                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 99-4060NI
                                  _____________

United States of America,               *
                                        *
             Appellee,                  *
                                        * On Appeal from the United
      v.                                * States District Court
                                        * for the Northern District of
                                        * Iowa.
Rene Madrid,                            *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: May 10, 2000
                                 Filed: September 14, 2000
                                  ___________

Before RICHARD S. ARNOLD and HEANEY, Circuit Judges, and SIPPEL,1
      District Judge.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.

      The defendant, Rene Madrid, went to trial on two drug charges: (1) possessing
with the intent to distribute and aiding and abetting the distribution of cocaine and
methamphetamine on or about August 9, 1996; and (2) conspiracy to possess with the
intent to distribute methamphetamine and cocaine between about January 1, 1996, and
August 9, 1996. Mr. Madrid was acquitted of the first charge, but was convicted of the

      1
      The Hon. Rodney W. Sippel, United States District Judge for the Eastern and
Western Districts of Missouri, sitting by designation.
conspiracy charge (only as it related to methamphetamine). He was sentenced to ten
years and one month (121 months) in prison. He argues that the District Court2 (1)
erred by not granting his motion for a judgment of acquittal on the conspiracy charge;
(2) abused its discretion by allowing the government to introduce drugs that a co-
conspirator, Arturo Martinez,3 sold an undercover agent before August 9, 1996; (3)
erred by depending solely on the methamphetamine related to the acquitted August 9
transaction when calculating his base-offense level; and (4) erred in determining that
the drugs from the August 9 transaction were part of relevant conduct. We affirm.

                                          I.

       Arturo Martinez testified that he began obtaining user quantities of "mostly
cocaine" and "sometimes methamphetamine" from the defendant beginning in January
of 1996. Sometimes Mr. Martinez paid the defendant in cash, and sometimes the
defendant "fronted" the drugs to Mr. Martinez until Mr. Martinez could sell the drugs
and then pay the defendant from the proceeds. In July of 1996, Mr. Martinez sold
cocaine and methamphetamine to undercover DEA agent Greg Brugman and a
government informant. The defendant supplied Mr. Martinez with some of the drugs
for these transactions.

      On August 9, 1996, Agent Brugman (known to Mr. Martinez as "Gus") called
Mr. Martinez, who agreed to sell Agent Brugman two pounds of methamphetamine and
two pounds of cocaine. Mr. Martinez already had one pound of methamphetamine,
which "some other people" had left for him in a dumpster by his home on the night of


      2
      The Hon. Michael J. Melloy, Chief Judge, United States District Court for the
Northern District of Iowa.
      3
        Arturo Martinez and Jose Martinez are both named co-conspirators. Arturo
Martinez will be referred to as "Mr. Martinez," and Jose Martinez will be referred to
by his full name.

                                         -2-
August 8, 1996. Martinez got in touch with the defendant and Jose Martinez, another
co-conspirator, to help him accumulate the large quantities of drugs requested by Agent
Brugman. Martinez testified, "I called Rene Madrid . . .. I asked him if he got the stuff
ready and he was ready to go . . .. He said yeah; to come over, so I went to his house."
Tr. 2 at 115. When Mr. Martinez arrived at the defendant's home to pick up a pound
of methamphetamine, the defendant asked Mr. Martinez to come back later. Mr.
Martinez left the defendant's apartment and met Agent Brugman in a store parking lot
in Tama, Iowa, where Mr. Martinez informed Agent Brugman that he only had one
pound of methamphetamine and was waiting for the other pound of methamphetamine
and two pounds of cocaine. Mr. Martinez left the parking lot and went to his apartment
to call Jose Martinez to tell him to hurry up, and then returned to the defendant's
apartment, where the defendant gave Mr. Martinez a pound of methamphetamine and
five ounces of cocaine.

      Mr. Martinez testified about the events of August 9, 1996:

      A.     Well, Mr. Madrid got the methamphetamine ready and the ounces
             of coke. He jumped in the car with me.

      Q.     Did he have the drugs in his possession when he got in your car?

      A.     Yeah.

      Q.      Do you know what he did with the drugs?

      A.     Well, he put it under the seat of the car.

      Q.     And was he sitting in the front passenger seat?

      A.     Yes.

      Q.     Were the drugs then put under the front passenger seat in your car?


                                          -3-
A.   Yeah. Put it under the seat and we went back to see Mr. Brugman.

