                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 09-1602
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
Bradley Hodge,                           *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: December 18, 2009
                                 Filed: February 9, 2010
                                  ___________

Before WOLLMAN, RILEY, and MELLOY, Circuit Judges.
                           ___________

WOLLMAN, Circuit Judge.

       Bradley Hodge was convicted of three criminal counts related to a conspiracy
to manufacture methamphetamine. The district court1 sentenced him to three terms
of 240 months’ imprisonment, to run concurrently. Hodge appeals, arguing that the
district court erred in denying his motion for judgment of acquittal and in determining
his relevant conduct for the purposes of sentencing. We affirm.




      1
        The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.
                                         I.

      In mid-2008, detectives from St. Louis County, Missouri investigated pharmacy
log books of pseudoephedrine purchases in the St. Louis area. The log books and the
ensuing investigation revealed that Hodge and a number of associates were purchasing
large quantities of pseudoephedrine for the purpose of manufacturing
methamphetamine. Hodge was arrested on August 1, 2008, and charged with (1)
conspiracy to possess pseudoephedrine, knowing and having reason to believe it
would be used to manufacture methamphetamine; (2) possession of pseudoephedrine,
knowing and having reason to believe it would be used to manufacture
methamphetamine; and (3) conspiracy to manufacture and distribute more than fifty
grams of methamphetamine.

       At trial, the government presented the testimony of Detective Joseph Smith,
Sergeant Jason Grellner, and Detective James Vargas. Smith testified about the
investigation of Hodge and his associates, the purchases of pseudoephedrine by this
group of individuals, and the discovery of a methamphetamine production site.
Grellner testified about the process of manufacturing methamphetamine, typical usage
of methamphetamine, the effect of methamphetamine on the body, and the pharmacy
log books that showed the pseudoephedrine purchases by Hodge and his associates.
Vargas testified about the discovery of methamphetamine production sites based upon
information provided by Hodge’s associates. During Smith’s and Grellner’s
testimony, the government introduced certified copies of pharmacy log books that
showed Hodge and his associates had purchased 489.36 grams of pseudoephedrine
between May 2006 and March 2007. Hodge was in the custody of the Missouri
Department of Corrections from April 20, 2007, to March 27, 2008. During this time,
his associates purchased 685.8 grams of pseudoephedrine. After Hodge was released
from jail, he purchased 47.52 grams of pseudoephedrine, and his co-conspirator,
Christina Dittmaier, purchased 31.68 grams.



                                        -2-
     Dittmaier, Kim Mercer, and Scott Skaggs, all co-conspirators, testified that
Hodge cooked methamphetamine for himself and others at multiple locations using
pseudoephedrine pills provided by various individuals between 2006 and 2008.

        The government also introduced letters that Hodge had written to Dittmaier
while in jail. The letters, using drug argot, included discussions of manufacturing and
using methamphetamine. Hodge explained his strategy for minimizing his criminal
liability, which relied primarily on misleading the police, not cooperating, and going
to trial. Hodge encouraged Dittmaier not to assist the government, writing, “I’m
saying this as a good [S]amaritan. Don’t testify against me. If you do . . . and I am
covering all my bases and trying to help you out, your credibility will be shot. . . . All
right, baby girl, keep your head up and your mouth closed. I mean that.” Tr. at 256-
57.

      Pursuant to Federal Rule of Evidence 404(b), the government introduced
records of Hodge’s previous convictions for methamphetamine related offenses.
These records showed that in 2003 and 2004 Hodge had been convicted of possession
of methamphetamine, possession of pseudoephedrine with intent to manufacture
methamphetamine, and unlawful transportation of anhydrous ammonia, a
methamphetamine manufacturing agent.

       Following a three-day trial, the jury convicted Hodge on all three counts. The
presentence investigation report (PSR) calculated a base offense level of 36, given that
the amount of pseudoephedrine involved exceeded one kilogram. The PSR
recommended a two-level enhancement, pursuant to U.S.S.G. § 3C1.1, note 4(a),
because Hodge had intimidated or unlawfully influenced a co-defendant, bringing the
total offense level to 38. With a criminal history category of V, Hodge’s sentence
range under the guidelines was from 360 months to life imprisonment.




                                           -3-
       The district court denied Hodge’s objection to the two-level enhancement,
which was based on the argument that his letters had been misconstrued. Hodge
requested a downward departure, arguing that the guidelines range was too severe
given his criminal history and the circumstances of his case; he proposed a sentence
of 188 months. In considering the factors set forth in 18 U.S.C. § 3553(a), the district
court noted that Hodge’s associates had received much more lenient sentences than
what Hodge faced under the guidelines. The court concluded that a sentence of “30
years [was] too severe” and sentenced Hodge to the concurrent 240 month sentences
mentioned above.

                                           II.

                                           A.

