                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-1110
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
Charles E. Winston,                     *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: June 12, 2006
                                Filed: August 4, 2006
                                 ___________

Before SMITH, HEANEY, and GRUENDER, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

       Charles E. Winston was convicted by a jury of conspiracy to possess with
intent to distribute cocaine base ("crack cocaine"), in violation of 21 U.S.C. §§ 846,
841(a)(1), and 841(b)(1)(a). The district court1 sentenced Winston to 262 months'
imprisonment and ordered the entire sentence to run consecutively to the state murder
sentence Winston was serving in Kansas. Winston appeals, arguing that insufficient
evidence supports the jury's guilty verdict and that the sentence imposed is


      1
       The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
unreasonable because the district court should have ordered it to run concurrently
with his Kansas sentence. We affirm.

                                    I. Background
      Winston and his codefendant, Chatha M. Tatum2, were wanted on homicide
charges in the State of Kansas. A Federal Bureau of Investigation (FBI) Task Force
obtained information that Tatum was located in a house at 2745 Rayton Road, Kansas
City, Missouri. After receiving the information, law enforcement officers surrounded
the house and, following a short stand-off, arrested Winston and Tatum, along with
the occupant of the house, Charles Howell.

       Law enforcement officers subsequently searched the home, recovering drugs,
firearms, ammunition, and drug paraphernalia. From the toilet tank in the bathroom
of the master bedroom, officers recovered (1) a plastic baggie containing 28.09 grams
of cocaine; (2) a plastic baggie containing 18.64 grams of marijuana; (3) a 9mm
Hewan semi-automatic pistol; and (4) five rounds of 9mm ammunition.

      The officers also recovered (1) a plastic baggie containing 261.72 grams of
crack cocaine and (2) a .45 caliber Glock semi-automatic handgun with clip and
ammunition from a child's backpack located in the closet of the master bedroom. In
the pocket of an orange coat hanging in the master bedroom closet, the officers
discovered a plastic baggie containing 15.94 grams of marijuana.

     In addition, the officers recovered (1) a digital scale from a pile of clothes in
the master bedroom; (2) an assault rifle from a utility closet in the garage; (3) a
magazine and ammunition for the assault rifle from the toilet tank of the guest


      2
       Tatum was also charged with conspiracy to possess with intent to distribute
crack cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(a). Tatum,
however, pleaded guilty to the charges.

                                         -2-
bathroom; and (4) a plastic baggie containing 6.03 grams of marijuana from a cabinet
in the guest bathroom.

        During his interview with the police following his arrest, Winston stated that
he went to Howell's house only to purchase marijuana and that he was merely
acquainted with Tatum. However, the government's witnesses testified that Winston's
affiliation with Tatum exceeded that of a casual companion, as they were both
fugitives from justice, eluding arrest from charges out of the State of Kansas.

       Howell testified at Winston's trial that Winston telephoned him looking for
some marijuana. Howell advised Winston that he had some marijuana to sell,
instructing Winston to come to his house to get it. According to Howell, Winston
arrived at the house with Tatum an hour later. Howell was unaware that Tatum would
be accompanying Winston. When Howell answered the door, he noticed Tatum
standing behind Winston, carrying a child's backpack. While Howell knew Tatum,
he knew Winston better. Howell testified that Tatum's presence made him
uncomfortable.

      Howell testified that he invited Winston and Tatum into his home and offered
Winston the marijuana he requested. Winston, however, was looking for "Indo," a
higher quality marijuana. Howell pretended to telephone someone to get Indo and told
Winston that no one was available to get the marijuana he desired. Howell stated that
he was not comfortable arranging a deal for the higher quality marijuana with Tatum
present.

       After Howell advised Winston that he could not supply him with the marijuana,
Tatum asked Howell, in Winston's presence, if Howell was selling crack cocaine.
Tatum told Howell that he had "touched down," meaning that he had just obtained a
large amount of crack cocaine. Howell testified that he understood the conversation
to mean that Tatum was looking for someone to sell some or all of this crack for him.

                                         -3-
Howell declined the offer, however, stating that he had a pending criminal matter and
did not want to get into any more trouble. The child's backpack was either in Tatum's
hand or by the side of the couch where Tatum was sitting during the conversation.

       Following the conversation, Winston and Tatum stayed at the house waiting
for their ride. Howell went back to the master bedroom to play a video game. After
finishing the video game, Howell went back into the living room to check on Winston
and Tatum. He then returned to his bedroom.

