                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1646
                                   ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Minnesota.
Timothy John Ehrmann,                  *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: December 13, 2004
                                Filed: August 31, 2005
                                 ___________

Before ARNOLD, BEAM, and RILEY, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

       Timothy John Ehrmann (Ehrmann) appeals his convictions and sentence. In
April 2003, the government charged Ehrmann with eight counts of conspiracy to
distribute, aiding and abetting possession with intent to distribute, and possession
with intent to distribute methamphetamine and ecstasy between April 2001 and
February 2003. A jury found Ehrmann guilty of seven counts, and the district court1
sentenced him to 360 months’ imprisonment and five years’ supervised release. On


      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
appeal, Ehrmann assigns numerous errors, including (1) the denial of his suppression
motion; (2) the denial of a fair trial due to the prosecutor’s peremptory strike of a
prospective juror based on the juror’s sexual orientation; (3) the admission at trial of
prejudicial videotape evidence; (4) the denial of his right to testify on his own behalf;
(5) prosecutorial misconduct; (6) the improper assessment of a two-level sentencing
enhancement for obstruction of justice; and (7) Booker sentencing errors. Finding no
reversible errors, we affirm.

I.     BACKGROUND
       A.     Factual Summary
       After earning a bachelor’s degree in finance, Ehrmann worked as a controller
for three different companies. He later completed a master’s degree in business
administration and earned an annual salary of nearly $70,000. In late September
2001, Ehrmann was laid off due to a corporate merger. He then decided to apply his
considerable business acumen to organizing a nationwide narcotics operation based
out of his Minneapolis home.

       Law enforcement first learned of Ehrmann’s involvement in narcotics
trafficking in April 2001, when United States Customs officials interdicted a package
of ecstasy mailed from Toronto, Ontario, to a Minneapolis residential address.
Customs officials made a controlled delivery to the residence, and Ian St. James (St.
James) signed for the controlled package. After arresting St. James, law enforcement
searched the residence and found Northwest Airlines ticket stubs for a return trip
from Minneapolis to Toronto in March 2001. The tickets were issued to St. James,
but they were addressed to Ehrmann.

      Upon being arrested, St. James agreed to cooperate with law enforcement. St.
James phoned co-defendant Thomas Haslip (Haslip), who later arrived at St. James’s
residence. Haslip discussed with St. James the distribution of 1,500 ecstasy pills
before taking possession of the controlled package and departing. Haslip delivered

                                          -2-
the package to 4302 Portland Avenue, a residence owned by Ehrmann, where he and
Haslip lived. Thereafter, law enforcement agents obtained a search warrant and
searched Ehrmann’s residence, where they found evidence of three recent wire
transfers from Ehrmann to St. James in the amounts of $8,000, $4,500 and $1,700,
and a fourth wire transfer from Ehrmann to Ron Geoff. Agents also discovered and
seized a notebook recording drug orders. Law enforcement officers made no arrests,
but they continued to monitor Ehrmann’s residence in an attempt to discover more
information about the ongoing narcotics operation.

       In January 2002, Bloomington, Minnesota, police stopped Anthony Florian
(Florian), who possessed ninety-three grams of methamphetamine. Florian agreed to
cooperate with authorities, telling them he had located a supply source for
methamphetamine in Arizona, and Ehrmann and others had given Florian $4,500 to
purchase methamphetamine. Thereafter, Florian purchased eight ounces of
methamphetamine, delivered four ounces to Ehrmann, and retained possession of
four ounces, approximately the amount Florian possessed when the police stopped
him. Police also seized from Florian detailed drug ledgers containing numerous
references to “TE,” which police presumed were the identifying initials of Timothy
Ehrmann.