       Hodge argues that the district court erred in denying his motion for judgment
of acquittal; he asserts that the government’s evidence was insufficient to establish his
guilt. We review de novo the district court’s denial of a motion for a judgment of
acquittal. United States v. Tyndall, 521 F.3d 877, 881 (8th Cir. 2008), cert. denied,
129 S. Ct. 997 (2009). When considering a challenge to a conspiracy conviction
based upon sufficiency of the evidence, “we will affirm if the record, viewed most
favorably to the government, contains substantial evidence supporting the jury’s
verdict, which means evidence sufficient to prove the elements of the crime beyond
a reasonable doubt.” United States v. Lopez, 443 F.3d 1026, 1030 (8th Cir. 2006) (en
banc).

       According to Hodge, the government’s case was insufficient because there was
no direct evidence of an agreement to manufacture methamphetamine. In a drug
conspiracy case, however, the government is not required to present direct evidence
of an explicit agreement; juries may rely upon circumstantial evidence to discern a
tacit agreement or understanding between the co-conspirators. United States v.

                                          -4-
Coleman, 584 F.3d 1121, 1125 (8th Cir. 2009). There was overwhelming evidence
at trial of a conspiracy to manufacture methamphetamine. Multiple witnesses
corroborated what the pharmacy logs suggested: Hodge and his associates purchased
large quantities of pseudoephedrine in order to manufacture methamphetamine.
Hodge’s associates supplied him with the ingredients necessary for manufacturing
methamphetamine, and he in turn distributed the finished product to his associates.
The iteration of this scheme was sufficient to establish that there was an agreement or
understanding between Hodge and his associates to manufacture methamphetamine
and that Hodge knew of this agreement or understanding. United States v. Davis, 471
F.3d 938, 947-48 (8th Cir. 2006) (finding a conspiracy to manufacture
methamphetamine based upon the defendant’s “voluntary acts”).

        Hodge also assails the credibility of the government’s witnesses, arguing that
(1) they gave inconsistent testimony, (2) they had an incentive to lie in order to reduce
their sentences, and (3) they were unreliable because of their prior addiction to
methamphetamine. A jury’s credibility determinations are well-nigh unreviewable
because the jury is in the best position to assess the credibility of witnesses and
resolve inconsistent testimony. United States v. Cunningham, 83 F.3d 218, 222 (8th
Cir. 1996); United States v. Anderson, 78 F.3d 420, 423 (8th Cir. 1996) (“As trier of
fact, the jury ha[s] the best opportunity to observe the witnesses’ facial expressions,
attitudes, tone of voice, reactions to questions, and other behavior.”). Only when
credibility determinations are internally inconsistent, based upon incoherent or
implausible testimony, or directly at odds with objective evidence is a more searching
review warranted. United States v. Nolen, 536 F.3d 834, 844 (8th Cir. 2008); United
States v. Jones, 254 F.3d 692, 695 (8th Cir. 2001).

        The testimony of the witnesses contained minor inconsistencies and omissions.
On the whole, however, it was entirely consistent with the government’s allegations,
the testimony of the other witnesses, and the objective evidence. The witnesses
testified that they were cooperating with the government in hopes of receiving lower

                                          -5-
sentences, and this was certainly relevant to the jury’s credibility determination.
United States v. Espino, 317 F.3d 788, 794 (8th Cir. 2003). The jury had the
prerogative to credit or discount the government’s witnesses based upon this
cooperation, and the jury choose to believe the government’s witnesses,
notwithstanding the incentives in play. Id. The government’s witnesses also testified
frankly about their addictions and abuse of methamphetamine. Prior drug abuse may
be relevant when the witness’s memory or mental abilities are legitimately before the
court. United States v. Cameron, 814 F.2d 403, 405 (7th Cir. 1987). Prior drug abuse
or drug addiction, however, has no automatic effect on the credibility of a witness.
In a drug conspiracy case, it is the jury’s prerogative to evaluate the credibility of
witnesses in light of their prior drug abuse or addiction. In this case, the jury found
the government’s witnesses credible, and we find no basis upon which to disturb this
finding.

       The record, viewed in the light most favorable to the government, contains
substantial evidence supporting the jury’s verdict. Accordingly, the district court did
not err in denying Hodge’s motion for judgment of acquittal.

                                          B.

       Hodge argues that the district court erred when determining his relevant
conduct for the purpose of sentencing. He argues that he should not have been held
accountable for the entire amount of pseudoephedrine that he and his associates
purchased between 2006 and 2008 (approximately 1.189 kilograms) because he was
incarcerated during part of this time and because the government’s evidence
attributing this amount to him was insufficient.