        Forty-five minutes into Tatum and Winston's visit to Howell's home, the police
arrived. When Howell heard a helicopter and observed the police outside of his
house, he told Winston and Tatum of the police's presence, ran back to the bedroom
to retrieve the assault rifle, and hid the rifle in the utility closet in the garage. Howell
then ran back to the master bedroom where he retrieved the magazine for the assault
rifle and placed it in the guest bathroom's toilet tank. When Howell was moving the
assault rifle, he observed Tatum running around the house. Howell also observed
Winston in the bathroom of the master bedroom standing over a toilet disposing of
a white powdery substance in a small clear plastic baggie, which Howell believed to
be crack cocaine. During the subsequent search of the house, officers retrieved a
plastic baggie containing 18 grams of crack cocaine from this toilet tank.

       Meanwhile, outside the house, the police were yelling for Tatum, but Tatum
was still running around the interior of the house. Winston told Tatum to surrender,
and Tatum went outside where he was arrested. Winston and Howell were arrested
in the interior of the house without incident.

       Howell admitted owning the assault rifle, the digital scale, and some of the
marijuana found during the search. Some of the contraband the police recovered was
forwarded to the police crime laboratory for DNA testing. The plastic baggie from the
toilet tank in the bathroom of the master bedroom containing 18.64 grams of

                                            -4-
marijuana was tested, but there was not enough DNA to compare. Winston's DNA
was identified on the 9mm handgun found in the toilet tank next to the baggie of
crack cocaine located in the master bathroom; however, DNA from five or more other
individuals was also found on the gun. The plastic baggie containing 261.72 grams
of crack cocaine from the child's backpack was tested, but there was not enough DNA
to compare. Tatum's DNA, however, was identified on clothing recovered from the
child's backpack. The .45 caliber Glock semi-automatic pistol, with clip and
ammunition, from the child's backpack was tested and had DNA from multiple
individuals on it, but not Winston's DNA. The plastic baggie containing 6.03 grams
of marijuana was tested, but no conclusion could be reached as to whether it was
Winston's DNA. Finally, the assault rifle was tested and had DNA from multiple
individuals, including Winston.

      The jury found Winston guilty of conspiring to possess with intent to distribute
50 grams or more of crack cocaine. At sentencing, the district court determined
Winston's advisory Guidelines range to be 262 to 327 months' imprisonment. Winston
argued for a sentence below the Guidelines range and asked the court to impose the
sentence concurrent to the sentence he was serving in the State of Kansas for murder.

     The district court sentenced Winston to 262 months, the low end of the
Guidelines range. The court also denied Winston's request to run the sentence
concurrent with the sentence Winston was serving for murder in the State of Kansas.3

      3
       Prior to imposing the sentence, the district court made the following statement:

      Mr. Winston's history really is not very encouraging. At the age of 20,
      he's already in a Criminal History Category of IV and among his
      convictions are the conviction for first degree murder, attempted first
      degree murder in Wyandotte County (Kansas).

      The nature and circumstances of the offense is probably reflected in both
      the mandatory minimum sentence and the guideline range. Mr. Brown

                                         -5-
                                    II. Discussion
      Winston raises two arguments on appeal. First, he argues that insufficient
evidence supports his conviction for conspiracy to possess with intent to distribute
crack cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(a). Second,


      (Winston's attorney) believed that the disparity between the powder
      cocaine and the crack cocaine was wrong. I'm not sure there's a basis for
      any differentiation between the two, but nevertheless, it is the policy of
      this country as announced through Congress that this is the sentencing
      range for this offense.

      I am to consider the need of the sentence imposed to reflect the
      seriousness of the offense, to promote respect for the law and provide
      just punishment, to afford an adequate deterrence to criminal conduct,
      and to protect the public from further crimes of the defendant. As with
      Mr. Tatum, I think that's a very important factor in this case.

      And then the sentence should reflect the need to avoid unwarranted
      sentencing disparities among defendants with similar records who have
      been found guilty of similar conduct. And as we all know, for 17 or 18
      years people who were convicted of this offense were sentenced under
      the guidelines because the guidelines were mandatory.

      Having said all of that, it's my view that the range set out in the
      guidelines is a reasonable range, and it's my intent to sentence within the
      guideline range.

      Further, the request that this sentence be made concurrent or partially
      concurrent with the Kansas sentence will be denied. The offense that
      resulted in his Kansas sentence was an offense committed against the
      people of the State of Kansas. The offense that he is in court for this
      morning is an offense committed against the people of the United States.
      Each has its own punishment, and it's my belief that the punishment
      should be imposed by each jurisdiction respectively.


                                         -6-
he argues that his sentence is unreasonable because the district court ordered his
sentence to run consecutive to rather than concurrent with his state murder sentence.

