                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 08-1079
      ___________



United States of America,             *
                                      *
             Plaintiff – Appellee,    *
                                      *
      v.                              *
                                      *
Federico Villanueva Aleman,           *
                                      *
            Defendant – Appellant.    *
                                      *

      ___________
                                          Appeals from the United States
      No. 08-1173                         District Court for the
      ___________                         District of Minnesota.


United States of America,             *
                                      *
            Plaintiff – Appellee,     *
                                      *
      v.                              *
                                      *
Hector Martinez-Menera, formerly      *
known as Hector Martinez Manera,      *
formerly known as Hector Manera       *
Martinez,                             *
                                      *
           Defendant - Appellant.     *
      ___________

      No. 08-2115
      ___________



United States of America,             *
                                      *
           Plaintiff – Appellee,      *
                                      *
      v.                              *
                                      *
Jack Marvin Yanka,                    *
                                      *
           Defendant – Appellant.     *
                                 ___________

                              Submitted: October 14, 2008
                                 Filed: December 8, 2008
                                  ___________

Before LOKEN, Chief Judge, JOHN R. GIBSON and MURPHY, Circuit Judges.
                              ___________

MURPHY, Circuit Judge.

      Federico Aleman, Hector Martinez, and Jack Yanka were indicted for
conspiring to distribute methamphetamine. Aleman and Yanka pled guilty. Martinez
went to trial and was convicted by a jury. On their appeals, Aleman and Yanka raise
sentencing issues. On his appeal, Martinez claims that his statement to the police
should have been suppressed, that the district court1 erred by denying a continuance
and giving a willful blindness instruction, and that the government failed to turn over
materials due him and made prejudicial statements before the jury. We remand
Yanka's case for resentencing but otherwise affirm.


      1
      The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota.

                                         -2-
                                           I.

       Through a wiretap on the telephone of a suspected methamphetamine dealer,
Michael Cook, St. Paul police traced calls to a phone number used by Federico
Aleman and Hector Martinez. Police began to watch the building they believed was
associated with the phone number and in which Martinez had a duplex apartment.
Officers saw Martinez and Aleman go in and out of the building several times on
December 29, 2006. The next day the police intercepted a phone call between Cook
and a man the police believed to be Aleman and heard them arrange for Cook to
receive six ounces of methamphetamine. Immediately thereafter Aleman and
Martinez left the apartment building in a truck driven by Martinez. The police stopped
the truck and found approximately six ounces of methamphetamine on Aleman and
over $6000 in cash on Martinez. A subsequent search of Martinez's apartment
revealed drug packaging materials, approximately 224 grams of a substance
containing methamphetamine, cutting agents, a scale, and another $1900 in cash. On
the day after his arrest Aleman told police that Martinez had given him the
methamphetamine he had when arrested, and this statement was included in the
affidavit supporting the criminal complaint charging the two men.

       The grand jury indicted Aleman and Martinez on charges of conspiracy to
distribute and possess with intent to distribute methamphetamine, 21 U.S.C. §§
841(a)(1), 841(b)(1)(A) & 846 (Count 1); and aiding and abetting possession with
intent to distribute methamphetamine, 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), & 18
U.S.C. § 2 (Count 2). Jack Marvin Yanka, a distributor for Michael Cook, was also
indicted in the conspiracy count.

       Aleman pled guilty to Count 2. Based on its finding that Aleman committed
perjury at Martinez's trial, the district court imposed a two level enhancement for
obstruction of justice and denied a reduction for acceptance of responsibility, resulting
in an advisory guideline range of 151–188 months. Aleman was then sentenced to
154 months. Aleman appeals his sentence, arguing that the district court erred in
finding that he committed perjury and in its application of the sentencing guidelines.

                                          -3-
      Yanka pled guilty to the conspiracy count. The district court determined that
Yanka was a career offender but varied downward from the advisory guideline range
of 235–262 months to impose a sentence of 120 months. Yanka appeals his sentence,
arguing that he should not have been classified as a career offender because his prior
predicate offense of Minnesota auto theft was not a crime of violence under U.S.S.G.
§ 4B1.2.

       Martinez went to trial and a jury convicted him on both counts. He challenges
his conviction on several grounds. He contends that the district court erred in denying
his motion to suppress a statement he made to police following his arrest. He also
claims that the government violated Brady v. Maryland, 373 U.S. 83 (1963), by not
providing him with Aleman's post arrest statement prior to trial. He argues that the
district court erred by not continuing the trial so a transcript of Aleman's statement
could be produced, and that the district court improperly instructed the jury on willful
blindness. He also alleges that the government violated its discovery obligations by
not providing him with a statement made by his landlord prior to the pretrial hearing,
and that the prosecutor and a government witness made prejudicial statements
undermining the fairness of his trial.

