                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 03-4005
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Nebraska.
William T. Monnier,                    *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: August 26, 2004
                                Filed: July 5, 2005
                                 ___________

Before LOKEN, Chief Judge, WOLLMAN, and BEAM, Circuit Judges.
                             ___________

WOLLMAN, Circuit Judge.

       William Monnier appeals from his conviction and sentence for conspiracy to
distribute 500 grams or more of methamphetamine and for distribution of less than
50 grams of methamphetamine that resulted in death, violations of 21 U.S.C. §§ 841
and 846. We affirm.

                                       I.
      Testimony at trial established that Monnier regularly bought and sold
methamphetamine. On the evening of April 15, 2001, Monnier and Rick Edwards
met up with Brandy Stroud and nineteen-year-old Esperanza Mendoza. Monnier and
Edwards invited the women to join them in a motel room, to which Monnier brought
methamphetamine. Mendoza smoked, snorted, and ate the methamphetamine. At
Monnier’s request, Edwards and Stroud departed the room, leaving Monnier and
Mendoza by themselves. Stroud returned to the room several hours later to find
Mendoza alone and extremely ill. Mendoza died shortly thereafter.

       During Monnier’s trial, the defense called Teresa James, who allegedly had
visited the motel room the night that Mendoza died. James was sworn and took the
witness stand, at which point the government suggested that she be advised of her
Fifth Amendment rights. After this advisement, James declined to testify. The district
court1 refused Monnier’s request that James state before the jury her reason for not
testifying and subsequently denied Monnier’s motion for a mistrial. Following
Monnier’s conviction, the district court denied his motion for judgment of acquittal
and sentenced him to 360 months’ imprisonment.

                                          II.
       Monnier challenges the sufficiency of the evidence with respect to both counts
on which he was convicted. We review the district court’s denial of the motion for
judgment of acquittal using the same standard as the district court. United States v.
Blanton, 281 F.3d 771, 774 (8th Cir. 2002). “When considering whether there is
sufficient evidence to support a conviction, we view the evidence in the light most
favorable to the verdict, giving it the benefit of all reasonable inferences.” United
States v. Exson, 328 F.3d 456, 460 (8th Cir. 2003) (internal quotes and citations
omitted). We reverse only if the evidence, viewed in this light, is such that a
reasonably minded jury would have a reasonable doubt as to the existence of any of
the essential elements of the crime charged. Blanton, 281 F.3d at 774.



      1
        The Honorable Joseph F. Bataillon, Chief Judge, United States District Court
for the District of Nebraska.

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                                         A.
       Monnier’s conspiracy conviction requires that the government have proved
beyond a reasonable doubt: (1) the existence of a conspiracy with an illegal purpose;
(2) Monnier’s awareness of the conspiracy; and (3) Monnier’s knowingly becoming
a part of that conspiracy. See United States v. Fitz, 317 F.3d 878, 881 (8th Cir.
2003). We conclude that the evidence was sufficient for a reasonably minded jury to
convict Monnier for conspiracy to distribute at least 500 grams of methamphetamine:
Rick Edwards testified that over the course of several months he and Monnier
purchased from an out-of-town supplier between two and three pounds of
methamphetamine for redistribution, Ed Imler testified that he sold Monnier about
two pounds of methamphetamine over a three-month period and that Monnier resold
some of this methamphetamine to Edwards, and three other witnesses testified that
Monnier had arrangements with them to buy or sell methamphetamine.

                                            B.
        Monnier next disputes his conviction for distributing methamphetamine that
resulted in Mendoza’s death. He argues that the government failed to “prove beyond
a reasonable doubt that the drugs [he] allegedly gave Mendoza were actually enough
to kill her” and he asserts that “a substantial possibility exists that someone else gave
[Mendoza] the lethal dose and [his] dose was marginal.” The district court instructed
the jury that the government had to prove beyond a reasonable doubt that the
methamphetamine Monnier provided to Mendoza produced her death “in a
continuous sequence of events, and without which the result would not have
occurred.” This is akin to a proximate cause instruction. See, e.g., Racicky v.
Farmland Indus., Inc., 328 F.3d 389, 396 (8th Cir. 2003) (defining proximate cause
in a civil context as “a cause (1) that produces a result in a natural and continuous
sequence and (2) without which the result would not have occurred”). We have held,
however, that proximate cause is not required for a conviction under 21 U.S.C. § 841:




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      [Section 841(b)] is unambiguous and . . . giving effect to its plain
      meaning prohibits us from superimposing upon the statute a
      foreseeability or proximate cause requirement. From the statute’s
      language, it is clear Congress intended to expose a defendant to a more
      severe minimum sentence whenever death or serious injury is a
      consequence of the victim’s use of a controlled substance that has been
      manufactured or distributed by the defendant. We decline to hinder
      Congress’s will, apparent from the face of the statute, through a judicial
      pronouncement that the statute requires more than it says.

