                        United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
     ___________

     No. 97-2518
     ___________

United States of America,                *
                                         *
           Plaintiff-Appellee,           *
                                         *
     v.                                  *
                                         *
William Henry Hester,                    *
                                         *
           Defendant-Appellant.          *

     ___________                                       Appeals from the United
States
                                               District Court for the
     No. 97-2519                                          Western District   of
Missouri.
     ___________

United States of America,                *
                                         *
           Plaintiff-Appellee,           *
                                         *
     v.                                          *
                                         *
Billie Dean Sullivan,                    *
                                         *
           Defendant-Appellant.          *
     ___________

     No. 97-2896
     ___________
                                         *
United States of America,                *
                                         *
            Plaintiff-Appellee,          *
                                         *
     v.                                  *
                                         *
Thomas Allen,                            *
                                         *
            Defendant-Appellant.         *


                                   ___________

                         Submitted:   December 9, 1997
                                         Filed: March 30, 1998
                                   ___________

Before BOWMAN, FLOYD R. GIBSON, and HANSEN, Circuit Judges.
                               ___________

HANSEN, Circuit Judge.

      William Henry Hester, Billie Dean Sullivan, and Thomas Allen, along
with several others, were charged with participating in a conspiracy to
manufacture and to distribute methamphetamine. In this direct criminal
appeal, Hester, Sullivan, and Allen challenge their convictions and
sentences, asserting that the district court1 committed several errors.
We affirm.




      1
        The Honorable Russell G. Clark, United States District Judge for the Western
District of Missouri.

                                        -2-
                                           I.

      Viewing the evidence in the light most favorable to the verdicts, a
reasonable jury could have found the following facts. The conspiracy at
issue in this case began when Randy Shultz and Lorinda Mason2 agreed to
manufacture their own methamphetamine because they were methamphetamine
users having difficulty obtaining it from other sources. They obtained a
recipe and collected the necessary supplies, including ether gathered from
cans of starting fluid, sodium metal, and Sudafed pills. In April 1995,
after the supplies had been gathered, defendant Billie Sullivan came to the
residence to teach Shultz and Mason how to manufacture methamphetamine.
On that first occasion, they manufactured approximately an ounce or two of
methamphetamine.    Mason took pictures of Shultz and Sullivan proudly
displaying their newly manufactured methamphetamine, and then they
distributed it among themselves. Mason and Shultz kept half, and Sullivan
took the remaining half with him when he left. Between April and June
1995, Sullivan helped manufacture methamphetamine with Shultz four or five
times. Whenever they manufactured it together, Sullivan kept half of what
was produced.

      On June 28, 1995, law enforcement officers executed an arrest warrant
for Shultz at his residence. While the officers were inside the home, they
conducted a security sweep and discovered the methamphetamine laboratory.
They obtained a search warrant for the property and continued investigating
the activities on the property. The methamphetamine activities on the
property slowed down immediately, but the operation continued. A few days
later,   Shultz   and   defendant    Thomas   Allen   began   manufacturing
methamphetamine again at Shultz's residence.       Mason moved out of the
property for a brief time but moved back in August 1995.




      2
       Mason pleaded guilty prior to the trial and testified on behalf of the government,
providing detailed descriptions of the nature and scope of the conspiracy.

                                          -3-
      Also in August 1995, Allen and his four children moved into the Shultz
residence and Mason testified that she, Shultz, and Allen agreed to use
Allen's four children as a front for the methamphetamine operation to make
it appear that Shultz no longer lived there. They moved the manufacturing
lab out to the barn at this point. Allen helped cook the methamphetamine
on occasion and also supplied Shultz with sodium metal, starting fluid, and
other chemicals. Sodium metal was one of the main ingredients in these
early operations, but it was difficult to obtain.

      In the Fall of 1995, Shultz began paying James Carter to supply some
needed ingredients. Carter was a methamphetamine user, and by May or June
of 1996, he was also helping Shultz cook the methamphetamine. Another
supplier was John Gray. Mason testified that she believed John Gray was
obtaining sodium metal from defendant William Henry Hester, because she
once saw Gray obtain sodium metal at a house where she later visited Hester
and his wife.

      Hester testified that he was a methamphetamine addict, that he had
once traded sodium metal to Gray in exchange for methamphetamine, and that
Gray introduced him to Shultz in April 1995. In July 1995, Hester went to
work for Shultz on the farm in exchange for a little money and all the beer
and methamphetamine he wanted.        Mason testified that Hester also
participated in the manufacturing operation. Hester developed a method for
quick-drying the methamphetamine. Hester moved onto the Schultz farm with
his wife and two children in November or December 1995. While they were
living there, Mason took photographs of Hester and his family members,
including his two small children, in the presence of large platters of
methamphetamine.

      In January 1996, Shultz, Mason, and Sullivan discovered a new
manufacturing method, using lithium metal obtained from lithium batteries
instead of the difficult to obtain sodium metal they had been using. Mason
testified that they all thought this new method would enable them to make
a lot of money.        After this discovery, they were able to make
methamphetamine once or twice a week. Hester testified he was aware




                                    -4-
that many people were coming and going at the Shultz farm to purchase
methamphetamine.