                                          II.

        The day after his arrest, Aleman told police that Martinez had given him the
drugs he possessed at the time of his arrest. At Martinez's trial, however, Aleman
testified that he had obtained the drugs from someone else and that Martinez knew
nothing about the drug trafficking. When confronted on cross examination with his
prior statement, Aleman said that he had lied to police during his post arrest interview
in order to pin the blame on Martinez.

       At Aleman's sentencing hearing, the district court found that he had committed
perjury at the trial and applied a two level obstruction of justice enhancement. A
district court makes factual findings underlying an obstruction of justice enhancement
by a preponderance of the evidence, United States v. Guel-Contreras, 468 F.3d 517,

                                          -4-
522 (8th Cir. 2006), and we review those findings for clear error, United States v.
Vickers, 528 F.3d 1116, 1120 (8th Cir. 2008). We review de novo its application of
the guidelines to those facts. Id. An obstruction of justice enhancement is proper if
the defendant has testified falsely under oath, but the false testimony must relate to a
material matter and be done willfully rather than out of confusion or mistake. Id. at
1122; U.S.S.G. § 3C1.1 cmt. n. 4(b) (2007). The district court determined that
Aleman had lied at trial from his demeanor and the “patently incredible nature of some
of [his] testimony” in light of other evidence about the trafficking operations and his
association with Martinez. The district court also found that Aleman's perjury was
knowing and willful and that it was material to the issue of Martinez’s guilt. After our
review of the record, we conclude that the district court did not err in imposing the
obstruction of justice enhancement.

        Aleman also argues that he was entitled to a reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1(a) because he entered a timely guilty plea and
testified truthfully. The defendant bears the burden of showing that he accepted
responsibility. United States v. Canania, 532 F.3d 764, 772 (8th Cir. 2008). We
review for clear error a district court’s denial of a reduction under § 3E1.1. Id.; see
also U.S.S.G. § 3E1.1 cmt. n. 5. An obstruction of justice enhancement under § 3C1.1
"ordinarily indicates that the defendant has not accepted responsibility for his criminal
conduct" as required for a § 3E1.1 reduction. See U.S.S.G. § 3E1.1 cmt. n. 4; Guel-
Contreras, 468 F.3d at 523. There may be "extraordinary cases" in which a defendant
could still be eligible for an acceptance of responsibility reduction, however. See
U.S.S.G. § 3E1.1 cmt. n. 4; United States v. Perez, 270 F.3d 737, 739 (8th Cir. 2001).
To determine whether a case is extraordinary, a district court should consider "the
totality of the circumstances, including the nature of the [defendant's] obstructive
conduct and the degree of [defendant's] acceptance of responsibility." United States
v. Honken, 184 F.3d 961, 968 (8th Cir. 1999). We see no grounds for departing from
the rule in this case where Aleman obstructed the prosecution of a related case by
giving false testimony. See United States v. Brown, 539 F.3d 835, 841 (8th Cir.
2008). We conclude that the district court did not err in denying Aleman a reduction
for acceptance of responsibility.

                                          -5-
       Aleman makes a cursory argument that his sentence was unreasonable because
the district court did not accept the recommendation in the plea agreement and did not
"follow" the sentencing factors listed in 18 U.S.C. § 3553(a). We review the
reasonableness of a sentence under an abuse of discretion standard. United States v.
Roberson, 517 F.3d 990, 993 (8th Cir. 2008). The district court imposed a sentence
within the advisory guideline range, which is presumptively reasonable. United States
v. Denton, 434 F.3d 1104, 1113 (8th Cir. 2006). It did so after a thorough discussion
of the § 3553(a) factors. The recommended sentence in Aleman's plea agreement was
conditional on his testifying truthfully at trial and continuing to accept responsibility.
Based on the district court's findings that Aleman had not fulfilled these conditions,
it was not unreasonable to reject the agreement's recommended sentence. We
conclude that the sentence imposed was not unreasonable.

                                           III.

       Martinez appeals his conviction. Two of his claims relate to the post arrest
statement of Federico Aleman in which he told the police that Martinez was the source
of his drugs. Martinez knew about this statement because it was referred to in the
criminal complaint, but he did not have access to a recording or transcript of the
statement before trial. Martinez subpoenaed Aleman to testify at trial, and after the
close of the government's case Aleman decided to waive his Fifth Amendment rights
and testify. At that point the prosecutor gave Martinez the recording of Aleman's
statement. Martinez contends that he should have received it earlier under Brady v.
Maryland, and that the trial should have been continued to allow him more time to
analyze it.

