                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-3208
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Minnesota.
Juan Manuel Ojeda-Estrada,              *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: June 9, 2009
                                Filed: August 20, 2009
                                 ___________

Before COLLOTON, JOHN R. GIBSON, and BEAM, Circuit Judges.
                           ___________

BEAM, Circuit Judge.

       Juan Manuel Ojeda-Estrada appeals his conviction and sentence following a
jury trial for conspiracy to distribute 500 grams or more of methamphetamine. We
affirm the district court.1




      1
      The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota.
I.    BACKGROUND

      Viewed in the light most favorable to the jury's verdict, United States v.
Savatdy, 452 F.3d 974, 975 (8th Cir. 2006), the evidence at trial established the
following things. The federal Drug Enforcement Agency became interested in Ojeda-
Estrada and his associates following a December 2006 traffic stop in Nevada. The
vehicle in which Ojeda-Estrada was a passenger was transporting $102,000 in cash,
which was covered in coffee grounds and hidden in a secret compartment below the
vehicle's radiator. Federal agents subsequently began monitoring the residence
connected with the vehicle.

      The vehicle that was stopped in Nevada and another vehicle belonging to
Ojeda-Estrada were both registered to an address located at 1915 Buchanan Street in
Minneapolis. Upon visiting that location, officers discovered that the house was
abandoned and that the contents of the house were being kept in the garage. Officers
searched the garage and found evidence of drug trafficking, as well as evidence
connecting the contents of the garage to Ojeda-Estrada.

       Based on items found during the search of the garage at Buchanan Street,
officers began surveillance at a house on Vincent Avenue. Officers observed Ojeda-
Estrada leave this residence and enter the passenger side of a gold Maxima. Officers
followed the Maxima to a restaurant, and later to the Minneapolis-St. Paul airport.
Ojeda-Estrada did not enter the airport, but instead stood outside on the sidewalk
while another passenger in the Maxima took a bag out of the car and got into a blue
pickup. Soon after, the Maxima, with the blue pickup following, exited the airport
and both cars drove to a house at 6348 Starlite Boulevard in Fridley, Minnesota, a
suburb on the north side of Minneapolis.

      Officers conducted surveillance for several weeks at the Starlite Boulevard
residence and found that Ojeda-Estrada's vehicle was parked at this location on

                                        -2-
numerous occasions. Officers also noticed a high volume of activity consistent with
drug trafficking at the Starlite residence. Eventually the officers conducted a traffic
stop of the gold Maxima and found methamphetamine and a gun in the car.2 Based
upon this traffic stop, officers applied for a warrant to search the Starlite Boulevard
residence. Ojeda-Estrada was present in a bedroom at the residence when the search
warrant was executed. The search of this residence uncovered various items
commonly related to drug trafficking, including: a money counter, a box of
ammunition which was connected to the gun found in the Maxima, a notebook with
notations that appeared to be part of a drug-dealing activity log, a heat sealer and
numerous used Ziploc bags (a random sample of which tested positive for
methamphetamine),        another small baggie which contained 2.5 grams of
methamphetamine, and $1000 in cash. In the attic, officers found more
methamphetamine, baggies, ammunition, scales, and dimethyl sulfone, which is a
cutting agent used to increase the quantity of methamphetamine. Officers also found
Ojeda-Estrada's birth certificate in this residence, and located $920 on his person.
Conspicuously absent from the Starlite Boulevard residence was any food or utensils
in the kitchen, and there was sparse furniture and clothing throughout the remainder
of the house. Finally, officers testified at trial about numerous cell phone contacts
between Ojeda-Estrada and other members of the conspiracy.

       Ojeda-Estrada testified on his own behalf at trial and attempted to distance
himself from the above-described evidence. Nonetheless, the jury found him guilty
and found that he was responsible for over 500 grams of methamphetamine in the
conspiracy. Prior to sentencing, the probation office prepared the presentence
investigation report (PSR). The PSR placed Ojeda-Estrada's base offense level at 34,
as he was responsible, for sentencing purposes, for a total of 176 grams of
methamphetamine and almost 3 kilograms of cocaine. The PSR found that
Ojeda-Estrada was a career offender based on his 1994 conviction for


      2
       Ojeda-Estrada was not in the Maxima during that traffic stop.

                                         -3-
possession/purchase of cocaine and his 1998 conviction for transportation/sale of a
controlled substance–both in California state court. As a result, Ojeda-Estrada's
applicable federal sentencing guideline range was determined to be 360 months to life
imprisonment, and Ojeda-Estrada was subject to a twenty-year statutory minimum.

