                                 ___________

                                 No. 95-1940
                                 ___________

United States of America,            *
                                     *
           Appellee,                 *
                                     *   Appeal from the United States
     v.                              *   District Court for the
                                     *   Eastern District of Missouri.
Ricky Hazelett,                      *
                                     *
           Appellant.                *


                                 ___________

                    Submitted:   November 16, 1995

                        Filed:   April 4, 1996
                                 ___________

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

                                 ___________

HENLEY, Senior Circuit Judge.


     This is the second appeal by Ricky Hazelett after his conviction for
possession of cocaine with intent to distribute in violation of 21 U.S.C.
§ 841(a)(1).   In United States v. Hazelett, 32 F.3d 1313 (8th Cir. 1994),
we reversed Hazelett's first conviction because the trial court had
admitted into evidence the out of court statement of a confederate which
we concluded was not sufficiently against penal interest to fall within the
exception to the prohibition on hearsay testimony.    In the 1994 opinion,
we rejected two other arguments advanced by Hazelett: (1) that admission
of evidence of other crimes was an abuse of discretion and (2) that it was
error to sentence him as a career offender when one of the included
predicate offenses was a conviction obtained when Hazelett was a juvenile.


     On remand at a new trial, Hazelett was again convicted by the
jury of possession of cocaine with intent to distribute and was sentenced
by the district court1 to 322 months imprisonment.    Hazelett raises four
claims on this appeal: (1) the evidence was insufficient as a matter of law
to support the conviction; (2) the trial court erred in admitting evidence
of prior convictions; (3) the trial court erred in sentencing Hazelett as
a career offender; and (4) the trial court erred by enhancing his sentence
for a supervisory role in the offense.       We find no merit in any of
Hazelett's present contentions and affirm the judgment and sentence of the
district court.


Background
     The facts surrounding Hazelett's arrest and conviction are set out
in full in our earlier opinion, United States v. Hazelett, 32 F.3d 1313
(8th Cir. 1994), and we include here only a brief summary of those facts
most directly related to Hazelett's contentions on this appeal.


     In January 1993, a DEA agent working a routine drug interdiction
detail at a Springfield, Missouri, bus station arrested Theresa King for
possession of two kilograms of cocaine.      King agreed to cooperate and
stated that she was carrying the drugs from Los Angeles to St. Louis for
a man named "Ricky."   She later identified Ricky Hazelett as "Ricky."   The
DEA arranged for Ms. King to make a controlled delivery of the cocaine at
a St. Louis bus station.


     When she arrived in St. Louis, Ms. King called a contact telephone
number given to her by Ricky.       Twenty minutes later a car driven by
Hazelett with two female passengers pulled up in front of the bus station.
The female passengers went inside, spoke with Ms. King, and returned to the
car accompanied by Ms. King.   The two




      1
       The Honorable George F. Gunn, Jr., United States District
Judge for the Eastern District of Missouri.

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women got into the car and Ms. King placed her luggage containing the
cocaine into the car.


     At that point, several officers carrying weapons and showing their
badges approached the car.   Upon seeing the officers, Hazelett immediately
drove off at a high rate of speed leaving Ms. King standing on the
sidewalk.   A chase ensued which ultimately ended in Hazelett crashing the
car in an alley.   He attempted to escape on foot but was apprehended and
placed under arrest.


Sufficiency of the Evidence
     Hazelett's defense theory at trial was that he did not know Theresa
King, was not at the bus station to pick her up, and only drove off
abruptly because he saw men with guns and was frightened.   He contends on
appeal that the prosecution's case was insufficient as a matter of law
because on the evidence no jury could have found beyond a reasonable doubt
that he had knowingly or intentionally possessed cocaine with intent to
distribute.


     Hazelett bases this claim principally on the fact that Theresa King
did not testify at his trial and therefore did not connect him directly to
the initial transfer of the cocaine to King in Los Angeles.    He contends
that the events at the St. Louis bus station were ambiguous in meaning and
did not show that he intended to possess cocaine.     Hazelett attempts to
bolster this argument by citing out of context some language from our
earlier opinion.   We explain briefly why we believe Hazelett's argument
lacks merit and is without support in our decision on his first appeal.


     At the first trial, Theresa King was not present to testify against
Hazelett because she had returned to Los Angeles and could not be located.
The trial court, however, admitted into evidence hearsay statements King
had made to DEA officers while in custody on the theory that King was an
unavailable witness who had made the statements against penal interest.
We reversed, holding that




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because
              King's   statements  implicating   Hazelett   were   not
              sufficiently against her interest, they       were   not
              admissible under Rule 804(b)(3). . . .

              [W]e do not believe the error was harmless, for King's
              statements were the only evidence that Hazelett
              originally gave the cocaine to her. Had they not been
              admitted, the jury may well have concluded that Hazelett
              had no knowledge of the drugs.        Moreover, in such
              circumstances the jury might very well have accepted
              Hazelett's explanations for his presence in St. Louis,
              his arrival at the bus station, and his attempt to flee.
              Therefore, we cannot say that admission of King's
              statements did not substantially influence the jury's
              verdict.


32 F.3d at 1319.


     By the time of the second trial, King had been located and was
physically available to testify but she refused to testify even though she
had been granted immunity.    At the second trial, moreover, King's hearsay
statements implicating Hazelett were not admitted into evidence.   The jury
nonetheless found, based primarily on the testimony of police and DEA
agents, that Hazelett had knowingly possessed the cocaine with intent to
distribute.