Q.   And so then you went back with Mr. Madrid to see Mr. Brugman
     – Agent Brugman?

A.   Yeah.

Q.   What happened when you got there?

A.   Well, I talked to Mr. Brugman – Agent Brugman and ask him to
     wait a little longer because I – I was still – I still waiting for the
     cocaine and he said he was – it was okay; that he can wait a little
     more.

                                   ...

A.   Well, he [Brugman] asked why we got the air-conditioning running
     and I say, "Well, it's too hot," and Mr. Madrid told him that
     because when it's too hot, the methamphetamine – it will
     evaporate.

Q.   When you obtained the methamphetamine and the cocaine from
     Mr. Madrid, did you want him to come with you to meet with
     Agent Brugman?

A.   No, no, not really. I wanted to go by myself.

Q.   So whose idea was it that Mr. Madrid would come with you?

A.   Well, he want to come because he say it was too much money
     involved in the deal and he don't want me to get a rip off or maybe
     he don't trust me with all the money that was involved.

Q.   After you met with Agent Brugman the second time, then what did
     you do?



                                  -4-
      A.     We talked to him for a couple minutes. I let Mr. Madrid talk to
             him so he gave me his opinion about – about Gus; about Agent
             Brugman.

      Q.     And did Mr. Madrid give you his opinion about Agent Brugman?

      A.     Yeah. He say he think he was okay. We was going to make a
             good deal.

      Q.     When did he tell you that?

      A.     When – okay. We get – after we talk to Mr. Brugman a couple
             minutes, we went back to my apartment to meet with Jose
             Martinez.

      Q.     Okay. What happened when you got back to your apartment?

      A.     We park in front of my house and I called – I call Jose Martinez
             again.

      Q.     And what happened?

      A.     And we meet him there.

Tr. 2 at 121-23.

       Mr. Madrid, Mr. Martinez, and the cocaine supplier all went to the store parking
lot where Agent Brugman was waiting to purchase the controlled substances. Agent
Brugman asked the defendant to go to the front of the store to act as a lookout, the
defendant complied, and Mr. Martinez and Agent Brugman then exchanged money and
drugs. Agent Brugman placed Mr. Martinez under arrest, at which time Mr. Martinez
told the police that the methamphetamine was not his, but belonged to the defendant.
After a brief chase, the defendant and the cocaine supplier were apprehended and
arrested.


                                          -5-
        The defendant, Mr. Martinez, and four others were charged in a nine-count
second superseding indictment on December 11, 1996, for drug and firearm offenses.
The defendant proceeded to a jury trial on the following two counts: (1) on or about
August 9, 1996, the defendant did knowingly and unlawfully possess with the intent to
distribute and aid and abet the distribution of approximately 22 ounces of cocaine and
approximately two pounds of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1)
and 841(b)(1)(A) and 18 U.S.C. § 2; and (2) between about January 1, 1996, and
August 9, 1996, the defendant was involved in a conspiracy to possess with the intent
to distribute 100 grams or more of pure methamphetamine and 1000 grams or more of
a substance containing methamphetamine, and an unidentified quantity of cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846.

       At trial, the government introduced in evidence approximately 102 grams of
cocaine and approximately 99 grams of methamphetamine which Mr. Martinez sold
Agent Brugman and a government informant in July 1996. The defendant objected to
this evidence, contending that the government failed to show a connection between the
drugs and himself, that the drugs were irrelevant, and that unfair prejudice outweighed
any probative value in admitting the evidence. The Court permitted the drugs as
evidence of a conspiracy between Mr. Madrid and Mr. Martinez.

       At the close of the government's case, the defendant moved for acquittal pursuant
to Rule 29(a) of the Federal Rules of Criminal Procedure. The District Court denied
the defendant's motion on the possession and aiding and abetting charge. However, the
Court reserved its ruling as to the conspiracy charge. The defendant renewed his
motion of acquittal at the close of all the evidence, which the Court denied.

      The jury acquitted the defendant of possessing cocaine and methamphetamine
with the intent to distribute, and of aiding and abetting the distribution of these
substances. The jury convicted the defendant of conspiracy to distribute
methamphetamine, but not cocaine.

                                          -6-
       Mr. Madrid was sentenced on November 9, 1999. The District Court calculated
the defendant's base offense level using the amount of pure methamphetamine found
in one of the pounds of methamphetamine involved in the August 9, 1996, transaction.
No other drugs were considered, because the inclusion of any of the other drugs
involved in the conspiracy would not have affected the determination of the base
offense level. The Court determined that an offense level of 32 was appropriate.
Based on a Criminal History Category I, a sentencing range of 121 to 151 months was
applicable, and the District Court sentenced the defendant to 121 months'
imprisonment, three years' supervised release, a $100 special assessment, and a $100
fine.