       Ojeda-Estrada objected to various portions of the PSR, including its finding that
he was a career offender. In particular, he objected to the inclusion of his 1998 felony
conviction under Section 11352(a) of the California Health and Safety Code for
purposes of establishing his career offender status under Section 4B1.1 of the
Guidelines. The government submitted a copy of Ojeda-Estrada's 1998 criminal
complaint which charged that Ojeda-Estrada: "did unlawfully transport, import into
the State of California, sell, furnish, administer, and give away, and offer to transport,
import into the State of California, sell, furnish, administer, and give away, and
attempt to import into the State of California and transport a controlled substance, to
wit, cocaine." The government also submitted a copy of the judgment which indicates
Ojeda-Estrada pled guilty to and was convicted of this charge on December 16, 1998.
Relying on United States v. Garcia-Medina, 497 F.3d 875 (8th Cir. 2007), the district
court found Ojeda-Estrada was a career offender. The district court recognized "the
1998 criminal complaint against Mr. Estrada charges all the crimes listed in Section
11352(a) and it charges them in the conjunctive." The court went on to state, "there
is no indication that Mr. Estrada clarified or qualified his plea in any way that would
limit it to non-controlled substance offenses."              The district court found
Ojeda-Estrada's 1994 and 1998 drug convictions were felony controlled substance
offenses as defined in Section 4B1.2(b) which qualified Ojeda-Estrada as a career
offender. The court therefore found his guideline range was 360 months to life
imprisonment, and sentenced Ojeda-Estrada to 360 months in prison.




                                           -4-
II.   DISCUSSION

      A.     Sufficiency

       When reviewing the sufficiency of the evidence, we view the facts in the light
most favorable to the verdict, and affirm if any rational jury could have found the
defendant guilty beyond a reasonable doubt. United States v. Inman, 558 F.3d 742,
747 (8th Cir. 2009). The government points out that there is no record that Ojeda-
Estrada made a motion for judgment of acquittal. In his reply brief, Ojeda-Estrada
concedes the record is devoid of such a motion, but muses that the motion may have
been made off the record, as it is routinely made in "every criminal trial." If no
motion was made, we review for plain error. United States v. Milam, 494 F.3d 640,
643 (8th Cir. 2007). We have some concern with definitively stating that the motion
was not made and reviewing for plain error. The trial transcript has been somewhat
unusually labeled a "Trial Excerpt," and indeed, at the close of the defendant's
evidence, there are gaps, surrounded by asterisks, with the following notation, "(Trial
excerpt concluded.)" and after a short space, there is another "(Excerpt from trial)"
notation. Further, the court has not been provided with a "trial excerpt" of the
proceedings that occurred after closing arguments concluded, including the
proceedings wherein the jury returned its verdict and any motions that may have been
made at that time.

       In view of these irregularities in the trial transcript, and both parties' lack of
certainty about whether the motion was made pursuant to Rule 29 of the Federal Rules
of Criminal Procedure, and out of an abundance of caution, we apply the usual
standard and review the sufficiency of the evidence as articulated in Inman. The
indictment charged Ojeda-Estrada with conspiracy to distribute 500 grams or more of
methamphetamine, in violation of 21 U.S.C. §§ 841 and 846. "To establish that a
defendant conspired to distribute drugs . . . the government must prove: (1) that there
was a conspiracy, i.e., an agreement to distribute the drugs; (2) that the defendant

                                          -5-
knew of the conspiracy; and (3) that the defendant intentionally joined the
conspiracy." United States v. Jiminez, 487 F.3d 1140, 1146 (8th Cir. 2007) (quotation
omitted). The existence of a conspiracy may be proved by direct or circumstantial
evidence. United States v. Cain, 487 F.3d 1108, 1111 (8th Cir.), cert. denied, 128 S.
Ct. 648 (2007). Mere presence, coupled with knowledge that someone else in the
vicinity intends to sell drugs, is insufficient to establish membership in a conspiracy.
United States v. Rolon-Ramos, 502 F.3d 750, 754 (8th Cir. 2007).

