                   United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
___________

No. 05-1058
___________

United States of America,            *
                                     *
            Appellee,                *
                                     *
      v.                             *
                                     *
Fontaine Demmond Sherman,            *
                                     *
            Appellant.               *
                                     *
___________                          *
                                     * Appeals from the United States
No. 05-1072                          * District Court for the
___________                          * Eastern District of Arkansas.
                                     *
United States of America,            *
                                     *
            Appellee,                *
                                     *
      v.                             *
                                     *
Tremayne Scoggins, also known as     *
Scruff,                              *
                                     *
            Appellant.               *
                                ___________

                             Submitted: October 11, 2005
                                Filed: March 15, 2006
                                 ___________

Before RILEY, HANSEN, and COLLOTON, Circuit Judges.
                                    ___________

COLLOTON, Circuit Judge.

       Fontaine Diamond Sherman and Tremayne Scoggins were convicted after a jury
trial of conspiring to distribute and possess with intent to distribute more than 5
kilograms of cocaine and more than 50 grams of cocaine base, in violation of 21
U.S.C. §§ 841 and 846. Scoggins was also convicted of using a communication
facility to facilitate the commission of a drug offense, in violation of 21 U.S.C.
§ 843(b). Sherman was sentenced to 240 months’ imprisonment, and Scoggins was
sentenced to a term of 360 months. After considering their appeals, we affirm the
district court’s judgment with respect to Sherman. We also affirm Scoggins’s
conviction, but we vacate his sentence and remand for resentencing in accordance
with United States v. Booker, 543 U.S. 220 (2005).

                                           I.

       Scoggins and Sherman were indicted, along with fourteen others, for various
offenses arising out of an FBI investigation of drug trafficking activities in central
Arkansas from January 1997 through December 2, 2001. According to the
government’s theory at trial, Scoggins purchased cocaine and cocaine base from
suppliers, including Sherman, in Bakersfield, California, and returned to central
Arkansas. Scoggins then converted portions of the cocaine into cocaine base and
distributed the cocaine powder and cocaine base to his associates, some of whom
distributed the drugs.

        Eleven of the sixteen defendants pled guilty. A superseding indictment charged
Sherman, Scoggins, and Larry Brown (who was eventually acquitted) with conspiring
to distribute and possess with intent to distribute more than 5 kilograms of cocaine and
more than 50 grams of cocaine base. Scoggins also was charged with three counts of


                                          -2-
distributing various quantities of cocaine base, and both Scoggins and Sherman were
charged with using a communication facility to commit a drug felony. Apparently
because of uncertainty in the law after the Supreme Court’s decision in Blakely v.
Washington, 542 U.S. 296 (2004), the indictment also included allegations concerning
sentencing issues to be determined under the United States Sentencing Guidelines.
Specifically, the indictment charged that Scoggins and Sherman were organizers and
leaders of the criminal activity, see USSG § 3B1.1, and that Scoggins possessed a
dangerous weapon during the period of the conspiracy, see USSG § 2D1.1(b). The
jury returned a guilty verdict against Scoggins and Sherman on the drug conspiracy
charge, but was unable to agree unanimously on a drug quantity. It found Scoggins
guilty of the communications facility charge. The jury also found that Scoggins was
an organizer or leader of a criminal activity that involved five or more participants,
and that he possessed a dangerous weapon during the period of the conspiracy. The
court sentenced Scoggins to 360 months’ imprisonment for the conspiracy and 48
months for the use of a communications facility, to run concurrently. Sherman was
sentenced to 240 months’ imprisonment.

                                          II.

                                          A.

       Scoggins first argues that the district court did not have subject matter
jurisdiction to submit the sentencing issues to the jury. The district court plainly had
jurisdiction over the criminal case, pursuant to 18 U.S.C. § 3231, which gives the
district courts original jurisdiction “of all offenses against the laws of the United
States.” Whether the court committed a procedural error by submitting certain issues
to the jury within the criminal case is a question independent of the court’s subject
matter jurisdiction over the action.




                                          -3-
       Scoggins does contend that the submission of the sentencing issues to the jury
was an improper trial procedure that violated his rights under the Sixth Amendment.
He claims it was error for the court to read to the jury allegations from the indictment
that pertained only to sentencing issues, and that the jury instructions on these issues
were inadequate. The government asserts that because this case was tried after
Blakely, but before the Supreme Court’s decision in Booker, the district court acted
correctly under the law at the time of the trial.

