                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 00-2535
                                     ___________

United States of America,                 *
                                          *
                    Appellee,             * Appeal from the United States
                                          * District Court for the District
      v.                                  * of Nebraska.
                                          *
Gregory Poor,                             *      [UNPUBLISHED]
                                          *
                    Appellant.            *
                                     ___________

                                Submitted: September 12, 2000

                                    Filed: September 19, 2000
                                     ___________

Before RICHARD S. ARNOLD, FAGG, and BYE, Circuit Judges.
                           ___________

PER CURIAM.

       Gregory Poor pleaded guilty to conspiracy to manufacture and distribute a
misbranded and adulterated drug, gamma hydroxy butyrate (GHB), with the intent to
defraud or mislead, in violation of the Federal Food, Drug, and Cosmetic Act. See 18
U.S.C. § 371; 21 U.S.C. §§ 331, 333(a)(2). On appeal, Poor asserts his guilty plea was
not knowing, voluntary, and intelligent. Poor did not seek to withdraw his guilty plea
in the district court, however, and cannot claim his plea was involuntary for the first
time on appeal. See United States v. Murphy, 899 F.2d 714, 716 (8th Cir. 1990).
Besides, contrary to Poor's assertion, the record shows Poor knew he was pleading
guilty to an offense carrying the felony punishment for violations of the Act committed
with the intent to defraud and mislead. Because the indictment alleged Poor committed
the acts with the intent to defraud and mislead, we reject Poor's related contention that
the court and the prosecution constructively amended the indictment from a
misdemeanor to a felony offense. Poor also contends GHB is a food supplement used
for bodybuilding, not a drug covered by the Act, and thus his plea lacked a factual
basis. Like the district court, we conclude a jury could find GHB is a drug within the
meaning of the Act based on Poor's intended use of the substance. See 21 U.S.C. §§
321(g)(1)(C), (D). Poor next attacks the indictment asserting it is void for duplicity and
tainted by investigative misconduct. These are nonjurisdictional defects waived by
Poor's valid, unconditional guilty plea. See United States v. Fitzhugh, 78 F.3d 1326,
1330 (8th Cir. 1996). Anyway, we agree with the district court that the indictment is
not duplicitous or multiplicitous. Poor last challenges his sentence, asserting the
district court improperly enhanced his base offense level. We disagree. We see no
clear error in the district court's findings that Poor's offense involved more than minimal
planning, see U.S.Sentencing Guidelines Manual (U.S.S.G.) § 2F1.1(b)(2)(A); United
States v. Wells, 127 F.3d 739, 749 (8th Cir. 1997), and a conscious risk of serious
bodily injury, see U.S.S.G. § 2F1.1(b)(6)(A); United States v. McCord, Inc., 143 F.3d
1095, 1098 (8th Cir. 1998). We thus affirm Poor's conviction and sentence.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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