United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-1598

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United States of America, *

*

Appellee, *

* Appeals from the United States

v. * District Court for the

* Eastern District of Missouri.

Carl Thomas Whipple, *

*

Appellant. *

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No. 04-1750

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United States of America, *

*

Appellee, *

*

v. *

*

Terrance Everett Fuller, *

*

Appellant. *

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Submitted: March 16, 2005

Filed: July 13, 2005

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Before MORRIS SHEPPARD ARNOLD, BOWMAN, and RILEY, Circuit Judges.

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MORRIS SHEPPARD ARNOLD, Circuit Judge.

Carl Whipple appeals his conviction and sentence on one count of conspiring

to distribute cocaine, see 21 U.S.C. §§ 841(a)(1), 846. He argues that the evidence

introduced at trial was insufficient to support his conviction and that the district court

sentenced him in violation of his sixth amendment rights. We affirm his conviction,

but we vacate his sentence and remand to the district court for resentencing.

Terrance Fuller also appeals his conviction and sentence on one count of

conspiring to distribute cocaine, see 21 U.S.C. §§ 841(a)(1), 846. We affirm his

conviction and sentence.

I.

A.

Only if no "interpretation of the evidence ... would allow a reasonable-minded

jury to conclude guilt beyond a reasonable doubt" will we reverse a jury's verdict on

the grounds of insufficient evidence. United States v. Galvan, 961 F.2d 738, 740-41

(8th Cir. 1992). Despite Mr. Whipple's argument to the contrary, there was ample

evidence offered at trial to support his conviction for conspiring to distribute cocaine.

At trial, Merlin Kauffman testified that Mr. Whipple had him put the title to

several vehicles in his name and recruited him to drive various vehicles from Phoenix

to cities in the Midwest. Mr. Kauffman described a typical trip: After driving one

of the vehicles to a city designated by Mr. Whipple, Mr. Kauffman would telephone

Mr. Whipple, who would arrange for someone to retrieve the vehicle from the parking

lot of Mr. Kauffman's hotel. Once the vehicle was returned to the parking lot,

Mr. Kauffman would drive it back to Phoenix and collect a cash payment of around

$10,000 from Mr. Whipple. An FBI agent and Mr. Kauffman also testified that, after

FBI agents confronted Mr. Kauffman with evidence of his drug trafficking,
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Mr. Kauffman agreed that he would travel by way of Denver when delivering a

vehicle to Chicago for Mr. Whipple; while in Denver, Mr. Kauffman consented to a

search of the vehicle by FBI agents. According to the FBI witness, the search

revealed cocaine that was hidden in a secret compartment of the vehicle.

Mr. Kauffman testified that he then proceeded to Chicago to attempt a controlled

delivery, which failed. Some of the telephone conversations Mr. Kauffman had with

Mr. Whipple to coordinate the delivery of the vehicle, however, were recorded.

It is manifest that a reasonable jury could infer from this evidence that

Messrs. Kauffman and Whipple conspired–that is, "acted in concert to achieve a

common goal or acted with a tacit understanding"–to distribute cocaine. United

States v. Agofsky, 20 F.3d 866, 870 (8th Cir. 1994) (internal citations omitted), cert.

denied, 513 U.S. 909 & 949 (1994).

B.

Mr. Whipple maintains for the first time on appeal that the district court

violated his sixth amendment rights by sentencing him under the guidelines and by

finding facts that increased his offense level. We review for plain error. See United

States v. Pirani, 406 F.3d 543, 548-50 (8th Cir. 2005) (en banc). The district court

sentenced Mr. Whipple before the Supreme Court's decision in United States v.

Booker, 125 S. Ct. 738 (2005), and erred by not sentencing him under the advisoryguidelines scheme set out in that case.

To be eligible for plain-error relief, however, Mr. Whipple must show that the

error affected his substantial rights by "demonstrat[ing] a reasonable probability that

he would have received a more favorable sentence with the Booker error eliminated."

