                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-2146
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                  Leslie Armstrong

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                            Submitted: January 16, 2015
                               Filed: April 10, 2015
                                  ____________

Before COLLOTON, BEAM, and KELLY, Circuit Judges.
                          ____________

BEAM, Circuit Judge.

       The district court1 sentenced Leslie Armstrong to 180-months' imprisonment
following his conviction by a jury of one count of distribution of cocaine base, in
violation of 21 U.S.C. § 841(a)(1). On appeal, Armstrong challenges the sufficiency

      1
       The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas.
of the evidence supporting his conviction and claims the district court erred by
admitting evidence of a prior controlled drug sale in which he was allegedly involved
and by sentencing him as a career offender. We affirm.

I.    BACKGROUND

      On December 4, 2012, the government charged Armstrong in a one-count
indictment with distribution of 12.5 grams of crack cocaine. This charge stemmed
from Armstrong's alleged sale of crack cocaine to a confidential informant (CI)
during a controlled buy that occurred in September 2009 (the "2009 Controlled
Buy"). At the time of the 2009 Controlled Buy, the CI was working with the Drug
Enforcement Agency (DEA) and local law enforcement and had already participated
in several controlled buys involving different suspected drug dealers.

       At trial, the government introduced substantial evidence regarding how the
2009 Controlled Buy unfolded and Armstrong's role in the buy. On the day of the
buy, the CI met with DEA and local law enforcement officials at a confidential
location. The officers thoroughly searched the CI to verify that he did not have any
weapons, drugs, or money on his person. The CI then placed a call to a phone
number he claimed belonged to Armstrong. At trial, the government played a
recording of this call, and the CI can be overheard talking with a man and confirming
that the man was ready to make the drug sale. Armstrong denies that he participated
in the call, but the CI testified that the other voice in the recording belonged to
Armstrong. The CI also testified that he was familiar with Armstrong's voice because
he lived in the same apartment complex as Armstrong, had known him for years, and
had purchased drugs from Armstrong on occasions prior to the 2009 Controlled Buy.

      After the call, officers provided the CI with money to buy the drugs, placed an
audio/video recording device on his clothing, and used a DEA vehicle to transport the
CI to the apartment complex in which Armstrong lived. The CI exited the DEA

                                         -2-
vehicle and walked up to the apartment complex.2 The CI proceeded directly to
Armstrong's apartment, although he apparently encountered several people, including
a family member, along the way. The CI testified that, upon entering Armstrong's
apartment, he paid Armstrong $700 in exchange for two baggies of crack cocaine.
The government showed the jury footage that was captured by the audio/video
recorder the CI wore during the buy. This footage, in relevant part, depicts the CI
knocking on the door of Armstrong's apartment, receiving permission to enter, and
handing something to Armstrong. Armstrong appears to examine the item(s) for
several seconds, and then states "you paid me for two." The footage then depicts
Armstrong handing something to the CI, after which the CI exits the apartment.
However, due to the angle of the recorder, the footage does not clearly show
Armstrong possessing any money or drugs during the buy.

      After the CI exited the apartment, he immediately returned to the DEA vehicle
and gave two baggies to the officers who had escorted him to the buy. The officers
thoroughly searched the CI and verified that he had no additional drugs, weapons, or
currency on his person. The government's forensic analyst testified that the baggies
contained 12.5 grams of cocaine base. As noted above, Armstrong was not indicted
on charges related to the 2009 Controlled Buy until December 2012.

       Pursuant to Rule 404(b) of the Federal Rules of Evidence, the government filed
a notice of intent to introduce evidence at trial related to Armstrong's prior felony
drug convictions and his participation in a 2007 crack cocaine sale (the "2007
Controlled Buy") for which he was never charged. With respect to the 2007
Controlled Buy, the government disclosed that this transaction involved the same CI
as did the 2009 Controlled Buy. Armstrong objected to all of the government's
proposed 404(b) evidence but took particular issue with the evidence related to the


      2
       At this point, the CI was out of the officers' sight; however, the audio/video
device continued to record the CI's activities.