       In order to show a violation of due process under Brady, Martinez must show
that the prosecution suppressed evidence favorable to him that was "material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."
373 U.S. at 87. He must also show that there was a "reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have
been different." Kyles v. Whitley, 514 U.S. 419, 433 (1995). Because Martinez did

                                           -6-
not raise his Brady claim at trial we review for plain error. United States v. Shepard,
462 F.3d 847, 870 (8th Cir. 2006). To prevail on a plain error standard, Martinez
"must show that the court committed an error that was plain, that affected his
substantial rights, and that 'seriously affects the fairness, integrity or public reputation
of judicial proceedings.'" United States v. Davis, 538 F.3d 914, 917 (8th Cir. 2008)
(quoting United States v. Olano, 507 U.S. 725, 732–36 (1993)).

         The government contends that there was no Brady violation because Aleman's
statement was not exculpatory or favorable to Martinez. See United States v. Roach,
28 F.3d 729, 734 (8th Cir. 1994). Martinez counters that the statement would have
assisted his defense because in it Aleman refers to other individuals whom he could
have investigated or called as witnesses. Brady does not cover evidence that would
merely help a defendant prepare for trial but is otherwise immaterial to the issues of
guilt or punishment. See United States v. Agurs, 427 U.S. 97, 112 n.20 (1976).
Martinez only speculates that interviews of these other individuals would have
provided evidence favorable to his defense, however, and "mere speculation . . . is not
. . . sufficient to sustain a Brady claim." See United States v. Wadlington, 233 F.3d
1067, 1077 (8th Cir. 2000) (quotation omitted).

        Martinez argues that Aleman's statement should have been disclosed earlier
because it contained impeachment evidence. See United States v. Duke, 50 F.3d 571,
577 (8th Cir. 1995). Most of the examples in Martinez's brief are of how Aleman's
trial testimony could have been contradicted using the prior statement, but Martinez
does not explain how this would have helped his defense. Martinez does suggest that
he might not have called Aleman to testify had he known the contents of the post
arrest statement, but he was already aware from the complaint that the statement
would conflict with Aleman's anticipated testimony about what Martinez knew about
the drug operation. See Wadlington, 233 F.3d at 1076. Martinez also claims that
Aleman's post arrest statement would have enabled him to impeach his landlord's
testimony that he was the sole renter of the apartment because it referred to the
presence of others at the apartment and knowing their names would have helped
contradict the landlord's testimony on that point.

                                            -7-
       Even if Aleman's original statement could be viewed as exculpatory or
containing useful impeachment evidence, Martinez must still show that "earlier
disclosure might have enabled [him] to create a reasonable doubt that did not
otherwise exist." United States v. Bledsoe, 674 F.2d 647, 670 (8th Cir. 1982).
Martinez has not shown how this statement would have created a reasonable doubt
regarding the verdict, given the abundant evidence of his involvement in the drug
trafficking. See Johns v. Bowersox, 203 F.3d 538, 546 (8th Cir. 2000) (noting that
other evidence implicating the defendant is relevant to materiality (citing Strickler v.
Greene, 527 U.S. 263 (1999))). We conclude that there is no reasonable possibility
that the jury would have come to a different conclusion about his guilt if Martinez had
had access to Aleman's statement at an earlier time.

        Martinez claims that the district court should have continued the trial to allow
him more time to review Aleman's statement. After the government turned over
Aleman's statement, the court excused the jury for the day and recessed for several
hours to allow Martinez time to listen to the recording with the assistance of court
interpreters. When the court reconvened at 3:45 p.m. Martinez's counsel stated that
he had been unable fully to review the hour long recording because it contained
simultaneous Spanish-English interpretation, and he wanted the court interpreters to
provide their independent interpretation of Aleman's statement. He also wanted the
interpreters to prepare a certified transcript, which he estimated would have required
65 to 75 hours.2 Martinez did not formally move for a further continuance, but told
the court that he needed additional time to prepare. The district court recessed the trial
until the next morning. We review the district court's decision for abuse of discretion.
See United States v. Young, 943 F.2d 24, 25 (8th Cir. 1991).


      2
        A certified transcript was completed after the trial, and we grant Martinez's
unopposed motion to supplement the appellate record with it. In that statement
Aleman gives his personal history, discusses the possibility of cooperation, and
describes the other individuals with whom he associated and how the deal was made
with Michael Cook on December 30, 2006. Martinez never explains how the added
facts in the statement were potentially exculpatory or how the verdict would have been
affected had he had access to these facts before the trial.

