                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 00-3858
                                     ___________

United States of America,                 *
                                          *
                    Appellee,             * Appeal from the United States
                                          * District Court for the District
      v.                                  * of Nebraska.
                                          *
Mark D. Nelson,                           *     [UNPUBLISHED]
                                          *
                    Appellant.            *
                                     ___________

                                Submitted: May 17, 2001

                                    Filed: May 24, 2001
                                     ___________

Before LOKEN, ROSS, and FAGG, Circuit Judges.
                            ___________

PER CURIAM.

        A jury convicted Mark D. Nelson of conspiracy to distribute methamphetamine
in violation of 21 U.S.C. § 841(a)(1) and § 846. The district court* found Nelson was
responsible for at least 1844 grams of methamphetamine, making Nelson's statutory
sentencing range between ten years and life. See id. § 841(b)(1)(A)(viii). Nelson was
also a career offender, which resulted in a Sentencing Guidelines range of thirty years
to life. The district court sentenced Nelson to thirty years in prison.

      *
       The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.
        Because the indictment, jury instructions, and verdict form did not specify a drug
quantity, and the district court's drug quantity finding increased the statutory maximum
sentence for his offense from twenty years to life in prison, see id. §§ 841(b)(1)(C),
(b)(1)(A)(viii), Nelson contends his sentence violates Apprendi v. New Jersey, 530
U.S. 466 (2000) (other than fact of an earlier conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a
jury and proved beyond a reasonable doubt). Nelson concedes we review this issue for
plain error. Thus, to obtain resentencing under Apprendi, "there must be (1) 'error,' (2)
that is 'plain,' and (3) that 'affect[s] substantial rights.'" Johnson v. United States, 520
U.S. 461, 467 (1997) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)). If
these conditions are satisfied, we may exercise our "discretion to notice a forfeited
error, but only if (4) the error seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings." Id. (internal quotations omitted).

       Before trial, the Government proposed a special verdict form for the jury's use
in deciding drug quantity in light of Apprendi. The district court declined to use the
form because Nelson was advised at arraignment he faced a possible life sentence if
convicted and Nelson specifically waived his right to have the jury decide the amount
of drugs involved in the conspiracy. After trial, Nelson changed his mind and raised
his Apprendi objection at sentencing. The district court held Nelson had waived his
Apprendi objection at trial and the waiver was knowingly, voluntarily, and intelligently
made as a tactical decision. The district court also found that if there was any error in
allowing Nelson to waive jury determination of weight, the error was harmless because
evidence of drug quantity was overwhelming.

      Even if the failure to have the jury decide drug weight was plain error, the error
did not affect Nelson's substantial rights because no reasonable jury could have found
Nelson responsible for less than 500 grams of a mixture containing methamphetamine,
the quantity triggering the statutory maximum of life in prison found in §
841(b)(1)(A)(viii). See United States v. Poulack, 236 F.3d 932, 938 (8th Cir. 2001).

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We cannot say any Apprendi error prejudicially influenced Nelson's sentence. Further,
because the evidence of drug quantity was overwhelming, we would not exercise our
discretion to notice the alleged error. See United States v. Candelario, 240 F.3d 1300,
1311 (11th Cir. 2001).

       Nelson also asserts the Apprendi decision overruled McMillan v. Pennsylvania,
477 U.S. 79 (1986) (regarding minimum sentences) and Almendarez-Torres v. United
States, 523 U.S. 224 (1998) (regarding prior convictions). We disagree. See
Apprendi, 530 U.S. at 487-88 & n.13; United States v. Aguayo-Delgado, 220 F.3d 926,
932 & n.4 (8th Cir.), cert. denied, 121 S. Ct. 600 (2000).

       We reject Nelson's remaining arguments in summary fashion. First, the district
court did not commit plain error in finding Nelson's statements to law enforcement were
voluntary. Second, viewing the evidence in the light most favorable to the verdict and
giving the Government the benefit of all reasonable inferences, we conclude the
evidence was sufficient to prove Nelson guilty of conspiracy to distribute
methamphetamine beyond a reasonable doubt. Contrary to Nelson's assertions, we
presume the jury followed its instructions not to hold Nelson's silence against him and
not to convict him based on his mere presence at the scene of a crime or mere
association with shady characters. Nelson also questions the credibility of Government
witnesses, but this was the jury's job. Last, the district court did not abuse its discretion
in denying Nelson's suggestion for a continuance during the trial when he was unable
to locate potential witnesses.

       We thus affirm Nelson's conviction and sentence.




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A true copy.

      Attest:

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




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