                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT



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                                      *
          No. 02-2834                 *
       ________________               *
                                      *
United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
Miguel R. Mendoza, Jr., also          *      Appeals from the United States
known as Michael Mendoza,             *      District Court for the
                                      *      Western District of Missouri.
           Appellant.                 *
       ________________               *
                                      *
          No. 02-3384                 *              [PUBLISHED]
       ________________               *
                                      *
United States of America,             *
                                      *
            Appellee,                 *
                                      *
      v.                              *
                                      *
Michael R. Clinton,                   *
                                      *
            Appellant.                *

                              ________________

                              Submitted: April 17, 2003
                                  Filed: September 2, 2003
                              ________________
Before LOKEN, Chief Judge, HANSEN and RILEY, Circuit Judges.
                            ________________

HANSEN, Circuit Judge.

       Miguel R. Mendoza, Jr. and Michael R. Clinton were each charged in various
counts contained in a ten-count superceding indictment charging drug conspiracy,
drug distribution, and possession of a firearm in connection with drug trafficking.
Mendoza proceeded to trial and was convicted of the charges against him. The
district court1 sentenced Mendoza to 360 months imprisonment. Clinton pleaded
guilty to the conspiracy charge and the firearm charge and received consecutive 121-
month and 60-month sentences. In these consolidated appeals, Mendoza raises
evidentiary and sentencing issues. Although Clinton pleaded guilty to the firearm
charge, he appeals his conviction on that charge, arguing that his conduct did not
violate the statute. We affirm Mendoza's convictions and sentences and dismiss
Clinton's appeal.

                                         I.

       The South Central Missouri Drug Task Force began investigating reports about
several Hispanic men selling large quantities of methamphetamine in the Hebron
River Access area of the Mark Twain National Forest in May 2001. Paul Yeager, a
confidential informant, identified Clinton as a distributor for a person Yeager
identified as Mendoza. Through Yeager, Task Force Officer (TFO) Stanley Horton
contacted and befriended Clinton and made several methamphetamine purchases from
Clinton over the course of the summer.




      1
       The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
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       TFO Horton spent time at the campground and eventually made two purchases
directly from Mendoza. During one transaction, Mendoza warned Horton that several
men standing nearby, one of whom was holding a rifle that Mendoza identified as a
9 mm, were watching them and that if something went wrong, they would take care
of him.

      Mendoza was driven to and from various meetings with TFO Horton by Kella
Dobbs, also charged in the indictment. During the transactions, Dobbs performed
various tasks at Mendoza's direction, including measuring and weighing the
methamphetamine. Dobbs also set up at least one of the transactions between TFO
Horton and Mendoza. Dobbs testified pursuant to a plea agreement at Mendoza's trial
that he was hired by Mendoza to drive Mendoza around and to watch his back.
Dobbs carried a shotgun in the cab of his truck at all times. Dobbs also testified that
Clinton sold only small amounts of drugs until Mendoza arrived in the area.

      Larry Agee, who was not charged in the indictment, also testified pursuant to
an agreement with the government. Agee testified that Clinton introduced him to
Mendoza in the spring of 2001 and that he was eventually hired by Mendoza to drive
Mendoza around, collect money, and deliver drugs. In June 2001, Agee flew to
California and picked up methamphetamine for Mendoza. Agee received one-half
ounce of the methamphetamine in exchange for transporting the methamphetamine
for Mendoza. Agee described Mendoza as the boss and Clinton as the dealer.

       Special Agent Dennis Deason also purchased methamphetamine from Clinton
and observed Dickie Clouse interacting with Mendoza. Clouse told Agent Deason
that he met Mendoza in Wichita, Kansas and brought him to the Hebron River Access
area to set up his drug operation. Clouse described himself as the local guy who told
Mendoza who to sell to. Clouse told Agent Deason that he made between $3,000 and
$5,000 per month brokering drug deals.



