                                   ___________

                                   No. 95-3504
                                   ___________

United States of America,               *
                                        *
           Appellee,                    *
                                        *   Appeal from the United States
     v.                                 *   District Court for the
                                        *   Eastern District of Missouri.
Donald T. Atkinson,                     *
                                        *
           Appellant.                   *



                                   ___________

                      Submitted:   April 10, 1996


                          Filed:   June 5, 1996
                                   ___________

Before MAGILL, Circuit Judge, HENLEY, Senior Circuit Judge, and LOKEN,
     Circuit Judge.

                                   ___________

HENLEY, Senior Circuit Judge.


     Donald T. Atkinson appeals from a judgment of the district court1
entered on a jury verdict finding him guilty of possession with the intent
to deliver cocaine base (crack cocaine), distribution of cocaine and crack
cocaine, and conspiracy to distribute cocaine, in violation of 21 U.S.C.
§§ 841 and 846.   We affirm.


     On appeal, Atkinson does not contest his possession and distribution
convictions, but challenges the sufficiency of the evidence supporting his
conspiracy conviction.    He asserts that the evidence only showed a buyer-
seller relationship.     We disagree.




       1
       The Honorable Catherine D. Perry, United States District
Judge for the Eastern District of Missouri.
"It is, of course, well established that a 'mere sales agreement with
respect to contraband does not constitute a conspiracy; there must be
something "beyond" that before the evidence can support a conspiracy.'"
United States v. Issaghoolian, 42 F.3d 1175, 1178 (8th Cir. 1994) (quoting
United States v. West, 15 F.3d 119, 121 (8th Cir.), cert. denied, 115 S.
Ct. 177 (1994)).   "This evidentiary requirement may be satisfied . . . by
a showing that drugs were purchased for resale."   Id.   In this case, viewed
in the light most favorable to the government, the evidence and reasonable
inferences therefrom show that Atkinson entered into a conspiracy to
distribute cocaine with Charles High.   High testified that he had purchased
crack cocaine from Atkinson for about four months until July 27, 1992, when
High was arrested after he sold 34.34 grams of crack cocaine to undercover
police officer William Visnovske.    On July 24, 1992, Visnovske told High
he wanted to purchase three ounces of crack cocaine.     High replied he could
supply that quantity or more.    High then asked Atkinson for three ounces
of crack cocaine.     Atkinson gave High three ounces of powder cocaine,
explaining that he did not want to supply crack cocaine because "you get
more time" for possession and distribution of crack cocaine than for powder
cocaine.     Atkinson told High to pay him $3,300.00 after the sale.     High
took the cocaine, had it "cooked" into crack cocaine, and sold it to
Visnovske.    When High met with Atkinson to pay him for the cocaine, High
explained that he had received $3,000.00 instead of $3,300.00 because the
three ounces of powder cocaine were not pure and cooked up to two and one-
half ounces of crack cocaine.       Because Atkinson "was aware that the
quantities he sold would be used for distribution" his "relationship with
[High] was more than a seller-buyer arrangement."           United States v.
Fregoso, 60 F.3d 1314, 1323-24 (8th Cir. 1995).    Thus, a "reasonable juror
could convict him of conspiracy to distribute cocaine."       Id. at 1324.



     Atkinson also raises several sentencing issues.          The presentence
report (PSR) grouped the counts together, U.S.S.G.




                                    -2-
§ 3D1.1, and calculated the quantity of drugs to be 1037.68 grams of crack
cocaine, resulting in a base offense level (BOL) of 36.              The PSR also
recommended a two-point upward adjustment of the offense level under
U.S.S.G. § 3B1.1(c) for Atkinson's role as a manager or supervisor of
criminal activity.       Atkinson filed objections to the PSR.         Before the
district court, he renewed his objections to the inclusion of the 34.34
grams of crack cocaine that High sold to Visnovske and to the role in the
offense adjustment.     The court overruled the objections.      Based on evidence
of additional quantities of crack cocaine, the court calculated the
quantity to be 1083.4 grams of crack cocaine, which also resulted in a BOL
of 36.    With an adjusted offense level of 38 and a criminal history of III,
the guidelines range was from 292 months to 365 months.         The district court
sentenced Atkinson to 336 months.