       Although there was ambiguity in the law before Booker was decided, we
consider Scoggins’s argument in light of law as it has developed by the time of this
appeal. United States v. O’Malley, 425 F.3d 492, 495 (8th Cir. 2005). It is now clear,
under the advisory guidelines scheme announced in Booker, that allegations
concerning adjustments under the sentencing guidelines need not be included in an
indictment or submitted to a jury. United States v. Haack, 403 F.3d 997, 1003 (8th
Cir. 2005). Accordingly, we analyze the inclusion of these matters in the indictment
as surplusage, United States v. Bates, 77 F.3d 1101, 1105 (8th Cir. 1996), and we will
find error only if the surplusage is prejudicial and the district court abused its
discretion in failing to strike it. United States v. Washington, 992 F.2d 785, 787-788
(8th Cir. 1993).

       Scoggins argues that submission of evidence to the jury concerning his role in
the offense and possession of a dangerous weapon was prejudicial. We disagree,
because the disputed evidence would have been admissible as relevant to the charged
drug conspiracy, regardless of whether the jury was asked to make specific findings
on those sentencing issues. There is a well-known connection between firearms and
drug trafficking, and we often have held that evidence of firearms is relevant and
admissible in a prosecution of drug trafficking charges. E.g., United States v. Ruiz,
412 F.3d 871, 880-81 (8th Cir. 2005); United States v. Barry, 133 F.3d 580, 582 (8th
Cir. 1998); United States v. Milham, 590 F.2d 717, 721 (8th Cir. 1979). Evidence
about Scoggins’s role in the offense is part and parcel of the proof that he was a

                                          -4-
member of the conspiracy. Therefore, the jury was entitled to hear this evidence
whether or not the sentencing issues were under consideration. We note, moreover,
that the jury was asked to consider the sentencing issues only after it determined
whether Scoggins was guilty of the charged conspiracy offense, and this sequence
makes it unlikely that the district court’s highlighting of the sentencing issues caused
any prejudice to Scoggins.

       Scoggins further contends that the jury instructions improperly allowed the jury
to convict him of the charged conspiracy without finding the requisite quantity of
drugs. Jury instruction number 9, however, did list quantity as the fourth element of
the conspiracy offense, and provided that the jury must find that “the agreement or
understanding involved in excess of 5 kilograms of cocaine or more than 50 grams of
cocaine base.” See 21 U.S.C. § 841(b)(1)(A); United States v. Serrano-Lopez, 366
F.3d 628, 638 (8th Cir. 2004) (explaining that drug quantity is an element of the
offense if it “can and does lead to the imposition of a sentence greater than the
otherwise applicable statutory maximum.”). The jury returned a verdict of guilty on
the conspiracy charge, thus indicating that it found unanimously that the offense
involved more than 5 kilograms of cocaine or 50 grams of cocaine base. The verdict
form then asked the jury, for sentencing purposes, to find whether the quantity of
cocaine base was (a) more than 1.5 kilograms, (b) more than 500 grams but less than
1.5 kilograms, (c) more than 150 grams but less than 500 grams, or (d) more than 50
grams but less than 150 grams. The jury answered that it was unable to agree
unanimously beyond a reasonable doubt on this question.

      That the jury was unable to agree on an answer to the question concerning drug
quantity on the verdict form does not undermine the jury’s finding of guilt on the
charged conspiracy, including the element that the conspiracy involved more than 50
grams of cocaine base or 5 kilograms of cocaine. The inability to choose one of
several specific increments of quantity, all of which involved more than 50 grams of
cocaine base, does not suggest that the jury was unable to understand its duty to

                                          -5-
decide whether the conspiracy involved more than 50 grams of cocaine base (or 5
kilograms of cocaine) in order to find Scoggins guilty of the charged offense. There
is no reasonable likelihood that the instructions confused the jury, and we therefore
reject this challenge to the verdict.

                                          B.

       Scoggins next argues that the district court erred by not granting his motions
for a mistrial based on allegedly improper comments made by two witnesses. Prior
to the testimony of the first, Anthony Flowers, Scoggins moved to prevent Flowers
from testifying that Scoggins had shot a man. The district court agreed that the
reference would be prejudicial and directed the prosecutor to instruct Flowers not to
mention the shooting. Despite this instruction, when asked how he knew that
Scoggins carried a gun, Flowers blurted out “he always shot it. He shot a guy in —.”
(T. Tr. at 344-345). At this point, the prosecutor interrupted Flowers, and the court,
after denying a motion for mistrial, gave a cautionary instruction admonishing the jury
to disregard the testimony.

