                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-3468
                                    ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      * Appeal from the United States
      v.                              * District Court for the
                                      * District of Minnesota.
Richard Mose McElrath,                *
                                      *      [UNPUBLISHED]
           Defendant - Appellant.     *
                                 ___________

                              Submitted: May 10, 2005
                                 Filed: May 24, 2005
                                  ___________

Before WOLLMAN, BRIGHT, and BYE, Circuit Judges.
                          ___________

BRIGHT, Circuit Judge.

       The government charged Richard Mose McElrath in a one-count indictment
alleging that he conspired to possess with the intent to distribute more than fifty
grams of cocaine base. Before trial, McElrath filed a discovery motion and a motion
to suppress evidence. The district court1 denied both motions. After the trial, the jury
found McElrath guilty. At sentencing, the district court overruled McElrath’s
objections to the presentence investigation report. The district court sentenced


      1
      The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
McElrath as a career criminal offender to 360 months imprisonment. McElrath
appeals and argues there was insufficient evidence for the jury to find him guilty, the
district court erred in refusing to suppress evidence of the drugs seized, and the
government provided incomplete discovery. McElrath also raises several sentencing
issues, arguing the government engaged in sentencing entrapment, the district court
erred in using a prior state conviction as a predicate offense under the career offender
provisions, and the district court violated United States v. Booker, 125 S. Ct. 738
(2005), by sentencing him as a career offender. We affirm McElrath’s conviction, but
vacate his sentence and remand for resentencing.

I.    Background

     FBI agent David Rapp worked with local police in investigating McElrath.
The police decided to have a confidential informant, Scott Hester, purchase drugs
from McElrath. Hester had worked as an informant for the police in the past.

       Hester called McElrath and asked to meet with him. The police gave Hester
$1,000 in marked bills and equipped him with a recording device. Hester purchased
one ounce of crack cocaine from McElrath and Terrina Lyod in Minneapolis. After
the purchase, Hester turned over one ounce of crack to Officer Bart Hauge. A second
controlled purchase took place over a week later, where Hester purchased two ounces
of crack from McElrath for $1,800 in marked bills. A third controlled purchase took
place several weeks later, where Hester purchased two more ounces of crack from
Lyod in exchange for $1,800 in marked bills.

      The police arrested McElrath and Lyod. The police searched McElrath and
found $3,450 in his pocket. The police executed a search warrant of McElrath’s
business in Minneapolis. The police also executed a search warrant at McElrath’s
residence and found a white bag containing powder cocaine in a bush near the rear



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deck and a bullet proof vest in the bedroom. The police also discovered traces of
cocaine on a scale and recovered $8,020 in cash.

       The government charged McElrath in a one-count indictment alleging that he
conspired to possess with the intent to distribute more than fifty grams of cocaine
base. The government filed an information notifying McElrath that he was subject
to a twenty-year mandatory minimum penalty due to a prior controlled substance
conviction.

      Before trial, McElrath filed a discovery motion. McElrath also moved to
suppress evidence obtained pursuant to the search warrants. The magistrate judge
recommended denial of the motions, and the district court adopted the
recommendation and denied the motions.

     After trial, the jury found McElrath guilty. The district court sentenced
McElrath as a career criminal offender, based on his two prior convictions, to 360
months imprisonment. McElrath filed a timely notice of this appeal.

II.   Discussion

      McElrath first argues he is entitled to a new trial, because he demanded, but did
not receive, discovery of all exhibits the government intended to use at trial and
documents upon which the exhibits were based. McElrath has waived this issue as
he did not raise the issue before the district court.

      McElrath next argues the district court erred in denying his motion to suppress
the evidence. When reviewing suppression motions, we review the district court’s
factual findings for clear error and its legal conclusions de novo. United States v.
Sheikh, 367 F.3d 756, 762 (8th Cir. 2004).



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       McElrath argues the district court erred in denying his motion to suppress the
evidence, because the search warrants do not contain a description of probable cause
to believe that evidence of illegal activity would be found. The police executed two
search warrants, one at McElrath’s business and one at McElrath’s residence. The
affidavits in support of the search warrants each described McElrath’s position as a
leader of a gang, the Gangster Disciples. The affidavit in support of the search
warrant issued for McElrath’s business included information that a confidential
reliable informant had observed large amounts of cocaine inside the store in the
previous weeks. The affidavit noted that police had conducted surveillance at the
store and confirmed activity consistent with drug trafficking. The affidavit in support
of the search warrant issued for McElrath’s residence described information received
from a confidential reliable informant that McElrath had distributed crack cocaine
with the assistance of gang members. The affidavit also noted that police had
observed several known members of the Gangster Disciples coming and going from
the residence. We affirm, because the applications for search warrants show
probable cause.