                                           -8-
       When a district court is exercising its discretion to deny a continuance, it should
consider the "time required and already permitted for trial preparation, diligence of the
moving party, conduct of the other party, the effect of delay, and the reasons movant
gives for needing a continuance." United States v. Ware, 890 F.2d 1008, 1010 (8th
Cir. 1989). Here, the district court noted that Martinez had no entitlement to the
recording of Aleman's statement under the Jencks Act, 18 U.S.C. § 3500, because
Aleman had not testified for the government. See United States v. Price, 542 F.3d
617, 621 (8th Cir. 2008). Martinez's counsel stated that he believed Aleman's
statement contained exculpatory material that he wanted more time to investigate.
The court responded that counsel would have adequate opportunity to elicit any
exculpatory content during his examination of Aleman. The continuance requested
by Martinez on a Thursday would have required recess until the following Monday,
and the district court expressed concerns about the extension of jury service and other
scheduling conflicts. We conclude that the district court did not abuse its discretion
in denying a further continuance based on its finding that Martinez's need for
additional preparation time was not compelling.

       Martinez also contends that the district court erred by giving a willful blindness
instruction that the jury could find he “acted knowingly if it found beyond a
reasonable doubt that [Martinez] was aware of a high probability that others
distributed a controlled substance . . . and that [Martinez] deliberately avoided
learning the truth." We review that decision for abuse of discretion. United States v.
Gill, 513 F.3d 836, 849 (8th Cir. 2008). We will affirm so long as “the instructions,
taken as a whole, fairly and adequately submitted the issues to the jury.” United
States v. Lalley, 257 F.3d 751, 755 (8th Cir. 2001). A willful blindness instruction is
proper if the evidence "support[s] the inference that the defendant was aware of a high
probability of the existence of the fact in question and purposely contrived to avoid
learning all of the facts in order to have a defense in the event of a subsequent
prosecution." United States v. Barnhart, 979 F.2d 647, 651 (8th Cir. 1992) (quoting
United States v. Rivera, 944 F.2d 1563, 1571 (11th Cir. 1991)) (emphasis added).




                                           -9-
       Martinez's defense at trial was that he lacked any knowledge of the drug
trafficking and that he was merely present when Aleman was engaged in it. The
government argues that given the strong evidence linking Martinez to the drug
dealing, Martinez could have lacked actual knowledge only by deliberately turning a
blind eye. Moreover, Martinez was arrested with $6000 in cash on his person, in the
company of Aleman, who had methamphetamine in his pocket. From Martinez's
apartment, where he was the sole tenant, police officers recovered more drugs, drug
paraphernalia, and $1900 in cash. We also reject Martinez's argument that the willful
blindness instruction created a risk that the jury would convict him based on a finding
of mistake or negligence. See United States v. Whitehill, 532 F.3d 746, 752 (8th Cir.
2008). We conclude that the district court did not abuse its discretion in instructing
the jury on willful blindness.

       Next, Martinez contends that the government should have disclosed before his
pretrial hearing a statement by his former landlord that he had been the sole renter of
his apartment in December 2006. The government had produced this statement to
Martinez three days before trial, as ordered by the district court upon Martinez's
motion for early disclosure of materials subject to the Jencks Act. Martinez asserts
that the government’s failure to disclose this statement even earlier “mislead [sic]
[him] into believing he did not have standing to challenge the search warrant.”
Martinez did not raise this claim before the district court so we review for plain error.
We reject Martinez’s suggestion that he was misled. Martinez knew that he lived in
the apartment at the time of the search and did not need his landlord’s corroboration
of this fact to inform him of his standing to challenge the search. Furthermore, the
government was not required under either Brady or the Jencks Act to disclose
Sanchez’s statement before the pretrial hearing. The government's disclosure of this
statement three days before trial did not impair any substantial right of Martinez.

       Martinez claims that the district court erred by not suppressing certain portions
of his post arrest statement under Miranda v. Arizona, 384 U.S. 436 (1966). This
challenge is moot because the government did not use any part of his statement at the
trial. See United States v. Christenson, 549 F.2d 53, 57 n.2 (8th Cir. 1977) (holding

                                          -10-
that because the fruits of allegedly illegal searches were not offered into evidence by
the government, "there is nothing upon which the exclusionary rule can operate").
Martinez contends the issue is not moot because the government could use the
statement if his case were to be retried. If there were ever a retrial, however, Martinez
could renew his challenge at such time.