                            A. Sufficiency of the Evidence
       As to the sufficiency of the evidence, Winston contends that: (1) no evidence
exists that he knew Tatum's backpack contained crack cocaine or that he knew Tatum
was trying to sell crack cocaine prior to Tatum's conversation with Howell; (2)
Howell and Tatum never reached an agreement to sell crack cocaine, and he never
participated in the conversation or discussed the possession or distribution of crack
cocaine with Howell or Tatum; (3) no evidence in the record identified the substance
Howell saw Winston flushing down the toilet or its origin; (4) no evidence exists that
he had an agreement with anyone, including Tatum, to possess with intent to
distribute crack cocaine; and (5) evidence of his mere association with Tatum and his
mere presence during the conversation between Howell and Tatum is insufficient to
show an agreement, his knowledge of an agreement, or his knowing joinder and
participation in an agreement to possess with intent to distribute crack cocaine.

       We review de novo a district court's denial of a motion for judgment of
acquittal. United States v. Howard, 413 F.3d 861, 863 (8th Cir. 2005). In reviewing
the sufficiency of the evidence, 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. Littrell, 439 F.3d 875, 880 (8th Cir. 2006) (citation
omitted). This is an extremely strict standard of review. United States v. Alexander,
408 F.3d 1003, 1008 (8th Cir. 2005).

      "To convict [a defendant] of conspiracy, the government need[s] to prove [the
defendant] (1) had an agreement to achieve an illegal purpose, (2) knew of the
agreement, and (3) knowingly became part of the agreement." United States v.
Johnson, 439 F.3d 947, 954 (8th Cir. 2006). Direct evidence of an explicit agreement

                                         -7-
is not necessary to prove a conspiracy; instead, "a 'tacit understanding' among co-
conspirators may be, and often will be, inferred from circumstantial evidence." Id. "In
many conspiracy cases there is no confession by the defendant or other direct proof
that he agreed to the illegal act. However, the jury is free to consider all the
evidence—direct and indirect—presented of the defendant's statements and actions."
United States v. Wilson, 103 F.3d 1402, 1406 (8th Cir. 1997). In addition, the jury
may "draw reasonable inferences from the evidence presented about what the
defendant's state of mind was when he did or said the things presented in the
evidence." Id. at 1407.

       We recently "clarif[ied] the proper standard of review for challenges to the
sufficiency of the evidence in conspiracy cases." United States v. Lopez, 443 F.3d
1026, 1028 (8th Cir. 2006) (en banc). While acknowledging our previous statements
that "slight evidence" is sufficient to connect a defendant to a conspiracy, in Lopez,
we clarified that "while a defendant's role in a conspiracy may be minor, the
government must offer enough evidence to prove a defendant's connection to a
conspiracy beyond a reasonable doubt before the conspiracy conviction can be
upheld." Id.

       In a conspiracy case, evidence of association or acquaintance is a relevant
factor but alone is insufficient to establish a conspiracy. Alexander, 408 F.3d at 1008.
Likewise, "a defendant's mere presence, coupled with knowledge that someone else
who is present intends to sell drugs, is insufficient to establish membership in a
conspiracy." United States v. Shoffner, 71 F.3d 1429, 1434 (8th Cir. 1995).

       As to conspiracy, the first question we must address is whether Winston had
an agreement to achieve an illegal purpose, i.e., to possess crack cocaine with an
intent to distribute it. Because the facts do not show Howell and Tatum entered an
explicit agreement to sell crack cocaine, we must determine whether circumstantial
evidence establishes that Winston and Tatum made a tacit agreement to do so.

                                          -8-
Viewing the facts in the light most favorable to the jury's verdict, we hold that a jury
could reasonably find that such an agreement existed.

       The jury in this case heard evidence that sufficiently linked Tatum and
Winston's association to drugs. First, the government presented evidence that they
were both fugitives from justice, eluding arrest from charges out of the State of
Kansas. Second, the jury heard evidence that Winston initiated contact with Howell,
calling him and asking him if he could purchase marijuana from Howell. Third,
Howell testified that Winston came to his house with Tatum, someone he did not
know very well, who was carrying a child's backpack, which the jury later learned
contained crack cocaine and a handgun. The jury could have reasonably inferred that
because Howell was not expecting Tatum and was not well-acquainted with him,
Winston agreed to drive Tatum to Howell's residence, knowing that Tatum wanted
to speak with Howell about selling drugs. See United States v. Sparks, 949 F.2d 1023
(8th Cir. 1991) (noting evidence that co-defendants arrived at a house in the same car
and conferred before approaching the house "indicated that they cooperated in their
journey to the house" and helped support their conspiracy convictions). Fourth, after
Winston brought Tatum to Howell's residence, he was present during the conversation
in which Tatum proposed that Howell sell the crack cocaine for him. The jury could
reasonably have linked Winston's presence during the conversation with his prior
conduct of driving Tatum to Howell's house, inferring that Winston knew what was
in Tatum's backpack. Fifth, Winston was not merely present during the attempted
drug transaction between Tatum and Howell. Howell saw Winston dumping a white
powdery substance into the toilet. The jury later learned that crack cocaine was found
in this toilet, along with a gun containing Winston's fingerprints.