     Hazelett contends that absent King's testimony regarding her receipt
of the cocaine from him in Los Angeles and his instructions to her to
deliver it to St. Louis there was insufficient evidence to prove that he
knowingly or intentionally possessed the cocaine.      While we agree that
King's testimony was the most damning evidence against him, we do not agree
that absent that testimony there was insufficient evidence to convict.   The
jury was free to credit the DEA agents' testimony that King's actions fit
the characteristics of a drug courier.     The jury was also free to infer
from the testimony describing the actions of both Hazelett and King in St.




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Louis that the delivery of the cocaine to Hazelett's car was pursuant to
a predetermined plan rather than merely a mistake as Hazelett contended.
Thus, we believe there was sufficient evidence from which the jury could
have found that every element of the offense had been proved beyond a
reasonable doubt.   See United States v. Collins, 66 F.3d 984, 986 (8th Cir.
1995).


     Nothing in our earlier opinion is to the contrary.               We said with
regard to the admission of King's hearsay statements: "we do not believe
the error was harmless, for King's statements were the only evidence that
Hazelett originally gave the cocaine to her."        King attempts to twist this
language to mean that absent King's statements there was insufficient
evidence to convict him.     We did not say that and it is not true.        To say
that absent certain inadmissible evidence the jury might have reached a
different result is not at all the same thing as saying that without that
evidence no jury could lawfully convict.


     We have reviewed the record and find the evidence sufficient to
support the jury's verdict.


Admissibility of Evidence of Prior Conviction
     In order to establish Hazelett's state of mind with respect to
possession of the cocaine, the prosecution introduced evidence at both
trials   that   Hazelett   had   been   previously   arrested   and   convicted   of
possession of cocaine in Tacoma, Washington.         In our earlier opinion, we
concluded that the admission of such evidence was not an abuse of
discretion under Rule 404(b).       32 F.3d at 1319.
     Hazelett has repeated on this appeal his objections to the admission
of that evidence, but we find nothing materially new in his arguments.            The
only new contention Hazelett raises is that our earlier opinion erroneously
stated that the Tacoma conviction involved seven ounces of cocaine, when
the evidence actually showed that the conviction was for possession of
seven grams of cocaine.




                                        -5-
We regret any confusion caused by that editorial error, but conclude that
the error in no way changes our analysis of the evidentiary issue.


        As we stated, the evidence of the prior offense was relevant to
establish the defendant's state of mind, which was at issue during the
trial.    Moreover, we cannot find that the trial court's conclusion that the
probative value of such evidence outweighed its possible prejudicial effect
was clearly erroneous.


Sentencing as a Career Offender
        Hazelett also repeats his argument that it was an abuse of discretion
for the trial judge to sentence him as a career offender.             One of the
predicate offenses used to establish Hazelett's        career offender status was
a California conviction for possession of PCP when he was a juvenile.
Although Hazelett was only 17 at the time of the offense, he was tried and
sentenced as an adult, as California law permitted.        However, Hazelett now
contends that the conviction was defective because no hearing was held to
determine whether he was fit to be tried as an adult, which he says
California law required.


        As we have previously held, a defendant may not use a proceeding for
sentencing as a career offender to launch a collateral attack on a previous
conviction.     United States v. Ghent, 29 F. 3d 416, 417 (8th Cir. 1994).
As we said in the 1994 opinion, the fact that Hazelett was tried and
sentenced as an adult is "dispositive" for present purposes.          32 F.3d at
1320.    If Hazelett believes he has a valid challenge under California law
to his conviction there, he should assert that claim before the California
courts.


Sentence Enhancement for Managerial Role in Offense
        Pursuant   to   United   States   Sentencing   Guideline   3B1.1(c),   the
presentence report recommended that Hazelett should receive a two




                                          -6-
point sentence enhancement for his managerial role in the offense. Hazelett
objected to this recommendation on grounds that without testimony from King
there was no evidence in the record that he had managed or supervised
anyone.   The district court overruled Hazelett's objection and imposed the
enhancement.


     We have previously held that a sentence enhancement may not rest on
the recommendation of a presentence report alone, because the presentence
report is not itself evidence.         See, e.g., United States v. Moore, 977 F.2d
1227, 1228 (8th Cir. 1992).         We have also stated that if a defendant raises
an objection to an element of a presentence report, the district court must
take evidence on that issue.           See, e.g., United States v. Wise, 976 F.2d
393, 404-405 (8th Cir. 1992), cert. denied, 507 U.S. 989 (1993).                  However,
the district court's finding that a defendant was a manager or supervisor
will not be overturned unless it is clearly erroneous.                 United States v.
Anderson, 928 F.2d 243, 245 (8th Cir. 1991).


     Here,     Hazelett     contends    that    the    sentence   enhancement     for   his
managerial role is in error because it rests solely on either the
presentence report or on statements of Theresa King which were not in
evidence at the second trial.              We do not agree.       There was substantial
testimony in the second trial from the police and DEA agents regarding the
actions of both King and Hazelett which the officers observed.                  There was
also testimony regarding the typical role of drug couriers like Ms. King
in illegal drug distribution.        We believe that this was sufficient evidence
from which the district court could conclude that Hazelett's role in the
enterprise included the supervision of at least one person, Ms. King.
Accordingly,    we   find    that    the    sentence    enhancement   was   not    clearly
erroneous.


     For the reasons stated above, the judgment of the district court is
in all respects affirmed.




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A true copy.


     Attest:


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




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