                                         -3-
2007 Controlled Buy. Specifically, Armstrong contended there was insufficient
evidence that he actually participated in the buy and that the government's sole
purpose in admitting this evidence was to show his propensity to commit the 2009
drug offense. At the parties' pretrial conference, the government claimed that
Armstrong had asserted a general denial defense and that evidence of his role in the
2007 Controlled Buy was therefore relevant to show intent and knowledge with
respect to the 2009 drug offense. The district court agreed the evidence was
admissible but informed the parties that it would provide a limiting instruction.
Armstrong has not challenged the government's characterization of his defense.

       At trial, the CI was the first witness to provide substantive testimony about the
2007 Controlled Buy. Before allowing this testimony, the district court instructed the
jury that evidence of the 2007 Controlled Buy was being offered only to help them
decide whether Armstrong was the person who distributed crack cocaine to the CI
during the 2009 Controlled Buy and whether Armstrong had the requisite intent to do
so. The district court further admonished the jury that they could consider this
evidence only if they unanimously found it was more likely true than not true, that
this was a lower standard of proof than that required to convict Armstrong of the
2009 drug offense, and that they could not convict Armstrong merely because he had
committed similar acts in the past.3

        Following this instruction, the CI testified that in August 2007 he participated
in a controlled buy that targeted another suspected drug dealer. The CI testified that
when he arrived at the target's residence, the target told the CI that he did not have
any drugs but could get some from "Wez," which is Armstrong's street name. The CI
testified that he and the target then waited approximately thirty minutes for

      3
        The district court repeated these instructions to the jury shortly before the
parties provided closing arguments. In addition, during closing arguments both the
prosecution and the defense explicitly told the jury that evidence regarding the 2007
Controlled Buy was relevant only to the defendant's knowledge and intent.

                                          -4-
Armstrong to arrive. At some point during this wait, the CI exited the target's
apartment and returned to the DEA vehicle that was used to transport him to the buy
location. The CI told the officers that Armstrong was bringing drugs to the buy
location, that Armstrong had previously committed a violent crime against one of the
CI's family members, and expressed excitement that "we can get Leslie Armstrong,
we can get him good." The CI then returned to the target's apartment, and Armstrong
arrived shortly thereafter. The CI testified that, although he did not directly see the
target receive drugs from Armstrong, the target provided a baggy to the CI shortly
after Armstrong arrived. The government presented testimony from a forensic analyst
who stated that the baggy contained cocaine base. In addition, the government also
provided audio/video footage and surveillance photos that depict Armstrong entering
the target's residence shortly before the CI received drugs from the target. Finally,
both officers who participated in the 2007 Controlled Buy testified that the CI was
thoroughly searched before and after the buy and that Armstrong was not the intended
target of the buy. Neither the target nor Armstrong were ever charged in connection
with their participation in the 2007 Controlled Buy.

       At trial, the defense marshaled a heavy attack against the CI's credibility.
During direct and cross-examination, the CI frankly acknowledged that he despised
Armstrong because Armstrong had committed a violent crime against one of the CI's
family members several years before either controlled buy occurred. The CI further
admitted that he had numerous felony convictions, had been convicted of filing a
false police report, had lied to his parole officer about his drug use, and had violated
his parole on multiple occasions. The defense also presented three character
witnesses who testified that the CI had a poor reputation for truthfulness in the
community. In addition, the CI acknowledged that he was a cocaine addict and had
used drugs in the months following the 2009 Controlled Buy. However, multiple law
enforcement officials who observed the CI during the buy testified that he showed no
signs of being high and that they would be willing to use the CI as an informant in the
future because the information he provided was always reliable.