        In his brief, Atkinson first argues that the "100-to-one-ratio" of
crack    cocaine   to   powder   cocaine    is   unconstitutional.   However,   his
arguments are foreclosed by opinions of this court.             See, e.g., United
States v. Jackson, 67 F.3d 1359, 1367 (8th Cir. 1995), cert. denied, 1996
WL 26472 (U.S. May 13, 1996) (No. 95-7436); United States v. Clary, 34 F.3d
709, 710-14 (8th Cir. 1994), cert. denied, 115 S. Ct. 1172 (1995).


        He next argues that the district court erred in including the 34.34
grams of crack cocaine which High sold to Visnovske, asserting that
Visnovske "manipulated" his sentence by insisting on buying crack cocaine.
We need not address this "sentencing entrapment" argument because, as the
government points out, any error in the inclusion of the 34.34 grams would
be harmless since it had no effect on the BOL of 36.         See United States v.
Phillippi, 911 F.2d 149, 151 (8th Cir. 1990), cert. denied, 498 U.S. 1036
(1991).    Excluding the 34.34 grams from the court's estimation of 1083.4
grams of crack cocaine, Atkinson's BOL would still be 36, the BOL for 500
grams to less than 1.5 kilograms of cocaine base.




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Cf. United States v. Stavig, 80 F.3d 1241, 1246 (8th Cir. 1996) (no
sentencing entrapment where amount chosen by government agent fell within
BOL resulting from defendant's other drug transactions).2


     Atkinson also argues that the court erred in imposing a two-level
upward adjustment under U.S.S.G. § 3B1.1(c).         "[T]he district court's
finding that a defendant was a manager or supervisor will not be overturned
unless it is clearly erroneous."    United States v. Hazelett, 80 F.3d 280,
284 (8th Cir. 1996).   "To qualify for an adjustment under this section, the
defendant must have been the organizer, leader, manager, or supervisor of
one or more other participants."        U.S.S.G. § 3B1.1, comment. (n.2).
Atkinson is correct that this court has "reject[ed] the notion that by
merely selling a controlled substance to an individual, the seller thereby
necessarily becomes the manager or supervisor of the buyer."       United States
v. McFarlane, 64 F.3d 1235, 1238 n.4 (8th Cir. 1995).               However, as
discussed    above,   "[t]he   government's   evidence   clearly   proved   that
[Atkinson] overstepped a mere seller's role" with High.      United States v.
Pena, 67 F.3d 153, 156 (8th Cir. 1995).        In Pena, this court upheld a
section 3B1.1 adjustment, rejecting the defendant's argument that he was
a "mere seller of drugs," where, as here, the defendant "retained the
financial risk of distribution by fronting or consigning the drugs."        Id.
See also United States v. Flores, 73 F.3d 826, 835 (8th Cir. 1996)
(upholding § 3B1.1 adjustment where defendant determined the selling price
and fronted drugs).3    Moreover, tape recorded conversations between High


     2
      We note that in certain circumstances the Guidelines, U.S.S.G
§ 2D1.1, comment. (nn. 12 & 15) (Nov. 1995), provide "[w]hen
sentencing entrapment occurs, 'the sentencing court may deal with
the situation by excluding the tainted transaction or departing
from the sentencing guidelines.'" Stavig, 80 F.3d at 1246 (quoting
United States v. Barth, 990 F.2d 422, 425 (8th Cir. 1993)).
         3
       Although Pena and Flores involved three-level enhancments
under section 3B1.1(b) for being a manager or supervisor of
"criminal activity [that] involved five or more participants or was
otherwise extensive[,]" the cases are applicable because, as noted
in Pena, "[t]he guidelines only require that [a defendant]
supervised 'one or more other participants' to trigger this
enhancement." 67 F.3d at 157 (quoting U.S.S.G. § 3B1.1, comment.
(n. 2)).

                                      -4-
and




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Atkinson make clear that Atkinson supervised High.   For example, when High
met with Atkinson to pay him for the crack cocaine sold to Visnovske, High
told Atkinson, "All I got is three [thousand dollars instead of $3300.00]
man.   What you tell me to do."   Atkinson responded, "I was goin' to tell
you to keep the three . . . But I'll tell you what the deal is, okay?"
High, who was a college student, later replied, "You're the man. . . . I'm
just trying . . . to go through school."      In these circumstances, the
district court's determination that Atkinson was a manager or supervisor
is supported by the evidence and thus is not clearly erroneous.


       A true copy.


            Attest:


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




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