                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 98-1711
                                  No. 99-1421
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the Western
                                       * District of Missouri.
Susan Davidson,                        *
                                       *
            Appellant.                 *
                                       *
                                       *
                                  ___________

                            Submitted: September 16, 1999
                                Filed: October 20, 1999
                                 ___________

Before McMILLIAN and MURPHY, Circuit Judges, and TUNHEIM,1 District
      Judge.
                         ___________

MURPHY, Circuit Judge.




      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota, sitting by designation.
       Susan Davidson was convicted of conspiracy to manufacture methamphetamine
in violation of 21 U.S.C. § 846 and sentenced by the district court2 to 151 months
imprisonment. Davidson now appeals from her conviction and sentence and seeks a
judgment of acquittal or a new trial and resentencing. We affirm.

                                            I.

       Numerous witnesses testified at trial to facts linking Davidson to a conspiracy
to manufacture methamphetamine in the Kansas City area. The evidence connected
Davidson to four separate methamphetamine laboratories, including three labs in
apartments or houses she occupied and a fourth located in a house belonging to co-
conspirator James Cates. Searches of the labs were conducted under a warrant and by
consent and resulted in the discovery of approximately 25 grams of methamphetamine;
454 grams of pseudoephedrine, a methamphetamine precursor chemical; and
paraphernalia associated with the production of methamphetamine. Evidence of these
discoveries was introduced, and a law enforcement officer testified that he had
observed Davidson buy iodine and red phosphorus and deliver iodine to James Cates
(iodine and red phosphorus are other precursor chemicals). Certified records of
Davidson’s two prior convictions for possession of methamphetamine were also placed
into evidence.

      Following the close of the government’s case, Davidson moved for a judgment
of acquittal on the ground that there was insufficient evidence of her participation in the
conspiracy. The motion was denied, and Davidson was convicted by jury verdict. After
Davidson was sentenced she filed a timely notice of appeal as well as a motion to
dismiss the indictment on the ground that her right to a speedy trial had been violated.
The district court denied the motion, and her appeal from that decision is dismissed


      2
        The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
                                            -2-
since she has not briefed it. Riley v. St. Louis County, 153 F.3d 627, 630 n.4 (8th Cir.
1998).




                                            II.

       Davidson argues that she is entitled to several forms of relief. She seeks a
judgment of acquittal on the basis that there was insufficient evidence at trial to sustain
her conviction. She seeks a new trial because evidence of her two prior convictions
was improperly admitted and the district court failed to investigate adequately a
potential conflict of interest between her and her counsel. Finally, she seeks
resentencing on the basis that the district court erred in calculating her criminal history
category, in determining the quantity of methamphetamine for which she could be held
responsible, and by failing to give her a minor role reduction. We address each of her
contentions in turn.

                                            A.

       Davidson argues that the evidence presented at trial was insufficient to sustain
the jury verdict. Although the evidence was sufficient to demonstrate that a conspiracy
existed, she argues that there was no evidence that she joined the conspiracy. The
government argues that the evidence was more than enough to prove Davidson’s
knowing participation in the conspiracy to manufacture methamphetamine.

       “The standard of review of an appeal concerning the sufficiency of the evidence
is very strict, and the verdict of the jury should not be overturned lightly.” United
States v. Burks, 934 F.2d 148, 151 (8th Cir. 1991). “In reviewing the sufficiency of the
evidence on appeal, the court views the evidence in the light most favorable to the
government, resolving evidentiary conflicts in favor of the government, and accepting

                                            -3-
all reasonable inferences drawn from the evidence that support the jury’s verdict.”
United States v. Erdman, 953 F.2d 387, 389 (8th Cir. 1992).