       McElrath also contends the district court erred in denying his motion to
suppress the evidence, because the federal officer’s participation in the search was
improper. McElrath never raised the issue of the federal officer’s participation in the
search of his residence, therefore he has waived the issue. See United States v.
Frazier, 280 F.3d 835, 845 (8th Cir. 2002) (noting that “under Fed. R. Crim. P.
12(b)(3) a suppression issue must be raised before trial, and the failure to raise the
issue in a timely pretrial motion results in “waiver” of the matter under Rule 12(f)).

       McElrath next argues the evidence was insufficient for the jury to find him
guilty. We review a challenge to the sufficiency of the evidence de novo. United
States v. Parker, 364 F.3d 934, 943 (8th Cir. 2004). In reviewing the sufficiency of
the evidence, we consider the evidence in the light most favorable to the government,
resolve evidentiary conflicts in favor of the government, and draw all reasonable

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inferences from the evidence in support of the jury’s verdict. United States v.
Ramirez, 350 F.3d 780, 783 (8th Cir. 2003). We will reverse only if no reasonable
jury could have found the accused guilty beyond a reasonable doubt. Id.

       McElrath argues the evidence was insufficient for the jury to find him guilty,
asserting that the government used an inherently unreliable confidential informant
with no corroborating witnesses. The government’s witnesses, however, were all
thoroughly cross-examined by McElrath’s counsel. In addition, we must draw the
reasonable inference (based on the guilty verdict) that the jury found the
government’s witnesses credible. Id. This court has noted that “[i]t is not the
province of this Court to reweigh evidence or judge the credibility of witnesses when
reviewing the sufficiency of the evidence on appeal.” United States v. Aguilar-
Portillo, 334 F.3d 744, 747 (8th Cir. 2003) (quotations omitted). We affirm.

       McElrath also argues the evidence was insufficient for the jury to find him
guilty, because the government failed to have a witness identify exhibit 39 as cocaine
base or crack. A chemist, however, testified and created a lab report that identified
the substance as crack. In addition, even without the evidence that McElrath claimed
was not identified as cocaine base, the government still proved that McElrath sold
crack on two other occasions weighing in excess of fifty grams. We reject this claim.

       McElrath next raises several sentencing issues. First, McElrath argues the
government engaged in sentencing entrapment, because Hester, at the urging of the
police, initiated contact with and coaxed McElrath to sell crack. McElrath failed to
raise this claim of sentencing entrapment before the district court and has waived this
issue. See United States v. Overstreet, 5 F.3d 295, 297 (8th Cir. 1993) (refusing to
address defendant’s claim of sentencing entrapment because the argument was not
raised with the district court).




                                         -5-
       Next, McElrath argues his state controlled substance conviction should not
have been used under the career criminal offender provisions, because an FBI agent
was impermissibly involved in the investigation. This issue lacks merit, because the
Supreme Court has determined that, except for convictions obtained in violation of
a defendant’s right to counsel, a defendant in a federal sentencing proceeding has no
constitutional right to collaterally attack the validity of his previous state convictions
which are used to enhance his sentence. Custis v. United States, 511 U.S. 485 (1994).
This court has applied the Supreme Court’s holding to federal sentencing proceedings
where the sentencing court is considering whether the defendant is a career offender
under the sentencing guidelines. See Moore v. United States, 178 F.3d 994 (8th Cir.),
cert. denied, 528 U.S. 943 (1999).

       McElrath also argues that the district court erred in sentencing him under the
career offender guidelines, which, McElrath contends, are no longer valid post-
Booker. We have already decided that, post-Booker, the career offender guidelines
are constitutional and may be applied. See United States v. Nolan, 397 F.3d 665 (8th
Cir. 2005) (finding of a prior conviction, triggering the mandatory minimum sentence
under the Armed Career Criminal Act, does not raise a Booker issue); United States
v. Marcussen, 403 F.3d 982, 984 (8th Cir. 2005) (determining that a prior conviction
does not need to be submitted to a jury or proved beyond a reasonable doubt and
sentences under the career offender guidelines “do[] not involve a Sixth Amendment
violation”).

       Although the district court may apply the career offender guidelines, the
government, at oral argument, conceded error under Booker. The district court
(understandably) treated the Guidelines as mandatory. Having preserved a timely
Blakely objection below, McElrath is entitled to a resentencing hearing at which the
district court treats the Guidelines as advisory. Accordingly, we remand this case to
the district court for resentencing consistent with Booker.



                                           -6-
      Finally, McElrath has raised several issues in his pro se briefs. We have
carefully reviewed the pro se briefs and determine that the briefs do not raise any
meritorious issues.

III.   Conclusion

       We affirm McElrath’s conviction, but vacate the sentence and remand the case
for resentencing.
                     ______________________________




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