      Hodge did not object to the amount of pseudoephedrine attributed to him at
sentencing. To preserve an issue for appeal, a litigant must object in a timely manner.
Puckett v. United States, 129 S. Ct. 1423, 1428 (2009). If the litigant does not do so,

                                         -6-
his claim is usually forfeited. Id. There is a narrow exception, however, to this
general rule: “A plain error that affects substantial rights may be considered even
though it was not brought to the court’s attention.” Fed. R. Crim. P. 52(b). Under
review for plain error, the court conducts a four-fold inquiry: first, the court considers
whether there was an error that the litigant did not affirmatively waive; second, the
court determines whether the error was clear and obvious; third, the court adjudges
whether the error affected the litigant’s substantial rights, which usually means that
the outcome would have been different had the error not occurred; and last, the court
decides whether to exercise its discretion in remedying the error, a discretion usually
reserved for those cases affecting the fairness, integrity or public reputation of the
judicial proceedings. Puckett, 129 S. Ct. at 1429; United States v. Martin, 583 F.3d
1068, 1074 (8th Cir. 2009). Accordingly, we review Hodge’s claim that the district
court erred in determining the relevant drug quantities for plain error. United States
v. Villareal-Amarillas, 454 F.3d 925, 930 (8th. Cir. 2006). Hodge bears the burden
of proof to show that he is entitled to plain error relief. United States v. Marston, 517
F.3d 996, 1004 (8th Cir. 2008).

       Hodge suggests that his incarceration attenuated or eliminated his responsibility
for the actions of the conspiracy. He states that the evidence at trial showed that he
had “no drug-related contact with any of his alleged co-conspirators during the time
of his incarceration,” Appellant’s Br. 18, and he claims that there was insufficient
evidence proving that there was an agreement to continue the conspiracy while he was
incarcerated. He depicts the conspiracy as one involving “a large group of people
[who] cooked methamphetamine at various locations for their own purposes,” id., and
this group of people continued to accumulate pseudoephedrine while he was
incarcerated independent of any agreement or understanding that they had with him.

      Although incarceration may constitute withdrawal from a conspiracy, it does
not necessarily terminate an individual’s liability for the actions of a conspiracy.
United States v. Casares-Cardenas, 14 F.3d 1283, 1288 (8th Cir. 1994); United States

                                           -7-
v. Cohen, 516 F.2d 1358, 1364 (8th Cir. 1975). Absent an affirmative act of
withdrawal, a defendant remains liable for the actions of a conspiracy that were
reasonably foreseeable. Caseras-Cardenas, 14 F.3d at 1288. “Actions are reasonably
foreseeable to a defendant when they fall within the scope of the agreement between
the defendant and the co-conspirators.” Id. If a conspiracy is effected while the
defendant is incarcerated and he has not withdrawn from the conspiracy, his
responsibility is curtailed only if those acts were not reasonably foreseeable at the time
of his incarceration. United States v. Rodriguez, 414 F.3d 837, 845 (8th Cir. 2005);
Cohen, 516 F.2d at 1364.

      There was no evidence at trial that Hodge affirmatively withdrew from the
conspiracy, and it was reasonably foreseeable that the conspiracy would continue
while he was incarcerated. The continued purchase of pseudoephedrine by Hodge’s
associates while he was incarcerated did not exceed the scope of the conspiracy.
Thus, attributing the entire amount of pseudoephedrine to Hodge was not clearly
erroneous.

      Hodge argues that there was insufficient evidence to establish the amount of
methamphetamine that he produced. The government introduced log books showing
the amount of pseudoephedrine used in the manufacturing process. Grellner testified
as to how much methamphetamine could be produced from this amount of
pseudoephedrine. The jury returned a special verdict finding that the amount of
methamphetamine involved in the conspiracy exceeded fifty grams. The jury’s
finding was well supported by the evidence and not clearly or obviously wrong.

       Even if Hodge could prevail on one of these points, his claim for relief would
fail under plain error review because his sentence would likely have been the same
even if the district court had computed the amount of drugs differently. Had Hodge
been held accountable for only the 132 grams of pseudoephedrine that he purchased,
his base offense level would have been 34, including a two-level enhancement for

                                           -8-
obstruction of justice, resulting in a guidelines range of 235 to 293 months’
imprisonment. U.S.S.G. § 2D1.11(d). Had Hodge been held accountable for the
568.56 grams of pseudoephedrine purchased when he was not incarcerated, his base
offense level would have been 36, including a two-level enhancement for obstruction
of justice, resulting in a guidelines range of 292 to 365 months’ imprisonment. Id.
A sentence of 240 months was within the guidelines range in the former calculation,
and it would have been a significant downward departure in the latter. Hodge cannot
show, therefore, that in either case his sentence would have been different.

                                       III.

      The judgment is affirmed.2
                      ______________________________




      2
       We have considered the arguments raised in Hodge’s pro se supplemental brief
and recently filed motion and find them to be without merit.
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