       In order to convict Davidson of conspiracy to manufacture methamphetamine,
the government needed to prove that (1) a conspiracy existed; (2) Davidson knew of
the conspiracy; and (3) she knowingly became a part of the conspiracy. United States
v. Rork, 981 F.2d 314, 316 (8th Cir. 1992) (citation omitted). However, “[o]nce a
conspiracy has been established, only slight evidence is needed to link a defendant to
the conspiracy.” United States v. Pena, 67 F.3d 153, 155 (8th Cir. 1995). The jury
reasonably could have inferred from the evidence that Davidson participated in the
manufacture of methamphetamine at the three labs discovered in her house and
apartment. It also could have inferred from Davidson’s delivery of iodine to James
Cates that she intended to participate in the manufacture of methamphetamine at the lab
in his home: “Participation by a defendant in a single act may in fact demonstrate
membership in a conspiracy if the act itself will justify an inference of knowledge of
the broader conspiracy.” United States v. Tran, 16 F.3d 897, 904 (8th Cir. 1994)
(citing United States v. Kirk, 534 F.2d 1262, 1272 (8th Cir. 1976)). We conclude there
was sufficient evidence to sustain the jury’s verdict. Davidson is therefore not entitled
to a judgment of acquittal, and the district court did not err in denying her motion
seeking one.

                                            B.

       Davidson claims that she is entitled to a new trial because the district court failed
to pursue a potential conflict with her counsel. On the first day of trial, Davidson
indicated to defense counsel that she wanted to plead guilty. Counsel discussed the
matter with the prosecution and then informed the court. The court excused the jury
and began a plea colloquy with Davidson. Davidson told the court at first that she was
satisfied with her counsel, but then indicated that pressure from them was causing her


                                            -4-
to plead guilty.3 Upon hearing that, Judge Fenner said he would not accept a guilty
plea and ordered the jury brought back.




      3
          The colloquy between Davidson and the court was as follows:

            Q:         [The court] And have you had an opportunity to
                       discuss the charges against you with your attorney,
                       Mr. Farris?
            A: Yes.
            Q: Are you satisfied with the legal advice and the representation that Mr.
               Farris and Mr. Sundby have given you in this case?
            A: Yes.
            Q: Do you have any complaint that you would like me to make or to
               discuss in regard to the legal advice or legal services that Mr. Farris
               or Mr. Sundby have provided for you?
            A: I do feel like I am – well –
            Q: Do you feel like what, ma’am?
            A: Nothing.
            Q: Well, do you have some complaint that you would like to make or do
               you have –
            A: No.
            Q: – or do you have some problem that you would like to discuss with
               me in regard to the services that your attorneys have provided for
               you?
            A: No.
            Q: Have Mr. Farris and Mr. Sundby done everything that you have asked
               them to do?
            A: No.
            Q: And what is it that they have not done that you seem to have some
               hesitation or some concern about?
            A: I feel like I have been pressured to take a plea from the very
               beginning, and if I didn’t, then, you know, that I don’t feel like they
               would fight for me like I thought that maybe they would, so I am
               taking this plea.
            Q: You don’t feel that they will fight for you, and that’s why you are
               taking the plea?
            A: Right. Yes because they feel like that I am going to lose. If they feel
               that way, how can they fight for me.

                                                 -5-
       Davidson argues that this interchange should have alerted the court to the
potential for irreconcilable conflict between her and her counsel and that the court’s
failure to inquire further requires reversal. The government responds that Davidson
never reported any irreconcilable conflict or requested new counsel at trial and that the
court did not err by not delving into the subject on its own.

        “[A]n accused who is forced to stand trial with the assistance of appointed
counsel with whom he has become embroiled in an irreconcilable conflict is denied
effective assistance of counsel. The trial court, when confronted by such an allegation,
has an obligation to inquire thoroughly into the factual basis of the defendant’s
dissatisfaction.” United States v. Swinney, 970 F.2d 494, 499 (8th Cir. 1992)
(citations omitted). An accused is not guaranteed perfect representation or even a
“meaningful relationship” with counsel, and “[j]ustifiable dissatisfaction sufficient to
merit substitution of counsel includes ‘a conflict of interest, an irreconcilable conflict,
or a complete breakdown in communication between the attorney and the defendant.”
Id. (internal citations and quotation marks omitted). The defendant has the burden to
show “justifiable dissatisfaction with his appointed counsel.” United States v. Sayers,
919 F.2d F.2d 1321, 1323 (8th Cir.1990). A decision whether to grant a continuance
or to allow substitution of counsel is reviewed for abuse of discretion. Swinney at 499.