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       Conspiracy charges related to the investigation were brought against Mendoza,
Clinton, Dobbs, and Clouse, charging a conspiracy to distribute methamphetamine
between May and August 2001. Distribution charges were also brought against
Clinton, Mendoza, and Dobbs related to specific drug transactions. Clinton was
charged with carrying a firearm in relation to, and possessing a firearm in furtherance
of, a drug-trafficking conspiracy. Clinton and Dobbs entered plea agreements and
Mendoza proceeded to trial. At Mendoza's trial, the government introduced evidence
of two prior convictions against Mendoza in the state of Kansas for possession of
methamphetamine and possession of methamphetamine by a dealer without a tax
stamp. The jury convicted Mendoza of the five counts with which he was charged.
The sentencing court enhanced Mendoza's base offense level by four levels for being
a leader or organizer and two levels for possession of a weapon, resulting in an
offense level of 38. Based on his criminal history category of VI, Mendoza was
subject to a sentencing range of 360 months to life and received a 360-month
sentence on each of the five counts, to be served concurrently.

       On appeal, Mendoza argues that the district court erred in admitting evidence
of his prior convictions, violated 21 U.S.C. § 851 (2000) by failing to hold a hearing
on his objections to using the prior convictions to enhance his sentence, and erred in
increasing his offense level under United States Sentencing Guideline Manual
(USSG) §§ 3B1.1(a) and 2D1.1(b)(1) (2001).

      Pursuant to his plea agreement, Clinton received a 121-month sentence on the
conspiracy charge and a 60-month sentence on the firearm charge, to be served
consecutively. Clinton's only argument on appeal is that his sentence on the firearm
charge should be vacated because his conduct did not constitute a violation of 18
U.S.C. § 924(c) as interpreted by the Supreme Court.




                                          4
                                     II. Mendoza

A.    Prior Convictions

       The district court allowed the government to introduce a certified copy of
Mendoza's 1998 Kansas convictions for possession of methamphetamine and
possession of methamphetamine by a dealer without a tax stamp, which the
government offered to show Mendoza's knowledge, intent, and motive. See Fed. R.
Evid. 404(b). We review the district court's admission of evidence under Rule 404(b)
for an abuse of discretion and "will reverse only when such evidence clearly had no
bearing on the case and was introduced solely to prove the defendant's propensity to
commit criminal acts." United States v. Frazier, 280 F.3d 835, 847 (8th Cir.) (internal
quotations omitted), cert. denied, 535 U.S. 1107 (2002).

       Rule 404 prohibits introduction of prior convictions to show a defendant's
character, but allows such evidence to prove, among other things, a defendant's
motive, intent, opportunity, and knowledge. Fed. R. Evid. 404(b). Evidence of a
prior criminal conviction is admissible only if it is 1) relevant to a material issue, 2)
similar in kind and not too remote in time to the charged crime, 3) supported by
sufficient evidence, and 4) such that its probative value is not substantially
outweighed by its potential prejudice. Frazier, 280 F.3d at 847. Mendoza argues that
evidence of the convictions was unnecessary and cumulative to other evidence that
was introduced and therefore more prejudicial than probative. Prior to trial, Mendoza
informed the court that he might rely on the defenses of lack of knowledge and
specific intent. Mendoza claimed that he was just along for the ride and did not even
know how much an ounce of methamphetamine was. Intent and knowledge of drug
trafficking were very much at issue during the trial. Evidence of a prior conviction
for possession of methamphetamine is probative of a defendant's knowledge and
intent concerning current charges of conspiracy to distribute that same drug,
especially where the defendant claims he lacked knowledge or intent to distribute the

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drug. See id.; United States v. Bryson, 110 F.3d 575, 583 (8th Cir. 1997). The
Kansas convictions were also relatively close in time, three years, making their
relevancy to the issues of intent and knowledge greater. See United States v.
Ruiz-Estrada, 312 F.3d 398, 403 (8th Cir. 2002) (three-year-old conviction
admissible), cert. denied, 123 S. Ct. 1766 (2003); Frazier, 280 F.3d at 847 (five-year-
old conviction admissible). Even though the government's case appears to us, in
hindsight, to be strong without the prior convictions, we cannot say that the district
court abused its discretion in admitting the evidence, particularly in light of the
claims Mendoza made at trial and the facts that the prior convictions involved the
same drug and were only three years old.

