                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2574
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Western District of Arkansas.
Clifford Johnson,                      *
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: April 13, 2005
                                Filed: May 27, 2005
                                 ___________

Before MURPHY, HANSEN, and GRUENDER, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       Clifford Johnson pled guilty to conspiring to possess pseudoephedrine having
reasonable cause to believe it would be used to manufacture methamphetamine.
Johnson was sentenced to 97 months and he appeals, arguing that the district court1
erred by failing to give him a minor role reduction and that his sentence violates the
Sixth Amendment. We affirm.




      1
        The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
      A confidential informant told the Drug Enforcement Administration (DEA) that
Teddy French ran an organization that distributed approximately three to five pounds
of methamphetamine every couple of weeks in Kansas City, Missouri and that
Johnson was one of French's sources of ephedrine. After Johnson contacted the
informant numerous times in October and November 2003 to try to obtain
pseudoephedrine, the informant put an undercover DEA officer in touch with him.

       The officer called Johnson and asked him how many boxes of pills he was
willing to purchase. Johnson responded that he and his partner were willing to buy
up to 30 boxes. The officer told Johnson that the first 250,000 pills would cost thirty
five cents each and any over that amount would cost thirty cents per pill. He told
Johnson that he could deliver the pills the next Friday, but Johnson said, "No, that's
too far away, we are hurting and this was supposed to happen last Monday." Johnson
also said that they needed the pills as soon as possible because they had been putting
people off. The officer told Johnson that he would see what he could do and would
call him later.

       The officer called Johnson back about thirty minutes later and told him he
could deliver 21 cases of pseudoephedrine which would be 302,400 pills at a cost of
$90,720. Johnson responded that that would be fine, and they arranged to meet in
Fayetteville, Arkansas to complete the transaction the next Tuesday. The officer told
Johnson that he understood that he and his partner might want to trade some product
for part of the price of the pills, but Johnson said that they could not do that this time
because "everything is so tight down here and we are the only ones doing it." The
officer then said that it must be nice to have good business, and Johnson replied,
"Yes, it is so good we have five pounds going to one guy." Johnson asked the officer
how many times a month he could deliver pills and said that they could use as many
as the officer could bring. The officer said that if everything went well this time, he
could deliver twice a month, and he arranged to call Johnson on Tuesday to let him
know what time he would be arriving in Fayetteville.

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      The officer called Johnson on Tuesday, November 18, 2003 and said that he
was on his way to Fayetteville with 21 cases of pills and asked if Johnson and his
partner were still willing to purchase the pseudoephedrine. Johnson said that they
were, and the officer told him he would call when he reached his hotel room.

       After arriving at the Clarion Inn in Fayetteville, the officer called Johnson and
said that he was ready to complete the transaction and that he would wait in his hotel
room for him. Johnson asked how he was going to get his cut for setting up the sale.
The officer answered that he had assumed Johnson's partner would take care of him.
Johnson said he had told his partner that all the pills cost thirty five cents, not that
some would only be thirty cents, and Johnson had assumed he would get the
difference. The officer said fine since Johnson had made those arrangements but he
would keep one fourth of the profit since Johnson had not cleared it with him first.
Johnson agreed to those terms and told the officer that he and his partner would come
to his hotel room. Based on this conversation, the officer was expecting to receive
$105,840 from Johnson and his partner for the 21 cases containing 302,400 pills.

       Johnson called the officer in his hotel room later that evening and explained
that his partner had been in trouble with the law in the past and was nervous about the
meeting. Johnson then gave the phone to Teddy French who said that he and his son
would like to meet some place other than in the hotel room. After the officer said he
was unwilling to go anywhere else to transact the business, French agreed to meet in
the hotel.

       French, his son Chris, and Johnson then drove to the hotel, and Johnson
introduced his companions to the officer. After a short conversation French said they
had brought all of the money. The officer went out to his vehicle to get a case of pills
for them to inspect. He brought the case into the room, opened it, and handed them
a box of pills. The Frenches inspected the pills, and Chris retrieved money from their
vehicle and handed it to the officer. The officer told French that the rest of the pills

                                          -3-
were in his truck and handed the keys to Johnson. He suggested that Johnson and the
Frenches take his truck, unload the pills, and then bring it back to the hotel. If there
were any problems with the pill or money count, it could be worked out when they
returned. The officer asked French if he would be able to handle 30 cases of pills a
month, and French said that he was not sure but they could discuss it later.