       The second and third inquiries in the conspiracy analysis are whether Winston
knew of the agreement and whether he knowingly became a part of the agreement. To
establish these elements, the government presented evidence that Winston dumped
a white powdery substance, later discovered to be crack cocaine, down the toilet when

                                          -9-
the police arrived. The jury could reasonably infer from Winston's actions that
Winston would not have taken possession of the crack cocaine and disposed of it if
he had no knowledge of its whereabouts in the child's backpack and had no interest
in it. The jury could reasonably find based on his actions that he was part of the
agreement.

       Therefore, viewing the evidence in the light most favorable to the government,
and accepting all reasonable inferences drawn from the evidence that support the
jury's verdict we hold that the district court did not err in denying Winston's motion
for judgment of acquittal.

                          B. Reasonableness of the Sentence
       Winston's second argument is that the district court should have ordered his
sentence to run concurrent with or partially concurrent with the sentence he is serving
in the State of Kansas. In response, the government argues that, before imposing
Winston's sentence, the district court carefully considered the factors set forth in 18
U.S.C. § 3553(a) and in § 5G1.3(c) of the United States Sentencing Guidelines
Manual ("U.S.S.G.") and found that a consecutive sentence was necessary to protect
the public, to deter future crimes, to avoid unwarranted sentencing disparities, and to
impose punishment for separate crimes in separate jurisdictions.

      We review a district court's decision to impose a consecutive or concurrent
sentence for reasonableness. See United States v. Shafer, 438 F.3d 1225, 1227 (8th
Cir. 2006) ("[W]e must review the district court's decision to impose a concurrent
sentence for reasonableness."). The district court must explain its reasoning for
imposing a concurrent or consecutive sentence "[f]or this court to properly carry out
the appellate review mandated by Booker . . . ." Id.

     The advisory Guidelines discuss consecutive and concurrent sentences. Id.
"When the defendant is subject to an undischarged term of imprisonment for an

                                         -10-
unrelated crime, 'the sentence for the instant offense may be imposed to run
concurrently, partially concurrently, or consecutively to the prior undischarged term
of imprisonment to achieve a reasonable punishment.'" Id. (quoting U.S.S.G. §
5G1.3(c) (policy statement)). To determine whether to impose a consecutive or
concurrent sentence, the district court "'shall consider . . . the factors set forth in
section 3553(a).'" Id. (quoting 18 U.S.C. § 3584(b)) (alteration in original).
Consideration of these factors aids the district court in "achiev[ing] a reasonable
incremental punishment for the instant offense and avoid[ing] unwarranted disparity
. . . ." Application Note 3(A) to U.S.S.G. § 5G1.3. "When prison terms for multiple
offenses are imposed at different times, the governing statute encourages consecutive
sentencing." Shafer, 438 F.3d at 1227.

        For example, in United States v. Atteberry, 447 F.3d 562 (8th Cir. 2006), we
rejected the defendant's argument that "the district court abused its discretion under
§ 5G1.3(c) by imposing a consecutive rather than a concurrent federal sentence." Id.
at 564. Because the district court explained that the defendant's state and federal
convictions were separate, that the defendant "need[ed] something on the end of the
state [sentence] for what he pled guilty to here," and that the "total combined sentence
was appropriate," we held that "[g]iven the nature and severity of [the defendant's]
crimes," the district court's imposition of a consecutive sentence was reasonable. Id.
at 564–65.

       As in Atteberry, the district court explained, citing the § 3553(a) factors, why
it was imposing a consecutive sentence as opposed to a concurrent sentence. The
district court noted Winston's substantial criminal history; indicated that the nature
and circumstances of the offense were reflected in the mandatory minimum sentence
and the Guideline range; gave particular weight to the consideration that the sentence
imposed reflect the seriousness of the offense and protect the public from further
crimes of Winston; noted, as to the need for the sentence to avoid unwarranted
sentencing disparities among defendants, that similarly situated defendants had

                                         -11-
received similar sentences; and decided to impose a consecutive sentence because
Winston's murder conviction was an offense against the people of the State of Kansas,
while his conspiracy conviction was an offense against the people of the United
States.

       Based on the district court's thorough discussion of the § 3553(a) factors, we
hold that the district court did not err in imposing a consecutive sentence and that its
sentence of 262 months' imprisonment was not unreasonable.

      Accordingly, we affirm the judgment of the district court.
                     ______________________________




                                         -12-