                                          -5-
       The jury ultimately convicted Armstrong of distributing crack cocaine to the
CI during the 2009 Controlled Buy. Before sentencing, the United States Probation
Office prepared a presentence investigation report (PSR). The PSR calculated that
Armstrong had three prior felony convictions that were either a crime of violence or
a controlled substance offense and therefore recommended that he be sentenced as a
career offender under Section 4B1.1 of the United States Sentencing Guidelines
Manual (U.S.S.G.). Specifically, the PSR noted that in 1993 Armstrong pled guilty
to a manslaughter charge related to a killing that took place in 1991. The PSR also
stated that Armstrong was convicted of two separate crack cocaine distribution
offenses, one of which took place on June 1, 1991 (the 1991 Drug Offense), and the
other on December 28, 1992 (the 1992 Drug Offense).

       Armstrong objected to the PSR's recommendation that he be classified as a
career offender. With respect to the manslaughter conviction, Armstrong contended
that the Arkansas manslaughter statute under which he was convicted was divisible
and that the charging documents could not resolve whether his manslaughter
conviction constituted a crime of violence. Armstrong also argued that his
convictions for the 1991 and 1992 drug offenses should be counted as one conviction
for purposes of U.S.S.G. § 4B1.1 because these offenses were not separated by an
intervening arrest and he was sentenced for the offenses on the same day. The district
court sustained Armstrong's objection with respect to the manslaughter conviction,
and the government has not appealed that decision. However, the district court
concluded that Armstrong's 1991 and 1992 drug offenses were separated by an
intervening arrest and therefore sentenced him as a career offender. Armstrong
appeals.




                                         -6-
II.   DISCUSSION

      A.     Rule 404(b) Evidence

       Armstrong contends the district court erred by permitting the government to
present evidence about his role in the 2007 Controlled Buy. "[W]e review the district
court's Rule 404(b) ruling for an abuse of discretion." United States v. Turner, 583
F.3d 1062, 1065 (8th Cir. 2009) (alteration in original) (quotation omitted).
"Evidence of a crime, wrong, or other act is not admissible to prove a person's
character in order to show that on a particular occasion the person acted in accordance
with the character." Fed. R. Evid. 404(b). "Prior bad act evidence is admissible,
however, when introduced for any other purpose," including to show identity,
knowledge or intent. Turner, 583 F.3d at 1065; see Fed. R. Evid. 404(b).
Nonetheless, even if introduced for a proper purpose, to be admissible, prior bad act
evidence "must be: (1) relevant to a material issue; (2) proved by a preponderance of
the evidence; (3) higher in probative value than in prejudicial effect; and (4) similar
in kind and close in time to the crime charged." United States v. Jourdain, 433 F.3d
652, 659 (8th Cir. 2006) (quotation omitted). Rule 404(b) is "a rule of inclusion
rather than exclusion, and we will reverse a district court's admission of prior act
evidence only when such evidence clearly ha[s] no bearing on the issues in the case
and was introduced solely to prove the defendant's propensity to commit criminal
acts." Turner, 583 F.3d at 1065 (alteration in original) (internal quotation omitted).

      On appeal, Armstrong does not challenge the government's contention that the
2007 Controlled Buy is similar in kind and close in time to the 2009 drug offense.
Armstrong argues, however, that this 404(b) evidence was inadmissible because it
was relevant only to his propensity to commit the 2009 drug offense. Armstrong also
contends the government failed to prove his involvement in the 2007 Controlled Buy
by a preponderance of the evidence. We find these arguments unpersuasive.



                                         -7-
       "In order to find that [Armstrong] violated § 841(a)(1), the jury was required
to find that he knowingly possessed cocaine base and that he intended to distribute
the cocaine base." United States v. Jenkins, 758 F.3d 1046, 1049 (8th Cir. 2014).
Our precedent clearly establishes that Armstrong placed his state of mind at issue by
asserting a general denial defense. United States v. Banks, 706 F.3d 901, 907 (8th
Cir. 2013). Evidence of Armstrong's role in the 2007 Controlled Buy therefore was
relevant to proving material elements of the 2009 drug offense for which he was
charged–namely his knowledge and intent. United States v. Thomas, 58 F.3d 1318,
1321 (8th Cir. 1995).