       Scoggins also moved prior to the testimony of witness Courtney Johnson to
exclude prejudicial testimony, and the court admonished Johnson not to mention the
word “gang,” the names of any specific gangs, or shootings. During his testimony,
when asked why he carried a pistol, Johnson stated “[b]ecause somebody told me
[Scoggins] was going to shoot me because I supposed to have broke in his house.”
(T. Tr. at 740). Scoggins did not object. Then, on cross-examination, when a co-
defendant’s attorney asked Johnson whether he was being paid by the FBI for his
assistance in other matters, he acknowledged assisting in drug cases unrelated to this
conspiracy, and in “a murder case that has something to do with this.” (T. Tr. at 753).
Scoggins’s attorney objected, the court admonished the jury to disregard the answer,
and Scoggins moved for a mistrial, which the court denied.



                                         -6-
        The exposure of a jury to improper testimony ordinarily is cured by measures
less drastic than a mistrial, such as an instruction to the jury to disregard the
testimony, United States v. Flores, 73 F.3d 826, 831 (8th Cir. 1996), and the denial
of a motion for a mistrial is reviewed for an abuse of discretion. Id. We determine
the prejudicial effect of any improper testimony by examining the context of the
testimony and the prejudice created by it, as juxtaposed against the strength of the
evidence of the defendant’s guilt. United States v. Nelson, 984 F.2d 894, 897 (8th Cir.
1993). Here, the evidence of the defendant’s guilt was substantial, and the district
court acted promptly to strike the allegedly improper testimony and to instruct the jury
to disregard it. Flowers’s reference to Scoggins shooting a gun was fleeting and
immediately interrupted by the prosecutor. Scoggins did not object when Johnson
first referred to shooting, and the second statement, to which Scoggins did object, only
inferentially might have implicated Scoggins. The allegedly prejudicial comment
merely referred to a murder investigation that “had something to do” with a trial
involving three separate defendants. The court promptly instructed the jury to
disregard the statements. These three comments must be considered in the context of
the entire trial, which provided substantial evidence of Scoggins’s guilt, including
testimony concerning controlled drug purchases from Scoggins, recordings of
Scoggins negotiating drug transactions with co-conspirators on the telephone, and
testimony of multiple co-conspirators implicating Scoggins in the drug trafficking
conspiracy.

       Scoggins points to United States v. Conley, 503 F.2d 520 (8th Cir. 1974), for
the proposition that repeated references to “killings” by two government witnesses is
prejudicial error requiring reversal. Conley, however, involved highly prejudicial
testimony by a law enforcement agent that could “hardly be characterized as an
inadvertent slip of the tongue.” Id. at 523. The district court in Conley also had
overruled an objection to the agent’s first reference to “killings” and ignored the
defense counsel’s request for curative action at the second. Id. We are unpersuaded
that the disputed testimony in Scoggins’ trial, ambiguous as it was and tempered by

                                          -7-
cautionary instructions, was so egregious as to warrant a conclusion that the district
court abused its discretion in refusing to grant a mistrial.

                                            C.

       Scoggins next argues that the district court erred in not granting a third motion
for a mistrial, this time based on the prejudicial impact of publicity relating to gangs
and gang activity, as well as the collective impact of all the alleged trial errors.
During the trial, several articles in local newspapers focused on gang activities and
violence in the Little Rock area. The articles provided maps of some of the areas
described in Scoggins’s trial, listed definitions of the gangs, discussed Mexican drug
connections, described how drugs were transported from California, and mentioned
houses in which gangs met. Scoggins claimed that the articles mirrored the evidence
presented in his trial, and he moved for a mistrial prior to the jury’s deliberations. The
court denied the motion because neither the defendants nor the town primarily
involved in this case were mentioned in the articles, and the court had instructed the
jury repeatedly to decide the case only on the evidence presented in court. The court
again admonished the jury to ignore anything heard or seen outside the courtroom, and
directed it to begin deliberations.

        We review the denial of a motion for a mistrial based on publicity for abuse of
discretion. United States v. Williams, 604 F.2d 1102, 1114-15 (8th Cir. 1979).
Publicity during trial presents a greater risk of prejudice than pre-trial publicity, but
an article that is unconnected with the trial and does not refer specifically to the
defendants is not inherently prejudicial. Id. at 1114. The district court reviewed the
principal article cited by Scoggins and determined that there was no mention of any
of the defendants or witnesses involved in the trial. There was no evidence that any
member of the jury had seen or read the articles. The articles were thus unconnected
to the trial, and the district court did not abuse its discretion by denying the motion for
a mistrial.