Pirani, 406 F.3d at 551. The district court sentenced Mr. Whipple at the bottom of

the applicable guidelines range (292 months), and although this fact alone does not

give rise to a "reasonable probability" that his sentence would have been shorter, see

id. at 553, we conclude that the district court's comments about Mr. Whipple's
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sentence show that such a probability exists. After the district court acknowledged

that 292 months was "probably a life sentence" for Mr. Whipple in light of his "health

and age," it declared, "[I]f I didn't have to deal with these guidelines [Mr. Whipple's

sentence] would likely be something significantly different." The court felt

constrained to follow the guidelines, stating that otherwise "the court of appeals ...

will make me put [the sentence] in [the guidelines'] box, so what's the point? Got to

put [the sentence] in the box." The district court's displeasure with the sentence that

Mr. Williams received was rooted in health and age considerations that district courts

now may take into account when sentencing. See 18 U.S.C. § 3553(a)(1); Booker,

125 S. Ct. at 764-67. But at the time of Mr. Whipple's sentencing, the court believed

that its hands were tied by the mandatory character of the guidelines. We think that

there is a reasonable probability that Mr. Whipple's sentence would have been lower

had the district court been aware of and applied the legal principles outlined in

Booker. See United States v. Rodriguez-Ceballos, 407 F.3d 937, 941 (8th Cir. 2005);

Pirani, 406 F.3d at 553 n.6.

Mr. Whipple still cannot obtain relief unless the district court's error

" 'seriously affect[ed] the fairness, integrity, or public reputation of judicial

proceedings.' " United States v. Olano, 507 U.S. 725, 732 (1993) (quoting United

States v. Atkinson, 297 U.S. 157, 160 (1936)). This last element of plain error is

satisfied by the prospect that Mr. Whipple's sentence is much more severe than what

the district court would have imposed pursuant to the advisory guidelines and the

other considerations set out in § 3553(a). See Rodriguez-Ceballos, 407 F.3d at 941-

42. We therefore conclude that Mr. Whipple must be resentenced.

II.

Like Mr. Whipple, Mr. Fuller asserts that the evidence offered at trial was

insufficient to support his conviction for conspiring to distribute cocaine. The record,

though, includes testimony that Mr. Fuller purchased one or more kilograms of

cocaine from one of his co-defendants on multiple occasions, that two bricks of
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cocaine were found in a store that Mr. Fuller had rented and outside of which

Mr. Fuller was arrested shortly before the cocaine was discovered, that a car titled to

Mr. Fuller and which he claimed to have sold was found in Arizona with forty-nine

kilograms of cocaine in it, and that one of the co-defendants from whom Mr. Fuller

purchased cocaine aided Mr. Fuller's purchase of a new pick-up truck by providing

a trade-in vehicle. Mr. Fuller argues that the evidence demonstrates at most that he

was a customer of one of his co-defendants, and he correctly notes that a "mere sales

agreement" does not prove a conspiracy, see United States v. Prieskorn, 658 F.2d

631, 634 (8th Cir. 1981). The quantity and frequency of Mr. Fuller's drug purchases,

combined with his other actions, however, are an adequate basis from which a

reasonable jury could conclude that Mr. Fuller was not just a one-time buyer who

purchased "small amounts of drugs consistent with personal use" but instead both

knew of "the conspiracy's general purpose and scope" and knowingly participated in

it. Id. (internal quotations omitted). 

Mr. Fuller also contests the district court's admission of various items of

evidence at trial. Some of the allegedly objectionable evidence was testimony that,

according to Mr. Fuller, was about "other acts" that Federal Rule of Evidence 404(b)

excludes. The testimony, though, was about Mr. Fuller's connections to his alleged

co-conspirators and about acts performed in furtherance of the conspiracy. "[S]uch

evidence is not of 'other crimes,' but rather is evidence of the very crime charged."

United States v. Aranda, 963 F.2d 211, 214 (8th Cir. 1992). 

Mr. Fuller also challenges the admission into evidence of his prior conviction

for conspiring to distribute and possess with intent to distribute cocaine. He

maintains that the prior conviction was irrelevant for any reason other than to prove

his propensity to violate drug laws. At the time the prior conviction was admitted,

however, the district court instructed the jury that "a similar act in the past ... is not

evidence that [Mr. Fuller] committed such an act in this case" and told the jury to use

the prior conviction only as "evidence to decide motive, knowledge, plan, intent, and
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absence of mistake." Mr. Fuller's previous argument that his role as a purchaser of

cocaine was insufficient to prove that he conspired illustrates the relevance of his

prior conviction to his knowledge of the conspiracy and his intent to participate in it.

We therefore decline to conclude that Mr. Fuller's prior conviction "had no bearing

on the case and was introduced solely to prove the defendant's propensity to commit

criminal acts," which is the only circumstance in which we would reverse the district

court's admission of the conviction. United States v. Brown, 148 F.3d 1003, 1009

(8th Cir. 1998).

We have considered Mr. Fuller's other assignments of error and have

determined that they are meritless. We therefore affirm his conviction and sentence.

III.

We affirm the convictions of Messrs. Whipple and Fuller and the sentence of

Mr. Fuller. We, however, vacate Mr. Whipple's sentence and remand to the district

court for resentencing in accordance with Booker.

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