        Six months later, on June 8, Trooper Anthony Gerard (Trooper Gerard), an
Arizona Highway Patrol Officer, pulled over an automobile on Interstate 40 traveling
ninety-four miles per hour. Eugene Blaylock (Blaylock) was driving, and Ehrmann
was riding in the front passenger seat. Trooper Gerard approached the car and spoke
first to Blaylock, who gave Trooper Gerard the rental agreement and his Texas
driver’s license. Ehrmann did not acknowledge Trooper Gerard, but instead focused
intently on his laptop computer. Trooper Gerard asked Blaylock why he was
traveling from Dallas to Arizona, and Blaylock told Trooper Gerard he and Ehrmann
came to Arizona “just to hang out.” Blaylock also told Trooper Gerard he was
unemployed and had been for some time.

                                        -3-
      Trooper Gerard issued Blaylock a speeding ticket, and then told Blaylock he
was free to go. As Blaylock began walking back to the car, Trooper Gerard asked
Blaylock if he would answer a few more questions, and Blaylock said he would.
After asking Blaylock several questions related to narcotics trafficking, Trooper
Gerard asked Blaylock’s permission to search the vehicle. Blaylock paused for a
second before consenting to the search. When Blaylock attempted to remove the car
keys from the ignition, Ehrmann inquired what Blaylock was doing and Ehrmann
then objected to the search. After Blaylock and Ehrmann conversed for about ten
seconds, Blaylock told Trooper Gerard that Ehrmann did not want the car searched,
and Trooper Gerard would need to talk with Ehrmann.

      Trooper Gerard then approached the passenger side of the vehicle and noticed
Ehrmann had set down his laptop computer and was now fidgeting in his seat,
squirming back and forth. Trooper Gerard asked Ehrmann for permission to search
the vehicle. Ehrmann told Trooper Gerard he had been delayed long enough and did
not want to wait for Trooper Gerard to search the vehicle. Ehrmann’s hands were
shaking, causing Trooper Gerard to believe Ehrmann was nervous. Trooper Gerard
assured Ehrmann the search would take only five minutes, but Ehrmann renewed his
objection to the search, this time saying he did not want his privacy invaded. When
Trooper Gerard asked Ehrmann if there were any illegal drugs in the vehicle,
Ehrmann’s right eyebrow began twitching uncontrollably. At this point, Trooper
Gerard called a canine unit to the scene.

       Seventeen minutes later a canine unit arrived. When the handler walked the
canine around the vehicle, the canine alerted to the trunk. The officers then opened
and searched the trunk. The search revealed a small black bag inside a larger black
duffle bag. The small black bag contained two packages each with two packets of a
white crystal substance. The packages weighed just under one pound and field tested
positive for methamphetamine. The small bag also contained ten ecstasy tablets. The
large black duffle bag contained a digital scale and $520 in cash. Trooper Gerard also

                                         -4-
confiscated $156 from Ehrmann’s wallet, two Dell computers, drug ledgers, and an
American Airlines ticket addressed to Ehrmann, but issued to Blaylock for round-trip
air travel between Dallas/Fort Worth and Minneapolis on October 19, 2002.

        Following the search, officers arrested Ehrmann on state drug charges. He
posted bond and returned to Minneapolis, where he continued to purchase large,
distributable quantities of methamphetamine and ecstasy. In August 2002, Ehrmann
traveled with Haslip to Arizona, where they purchased methamphetamine, which they
mailed to Minneapolis, before returning by air. In October, Ehrmann and Haslip
traveled to Las Vegas, where they met a drug supplier named Timothy Range (Range)
at a circuit party.2 Initially, Haslip purchased one pound of methamphetamine from
Range. Throughout November and December, Ehrmann lived with Range and
purchased two to three pounds of methamphetamine from Range on five or six
occasions.

      On February 12, 2003, Ehrmann was arrested in San Diego attempting to
purchase three pounds of pseudoephedrine3 from an undercover Drug Enforcement
Agency (DEA) agent. Ehrmann admitted to the DEA agent he intended to process the
pseudoephedrine into methamphetamine. When Ehrmann was arrested, agents also
seized $18,000 in cash and approximately 325 tablets of ecstacy, which Ehrmann
offered to sell to the DEA agent.

