejected the argument that the lower court erred in imposing a sentence based upon i ts finding that the conspiracy involved crack, despite a verdict that wa s tec hnically ambiguous on that precise matter. Instead, it held that the Sentencin g Gu idelines instruct the judge, and not the jury, “to determine both the amount and the kind of ‘controlled substances’ for which a defendant sh ould be held accountable -- and then to impose a sentence that varies depending upon amount and kind.” Id. Thus , “regardless of the jury’s actual, or assumed, beliefs about the conspir acy, the Guidelines nonetheless require the judge to determine whether the ‘controlled substances’ at issue -- and how much of those substances -- cons isted of cocaine, crack, or both.” Id. That is precisely what the district court did in this case.

Bro wn also protests the use of his prior felony drug trafficking conviction t o enhance hi s statutory minimum sentence pursuant to 21 U.S.C. §§ 841(b)(1)(A) an d 851(a)(1)-(2). Section 851(a)(2) provi des: “An information may not be filed under this section if the increased punishment which may be imposed is imprisonment for a term in excess of three years unless the person ei ther waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed.”-15-

Brown contends that in this provision the phra se, “the offense for which such increased punishment may be imposed,” refers to a defendant ’s prior drug conviction (the offense that constituted the basis for enhancement), rather than the offense with which a defe ndant is currently charged. In United States v. Trevino-Rodriguez , however, w e rej ected a construction of section 851(a)(2) identical to that now proposed by Brown. 994 F.2d 533, 536 (8th Cir. 1993) (waiver of or prosecution by indictment for prio r offense was not necessary to base imposition of 20-year mandatory minimum sentence for subsequent drug trafficking offense on that prior offense, as such requiremen t imposed by section 851(a)(2) of Title 21 applied only to instant offense). Accordingly, Brown’s argument fails.

We hav e reviewed the remaining arguments presented in Brown’s pro s e supplemental brief and find them to be without merit.
IV. Michael Lynn Flowers
Flowers was charged with: (1) on e count of conspiracy to distribute and possess with intent to distribute cocaine and crack; and (2) two counts of distribution of cocaine (998 and 340 grams). Early on, Flowers entered into an agreement with the government to plead guilty to the conspiracy charge. The government then voluntarily dismissed the other counts. The plea agreement contained the following provision:

The defendant underst ands that by pleading guilty he waives all right to a trial on the question of his guilt or innocence. In the event the court accepts the plea agreement and sentences the defend ant at or below a total offense level of 33, the defen dant agrees to waive his right to appeal or to contest, directly or collaterally, his sentence on any ground, unless th e co urt should impose a sentence in violation of the law apart from th e Sentencing Guidelines.-16-

Plea Agr eement and Sentencing Stipulations at 5. At the changes of plea hearin g convened for Flowers and his wife, Kimberly Deveroax Flowers, th e following colloquy occurred:
THE COURT: Now, I also understand that i f I sentence you at or below leve l33, there will not be an appeal, and you are waiving your right t o appeal. Do you understand that?
FLOWERS: Yes. THE COURT: All right. And have you discussed that with him and with his la wyer, or have you discussed that with his lawyer, [addressin g Flowers’s counsel at hearing]? [FLOWERS’S COUNSEL]: Yes.

. . . . THE COU RT: You also have a right under the law to appeal you r sente nce under particular circumstances. Believe it or not I am readin g you something that somebody wrote out like it’s s upposed to be able to be easilyhandled and understood. Only a pack of lawyers could write stuff like this. I want to tell you what it says, though, all right? You do have a right to appeal your sentence if you think I sentence you unlawfully , okay? So if I do n’t sentence you according to law you got a right to take an app eal from that. Now, you can waive those rights as part of a ple a agreement, and you have entered into a plea agreement that does waiv e those kinds of things. You know about that?
FLOWERS: Yes.
THE CO URT: What I’m saying is, you’re giving up, if I sentence you low enough, you’re giving up your right s to appeal even though you know that you do have a right otherwise to appeal. True?
FLOWERS: Yes.Flowers’s criminal history included convictions in California for ta mpering with 14 a vehicle and voluntary manslaughter. His manslaughter conviction resulted from an inci dent in which he and two other individuals beat a man they suspected had stole n some jewelry from one of them, ripped his clothes from his body, bound him, and were dr agging him across a parking lot when the man broke free. As the victim wa s attempting to escape by climbing an 8- foot chain link fence, Flowers shot him twice in the back. Flowers served approximately five years in prison for this offense. -17- Changes of Plea Transcript at 20-22.

Witha total offense level of 33 and a criminal history category of II, Flowers 14 faced a g uideline range of 151 to 188 months in prison. The district court sentence d him to the minimum term of 151 months, five years of supervised release, and a $100 special assessment. Although the district court sentenced him within the range that the agreement

prescribed, Flowers, despite his pledge not to do so, now appeals from his sentence.

We will enforce a defendant’s w aiver of the right to appeal from his sentence so long it was “ the result of a knowing and voluntary decision.” United States v

. Miche lsen , 141 F.3d 867, 871 (8th Cir. 1998). Our review is de novo

. See id. W e conclude from this record that Flowers knowingly, voluntarily, and unequivocall y waived his appellate rights.

V.

Hewitt’s sentence is affirmed. Brown’s conviction and sentence are affirmed

. Flowers’s appeal from his sentence is dismissed.-18-

A true copy.

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