United States v. McIntosh, 236 F.3d 968, 972 (8th Cir. 2001) (rejecting defendant’s
challenge that death or serious bodily injury must have been “reasonably foreseeable”
to impose the statutory enhancement under 21 U.S.C. § 841(b)). See also United
States v. Carbajal, 290 F.3d 277 (5th Cir. 2002). Accordingly, we reject Monnier’s
contention that the government had to prove that the methamphetamine he provided
to Mendoza was “actually enough to kill her.”

       In any event, pursuant to the district court’s instruction the jury found
proximate cause beyond a reasonable doubt, which necessarily means that it found
contributory cause. See BLACK’S LAW DICTIONARY 212 (7th ed. 1999) (defining
“contributing cause” as “[a] factor that—though not the primary cause—plays a part
in producing a result”). We conclude that the evidence satisfies either standard. Four
medical experts testified that Mendoza died from toxic levels of methamphetamine
ingested in the hours before her death. One of the government’s witnesses testified
that the only methamphetamine she saw in the motel room came from Monnier and
that she saw Mendoza smoke, snort, and eat it. No witness testified seeing Mendoza
use any methamphetamine in the hours before her death other than that supplied by
Monnier. Accordingly, viewed in the light most favorable to the jury verdict, the
evidence supports the finding that Mendoza’s death “result[ed] from” the
methamphetamine provided by Monnier. See 21 U.S.C. § 841(b)(1)(A).




                                         -4-
                                            III.
       Monnier challenges the district court’s denial of his motion for a mistrial
following Teresa James’ refusal to testify. We review the district court’s ruling for
abuse of discretion. United States v. Hale, 1 F.3d 691, 694 (8th Cir. 1993). After
being sworn before the jury, James decided, outside the presence of the jury, to
invoke her Fifth Amendment right not to testify. The district court, over Monnier’s
objection, refused to require James to invoke her right in the presence of the jury.
Instead, the court informed the jury: “Ms. James was sworn in as a witness. She then
had an opportunity to consult with her attorney and based on the advice of her
attorney she has declined to testify, so she will not be testifying in this case.” Monnier
argues that, despite the district court’s explanation, a mistrial was warranted because
“[h]aving a witness sworn and then disappear leaves the jury wondering what she
might have said.” We have held that “a defendant does not have the right to call a
witness to the stand simply to force invocation of the right against self-incrimination
in the presence of the jury.” United States v. Doddington, 822 F.2d 818, 822 (8th Cir.
1987). This principle applies here, and we therefore find no abuse of discretion on
the part of the district court.

                                         IV.
       Prior to oral argument in this case, the Supreme Court decided Blakely v.
Washington, 124 S.Ct. 2531 (2004) and we granted leave to the parties to file
supplemental briefs on the effect of Blakely on Monnier’s sentence. We now address
Monnier’s sentencing arguments in the light of the post-Blakely decisions in United
States v. Booker, 125 S. Ct. 738 (2005), and United States v. Pirani, 406 F.3d 543,
(8th Cir. 2005) (en banc). Because Monnier did not raise a Blakely or Booker
challenge to the enhancement at sentencing, we review for plain error. Pirani, 406
F.3d at 549.

      Monnier challenges the two-level upward adjustment that he received for
obstruction of justice. To resolve this challenge, we conduct plain error review under

                                           -5-
the four-part test of United States v. Olano, 507 U.S. 725 (1993). Pursuant to that
test, before we can correct an error not raised at trial, “there must be (1) error, (2) that
is plain, and (3) that affects substantial rights. Johnson v. United States, 520 U.S.
461, 466-67 (1997). If all three conditions are met, we may remedy the error only if
it “seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id.

       The district court’s enhancement for obstruction of justice was erroneous in
light of Booker because it was imposed on the basis of judge-found facts in a
mandatory guidelines regime. In these circumstances, the first two Olano factors are
satisfied. See Pirani, 406 F.3d at 550. Whether the error affected Monnier’s
substantial rights is another matter. To satisfy this factor, “the defendant must show
a ‘reasonable probability,’ based on the appellate record as a whole, that but for the
error he would have received a more favorable sentence.” Id. at 552.

       Absent the upward adjustment, Monnier would have been sentenced at an
offense level of 38, with a corresponding sentencing range of 292-365 months. With
the adjustment, his offense level of 40 resulted in a range of 360 months to life. At
sentencing, the district court stated: “I think that under the guidelines I really don’t
have much choice, other than to do what I’m doing. The government is going to tell
me to give you life imprisonment. I’m going to give you the minimum sentence.”
Sen. Tr. at 948. Notwithstanding the district court’s comments and its decision to
sentence Monnier at the low end of the range, the record as a whole does not suggest
a reasonable probability that Monnier would have received a more favorable sentence
had the district court considered a lower sentencing range. See Pirani, 406 F.3d at
553 (“[S]entencing at the bottom of the range is the norm for many judges, so it is
insufficient, without more, to demonstrate a reasonable probability that the court




                                            -6-
would have imposed a lesser sentence absent the Booker error”). We conclude that,
given these circumstances, Monnier has not demonstrated prejudicial plain error.

      The judgment and sentence are affirmed.
                     ______________________________




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