       We also hold the government proved Armstrong's role in the 2007 Controlled
Buy by a preponderance of the evidence. "In the Rule 404(b) context, similar act
evidence is relevant only if the jury can reasonably conclude that the act occurred and
that the defendant was the actor." Huddleston v. United States, 485 U.S. 681, 689
(1988). "Such questions of relevance conditioned on a fact are dealt with under
Federal Rule of Evidence 104(b)." Id. Rule 104(b) provides that "[w]hen the
relevance of evidence depends on whether a fact exists, proof must be introduced
sufficient to support a finding that the fact does exist." Fed. R. Evid. 104(b). In
making this determination, the court does not weigh the evidence or make credibility
determinations, but instead "simply examines all the evidence in the case and decides
whether the jury could reasonably find the conditional fact [here, that Armstrong
supplied the drugs the CI purchased in the 2007 Controlled Buy] by a preponderance
of the evidence." Huddleston, 485 U.S. at 690. If, after the Rule 404(b) evidence is
presented to the jury, the trial court determines that a reasonable jury could not
conclude the defendant committed the prior act, then it "must instruct the jury to
disregard the evidence." Id.

       Here, the district court did not abuse its discretion by determining a reasonable
jury could conclude Armstrong provided the drugs the CI purchased during the 2007
Controlled Buy. The CI's trial testimony and the audio/video recording of the buy

                                          -8-
establish the target told the CI that he would have to get the drugs from "Wez," that
the CI indicated to the officers on scene that "Wez" was Leslie Armstrong, that
Armstrong arrived at the apartment shortly thereafter, and that the target provided
drugs to the CI within minutes of when Armstrong entered the apartment. Based on
this evidence, a reasonable jury could have found it more likely than not that
Armstrong was the supplier. See United States v. Sykes, 977 F.2d 1242, 1246 (8th
Cir. 1992). Accordingly, "[t]he trial court's decision to admit the Rule 404(b)
evidence cannot be overturned." Id.

      B.     Sufficiency of the Evidence

      Armstrong next contends there was insufficient evidence supporting his
conviction for the 2009 drug offense. "We review the sufficiency of the evidence de
novo, viewing evidence in the light most favorable to the jury's verdict, resolving
conflicts in the government's favor, and accepting all reasonable inferences that
support the verdict." United States v. Harris-Thompson, 751 F.3d 590, 598 (8th Cir.)
(quotation omitted), cert. denied, 135 S. Ct. 415 (2014). "[W]e will reverse only if
no reasonable jury could have found [Armstrong] guilty beyond a reasonable doubt."
United States v. McCraney, 612 F.3d 1057, 1063 (8th Cir. 2010).

       Armstrong's primary argument essentially is that the testimony of the CI was
unreliable. However, "[t]he jury is responsible for assessing the credibility of
witnesses" and its credibility determinations "are virtually unreviewable on appeal."
United States v. Thompson, 560 F.3d 745, 748-49 (8th Cir. 2009) (internal quotation
omitted). Here, Armstrong's attorneys cross-examined most of the government's
witnesses, including the CI, extensively, regarding the CI's felony convictions, his
history of lying to law enforcement officials, and his well-documented animus
towards Armstrong. Armstrong also presented multiple character witnesses who
attacked the CI's reliability. In spite of this evidence, "[t]he jury evidently chose to



                                          -9-
credit [the CI's] testimony despite his checkered background and potential bias, and
we will not disturb its judgment." McCraney, 612 F.3d at 1063. Furthermore, the
government's audio/video footage of the events that took place inside Armstrong's
apartment corroborates the CI's testimony. Although this footage does not directly
show the hand-to-hand exchange of drugs and money, the jury could have reasonably
accepted the CI's explanation that the footage depicted such an exchange. See id. In
addition, the footage clearly captures Armstrong saying "you paid me for two," and
the jury could have reasonably inferred this statement referred to the two baggies of
crack cocaine the CI later surrendered to law enforcement officials. Finally, as
discussed above, the Rule 404(b) evidence was relevant to Armstrong's knowledge
and intent to commit the 2009 drug offense. This evidence, when taken as a whole,
is sufficient to support the jury's verdict.