                                           II.

       The defendant first argues that the District Court erred when it did not grant his
motion for judgment of acquittal at the end of the government's case. We disagree. A
defendant challenging the sufficiency of the evidence in a conspiracy case has a heavy
burden, as proof of the crime may rest on indirect or circumstantial evidence. United
States v. Hulse, 198 F.3d 665, 668 (8th Cir. 1999). Moreover, in reviewing the District
Court's denial of the motion for acquittal, we view the evidence in the light most
favorable to the verdict and will reverse only if no reasonable jury could have found
beyond a reasonable doubt that the defendant is guilty of the offense charged. Id. To
be guilty of conspiracy, a defendant must be shown to have knowingly entered into an
agreement with at least one other person to violate the law. See United States v.
Holloway, 128 F.3d 1254, 1257 (8th Cir.1997).

       There is sufficient evidence to support a jury finding that the defendant entered
into an agreement with Mr. Martinez to distribute methamphetamine. Mr. Martinez
began receiving ounce quantities of "mostly" cocaine from Mr. Madrid in the spring of
1996, which were often "fronted" to him by Mr. Madrid until Mr. Martinez sold the
drugs to pay Mr. Madrid. Mr. Martinez testified that he and Mr. Madrid repeatedly

                                          -7-
exchanged cash and drugs. Furthermore, Mr. Martinez arranged with the defendant to
receive methamphetamine for the purpose of completing the August 9 transaction with
Agent Brugman, the defendant insisted on going with Mr. Martinez to the location of
the drug sale to assure that the transaction was effectively carried out, Mr. Madrid even
checked out Agent Brugman ("Gus") to see if he was safe, and Mr. Madrid spoke with
Agent Brugman about the methamphetamine. The government was required to prove
that Mr. Madrid was part of an agreement to distribute methamphetamine, and, on this
record, a reasonable jury could easily have been convinced of this beyond a reasonable
doubt.

       The defendant next argues that the District Court abused its discretion when it
allowed the government to introduce all of the drugs that Mr. Martinez sold Agent
Brugman in July of 1996, because the drugs were irrelevant and prejudicial. The
District Court did not abuse its discretion. These drugs were sold within a relatively
short time frame before the August 9 transaction, and Mr. Martinez testified that some
of the drugs that he sold in July 1996 came from the defendant. The drugs from these
controlled buys are relevant to the crime charged, conspiracy, and are not unduly
prejudicial.

       Third, the defendant argues that the District Court erred when it relied solely on
drugs from the acquitted August 9 transaction when calculating his base-offense level.
The District Court calculated the base-offense level using the amount of pure
methamphetamine found in one of the pounds involved in the August 9, 1996,
transaction. The defendant contends that basing his sentence on those drugs rendered
the jury's acquittal meaningless and violated his Sixth Amendment right to a jury trial.
We disagree. Mr. Madrid was not acquitted of every charge, and the acquitted charge
and convicted charge both included the time period of August 9, 1996. What we have
here is an inconsistent verdict, where Mr. Madrid was acquitted of possession with the
intent to distribute on August 9, 1996, but convicted of conspiracy to distribute
methamphetamine. Juries can return inconsistent verdicts. "A jury may acquit a

                                          -8-
defendant as to one or more charges for any number of reasons, including an inclination
to be merciful, and yet come to the reasonable conclusion that the defendant was guilty
of other related charges." United States v. Whatley, 133 F.3d 601, 606 (1998).
Moreover, even acquitted conduct can be considered when determining a sentence
under the Sentencing Guidelines, so long as that conduct has been proved, as it was
here, by a preponderance of the evidence. See United States v. Watts, 117 S. Ct. 633,
638 (1997).

       For similar reasons, we also reject the defendant's final argument: that the
District Court erred when it relied entirely upon the August 9 transaction as relevant
conduct for purposes of sentencing, because the jury determined that he was not guilty
of that transaction. Mr. Madrid's involvement with the methamphetamine from the
August 9 transaction was shown by a preponderance of the evidence, making the
Court's determination of the proper base-offense level proper. Moreover, Mr. Madrid
was convicted of the conspiracy charge as it relates to methamphetamine.

        Even if the evidence of his direct participation in the August 9 transaction did not
exist, the inclusion of the methamphetamine for sentencing purposes was reasonably
foreseeable to Mr. Madrid as a participant in the jointly undertaken criminal activity.
See U.S.S.G. § 1B1.3(a)(1)(B).

       We affirm.

       A true copy.

              Attest:

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




                                            -9-