       B.    Procedural Summary
       A federal grand jury returned a seven-count indictment against Ehrmann and
four co-defendants in March 2003. The indictment alleged a conspiracy to distribute
ecstasy and methamphetamine, possession of controlled substances with intent to


      2
       Circuit parties are a series of gay dance parties held around the world.
      3
      Pseudoephedrine is a precursor chemical used in manufacturing
methamphetamine.

                                        -5-
distribute, and aiding and abetting possession with intent to distribute controlled
substances. The following month, the government filed a superceding indictment
adding Jimmie Charles Orr (Orr) as a defendant and an eighth count charging
Ehrmann and Orr with possession of methamphetamine with intent to distribute.
Ehrmann and four co-defendants pled not guilty and proceeded to trial. Orr pled
guilty to the conspiracy count, and agreed to cooperate with authorities.

       Before trial, Ehrmann moved to suppress the physical evidence seized from the
rental car in Arizona. Adopting the report and recommendation of the magistrate
judge, the district court denied the suppression motion. During the three week trial,
the government called some thirty witnesses, including Trooper Gerard, Orr, Range,
and several unindicted co-conspirators who either had sold distributable quantities
of drugs to Ehrmann and Haslip or had purchased drugs for resale from them. The
jury convicted Ehrmann of seven of the eight counts, including the conspiracy count.

       On March 8, 2004, the district court sentenced Ehrmann to 360 months’
imprisonment. In determining the sentence, the district court adopted the drug
quantity finding proposed in the Presentence Investigation Report (PSR), and twice
assessed two-level role enhancements, one for Ehrmann’s role in the offense and a
second for obstruction of justice. Ehrmann appeals his convictions and sentence,
contending the district court erred in (1) denying his motion to suppress, (2) denying
a Batson challenge, (3) admitting a videotape into evidence, (4) failing to have
Ehrmann waive his right to testify on the record, (5) prejudicing his right to a fair trial
based on cumulative prosecutorial misconduct, and (6) assessing a sentencing
enhancement for obstruction of justice. After oral argument, Ehrmann’s counsel
filed a letter, pursuant to Federal Rule of Appellate Procedure 28(j), claiming Sixth
Amendment Booker sentencing errors.




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II.    DISCUSSION
       A.     Pretrial Suppression Motion
       When considering a district court’s order denying the suppression of evidence,
we review the district court’s factual findings for clear error and its legal conclusions
de novo. United States v. Welerford, 356 F.3d 932, 935 (8th Cir. 2004). “We must
affirm an order denying a motion to suppress unless the decision is unsupported by
substantial evidence, is based on an erroneous view of the applicable law, or in light
of the entire record, we are left with a firm and definite conviction that a mistake has
been made.” United States v. Fuse, 391 F.3d 924, 927 (8th Cir. 2004) (internal
quotation omitted).

       Traffic stops constitute “seizures” within the meaning of the Fourth
Amendment, United States v. Martinez, 358 F.3d 1005, 1009 (8th Cir. 2004), and
must be reasonable under the principles of Terry v. Ohio, 392 U.S. 1 (1968), Fuse,
391 F.3d at 927. Generally, a traffic “stop must be supported by at least a reasonable,
articulable suspicion that criminal activity” has occurred or is occurring. United
States v. Jones, 269 F.3d 919, 924 (8th Cir. 2001). A traffic violation, no matter how
minor, creates probable cause for a law enforcement officer to stop the vehicle. See
United States v. Barry, 98 F.3d 373, 376 (8th Cir. 1996). In performing a traffic stop,
the officer may conduct investigatory procedures “reasonably related in scope to the
circumstances that initially” justified the interference. United States v. McCoy, 200
F.3d 582, 584 (8th Cir. 2000) (per curiam). The officer may detain a motorist while
the officer performs routine tasks, such as writing a citation and completing
computerized checks of a driver’s license, vehicle registration, and criminal history.
United States v. $404,905.00 in U.S. Currency, 182 F.3d 643, 647 (8th Cir. 1999).