      C.     Career Offender

      Armstrong argues that the district court erred by sentencing him as a career
offender under U.S.S.G. § 4B1.1. We review the district court's interpretation and
application of the Sentencing Guidelines de novo and review its application of the
Guidelines to the facts for clear error. United States v. Jenkins, 578 F.3d 745, 749
(8th Cir. 2009). Section 4B1.1 provides:

      A defendant is a career offender if (1) the defendant was at least
      eighteen years old at the time the defendant committed the instant
      offense of conviction; (2) the instant offense of conviction is a felony
      that is either a crime of violence or a controlled substance offense; and
      (3) the defendant has at least two prior felony convictions of either a
      crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1. Armstrong concedes that the first two elements of § 4B1.1 are
satisfied but contends that his convictions for the 1991 and 1992 drug offenses should



                                        -10-
be counted as one predicate felony conviction for purposes of the career offender
provision. Section 4B1.2(c) of the Guidelines provides that the term "two prior
felony convictions" means the defendant committed the instant offense of conviction
after sustaining at least two predicate felony convictions and that "the sentences for
at least two of the aforementioned felony convictions are counted separately under
the provisions of § 4A1.1(a), (b), or (c)." U.S.S.G. § 4B1.2(c). Section 4A1.2(a)(2)
clarifies that for purposes of applying § 4A1.1:

      Prior sentences always are counted separately if the sentences were
      imposed for offenses that were separated by an intervening arrest (i.e.,
      the defendant is arrested for the first offense prior to committing the
      second offense). If there is no intervening arrest, prior sentences are
      counted separately unless (A) the sentences resulted from offenses
      contained in the same charging instrument; or (B) the sentences were
      imposed on the same day.

U.S.S.G. § 4A1.2(a)(2). The parties agree that Armstrong's sentences for the 1991
and 1992 drug offenses were imposed on the same day and that the offenses were not
contained in the same charging instrument. Therefore, the sole question before us is
whether the two offenses were separated by an intervening arrest.

       The facts relevant to the issue of whether the 1991 and 1992 drug offenses
were separated by an intervening arrest are essentially undisputed. On or around
November 27, 1991, Armstrong was arrested by the Jackson County Sheriff's Office
on a first-degree murder charge for the killing that ultimately resulted in his
manslaughter conviction. On December 10, 1991–while Armstrong was still in
custody on the murder charge–a member of the sheriff's department served Armstrong
with a bench warrant for the 1991 Drug Offense and informed Armstrong of the drug
charge. The record indicates that the sheriff's department did not release Armstrong
before serving the warrant, nor did it repeat its normal booking procedures, such as



                                        -11-
fingerprinting and photographing Armstrong. Armstrong remained in custody until
August 12, 1992, when he posted bond for both the murder and drug charges. On
December 28, 1992, Armstrong sold crack cocaine to a confidential informant, and
he was arrested the following day. During the arrest, officers searched Armstrong's
person and discovered he was carrying crack cocaine. On June 15, 1993, Armstrong
pled guilty to the 1991 and 1992 drug offenses and was sentenced for both offenses
that same day.

       Armstrong contends he was never arrested for the 1991 Drug Offense because
he was already in custody when officers served him with the bench warrant. In other
words, Armstrong seemingly argues that being detained on a charge does not count
as an arrest unless officers actually apprehend the offender for the purpose of facing
that charge. Armstrong cites no legal authority for this proposition and instead urges
us to define the term "arrest" according to the procedures of arrest set forth in the
Arkansas code. Ark. Code Ann. § 16-81-107(e). We decline this invitation. "The
Guidelines reflect the will of Congress and a Congressional desire for uniform and
fair sentencing." United States v. Townsend, 408 F.3d 1020, 1023 (8th Cir. 2005).
By interpreting the term "arrest" according to "the vagaries of state law," we would
risk disrupting uniform application of the Guidelines. Taylor v. United States, 495
U.S. 575, 588 (1990); accord United States v. Leal-Felix, 665 F.3d 1037, 1041 (9th
Cir. 2011). We instead hold that our best course is to define the term according to "a
uniform, national definition."4 Leal-Felix, 665 F.3d at 1041 (quotation omitted).