       Johnson and the Frenches went out with the officer to his truck. He opened the
back end and pointed out the boxes with the pills and then gave a verbal and visual
arrest signal. The three men were arrested, and thereafter Teddy French made four
attempts to bribe arresting and investigating officers.

       A complaint was filed on November 19, 2003 charging Johnson, Teddy French,
and Chris French with conspiracy to possess pseudoephedrine. Johnson later waived
his right to an indictment and pled guilty to a one count information charging him
with conspiring with others, both known and unknown, to possess pseudoephedrine
having reasonable cause to believe it would be used to manufacture
methamphetamine, in violation of 21 U.S.C. §§ 841(c)(2) and 846. The Frenches fled
to avoid prosecution, and Johnson provided valuable information to the United States
Marshals Service that led to their arrest while they were living in Honduras under
assumed names.

       A Presentence Investigation Report (PSR) was prepared before Johnson's
sentencing. At the initial sentencing hearing Johnson objected to the PSR's failure
to recommend that he receive a minor participant reduction under U.S.S.G. §
3B1.2(b), and the court asked the probation officer to prepare a supplemental report
describing the conduct of the other participants. At the final sentencing hearing, the
district court found that Johnson was accountable for 302,400 pseudoephedrine pills,
amounting to 18.14 kilograms of pseudoephedrine, which resulted in a base offense
level of 38 under the sentencing guidelines. For his acceptance of responsibility the
court reduced the offense level two levels under U.S.S.G. § 3E1.1(a) and another one

                                          -4-
under § 3E1.1(b). The court found that Johnson had not played a minor role and
denied a § 3B1.2(b) reduction, but it granted the government's motion for a five level
downward departure under U.S.S.G. § 5K1.1 based on Johnson's substantial
assistance. The resulting total offense level of 30, combined with Johnson's criminal
history category I, led to a sentencing range of 97 to 121 months. The court imposed
a sentence of 97 months.

      Johnson argues on appeal that the district court erred by failing to grant him a
two level reduction as a minor participant and that his sentence violated the Sixth
Amendment in light of Blakely v. Washington, 124 S. Ct. 2531 (2004), United States
v. Booker, 125 S. Ct. 738 (2005), and Shepard v. United States, 125 S. Ct. 1254
(2005).

       Johnson argues that he was entitled to the minor role reduction because he was
not as culpable as the Frenches, had a lesser role in the offense, and cooperated with
the authorities, citing United States v. Martin, 369 F.3d 1046 (8th Cir. 2004) (minor
role reduction not clearly erroneous where another defendant obstructed justice and
organized the illegal scheme). He points out that the Frenches fled to Honduras under
assumed names in order to escape prosecution and that Teddy French not only
obstructed justice by fleeing, but he was in charge of the drug manufacturing
operation and attempted to bribe arresting officers.

       The government responds that the court did not err by refusing to find that
Johnson was a minor participant in the conspiracy. It contends that Johnson was not
entitled to a mitigating role reduction because he was deeply involved in the offense
and that Johnson clearly was the negotiator, coordinator, and middleman for the
transaction between the Frenches and the undercover officer.

      Whether a defendant qualifies for a mitigating role reduction is a question of
fact which we review for clear error. United States v. Johnson, 358 F.3d 1016, 1017-

                                         -5-
18 (8th Cir. 2004). A defendant may be eligible for the § 3B1.2(b) reduction if his
culpability for the relevant conduct is relatively minor compared to that of other
participants, United States v. Snoddy, 139 F.3d 1224, 1231 (8th Cir. 1998), but the
mere fact that a defendant is less culpable does not entitle him to the reduction. Id. at
1228. To determine whether a reduction is appropriate, the court compares "the acts
of each participant in relation to the relevant conduct for which the participant is held
accountable" and measures "each participant's individual acts and relative culpability
against the elements of the offense." Johnson, 358 F.3d at 1018.

       The record shows that Johnson was deeply involved in the offense. Johnson
was responsible for finding a large supplier of pseudoephedrine for the Frenches'
manufacturing operation. After the confidential informant placed Johnson in contact
with the undercover officer, he arranged to buy a large quantity of pseudoephedrine
and negotiated specific terms for the sale, including the quantity of pills, the price,
and the date and location of the transaction. Throughout the negotiations Johnson
spoke of Teddy French as his partner, and he arranged to be paid by the officer for his
role in setting up the sale. Johnson introduced the Frenches to the officer and
attended the meeting at the hotel room where the sale was supposed to take place.
The district court did not clearly err in finding that Johnson did not play a minor role
in the conspiracy to distribute methamphetamine. See United States v. Jones, 145
F.3d 959, 963 (8th Cir. 1998) (less culpable defendant not entitled to reduction if
defendant was "deeply involved").

