                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4213



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


JOHN ELLIOTT DELONG, II,

                                            Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg. Joseph Robert Goodwin,
District Judge. (CR-03-147)


Submitted:   May 9, 2005                    Decided:    June 8, 2005


Before WILKINSON, LUTTIG, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


John R. McGhee, Jr., KAY CASTO & CHANEY PLLC, Charleston, West
Virginia, for Appellant. Kasey Warner, United States Attorney, R.
Gregory McVey, Assistant United States Attorney, Huntington, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            John Elliott Delong, II, appeals from his conviction for

conspiracy    to   manufacture   methamphetamine       and   his   resulting

188-month sentence.      Delong was convicted after a jury trial, and

he raises the following claims: (1) admission of evidence of drug

transactions post-dating the dates of the conspiracy alleged in the

indictment created a fatal variance, (2) there was insufficient

evidence to support the conclusion that Delong was involved in a

conspiracy in the Southern District of West Virginia, and (3) his

sentence was unconstitutional in light of United States v. Booker,

125 S. Ct. 738 (2005).



                                      I.

            Delong first argues that the district court improperly

permitted    admission   of   tape   recordings   of   transactions   which

post-dated the dates of the conspiracy pled in the indictment.

Delong asserts that the admission of this evidence constituted a

fatal variance of the indictment.

            A variance occurs when the evidence presented at trial

differs materially from the facts alleged in the indictment.

United States v. Kennedy, 32 F.3d 876, 883 (4th Cir. 1994).

However, a variance “does not violate a defendant’s constitutional

rights unless it prejudices [him] either by surprising him at trial

and hindering the preparation of his defense or by exposing him to


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the danger of a second prosecution for the same offense.”     United

States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999) (when evidence

does not alter crime alleged in the indictment, the variance is not

fatal).

            While Delong argues that, absent this evidence, there was

insufficient evidence that he was involved in the conspiracy or

even that he knew the purpose of the chemicals, Delong notably does

not assert that his ability to present a defense was compromised in

any manner, that the alleged variance rendered his trial unfair, or

that it subjected him to the danger of a second prosecution for the

same offense.    The asserted prejudice involves the incriminating

nature of the evidence, and is not dependent on the dates of the

sales.    See Kennedy, 32 F.3d at 883 (holding defendant must prove

that jury was likely to transfer evidence from one crime to

another, unrelated crime). A mere difference in dates, without the

required showing of prejudice, does not constitute reversible

error.    See United States v. Queen, 132 F.3d 991, 999-1000 (4th

Cir. 1997) (holding that specific dates are not elements of the

conspiracy offense). Thus, we find that admission of the contested

evidence did not create a fatal variance.1


     1
      Although not cited by Delong, the Government interpreted this
issue to challenge the admission of the tape recordings under Fed.
R. Evid. 404(b). Even if this was the intended basis of Delong’s
argument, there was no error. Rule 404(b) is an inclusive rule
permitting evidence of other bad acts, excluding only evidence that
has no purpose other than to show criminal disposition. See United
States v. Sanchez, 118 F.3d 192, 195 (4th Cir. 1997). Here, the

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                                      II.

           Next, Delong contends that the district court improperly

denied his motion for acquittal.             Specifically, he states that

there was insufficient evidence showing that he conspired with any

person other than a government agent.               Regarding the testifying

cooperating    witnesses,    Delong    asserts      that    the   evidence    only

supported a buy/sell relationship as opposed to a conspiracy.

           When a motion for acquittal is based on insufficient

evidence, “[t]he verdict of a jury must be sustained if there is

substantial    evidence,    taking    the    view    most   favorable   to    the

Government, to support it.” Glasser v. United States, 315 U.S. 60,

80   (1942).    We   have   defined   “substantial         evidence”   as    “that

evidence which a reasonable finder of fact could accept as adequate

and sufficient to support a conclusion of a defendant’s guilt

beyond a reasonable doubt.”          United States v. Newsome, 322 F.3d

328, 333 (4th Cir. 2003) (quotations omitted).

           A defendant who furnishes supplies to an illicit dealer

is not guilty of conspiracy, unless he knows of the conspiracy,

even if his sale furthers the object of the conspiracy to which the

dealer was a party.    United States v. Falcone, 311 U.S. 205, 210-11



contested evidence demonstrated that Delong was aware of the
purpose of the hypophosphorous and the illegality of his actions,
and that his involvement in the conspiracy was knowing and ongoing.
Thus, the evidence was properly admissible under Rule 404(b) to
show, among other things, intent, motive, knowledge, and absence of
mistake.