       In this case Davidson never attempted to show to the district court any justifiable
dissatisfaction with counsel, and she never moved for substitution of counsel or a
continuance. There is no obligation on a trial court to look into a defendant’s
representation unless it becomes aware of circumstances that would require further
investigation. United States v. Hart, 557 F.2d 162, 163 (8th Cir. 1977). At no point
in her colloquy with the court during the plea proceeding did Davidson allege an
irreconcilable conflict or a complete breakdown of communication with her counsel.
In the absence of such an allegation, or some other clear indication of insurmountable
difficulties between her and counsel, the district court was not required to inquire into
possible dissatisfaction with counsel. The district court reconvened Davidson’s trial

                                            -6-
as soon as it perceived she was not about to plead guilty voluntarily, and it was
presented with no reason at that point to conduct further inquiry into the relationship
between Davidson and her counsel.

       Davidson also claims that the evidence of her prior convictions for possession
of methamphetamine should not have been admitted under FED. R. EVID. 404(b) and
unfairly prejudiced her. The government contends that this evidence was properly
admitted as evidence of Davidson’s knowledge of and intent to participate in a
conspiracy to manufacture methamphetamine.

        Under FED. R. EVID. 404(b), evidence of “other crimes, wrongs, or acts” is
admissible to show “proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident[.]” Evidence of other crimes is admissible
if “(1) it is relevant to a material issue; (2) it is similar in kind and not overly remote in
time to the crime charged; (3) it is supported by sufficient evidence; and (4) its potential
prejudice does not substantially outweigh its probative value.” United States v. Green,
151 F.3d 1111, 1113 (8th Cir. 1998). The admission of a defendant’s “other crimes,
wrongs, or acts” under this rule is reviewed for abuse of discretion. United States v.
Oates, 171 F.3d 651, 659 (8th Cir. 1999). This court “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. Brown, 148 F.3d
1003, 1009 (8th Cir. 1998).

       Davidson does not challenge the admission of her prior convictions on the basis
of their remoteness in time from the offense charged or on the basis that the government
offered insufficient proof to establish that she committed them. Rather, she argues that
this evidence was offered solely for the improper purpose of showing her propensity
to commit criminal acts.




                                             -7-
       Evidence of a defendant’s prior possession of drugs in amounts consistent with
personal use is admissible to show her knowledge and intent when intent is an element
of the offense charged. See United States v. Oates, 173 F.3d 651, 660 (8th Cir. 1999)
and United States v. Logan, 121 F.3d 1172, 1178 (8th Cir. 1996). This evidence is
admissible “even if the defendant has not raised a defense based on lack of knowledge
or lack of intent.” Logan, 121 F.3d at 1178. A necessary element of conspiracy to
manufacture methamphetamine is knowingly joining such a conspiracy, and Davidson’s
recent convictions for possession of methamphetamine were relevant to prove that.
The relevance also outweighed any prejudice. The district court did not abuse its
discretion in admitting evidence of Davidson’s prior convictions for possession of
methamphetamine.

                                           C.

      Davidson seeks resentencing on three grounds. She argues that the district court
erred in calculating her criminal history category, in determining the quantity of
methamphetamine for which she could be held responsible, and in not giving her a
reduction for minor role in the offense.

                                           1.

      Davidson claims that the district court erred in calculating her criminal history
category.    She argues that her two prior convictions for possession of
methamphetamine should have been considered only as conduct related to her
conviction under U.S. Sentencing Guideline Manual §§ 1B1.3 and 4A1.2(a)(1)
(“U.S.S.G.”), and not in calculating her criminal history.

