                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 11-3405
                         ___________________________

                                   Steve Buchanan

                        lllllllllllllllllllllPetitioner - Appellant

                                            v.

                              United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

                     Appeal from United States District Court
                   for the District of South Dakota - Rapid City
                                   ____________

                           Submitted: December 12, 2012
                               Filed: April 8, 2013
                                  ____________

Before LOKEN, MELLOY, and COLLOTON, Circuit Judges.
                           ____________

MELLOY, Circuit Judge.

      Steve Buchanan filed a motion for post-conviction relief under 28 U.SC.
§ 2255, alleging his trial counsel provided constitutionally ineffective assistance of
counsel. The district court1 denied Buchanan's motion. We affirm.

      1
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.
                                          I.

       In November 2007, Buchanan was charged with attempting to manufacture
methamphetamine on or about February 2006. Buchanan's jury trial began on July
8, 2008. During trial, the prosecution introduced evidence that Buchanan had access
to, used, and knew how to manufacture methamphetamine in 2005 and that two
women had purchased pseudoephedrine for Buchanan to use to manufacture
methamphetamine (collectively, "the 2005 evidence"). On July 9, 2008, the jury
found Buchanan guilty.

       Following unsuccessful direct appeal, Buchanan filed a § 2255 motion in
December 2010, alleging his trial counsel was deficient for failing to object to the
2005 evidence as improper evidence of prior bad acts under Federal Rule of Evidence
404(b).2 After an evidentiary hearing, the district court denied relief. The district
court found that the 2005 evidence did not fall within Rule 404(b) and that
Buchanan's actions in 2005 were sufficiently close in time to the charged conduct to
be relevant and admissible under Federal Rules of Evidence 402 and 403. Buchanan
timely appealed.

                                          II.

       "We review ineffective-assistance issues de novo and the district court's
findings of predicate facts for clear error." Rodela-Aguilar v. United States, 596 F.3d
457, 461 (8th Cir. 2010). To succeed on a claim of ineffective assistance of counsel,
a defendant must show (1) trial counsel was deficient and (2) the defense was
prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687 (1984). "A court
'must indulge a strong presumption that counsel's conduct falls within the wide range


      2
       Buchanan raised additional claims in the district court which he does not raise
on appeal.

                                         -2-
of reasonable professional assistance.'" Rodela-Aguilar, 596 F.3d at 461 (quoting
Strickland, 466 U.S. at 689).

       The district court held "Buchanan's use of methamphetamine in 2005,
knowledge of the process of manufacturing methamphetamine in 2005, and
procurement of the ingredients necessary to manufacture methamphetamine explains
the circumstances of the indicted charge of attempting to manufacture
methamphetamine in February of 2006." We agree. "Our cases have firmly
established that crimes or acts which are 'inextricably intertwined' with the charged
crime are not extrinsic and Rule 404(b) does not apply."3 United States v. O'Dell, 204
F.3d 829, 833–34 (8th Cir. 2000). The 2005 evidence was sufficiently close in time
and related to the February 2006 "conduct that [wa]s charged in the instant indictment
and, therefore, [wa]s not 404(b) evidence." United States v. Karam, 37 F.3d 1280,
1288 (8th Cir. 1994); see also United States v. Ruiz-Chavez, 612 F.3d 983, 988 (8th
Cir. 2010) (evidence not 404(b) evidence where it "completes the story or provides
a total picture of the charged crime") (quoting United States v. Johnson, 463 F.3d
803, 808 (8th Cir. 2006). Since the 2005 evidence was not Rule 404(b) evidence, we
cannot say Buchanan's trial counsel rendered constitutionally defective assistance by
failing to object to the 2005 evidence on Rule 404(b) grounds.

                                            III.

       For the reasons above, we affirm the judgment of the district court.
                       ______________________________




       3
         Buchanan asks us to reject or modify the "inextricably intertwined" test. That
test is well-established in our circuit, and "[i]t is a cardinal rule in our circuit that one
panel is bound by the decision of a prior panel." Owsley v. Luebbers, 281 F.3d 687,
690 (8th Cir. 2002).

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