       Viewed in the light most favorable to the verdict, the evidence showed
Ojeda-Estrada was an active and willing participant in a methamphetamine trafficking
conspiracy. He was in the car that transported $102,000 cash from Minnesota to Los
Angeles, his vehicle was registered to a drug trafficking house on Buchanan Street,
and this vehicle was frequently seen at, and Ojeda-Estrada was arrested at, a second
drug trafficking house on Starlite Boulevard. During the search of the Starlite house
where Ojeda-Estrada was arrested, officers found numerous items making it apparent
that extensive drug trafficking was taking place there. And officers found Ojeda-
Estrada's birth certificate in this residence. Cell phone evidence connected Ojeda-
Estrada with other members of the conspiracy. A rational jury could have convicted
Ojeda-Estrada of the conspiracy based upon the evidence presented at trial.
Accordingly, the jury's verdict was supported by sufficient evidence.

      B.     Section 4B1.1 Predicate Offense

      Ojeda-Estrada next challenges the district court's sentencing decision to treat
him as a career offender for having two prior controlled substance offenses. We
review de novo the district court's determination that Ojeda-Estrada was a career
offender under Section 4B1.1 of the Guidelines. United States v. Aleman, 548 F.3d
1158, 1168 (8th Cir. 2008), cert. denied sub nom., Martinez-Menera v. United States,
129 S. Ct. 2756 (2009). The government bears the burden of proving by a



                                          -6-
preponderance of the evidence that a prior offense qualifies Ojeda-Estrada for the
career offender provisions. Garcia-Medina, 497 F.3d at 876.

        Under the Guidelines, a defendant is treated as a career offender if he has two
prior convictions for either a controlled substance offense or a crime of violence.
U.S.S.G. § 4B1.1(a). A controlled substance offense is defined in the Guidelines as
"an offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance . . . or the possession of a controlled substance
. . . with intent to manufacture, import, export, distribute, or dispense." U.S.S.G. §
4B1.2(b).

       To determine if a prior conviction qualifies as a predicate controlled substance
offense for purposes of the career offender provision, the sentencing court must first
use the "formal categorical approach" the Supreme Court adopted in Taylor v. United
States, 495 U.S. 575, 600 (1990). This approach "look[s] only to the statutory
definitions of the prior offenses, and not to the particular facts underlying those
convictions." Id. Nonetheless, Taylor recognized an exception to the formal
"categorical approach" when a statute defines an offense more broadly than the
generic enumerated offense. Id. at 602. In a case that falls under the exception, the
sentencing court can look to "the indictment or information and jury instructions" to
determine if the jury was "actually required . . . to find all the elements of [the] generic
[offense]." Id. Where the defendant pleads guilty, the sentencing court may look to
the plea agreement, to the defendant's admissions, and to the judgment. Shepard v.
United States, 544 U.S. 13, 19-20 (2005). This exception is known as the "modified
categorical approach."

      Ojeda-Estrada's 1998 California conviction was for a crime which is not,
categorically, a controlled substance offense for purposes of Section 4B1.1.
California Health and Safety Section 11352(a) criminalizes the transportation of

                                            -7-
drugs, even where it does not involve importing or exporting the drugs and even
where there is no distribution. An abstract of judgment from the California court
shows that Ojeda-Estrada pleaded guilty to this statute. Our task is to determine
whether the government met its burden of proving that Ojeda-Estrada pleaded guilty
to a Guidelines-defined "drug trafficking offense" by pleading guilty to the California
statute. The charging document produced by the government at sentencing alleged
that Ojeda-Estrada: "did unlawfully transport, import into the State of California, sell,
furnish, administer, and give away, and offer to transport, import into the State of
California, sell, furnish, administer, and give away, and attempt to import into the
State of California and transport a controlled substance, to wit, cocaine." As
previously noted, the district court relied upon our decision in Garcia-Medina to find
that Ojeda-Estrada's guilty plea to this charge contributed to his career offender
calculation.