       Davidson concedes that she failed to raise this objection below and that her point
is now reviewed for plain error. Under that standard she cannot prevail unless (1) the
district court erred; (2) the error was plain or clear under then current law; and (3) the

                                           -8-
error affected her substantial rights. Fed. R. Crim. P. 52(b); United States v.
Montanye, 996 F.2d 190, 192 (8th Cir. 1993) (citing United States v. Olano, 507 U.S.
725, 732-35 (1993)). When a forfeited error satisfies these requirements, we have the
discretion to order correction. Id. Because we find that the district court did not err,
we need not consider the second and third prongs of the analysis.

       In determining a defendant’s criminal history category under U.S.S.G. §
4A1.2(a)(1), the district court is to consider “any sentence previously imposed . . . for
conduct not part of the instant offense.” “[C]onduct not part of the instant offense”
under this section is defined as conduct other than “relevant conduct” as defined by
U.S.S.G § 1B1.3(a)(1)(A). U.S.S.G. § 4A1.2(a)(1) application note 1. “Relevant
conduct” under U.S.S.G. § 1B1.3(a)(1)(A) includes “all acts . . . that occurred during
the commission of the offense of conviction, in preparation for that offense, or in the
course of attempting to avoid detection or responsibility for that offense.” Conduct
resulting in a prior conviction is not relevant conduct to the instant offense when it is
a “‘severable, distinct offense.’” United States v. Copeland, 45 F.3d 254, 256 (8th Cir.
1995) (quoting United States v. Blumberg, 961 F.2d 787, 792 (8th Cir. 1992)). Several
factors are relevant to determine whether a prior conviction represents a “severable,
distinct offense,” including temporal and geographical proximity to the offense for
which the defendant is being sentenced and the presence of a common scheme or plan
or common victims. Id.

      The possession convictions that Davidson now asserts were improperly
considered by the district court resulted from conduct that took place on October 5,
1995 and February 29, 1996. Davidson was charged in this case with conspiring to
manufacture methamphetamine between April 22, 1996 and December 18, 1996, so her
prior offenses occurred well before the conduct charged. Neither of these prior
convictions took place “during the commission of the offense of conviction[,]”
U.S.S.G. § 1B1.3(a)(1)(A), and neither were connected to the conspiracy offense. No
common plan or victim linked them, and simple possession of an amount of

                                           -9-
methamphetamine consistent with personal use is not in itself preparation or furtherance
of a conspiracy to manufacture methamphetamine. See, e.g., United States v. Torres-
Diaz, 60 F.3d 445, 448 (8th Cir. 1995). The conduct underlying these convictions was
thus not “relevant conduct” to the conspiracy offense, and the district court did not err
in considering them in her criminal history category.

                                            2.

       In calculating Davidson’s base offense level, the district court found Davidson
responsible for 286 grams of methamphetamine. In calculating that amount, the district
court relied on evidence at trial that the Cates lab was found to have 25 grams of
methamphetamine and 454 grams of pseudoephedrine.4 An affidavit submitted at the
sentencing hearing indicated the potential methamphetamine yield from 454 grams of
pseudoephedrine was 261 grams. The affiant was made available for cross-
examination at the hearing, but Davidson chose not to question him. The district court
then calculated the quantity to be 286 grams, the sum of the 25 grams and the estimated
yield of 261 grams.

       Davidson claims that the district court erred in calculating the quantity of
methamphetamine for which she should be held responsible. She argues that the
district court erred in not making specific factual findings to support its ultimate finding
and that the quantity of methamphetamine found or producible at the Cates lab was not
reasonably forseeable to her. The government responds that the district court properly
relied on evidence submitted at trial and at the sentencing hearing and that the
production of the Cates lab was reasonably forseeable to Davidson.