       However, “once the officer decides to let a routine traffic offender depart with
a ticket, a warning or an all clear–a point in time determined, like other Fourth
Amendment inquiries, by objective indicia of the officer’s intent–then the Fourth
Amendment applies to limit any subsequent detention or search.” Id. at 648. An

                                          -7-
officer cannot continue to detain a motorist after the officer completes the initial stop,
unless the officer has “a reasonably articulable suspicion for believing” criminal
activity is afoot. United States v. Beck, 140 F.3d 1129, 1134 (8th Cir. 1998); see also
Fuse, 391 F.3d at 927-28; Jones, 269 F.3d at 925 (explaining “with the purpose of the
traffic stop completed, it would be an unreasonable extension of the scope of the
investigation for [the trooper] to further detain [the suspect] or his vehicle, ‘unless
something that occurred during the traffic stop generated the necessary reasonable
suspicion to justify a further detention’”) (quoting United States v. Mesa, 62 F.3d
159, 162 (6th Cir. 1995)).

      The facts surrounding the traffic stop in this case are straightforward. Trooper
Gerard clocked the rental vehicle traveling nineteen miles per hour in excess of the
speed limit. Trooper Gerard had probable cause to stop the vehicle for speeding.
United States v. Winters, 221 F.3d 1039, 1041 (8th Cir. 2000). Once Trooper Gerard
issued Blaylock a speeding citation and told him he was free to go, Ehrmann argues
Trooper Gerard no longer had reasonable suspicion to delay the vehicle or its
occupants.

        Recently, we declared “the termination of a traffic stop does not effectively
erase the objectively reasonable suspicions developed by a police officer during the
traffic stop.” Fuse, 391 F.3d at 929. Our review of Ehrmann’s suppression record
convinces us Trooper Gerard had developed objectively reasonable suspicions before
first asking Blaylock, and then Ehrmann, for consent to search the vehicle. When
Trooper Gerard first approached the vehicle, he testified he thought it strange
Ehrmann did not look up from his computer and make eye contact with him. Trooper
Gerard also found it odd that Blaylock said he was driving from Dallas to Phoenix
with no specific purpose, other than to “just to hang out.” He also thought it
suspicious Blaylock would be vacationing when he was unemployed. Trooper
Gerard’s initial suspicions increased when Blaylock initially consented to a search,
but then told Trooper Gerard he would have to speak to Ehrmann. When Trooper

                                           -8-
Gerard approached Ehrmann to discuss the matter, Trooper Gerard testified Ehrmann
appeared nervous, his hands were shaking, and he was fidgeting and squirming in his
seat. Ehrmann first told Trooper Gerard he was in hurry and did not want to be
detained further. When Trooper Gerard assured Ehrmann a search would take only
five minutes, Ehrmann changed his basis for objecting to the search, telling Trooper
Gerard a search would invade his privacy. Trooper Gerard then cut to the chase,
asking Ehrmann whether illegal drugs were concealed in the vehicle. Upon hearing
the question, Ehrmann’s eyebrow began twitching uncontrollably, making Trooper
Gerard even more suspicious that Ehrmann had something to hide. Under these facts,
we conclude Trooper Gerard had reasonable suspicion to detain Ehrmann and call a
canine unit. See Fuse, 391 F.3d at 929-30. The district court committed no error in
denying Ehrmann’s motion to suppress the fruits of the search.

       B.     Batson Challenge
       Ehrmann raised a challenge under Batson v. Kentucky, 476 U.S. 79 (1986), to
the government’s peremptory strike of a panel member, contending the government
struck the panel member because of his sexual orientation. The district court denied
the Batson challenge. The court first questioned Batson’s application to sexual
orientation challenges. Then the court found Ehrmann failed to make a prima facie
showing of unlawful discrimination and the government offered legitimate,
nondiscriminatory reasons for exercising a peremptory challenge against the panel
member. Ehrmann attempts to elevate this challenge to the level of a constitutional
error under the Batson line of cases, arguing the denial of his Batson objection denied
him the right to a fair trial.