       Mendoza also argues that his prior convictions should not have been used to
enhance his sentence because the district court violated 21 U.S.C. § 851 by failing to
hold the required hearing to determine the validity of the prior convictions. Section
851 requires the government to file an information when it intends to seek an increase
in a defendant's statutory sentence based on a prior conviction. 21 U.S.C. § 851(a)(1);
see also United States v. McMurray, 20 F.3d 831, 833 (8th Cir. 1994). The defendant
may file a response challenging the validity of the prior conviction, in which case the
court "shall" hold a hearing to address any issues raised. 21 U.S.C. § 851(c)(1). The
government filed the required information prior to Mendoza's trial and Mendoza filed
an objection, claiming that the Kansas convictions were invalid because the Kansas
state court allegedly empaneled a court staff employee on the jury when an inadequate
number of jurors appeared for service. Despite Mendoza's response, the sentencing
court did not hold a hearing, finding that a collateral attack on a prior conviction was
not allowed for sentencing purposes.

       Section 851's requirements pertain to enhancements to a defendant's statutory
penalty range, not to Sentencing Guideline enhancements. McMurray, 20 F.3d at
833. Thus, the mandates of § 851 are irrelevant when a defendant's prior conviction
is used to determine his criminal history category for Guidelines purposes as long as

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the Guidelines sentence imposed is within the unenhanced statutory range. Id.
Mendoza was charged with violating 21 U.S.C. § 841(a)(1) & (b)(1)(A). His prior
Kansas convictions enhanced his statutory sentencing range from ten years to life to
twenty years to life. 21 U.S.C. § 841(b)(1)(A). The prior convictions also formed the
basis for four of his fifteen criminal history points and gave him a criminal history
category of VI. (PSR ¶¶ 59, 63.) Without those four criminal history points,
Mendoza would have had a criminal history category of V. An offense level of 38
combined with either a criminal history category of V or VI results in the same
Guideline sentencing range of 360 months to life, requiring Mendoza to be sentenced
above both the unenhanced and the enhanced statutory minimum sentences. Thus,
inclusion of the prior conviction for purposes of calculating Mendoza's criminal
history category for Guideline purposes did not result in sentencing him outside the
unenhanced statutory range of ten years to life and the district court did not violate
§ 851 by failing to hold a hearing.

       Mendoza concedes this to be the case, but argues that if he is correct that the
district court erred in adding six levels to his base offense level (four levels under
USSG § 3B1.1(a) and two levels under § 2D1.1(a)(3)), his offense level should have
been only 32, which, when combined with a criminal history category of V, would
have resulted in a sentencing range of 188-235 months. As discussed below, the
district court did not err in enhancing Mendoza's sentence by six levels and therefore
did not err in failing to hold a § 851 hearing.

B.    USSG § 3B1.1(a) Enhancement for Being a Leader or Organizer

       The district court assessed a four-level enhancement to Mendoza's base offense
level because it found that Mendoza was a leader or organizer of a criminal activity
involving at least five participants. See USSG § 3B1.1(a). We review the district
court's factual findings supporting its application of the Sentencing Guidelines for



                                          7
clear error. United States v. Zimmer, 299 F.3d 710, 719 (8th Cir. 2002), cert. denied,
123 S. Ct. 952 (2003).