      4
        Armstrong alternatively contends that by serving the warrant on him the
officers merely created a detainer but did not effect an actual arrest. This argument
is unpersuasive. In normal parlance, "[a] detainer is a request filed by a criminal
justice agency with the institution in which a prisoner is incarcerated, asking the
institution either to hold the prisoner for the agency or to notify the agency when
release of the prisoner is imminent." Carchman v. Nash, 473 U.S. 716, 719 (1985).
The record indicates that a member of the Jackson County Sheriff's Office served the
warrant while Armstrong was already in the custody of that same department; we


                                        -12-
"We employ basic rules of statutory construction when interpreting the Guidelines."
United States v. Hackman, 630 F.3d 1078, 1083 (8th Cir. 2011).

       "Endeavoring to ascertain the ordinary meaning of a word," we often begin by
looking at a dictionary. Id. Black's Law Dictionary defines the term "arrest" as "(1)
A seizure or forcible restraint [or] (2) [t]he taking or keeping of a person in custody
by legal authority, esp. in response to a criminal charge." Black's Law Dictionary 130
(10th ed. 2014) (emphasis supplied). Although a number of our sister circuits have
disagreed regarding the degree of restraint necessary to effect an arrest for purposes
of the Guidelines, compare Leal-Felix, 665 F.3d at 1044 (traffic stop and issuance of
citation not an arrest) with United States v. Morgan, 354 F.3d 621, 623-24 (7th Cir.
2003) ("A traffic stop is an 'arrest' in federal parlance."), it is abundantly clear that
being jailed to face charges amounts to an arrest. Atwater v. City of Lago Vista, 532
U.S. 318, 323-25 (2001). Furthermore, although Armstrong was not "apprehended"
for the 1991 Drug Offense, we see no meaningful difference between the
circumstances of his detention and those of an offender who is apprehended and
jailed solely on a drug charge. Armstrong was explicitly informed of his drug charge
via the bench warrant, was detained in jail for nearly nine months on both the drug
and murder charges, and was required to post bond for both charges before being
released. We therefore hold that Armstrong was subject to an intervening arrest for
purposes of the Guidelines. Accordingly, the district court did not err by sentencing
Armstrong as a career offender.

III.   CONCLUSION

       For the reasons stated herein, we affirm Armstrong's conviction and sentence.




decline to hold that the Jackson County Sheriff's Office served a detainer on itself.


                                          -13-
KELLY, Circuit Judge, concurring.

       I concur in the court’s opinion. I write separately because I consider evidence
of the 2007 controlled buy admissible for a different reason. Regarding Armstrong’s
argument that the evidence of his involvement in the 2007 controlled buy was not
sufficiently reliable, I agree that the government proved Armstrong’s involvement in
that transaction by a preponderance of the evidence. On appeal, Armstrong also
argues that this evidence was offered solely as propensity evidence. Yet, such
“evidence may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.” Fed. R. Evid. 404(b)(2). Here, when objecting to the admission
of all proposed Rule 404(b) evidence in the district court, his attorney expressly
stated that she had “evidence that the confidential informant has a spoken vendetta
against Mr. Armstrong.” Then, in her opening statement, Armstrong’s counsel told
the jury that “the reason we are here is because [the confidential informant] has an ax
to grind.” In my view, based on the record below, it is that specific defense—that the
CI had falsely accused Armstrong of selling drugs as vengeance for Armstrong’s role
in the death of the CI’s father—and not a “general denial” defense that renders
evidence about the 2007 controlled buy admissible. Evidence that the CI had
unexpectedly encountered Armstrong as a participant in a controlled buy two years
earlier was thus admissible to counter the specific defense Armstrong proffered. See
Fed. R. Evid. 404(b)(2); cf. United States v. Ruiz-Estrada, 312 F.3d 398, 403 (8th Cir.
2002) (evidence of prior drug convictions admissible in part to rebut “mere presence”
defense).
                          ______________________________




                                         -14-