      We review the district court’s Batson ruling for clear error, United States v.
Jones, 245 F.3d 990, 992 (8th Cir. 2001), and we accord great deference to the district
court’s findings, United States v. Roebke, 333 F.3d 911, 912 (8th Cir. 2003) (citing
Batson, 476 U.S. at 98 n.21). Although the California Supreme Court has held sexual
orientation should be a protected class for jury selection purposes, see People v.

                                         -9-
Garcia, 92 Cal. Rptr. 2d 339, 347-48 (2000), and the Ninth Circuit has assumed,
without deciding, sexual orientation qualifies as a Batson classification, Johnson v.
Campbell, 92 F.3d 951, 953 (9th Cir. 1996), neither the United States Supreme Court
nor this circuit has so held.

       While we seriously doubt Batson and its progeny extend federal constitutional
protection to a venire panel member’s sexual orientation, our review of the trial
record persuades us that even if Ehrmann made a prima facie case of purposeful
discrimination, his Batson objection fails because the government offered legitimate,
nondiscriminatory reasons for striking the panel member. The prosecutor told the
district court he questioned the suitability of this panel member even before learning
of the panel member’s sexual orientation. The prosecutor was concerned about the
panel member’s liberal education and background, his livelihood as a musician, and
his being a potential loner. Ehrmann offered no evidence to show the government’s
proffered reasons were pretextual. Accordingly, we find no clear error in the district
court’s denial of Ehrmann’s Batson challenge.

       C.      Videotape Evidence
       In his third assigned error, Ehrmann claims the district court erred in allowing
the government to introduce prejudicial videotape evidence, the admission of which,
Ehrmann claims, constituted prosecutorial misconduct. Ehrmann specifically objects
to the admission of the videotaped phrase “Gay Mafia” as being inherently
prejudicial. The government claims the videotape evidence of Ehrmann’s admissions
relating to his organization and pending conspiracy charges is plainly relevant. We
review a district court’s admission of evidence for abuse of discretion. United States
v. Martin, 391 F.3d 949, 952 (8th Cir. 2005).

       Our review of the videotape transcript establishes that, on January 3, 2003,
Ehrmann visited a friend named Patrick Jarmuzek (Jarmuzek), while Jarmuzek was
in custody at the Sherburne County Jail. The evidence further establishes Ehrmann

                                         -10-
and Jarmuzek knowingly consented to communicating via video conferencing. Twice
while conversing, they expressed their disdain of videoconferencing. The record does
not reveal whether Ehrmann and Jarmuzek knew their conversation was being
recorded, but given the jailhouse setting, they presumably considered the possibility.

       During the jailhouse conversation, Ehrmann told Jarmuzek to let Ehrmann
know if “they try and charge you with . . . conspiracy as of big picture conspiracy.”
Ehrmann then told Jarmuzek that Florian had been hauled back in court, and “they are
threatening to charge him with conspiracy . . . , same as what Bam is being charged
with.” Ehrmann also told Jarmuzek, “they’re trying to tie me very heavily to Bam,”
and “my attorney told me . . . the Feds . . . are looking to charge me federally now as
well.” Ehrmann predicted to Jarmuzek that if “they do that they’re looking at . . .
Bam like this kingpin in the Gay Mafia so to speak. . . . You or I would be the next
best candidate after Bam.” (emphasis added).

      In discussing potential conspiracy charges, Ehrmann’s phrase “kingpin in the
Gay Mafia” appears not to be a reference to himself, but to “Bam,” an unidentified
co-conspirator. Ehrmann, not the government, uttered the “Gay Mafia” phrase in an
apparent reference to an unidentified co-conspirator. Ehrmann’s admissions
regarding the activities of alleged co-conspirators were plainly relevant, as were his
admissions concerning confiscated proceeds, his fears of future federal indictment,
and his plan to lie low. We conclude the district court did not abuse its discretion in
admitting the videotape evidence.