       Finally, Martinez argues that improper statements made by the prosecutor and
a government witness undermined the fairness of his trial. Martinez asserts that case
agent Matthew Parker made unwarranted racial assumptions linking Martinez to the
conspiracy. Since Martinez did not object to Parker's statements, we review for plain
error. United States v. Hyles, 521 F.3d 946, 958 (8th Cir. 2008). To obtain a reversal
based on the statement of a witness, Martinez must show that it was error for the
district court to allow those statements, that the error was of constitutional dimension,
and was not harmless beyond a reasonable doubt. See United States v. Vue, 13 F.3d
1206, 1212–13 (8th Cir. 1994) (reversing conviction based on extensive testimony
tying the defendants' ethnic background to a particular type of drug trade). During his
direct examination Parker made several references to voices heard on the wiretap
speaking in broken English with a Hispanic accent, and also to an "unknown Hispanic
female" heard on the wiretap. Parker's testimony only referred to factors used to
identify a suspect during an investigation and was not extensive or of a prejudicial
nature. The district court did not err in allowing Parker's testimony.

      Martinez contends that the prosecutor's remark during closing argument that
“these guys know how to play the game” invited the jury to speculate about
nationality and race.3 Improper prosecutorial remarks during closing argument may
be grounds for reversing a conviction if they "prejudicially affected the defendant's
substantial rights so as to deprive [him] of a fair trial." United States v. Boone, 437
F.3d 829, 841 (8th Cir. 2006). District courts have broad discretion in controlling


      3
       Martinez also asserts that the prosecutor made a similar remark during the
government's opening statement, but the citation Martinez provides does not contain
any such reference.

                                          -11-
closing arguments, and we review the district court's overruling of Martinez's
objection for abuse of discretion. United States v. Beckman, 222 F.3d 512, 526 (8th
Cir. 2000). Martinez has identified only a single possible reference to race or
nationality. During closing the prosecutor said "these guys know how to play the
game" while referring to Martinez having four identification cards in his wallet.
When overruling the objection, the district court concluded that "these guys" was
simply a reference to Martinez and Aleman, and that "no reasonable person would
have interpreted [the prosecutor] saying it [to refer generally to Mexicans]." We
conclude that the prosecutor did not make an improper reference to Martinez's race
or nationality and that the statement was not prejudicial. The district court did not
abuse its discretion in overruling Martinez's objection.

      In sum, we determine that Martinez has not shown that the district court
committed any error during his trial nor that the government improperly withheld
evidence or made inappropriate statements.

                                          IV.

       Jack Yanka was sentenced as a career offender under U.S.S.G. § 4B1.1, which
applies if a defendant has two prior felony convictions for either a crime of violence
or a controlled substance offense. Yanka has prior Minnesota convictions for motor
vehicle theft and for aiding and abetting second degree murder.

       Our review of whether a prior offense is a crime of violence under U.S.S.G. §
4B1.2(a) is de novo. See United States v. Cantrell, 530 F.3d 684, 694 (8th Cir. 2008).
A crime of violence is any felony offense that either "(1) has as an element the use,
attempted use, or threatened use of physical force against the person of another, or (2)
is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to another."
U.S.S.G. § 4B1.2(a).




                                         -12-
       Yanka's auto theft conviction under Minn. Stat. § 609.52(2)(17) is for taking
or driving a motor vehicle "without the consent of the owner . . . , knowing or having
reason to know that the owner . . . did not give consent." This statute can be violated
in only one way—by taking a vehicle without the owner's consent. Under United
States v. Williams, 537 F.3d 969 (8th Cir. 2008), reh'g en banc denied, No. 07-2679,
2008 WL 4767458 (8th Cir. Oct. 31, 2008), such an offense is not a crime of violence
within the meaning of U.S.S.G. § 4B1.2(a). Yanka therefore has only one predicate
offense, and he is not a career offender under the advisory guidelines.

       The district court thus committed procedural error by calculating Yanka's
advisory guideline range incorrectly. See Gall v. United States, 128 S. Ct. 586 (2007).
The parties agree that the error was not harmless despite the court's significant
downward variance from an advisory guideline range of 235–262 months to the
statutory minimum of 120 months. The government had requested a downward
variance under U.S.S.G. § 5K1.1 based on Yanka's substantial assistance, and stated
at oral argument that on remand it would consider moving under 18 U.S.C. § 3553(e)
for a sentence below the statutory minimum.

                                         V.

      In sum, we affirm the judgment of the district court in respect to Aleman and
Martinez, but we vacate Yanka's sentence and remand for resentencing.
                       _____________________________




                                         -13-