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(1940). Thus, there must be some understanding beyond just a sales

agreement   before   the   evidence    can   support    a   conviction    for

conspiracy.   United States v. Bewig, 354 F.3d 731, 735 (8th Cir.

2003).   However, given the parties’ actions and the surrounding

circumstances, a transaction to which a reasonable person would

impute a second conspiratorial agreement can be sufficient. Id. at

735-36; see also United States v. Mills, 995 F.2d 480, 485 n.1 (4th

Cir. 1993) (holding that lengthy buy/sell relationship coupled with

a substantial quantity of drugs can support reasonable inference

that a conspiracy existed).

            We hold that a reasonable jury could have concluded

beyond a reasonable doubt that Delong entered into a conspiratorial

agreement with certain testifying witnesses and others unknown to

distribute hypophosphorous and iodine crystals for the purposes of

making illegal methamphetamine.        First, sales of hypophosphorous

and iodine crystals require the processing of DEA paperwork.              See

Direct Sales Co. v. United States, 319 U.S. 703, 710 (1943)

(holding that the type of good sold should have an effect on the

conspiratorial calculus). Second, Delong knew that hypophosphorous

was used to make methamphetamine.       Third, the sales at issue were

not   isolated;   Delong   pursued    further   sales   with   promises    of

“specials” and offers of other chemicals.         See Bewig, 354 F.3d at

736 (by knowingly making the supplying of a necessary ingredient to

illegal drug production a continuing part of his business, a seller


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of precursor chemicals became part of the manufacturing venture).

Fourth, the nature of the sales transactions suggested an illegal

goal: the chemicals were packaged in unlabelled bottles and sold

for cash with no receipts.

          Viewing the evidence in the light most favorable to the

Government, we find that a reasonable jury could have concluded

that Delong not only sold hypophosphorous with the knowledge that

it would be used to make methamphetamine but also agreed to become

part of that illegal end.    Thus, we affirm the district court’s

order denying Delong’s motion for acquittal.



                               III.

          Citing Blakely v. Washington, 124 S. Ct. 2531 (2004),

Delong contends that his Sixth Amendment right to a jury trial was

violated because he was sentenced on facts found by the court and

not by the jury.   Because Delong did not object to his sentence in

the district court based on Blakely or United States v. Booker, 125

S. Ct. 738 (2005), we review for plain error.     United States v.

Hughes, 401 F.3d 540, 547 (4th Cir. 2005). Because Delong received

a substantially higher sentence than would have been permissible

based only on the jury’s findings, we vacate and remand Delong’s

sentence for resentencing under an advisory guidelines system.2


     2
      Just as we noted in Hughes, 401 F. 3d at 545 n.4, “[w]e of
course offer no criticism of the district judge, who followed the
law and procedure in effect at the time” of Delong’s sentencing.

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See Hughes, 401 F.3d at 547-49, 555-56 (finding that Hughes had

satisfied all three prongs of the plain error test set forth in

United States v. Olano, 507 U.S. 725, 732 (1993), when he was

sentenced to a sentence substantially longer than that permitted

based purely on the facts found by a jury, and that the court

should exercise its discretion to recognize the error).

          Although the guidelines are no longer mandatory, Booker

makes clear that a sentencing court must still “consult [the]

Guidelines and take them into account when sentencing.” 125 S. Ct.

at 767.   On remand, the district court should first determine the

appropriate sentencing range under the guidelines, making all

factual findings appropriate for that determination.           See Hughes,

401 F.3d at 546.   The court should consider the guideline range,

along with the other factors described in 18 U.S.C.A. § 3553(a)

(2000), and then impose a sentence.       Id.    If that sentence falls

outside the guideline range, the court should explain its reasons

for departure as required by 18 U.S.C. § 3553(c)(2) (West Supp.

2004).    Id.    The   sentence   must    be   “within   the   statutorily

prescribed range and   . . . reasonable.”       Id. at 546-47.




See generally Johnson v. United States, 520 U.S. 461, 468 (1997)
(stating that an error is “plain” if “the law at the time of trial
was settled and clearly contrary to the law at the time of
appeal”).

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               Based on the foregoing, we affirm Delong’s conviction and

vacate his sentence and remand for resentencing.3            We dispense with

oral       argument   because   the   facts    and   legal   contentions   are

adequately presented in the materials before the court and argument

would not aid the decisional process.



                                                          AFFIRMED IN PART,
                                              VACATED IN PART, AND REMANDED




       3
      Because we vacate Delong’s sentence, it is unnecessary for us
to reach Delong’s challenges to his guidelines calculation.

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