       D.      Right to Testify
       Ehrmann also claims the district court erred in failing to obtain Ehrmann’s
express waiver of his right to testify on the record. After the government completed
its case-in-chief and rested, the district court advised Ehrmann of his “personal” right
to testify at trial. When the court inquired of Ehrmann if his lawyer had discussed
with Ehrmann his right to testify, he responded in the affirmative. When the court

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asked Ehrmann if he had any questions, Ehrmann responded in the negative.
Ehrmann rested his case without testifying.

       A district court is not required to obtain from a defendant an express, on-the-
record waiver of his right to testify. If a defendant wishes to exercise his
constitutional right to testify, a defendant “must act affirmatively and express to the
court [his] desire to do so at the appropriate time or a knowing and voluntary waiver
of the right is deemed to have occurred.” United States v. Blum, 65 F.3d 1436, 1444
(8th Cir. 1995). Thus, we find no error.

       E.      Prosecutorial Misconduct
       Ehrmann next claims the prosecutor impugned defense counsel’s integrity by
revisiting at trial a preliminary conflict-of-interest issue, which the magistrate judge
had resolved in favor of Ehrmann. Before trial, Ehrmann knowingly waived any
actual or perceived conflict of interest between his defense counsel and a government
witness whom Ehrmann’s counsel had represented two years earlier. “To obtain a
reversal for prosecutorial misconduct, the defendant must show that (1) the
prosecutor’s remarks were improper, and (2) such remarks prejudiced the defendant’s
rights in obtaining a fair trial.” United States v. King, 36 F.3d 728, 733 (8th Cir.
1994).

        Ehrmann claims that during trial the prosecutor suggested to the district court
Ehrmann’s defense counsel was acting unethically, and during cross-examination
would “use confidences” defense counsel received from his previous representation
of a government witness named Jeremy Jacobsen (Jacobsen). As a result, Ehrmann
claims the prosecutor denied him a right to a fair trial and to effective assistance of
counsel. The government agrees that, before trial, the prosecutor raised the conflict-
of-interest issue before the magistrate judge to protect Ehrmann’s Sixth Amendment
rights. However, the government argues defense counsel, not the prosecutor, was the
first to revisit the conflict-of-interest issue at trial, when defense counsel informed the

                                           -12-
court that, since the magistrate judge’s ruling, a conflict of interest had arisen, and
another attorney would cross-examine Jacobsen. Shortly before Jacobsen was called
to testify, Ehrmann’s counsel informed the court Ehrmann waived the newly
discovered conflict of interest, and defense counsel would cross-examine Jacobsen.
Only then, when asked by the district court to respond, did the prosecutor state the
case law clearly established a presumption that confidences are passed between client
and attorney during representation.

      Having reviewed the record, we first note defense counsel never made a formal
objection to the prosecutor’s statements. The district court asked Ehrmann’s counsel,
“What kind of a ruling do you want or need?” Ehrmann’s counsel responded, “I don’t
think we need one.” Because the record contains no defense objection to the
prosecutor’s remarks or motion for mistrial based on prosecutorial misconduct, we
review only for plain error. Johnson v. United States, 520 U.S. 461, 466-67 (1997)
(standard of review); United States v. Boyd, 180 F.3d 967, 983 (8th Cir. 1999). After
reviewing the relevant portions of the trial transcript, we find no prosecutorial
misconduct and no showing of substantial prejudice to Ehrmann.