       The five participants identified by the district court were Mendoza, Clinton,
Dobbs, Clouse, and Agee. Mendoza argues that Agee should not count as a
participant because he was not charged in the indictment. "Persons who are not
indicted or tried, but who are nonetheless criminally responsible for defendant's
crime, are 'participants' under § 3B1.1." United States v. Brockman, 183 F.3d 891,
899 (8th Cir. 1999) (citing § 3B1.1, comment. (n.1) and United States v. Freeman, 30
F.3d 1040, 1042 (8th Cir.1994)), cert. denied, 528 U.S. 1080 (2000). Agee testified
that he flew to California to pick up methamphetamine and delivered it to Mendoza
in Missouri. He also testified that Mendoza hired him to drive Mendoza around, to
collect money, and to deliver drugs. These activities furthered the conspiracy and
Agee was clearly a participant for purposes of the enhancement.

       Mendoza also argues that he was neither a leader nor an organizer because the
drug trafficking had been going on long before he arrived in the Hebron River Access
area in May 2001. Regardless of when other participants began selling drugs in the
area, the most important relevant conduct for Mendoza is that charged in the
indictment–May to August 2001. Mendoza was present for the full length of time
charged in the conspiracy. Further, Mendoza need not have been the original
organizer. He is subject to the enhancement if he directed at least one other
participant. See United States v. Eis, 322 F.3d 1023, 1025 (8th Cir. 2003) (per
curiam). Relevant factors to be considered include "the exercise of decision making
authority, the nature of participation in the commission of the offense, the recruitment
of accomplices, the claimed right to a larger share of the fruits of the crime, the
degree of participation in planning and organizing the offense, the nature and scope
of the illegal activity, and the degree of control and authority exercised over others."
Brockman, 183 F.3d at 899 (citing USSG § 3B1.1, comment. (n.4)).



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       The record supports the court's conclusion that Mendoza was a leader or
organizer. Mendoza hired Dobbs to drive him around and watch his back, and Dobbs
weighed and packaged drugs at Mendoza's direction. Further, Mendoza hired Agee
to drive Mendoza around, collect money, and deliver drugs. Agee went to California
at Mendoza's behest to transport methamphetamine back to Missouri for Mendoza to
sell. Several witnesses characterized Mendoza as the boss and Clinton as the dealer.
There was more than sufficient evidence to support the court's application of the four-
level role in the offense enhancement.

C.     USSG § 2D1.1(b)(1) Enhancement for Possession of a Dangerous Weapon

      Section 2D1.1 authorizes a two-level enhancement to a drug-trafficking
sentence "[i]f a dangerous weapon (including a firearm) was possessed" by the
defendant. USSG § 2D1.1(b)(1). The weapon enhancement allowed by §
2D1.1(b)(1) "reflects the increased danger of violence when drug traffickers possess
weapons." USSG § 2D1.1, comment. (n.3). "'The adjustment should be applied if the
weapon was present, unless it is clearly improbable that the weapon was connected
with the offense.'" United States v. Braggs, 317 F.3d 901, 905 (8th Cir. 2003)
(quoting USSG § 2D1.1 comment. (n.3)). "The government has the burden to show
by a preponderance of the evidence both that the weapon was possessed by the
defendant and that it was not clearly improbable that the weapon was connected with
the offense." United States v. Harris, 310 F.3d 1105, 1112 (8th Cir. 2002), cert.
denied, 123 S. Ct. 2121 (2003).

       The government contends that two different weapons sustain the court's finding
that a weapon was possessed in relation to the conspiracy: Dobbs' shotgun that he
carried in his truck and the 9 mm rifle held by one of the group of men who Mendoza
told TFO Horton would take care of him if something went wrong. Mendoza argues
that there was no evidence that he ever possessed a weapon or that Dobbs' shotgun



                                          9
was used as part of the conspiracy. He further argues that TFO Horton testified that
the rifle was an air rifle, not a 9mm rifle.