                                           -8-
       Scoggins also claims that the “collective impact” of the publicity, the allegedly
prejudicial comments by witnesses, and the improper trial structure was sufficient to
warrant a mistrial. Scoggins relies on United States v. Richardson, 651 F.2d 1251,
1253 (8th Cir. 1981), which held that the collective impact of prejudicial in-trial
publicity and the appearance, in a wheelchair, of a witness who had been wounded
outside her home during the trial were so damaging to the defense case that a mistrial
was required. In Richardson, however, the publicity referred directly to the trial and
described threats against a witness because of her expected testimony. Here, the
publicity does not refer directly to Scoggins or any witnesses in the trial, and for the
reasons discussed, the other alleged errors were adequately addressed by the striking
of testimony and cautionary instructions.

                                          D.

       Scoggins contends finally that all three alternative sentences imposed by the
district court violate the Sixth Amendment and are inconsistent with Booker. We
agree that none of the sentences correctly applies Booker, and we conclude that
resentencing is warranted.

       The district court imposed three alternative sentences: (1) 360 months, the
minimum sentence allowed under a mandatory guideline system using facts found by
the jury, (2) life imprisonment, the minimum sentence allowed under a mandatory
guidelines system using the judge’s determination of drug quantity by a
preponderance of the evidence, plus the enhancements for role in offense and the
firearm possession, and (3) 360 months, if the guidelines were “totally
unconstitutional,” and the court did not “have to worry about Blakely or the
Guidelines or anything.” (S. Tr. at 35-37). Scoggins made a “Blakely objection” to
the district court’s imposition of sentence, thus preserving error based on Booker.
United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc).



                                          -9-
       None of the three alternative sentences anticipated the remedy announced in
Booker. The first and second alternatives were premised on a mandatory application
of the guidelines, and these approaches are erroneous in light of Booker’s holding that
the guidelines are effectively advisory. The third alternative presumed that the
guidelines were totally unconstitutional and should not be considered at all. It
appears, therefore, that the court did not consider and take into account the guidelines
as advisory when arriving at the third alternative sentence. To be sure, if the advisory
guideline range is life imprisonment, it would not seem to help Scoggins for the court
to give more consideration to the advisory range. But Scoggins nonetheless has
sought resentencing, perhaps because he believes the court also did not fully
appreciate its ability to consider other sentencing factors set forth in 18 U.S.C.
§ 3553(a). The government makes no argument that the Booker error was harmless.
Accordingly, we vacate Scoggins’s sentence and remand for resentencing consistent
with Booker.

       Scoggins also objects to the district court’s conclusion regarding his criminal
history score. He contends that several of the criminal history points attributed to him
were based on “extensions of probation” that should not qualify as “prior sentences”
for purposes of counting criminal history points. See USSG § 4A1.1. Scoggins
correctly notes that if a defendant objects to facts alleged in a presentence report, then
the government may not rely on the report alone, and must present evidence to prove
the disputed facts by a preponderance of the evidence. United States v. Stapleton, 268
F.3d 597, 598 (8th Cir. 2001). The record is unclear, however, whether Scoggins
objected to the fact of the prior sentences or merely to the legal significance of
undisputed facts. (S. Tr. at 12-14). Because the case must be remanded for
resentencing in any event, we decline to express an opinion at this time regarding the
district court’s computation of criminal history. See United States v. Huber, 404 F.3d
1047, 1063 (8th Cir. 2005) (“Because the district court might impose a different
sentence on remand, and because the parties might choose not to appeal that sentence,
consideration of objections to the court’s original guidelines calculations would be

                                          -10-
premature at best and unnecessary at worst.”) (quoting United States v. Coumaris, 399
F.3d 343, 351 (D.C. Cir. 2005)).

                                          III.

       In his appeal, Sherman argues that there was insufficient evidence to support
his conviction for conspiring to distribute and possess with intent to distribute cocaine
and cocaine base. We view the evidence “in the light most favorable to the
government, resolving evidentiary conflicts in favor of the government, and accepting
all reasonable inferences drawn from the evidence that support the jury’s verdict.”
United States v. Mickelson, 378 F.3d 810, 820 (8th Cir. 2004) (internal quotation
omitted). We will reverse a conviction for insufficient evidence only if no reasonable
juror could have found the defendant guilty. United States v. Dabney, 367 F.3d 1040,
1042 (8th Cir. 2004).

       To convict Sherman of conspiring to distribute or possess with intent to
distribute cocaine and cocaine base, the government was required to prove that two
or more persons reached an agreement to distribute or possess with intent to distribute
the cocaine and cocaine base, that the defendant voluntarily and intentionally joined
the agreement, and that at the time that the defendant joined the agreement he knew
its essential purpose. United States v. Aguilar-Portillo, 334 F.3d 744, 747 (8th Cir.
2003). Evidence of association between the defendant and conspirators, while not
sufficient alone to establish a conspiracy, is clearly relevant. Mickelson, 378 F.3d at
821.