      Johnson also contends that his Sixth Amendment rights were violated under
Blakely v. Washington, 124 S. Ct. 2531 (2004), because his sentence was enhanced
under the sentencing guidelines by a judge finding that he was accountable for 18.14
kilograms of pseudoephedrine. In a motion for supplemental briefing, he argues that
he should be resentenced under a truly advisory system with the guidance provided
by United States v. Booker, 125 S. Ct. 738 (2005), and that information about his



                                          -6-
prior criminal record should have been submitted to a jury under a reasonable doubt
standard, citing Shepard v. United States, 125 S. Ct. 1254 (2005).

       Johnson failed to object to the drug quantity calculation in the PSR, and the
court could therefore accept that quantity as admitted for sentencing purposes. United
States v. Moser, 168 F.3d 1130, 1132 (8th Cir. 1999) (unless defendant objects to a
specific factual allegation contained in the PSR, the sentencing court may accept that
fact as true). Johnson was sentenced before the Supreme Court held that the federal
sentencing guidelines are only advisory, Booker, 125 S. Ct. at 756-57, but he did not
raise his constitutional issues in the district court and must show plain error to
prevail. See United States v. Olano, 507 U.S. 725, 731-32 (1993). Under plain error
review, there must have been an error that is plain which affected substantial rights.
United States v. Cotton, 535 U.S. 625, 631 (2002). If those requirements are met, we
will reverse if "the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings." Id. (quotations and internal marks omitted). For an error to
affect substantial rights, it must generally have affected the outcome of the
proceedings below, id. at 632, and a defendant has not met that burden if the effect
of an error is uncertain. See Jones v. United States, 527 U.S. 373, 394-95 (1999).

       We conclude that Johnson has not shown that the mandatory application of the
federal sentencing guidelines affected his substantial rights because he has not
demonstrated a reasonable probability that the district court would have imposed a
more favorable sentence if the guidelines had been applied as advisory rather than
mandatory. United States v. Pirani, No. 03-2871, slip op. at 11 (8th Cir. en banc Apr.
29, 2005). After granting the § 5K1.1 motion, the district court could have imposed
a lower sentence than the government suggested but it did not. See United States v.
Pizano, 403 F.3d 991, 995 (8th Cir. 2005) (court decides whether and to what extent
a sentence should be reduced for substantial assistance). The court stated in fact that
it had reservations about whether or not it should even grant the five level reduction
requested by the government. Although Johnson had very little criminal history, the

                                           -7-
court observed that Johnson's crime was very serious. It decided, however, to give
him what it characterized as an unusual benefit by means of the five level downward
departure. It indicated that under all the circumstances a sentence at the low point of
the 97 to 121 month guideline range was appropriate. We also note that Johnson's
counsel admitted at oral argument that there was overwhelming evidence of the
quantity of pseudoephedrine involved in the undercover sale he organized. Given
such overwhelming evidence, there was a sound basis for the district court's
assessment of the nature of Johnson's crime and its determination of drug quantity.
We conclude that Johnson has not demonstrated plain error and that neither Blakely
nor Booker require that Johnson be resentenced.

       Finally, the Supreme Court's Shepard decision does not affect Johnson's
sentence. As the Court held in Almendarez-Torres v. United States, 523 U.S. 224
(1998), a prior felony conviction is a sentencing factor for the court rather than a fact
issue for the jury. This holding was specifically reaffirmed in Booker, 125 S. Ct. at
756. See also, Blakely, 124 S. Ct. at 2536; Apprendi v. New Jersey, 530 U.S. 466,
490 (2000). The Supreme Court has never overruled its decision in Almendarez-
Torres, and Shepard did not alter the rule that a court may consider prior criminal
history as a sentencing factor. See United States v. Mattix, 404 F.3d 1037 (8th Cir.
2005).

       In sum, the district court did not clearly err by not finding Johnson a minor
participant in the conspiracy, and Johnson's Sixth Amendment rights were not
violated by its drug quantity finding or its consideration of his prior criminal history.
Johnson has not demonstrated a reasonable probability that he would have received
a more favorable sentence if the guidelines had been treated as advisory rather than
mandatory, and the sentence imposed in his case was not unreasonable.




                                          -8-
      We accordingly affirm the judgment of the district court and deny the motion
for supplemental briefing.
                       ______________________________




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