        Mendoza's argument that he did not personally possess a firearm is unavailing.
Constructive possession suffices "if it is reasonably foreseeable that a co-conspirator
would have possessed a weapon." Braggs, 317 F.3d at 904; see also United States v.
Atkins, 250 F.3d 1203, 1214 (8th Cir. 2001) (affirming enhancement where defendant
was present in co-conspirator's vehicle where gun was found). Both weapons were
used for Mendoza's protection and were sufficiently connected to Mendoza's drug
trafficking to support the enhancement. Dobbs testified that he was hired to watch
Mendoza's back, and Dobbs drove Mendoza around in his truck with the shotgun
visible in the cab of the truck. Further, Mendoza told TFO Horton that the man
holding the rifle was watching the transaction and would take care of him if anything
happened. The court's finding that the weapons were used for Mendoza's protection
is not clearly erroneous. See Braggs, 317 F.3d at 904 (holding that enhancement was
appropriate where evidence supported inference that co-conspirator, who admitted
throwing gun from vehicle in which defendant was arrested, was providing protection
for defendant). Although TFO Horton testified that he thought the rifle was an air
rifle, Mendoza told Horton that it was a 9mm rifle. The district court's conclusion
that the rifle was a dangerous weapon is not clearly erroneous. These facts
sufficiently tie both weapons to the drug trafficking crimes Mendoza was found guilty
of committing and support the two-level enhancement for possession of a dangerous
weapon.

                                     III. Clinton

      Clinton argues on appeal that his sentence for the 18 U.S.C. § 924(c)
conviction should be vacated because he did not "actively employ" the firearm as
required by the Supreme Court in Bailey v. United States, 516 U.S. 137, 150 (1995)
(holding that "use" of a firearm for purposes of § 924 required active employment).

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The government contends that this issue is unreviewable on appeal because Clinton
expressly waived his right to appeal his conviction in his plea agreement. Clinton
agreed to plead guilty to two of the seven counts brought against him in exchange for
which the government agreed to dismiss the remaining five charges. The plea
agreement expressly reserved the right of both parties to appeal only those sentencing
issues that had not been agreed upon or were not specifically addressed in the plea
agreement. Clinton "expressly waive[d] the right to appeal or collaterally attack by
post-conviction motion all other issues." (Appellee's App. at 12 (Plea Agreement at
¶ 12).) Clinton does not address the government's position on appeal that he has
waived his right to appeal.

       A defendant's right to appeal his conviction or sentence is purely a statutory
right. "It is well settled that a procedural right, whether constitutionally derived or
grounded in statute, may be waived by a criminal defendant." United States v.
Michelsen, 141 F.3d 867, 871 (8th Cir.), cert. denied, 525 U.S. 942 (1998). Appeal
waivers are important tools in the plea bargaining process because they "preserve the
finality of judgments and sentences, and are of value to the accused to gain
concessions from the government." DeRoo v. United States, 223 F.3d 919, 923 (8th
Cir. 2000). Accordingly, appeal waivers are generally binding and we will not review
a waived issue unless the plea agreement was not entered knowingly and voluntarily.
See id.; Michelsen, 141 F.3d at 871-72.

       Before accepting Clinton's guilty plea, the court expressly addressed Clinton's
understanding that he was giving up his right to appeal all issues other than
sentencing issues not agreed upon or specifically addressed in the plea agreement.
(Plea. Tr. at 9.) Clinton does not argue, and we find no indication, that Clinton
entered the plea agreement other than knowingly and voluntarily. Clinton's argument
on appeal does not raise a sentencing issue that was reserved in the plea agreement.
Rather, the only issue raised is an attack on the factual basis that supports his guilty



                                          11
plea and the underlying conviction. We therefore enforce the plea agreement as
written and dismiss Clinton's appeal.

                                     IV.

      We affirm the judgment of the district court with respect to Mendoza's
convictions and sentences, and we dismiss Clinton's appeal.

      A true copy.

            Attest:

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




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