       F.     Sentencing Enhancement
       In his last assigned error, Ehrmann contends the district court clearly erred in
assessing a two-level enhancement for obstruction of justice under section 3C1.1 of
the United States Sentencing Guidelines (Guidelines). The jury never heard evidence
or made a determination regarding the issue of whether Ehrmann obstructed justice.
Instead, the district court considered conflicting testimony and reports from law
enforcement investigators and, based on a preponderance of the evidence adduced at
sentencing, determined Ehrmann made death threats against a trial witness and the
prosecutor. Under application note 4(a) to section 3C1.1 of the Guidelines,
threatening a witness warrants the justice obstruction enhancement. U.S.S.G.
§ 3C1.1, cmt. n.4(a). Section 3C1.1 also applies when a defendant willfully attempts
to obstruct or impede the administration of justice during the investigation,

                                         -13-
prosecution, or sentencing of an offense. Finding Ehrmann obstructed justice, the
district court applied a two-level enhancement under section 3C1.1(A) of the
Guidelines, and sentenced Ehrmann to 360 months. Our record review persuades us
the district court did not err in applying this enhancement.

       G.     Booker Errors
       Following oral argument, Ehrmann submitted a Rule 28(j) letter citing Blakely
v. Washington, 124 S. Ct. 2531 (2004), contending he is entitled to resentencing
because he received an enhanced sentence based on the district court’s drug quantity
determination and its application of the obstruction of justice enhancement, without
affording Ehrmann his Sixth Amendment right to a jury’s determination of disputed
facts, beyond a reasonable doubt. More recently, the Supreme Court held the
mandatory application of the Guidelines is unconstitutional, but the Guidelines pass
constitutional muster if applied in an advisory fashion. United States v. Booker, 125
S. Ct. 738, 756, 764-66 (2005). Although Ehrmann objected to the obstruction of
justice enhancement and drug quantity at sentencing, his objections were not based
on a Sixth Amendment challenge. Therefore, we review Ehrmann’s Booker
challenges only for plain error. United States v. Pirani, 406 F.3d 543, 550 (8th Cir.
2005) (en banc). “Plain error is error that is ‘plain’ (that is, clear or obvious), ‘affects
substantial rights’ (that is, prejudicial) and ‘seriously affects the fairness, integrity or
public reputation of judicial proceedings.’” United States v. Rashid, 383 F.3d 769,
775 (8th Cir. 2004) (citing United States v. Olano, 507 U.S. 725, 732-37 (1993)).

       The jury found Ehrmann conspired to distribute 500 grams or more of
methamphetamine. The PSR found Ehrmann responsible for 386.56 grams of actual
methamphetamine, 7,821.50 grams of methamphetamine mixture, 1,199.75 grams of
ecstasy, and 1,360.80 grams of pseudoephedrine. Converting these drug amounts into
their marijuana equivalent, the cumulative drug quantity totaled 37,582.08 kilograms
of marijuana, resulting in a base offense level of 38. At sentencing, the district court
adopted the PSR’s drug quantity and also found Ehrmann had obstructed justice

                                           -14-
based on evidence that Ehrmann made threats in jail against a trial witness and the
prosecutor. The district court then sentenced Ehrmann to 360 months.

       Applying the test for plain error, Ehrmann satisfies the first two factors. Pirani,
406 F.3d at 550. Having carefully reviewed the sentencing transcript, we glean
nothing in the record to suggest the district court would have applied a more
favorable sentence under an advisory sentencing regime. Thus, Ehrmann has not
established the error affected his substantial rights, because he cannot demonstrate
a reasonable probability that the district court would have imposed a more favorable
sentence under an advisory sentencing guidelines regime mandated by Booker. Id.
at 553. Morever, because the jury found beyond a reasonable doubt Ehrmann
conspired to distribute 500 or more grams of methamphetamine, which is punishable
by ten years to life, 21 U.S.C. § 841(b)(1)(A)(viii), his 360-month sentence does not
exceed the statutory maximum life sentence. Consequently, we conclude there are
no Blakely/Booker plain errors in this case.

III.   CONCLUSION
       We affirm Ehrmann’s convictions and his sentence.
                     ______________________________




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