      In Garcia-Medina, we considered whether a violation of California's Section
11352(a) was a drug trafficking offense for purposes of a sentencing enhancement to
the crime of illegal reentry.3 We acknowledged the California statute was
overinclusive and the case involved a guilty plea. We therefore used Shepard's
modified categorical approach. 497 F.3d at 877. Garcia-Medina admitted that he had
pleaded guilty to two counts of Section 11352, but that he did not plead guilty to
"special allegations." Counts one and two stated that Garcia-Medina: "did unlawfully
transport, import into the State of California, sell, furnish, administer, and give away,
and offer to transport, import into the State of California, sell, furnish, administer, and
give away, and attempt to import into the State of California and transport a controlled
substance, to wit, HEROIN." Id. at 877-78. The special allegations to which Garcia-
Medina did not plead guilty stated, "It is further alleged that in the commission of the


      3
       This is a different guideline than the one at issue in this case, but Ojeda-Estrada
concedes that the language of the reentry enhancement is "strongly similar in all
relevant respects" to the definitions at issue in 4B1.1.

                                           -8-
above offense the defendant(s), RAMON GARCIA MEDINA, sold and offered to sell
14.25 grams and more of a substance containing heroin . . . ." Id. at 878.

       We held that Garcia-Medina's guilty plea to counts 1 and 2 were sufficient to
satisfy the government's burden of proving that Garcia-Medina had been previously
convicted of a drug trafficking offense, even without the special allegations. Id. We
reasoned that in California, a guilty plea admits every element of the offense charged,
and that because the charge was written in the conjunctive, Garcia-Medina's plea
effectively admitted guilt to the several listed offenses, many of which qualified as
drug trafficking for purposes of the guideline enhancement. Id. Accordingly, Garcia-
Medina's plea necessarily rested upon facts equating to the qualifying offense. Id.

       Ojeda-Estrada argues that Garcia-Medina is not dispositive, because in that
case, the court simply assumed that the defendant pleaded guilty to all of the acts
described in the conjunctive, whereas in this case, the government has not met its
burden of showing that the guilty plea was not more narrowly drawn. Ojeda-Estrada
overstates the government's burden. As previously stated, the government must prove,
by a preponderance of the evidence, that Ojeda-Estrada was previously convicted of
a drug trafficking offense. To that end, the government produced at sentencing the
abstract of judgment noting that Ojeda-Estrada pleaded guilty to count 2 of the
California felony complaint, described above and also produced by the government.
We find this is sufficient to dispatch the government's burden of proof. Ojeda-Estrada
was charged, and pled guilty to all of the acts in the conjunctive. This has the same
effect as a charging document which effectively narrows the overinclusive statute.

       Like the district court, we can find nothing to distinguish the facts and
procedures employed at sentencing in this case from what occurred in Garcia-Medina.
The government proved by a preponderance of the evidence that Ojeda-Estrada
pleaded guilty to a drug trafficking offense, and was not required to produce more of
the state sentencing record in an effort to disprove Ojeda-Estrada's theory that the

                                         -9-
guilty plea may have been more narrowly drawn. See United States v. Vasquez-
Garcia, 449 F.3d 870, 873 (8th Cir. 2006) (holding that the government need not
produce additional documentation of the factual basis for a plea or admissions at the
plea hearing where the charging document already narrowed the overinclusive
statute). Accordingly, the district court properly applied the career offender
sentencing enhancement.

III.   CONCLUSION

       For the foregoing reasons, we affirm the judgment of the district court.4
                       ______________________________




       4
       Ojeda-Estrada filed a pro se motion to supplement the appellate record with
additional arguments, case citations, affidavits and other documents. Our normal
practice is to refuse pro se filings where the defendant is represented by counsel on
appeal. We see no reason to deviate from that procedure in this case. Ojeda-Estrada
was apparently not fully satisfied with his attorneys' efforts in this case, but he has
another and more appropriate forum to raise such objections, a 28 U.S.C. § 2255
motion. United States v. Hartstein, 557 F.3d 589, 591 (8th Cir. 2009). Accordingly,
we deny the motion to supplement the record.


                                         -10-