      The evidence in this case supports a finding that Sherman knowingly and
voluntarily joined a conspiracy to distribute cocaine. Scoggins obtained cocaine in
Bakersfield and returned to Arkansas to distribute it. The government alleged that for
some time during the conspiracy, Sherman supplied cocaine to Scoggins, and several



                                          -11-
witnesses provided evidence that collectively supported an inference that the
defendants indeed undertook this arrangement.

        Jason Shiver testified that Sherman supplied him with cocaine in Bakersfield
to distribute in 1994, 1996, 2000, and 2001. He stated that Scoggins showed him how
to cook cocaine in Bakersfield, that Scoggins traveled back and forth between
Bakersfield and Arkansas, and that in 1997 or 1998, Scoggins had invited Shiver to
come to Arkansas and sell cocaine for him. Shiver testified that he knew Scoggins
and Sherman were doing “drug business” together, because he saw them get into each
other’s vehicles and exchange money. Shiver also testified that Sherman had
mentioned that Scoggins owed him $7000, which Shiver inferred from the context was
probably money for drugs. Shiver also explained that while he and Sherman were in
prison together in Laredo and Bakersfield in 2001, Sherman “[t]hreatened something
might happen to [Shiver’s] mom,” if Shiver testified against him. (T. Tr. at 488).

       Lud Lovell, another prosecution witness, testified that he had seen both
Sherman and Scoggins sell cocaine in Bakersfield during the time of the conspiracy.
He testified that Sherman bragged to him about his Mexican cocaine connections.
Lovell stated that he bought cocaine from Scoggins, and that Scoggins claimed to be
“doing big things” and “going here and there,” which Lovell took to mean Scoggins
was transporting cocaine from California to Arkansas. (T. Tr. at 517). Kenyatta
Green, another associate of Scoggins, testified specifically that he had traveled with
Scoggins from Arkansas to California to obtain cocaine that was returned to Arkansas
for redistribution.

       During its investigation, the government obtained an order authorizing the
interception of telephone conversations on Sherman’s girlfriend’s phone and on his
cell phone. In one conversation between Sherman and Scoggins produced at trial,
Sherman told Scoggins that “Don Don,” identified as Donald Parish, owes him “five
big ones.” (Gov’t Exh. 6A, at 5). Sherman also informed Scoggins that he was

                                        -12-
“trying to break free of these fools with my money,” referring to “the Mexicans.” (Id.
at 2). Law enforcement agents who conducted surveillance during the investigation
also testified that they observed Sherman and Scoggins together on several occasions
in Bakersfield.

        Taking this evidence in the light most favorable to the verdict, a reasonable
juror could infer that Sherman obtained cocaine from a Mexican source and served as
a source of supply for Scoggins, who redistributed the drugs in Arkansas. Sherman
admitted to Lovell that he had “Mexican cocaine connections,” and a jury could infer
that Sherman’s statements to Scoggins concerning Parish’s debt of “five big ones,”
and his desire to “break free” of Mexicans, referred to the operations of the drug
conspiracy. Given the evidence that both Sherman and Scoggins were involved in
drug trafficking, and in light of the recorded communications between them, a jury
reasonably could infer that financial transactions between Scoggins and Sherman were
drug-related, and that Scoggins’s debt to Sherman was for cocaine that Sherman had
supplied. Sherman’s threat to harm Shiver’s mother in retaliation for testimony
against Sherman was further evidence from which a jury could infer Sherman’s
involvement in the conspiracy. United States v. Montano-Gudino, 309 F.3d 501, 505
(8th Cir. 2002). There was sufficient evidence to support the verdict.

       Sherman also argues that the district court erred by enhancing his statutory
minimum sentence based on a prior conviction for a drug felony, see 21 U.S.C. § 851,
because the fact of the conviction was found by the court rather than by a jury. The
Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224
(1988), as well as our recent decisions following that precedent, see, e.g., United
States v. Johnson, 408 F.3d 535, 540 (8th Cir. 2005); United States v. Velazquez, 410
F.3d 1011, 1016-17 (8th Cir. 2005), govern this issue. These holdings permit the
court, consistent with the Sixth Amendment, to make findings concerning the fact of
a prior conviction. Accordingly, there was no error in the court’s imposition of
Sherman’s sentence.

                                        -13-
                                 *      *       *

     For the foregoing reasons, we affirm Sherman’s conviction and sentence, affirm
Scoggins’s conviction, and remand for resentencing of Scoggins in accordance with
Booker and 18 U.S.C. § 3553(a).
                           ______________________________




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