       4
      Of the four labs associated with the conspiracy, only the Cates lab contained
more than trace amounts of methamphetamine or methamphetamine precursor
chemicals.
                                            -10-
       This court reviews the factual findings of the district court at sentencing for clear
error. See Koon v. United States, 518 U.S. 81, 97 (1996). The district court’s drug
quantity determination will be reversed only if the reviewing court is left with “the
definite and firm conviction that mistake has been committed.” United States v.
Simmons, 964 F.2d 763, 773 (8th Cir. 1992)(citations omitted).

      In determining the facts upon which a defendant’s sentence depends, a district
court may rely on evidence submitted at trial or during the sentencing hearing and on
uncontested statements from the defendant’s presentence report. See United States v.
Delpit, 94 F.3d 1134, 1154 (8th Cir. 1996). The district court did not err in relying on
such evidence in calculating Davidson’s base offense level.

        “[I]n the case of jointly undertaken criminal activity,” a defendant is criminally
responsible for “all reasonably forseeable acts . . . in furtherance of the jointly
undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). Under this guideline a
defendant in a drug conspiracy case is responsible for all contraband “within the scope
of criminal activity jointly undertaken by [the defendant] and reasonably foreseeable
to [her].” United States v. Strange, 102 F.3d 356, 359 (8th Cir. 1996) (quoting United
States v. Townley, 929 F.2d 365, 370 (8th Cir. 1991)). The evidence at trial was more
than sufficient to establish Davidson’s connection to the Cates lab. It showed that
Davidson ordered, picked up, and delivered to James Cates 12 pounds of black iodine,
a methamphetamine precursor chemical. A government witness testified that the
amount of precursor chemicals Davidson delivered to Cates, when combined with a
third ingredient, was sufficient to produce up to 2,500 grams of methamphetamine. The
production of the Cates lab was both within the scope of the criminal activity
contemplated by the conspiracy Davidson joined and was reasonably forseeable to her.
The district court’s finding as to Davidson’s criminal responsibility for the production
of the Cates lab was not clearly erroneous. See, e.g., United States v. Sales, 25 F.3d
709, 711 (8th Cir. 1994).


                                            -11-
                                             3.

       Finally, Davidson claims that the district court erred in failing to give her a two
level sentence reduction for a minor role in the conspiracy and by not making specific
factual findings concerning her role. The government points out that Davidson did not
move for a minor role reduction but instead for a downward departure, but that in any
event her minor role argument is without merit.

       If a defendant was “a minor participant” in a criminal activity, she is entitled to
a two level reduction in her offense level. U.S.S.G. § 3B1.2(b). A minor participant
is “any participant who is less culpable than most other participants, but whose role
could not be described as minimal.” Id., application note 3. The defendant bears the
burden of proof on this issue. United States v. Surratt, 172 F.3d 559, 566 (8th Cir.
1999)(citation omitted). We review the district court’s findings with respect to a
participant’s role in the offense for clear error. United States v. Correa, 167 F.3d 414,
416 (8th Cir. 1999) (citation omitted).

       Assuming that this issue had been sufficiently raised in the district court, it was
not error for the district court not to grant Davidson a minor role reduction. A court
need not hold an evidentiary hearing or otherwise develop the factual record when there
was sufficient evidence at trial to support its sentencing decisions. See United States
v. Delpit, 94 F.3d 1134, 1154 (8th Cir. 1996). The district court found that
Davidson’s assertion that she played a minor role in the conspiracy was inconsistent
with the evidence at trial, which showed she was associated with the operation of three
different methamphetamine labs and had taken substantial steps to aid the manufacture
at a fourth lab. In light of this evidence the district court’s finding that she was not less
culpable than most other participants in the conspiracy was adequately supported by
the evidence and not clearly erroneous.

                                            III.

                                            -12-
      Since Davidson has not shown that she is entitled to a judgment of acquittal, a
new trial, or resentencing, we affirm the judgment of the district court.




A true copy.

      Attest:

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




                                        -13-