      Hester had a set of the conspirators' recipes, but he did not remain
active in the cooking process. Instead, he became the look-out man and
provided security for the operation. While the cooks were manufacturing
methamphetamine, Hester would scan police radios to detect police activity
and watch for people coming onto the property with the aid of binoculars
and night vision equipment.      Shultz's sister, Cheri, who distributed
methamphetamine obtained from her brother, said she observed Hester acting
as the lookout man for the methamphetamine operation.

      Gary Vest was a methamphetamine user supplied by his half-sister,
Patricia Bristol. Shultz was Bristol's source of methamphetamine. Vest
began participating in the conspiracy by obtaining supplies, and he once
accompanied Hester and Shultz on a delivery of methamphetamine to someone
at a garage in Springfield, Missouri. Vest once experienced Hester acting
as the security for the operation. On that occasion, Hester threatened
Vest with a gun when he thought Vest was taking methamphetamine from
Shultz's bedroom without permission.

      Hester admitted that he was somewhat of a lookout person. He said he
entered this role because he feared someone might try to take his children
and use them in an effort to get at the methamphetamine. Hester maintained
his only interest as a lookout was to protect his family. He asserted he
was a mere user and not part of the conspiracy to distribute or to
manufacture methamphetamine.

      In March 1996, officers arrested Shultz and Mason and executed
additional search warrants.    They seized photographs of the defendants
proudly displaying the methamphetamine they had manufactured.           The
photographs were taken at Shultz's residence and pictured Shultz, Sullivan,
and Hester with platters full of methamphetamine.       Hester's two small
children are also shown in some of the pictures




                                   -5-
along with weapons and methamphetamine. Officers also seized ingredients
and recipes for making methamphetamine, a notebook describing the
methamphetamine production processes, a night vision device, and a list of
police radio frequencies, among other things.

      Count one of the third superseding indictment charges Shultz, Mason,
Hester and his wife, Allen, Sullivan, Bristol, Vest, and Carter with
engaging in a conspiracy to manufacture and to distribute methamphetamine,
in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846 (1994). The
remaining four counts of the indictment were single counts against Shultz,
Hester's wife, and Carter, charging them with attempting to manufacture
methamphetamine. Prior to trial, Shultz, Mason, Bristol, and Vest pleaded
guilty to count one. Hester's wife pleaded guilty to a misdemeanor charge
of possession of a controlled substance.

      Hester, Sullivan, Allen, and Carter proceeded to trial. The jury
convicted Hester and Sullivan of count I but could not reach a verdict as
to Allen and Carter. Subsequently, Carter pleaded guilty to a different
charge (use of a communication facility in the commission of a drug
trafficking offense). Following a retrial of Allen, a jury convicted him
of the count one conspiracy. The district court sentenced Hester to a 360-
month term of imprisonment, sentenced Sullivan to a 121-month term of
imprisonment, and sentenced Allen to a 188-month term of imprisonment; each
sentence to be followed by a five-year period of supervised release.

      In this appeal, Hester contends that the district court erred by
refusing to give an instruction on his theory of defense, by making a
prejudicial statement to the jury, and by allowing certain photographs to
be admitted depicting his minor children in the presence of illegal
substances. Sullivan argues that the district court erred by failing to
grant his motion for judgment of acquittal because a variance existed
between the superseding indictment and the proof, and because the evidence
at trial failed to demonstrate that Sullivan agreed to the common purpose
of the single conspiracy.




                                   -6-
Finally, Allen challenges his sentence, arguing that the district court
failed to rule on his objections to the presentence report.

                                    II.
     A.   Hester's Appeal

      Hester first contends that the district court erred by refusing to
give an instruction on his requested theory of defense. Hester's theory
of defense was that he was a mere user of methamphetamine, not a member of
the conspiracy to manufacture or to distribute. He proffered Instruction
F, which would have instructed the jury that a mere buyer-seller
relationship does not establish a conspiracy. The district court rejected
this instruction, and Hester contends that this precluded him from proving
his defense theory.

      We review the adequacy of instructions by considering them as a whole,
and we grant the district court broad discretion in formulating appropriate
jury instructions. United States v. Kouba, 822 F.2d 768, 770 (8th Cir.
1987). A defendant is entitled to an instruction explaining his defense
theory if the request is timely, the proffered instruction is supported by
the evidence, and the instruction correctly states the law. United States
v. Wiggins, 104 F.3d 174, 176 (8th Cir. 1997).

      Relying on United States v. Prieskorn, 658 F.2d 631 (8th Cir. 1981),
Hester proffered a proposed instruction stating, "the relationship between
a buyer and seller of drugs does not alone establish a conspiracy."
(Hester's App. at 122.) The district court properly refused to include
this instruction because it was not supported by the evidence.          In
Prieskorn, where we held the instruction should have been given, there was
evidence that the defendant made only a single purchase of cocaine, that
he had made no prior agreement to purchase cocaine, and that he did not
know the other alleged conspirators prior to that single purchase. 658
F.2d at 636. To the contrary, in the present case, Hester's own testimony
demonstrates that he knew the conspirators,




                                    -7-
knew they were manufacturing methamphetamine, lived with them for the very
purpose of obtaining methamphetamine on a regular basis, was the lookout
man for the operation, and had a standing agreement to receive all the
methamphetamine he wanted. We have held that "[t]he Prieskorn instruction
is not appropriate when there is evidence of multiple drug transactions,
as opposed to a single, isolated sale." Wiggins, 104 F.3d at 177; United
States v. Figueroa, 900 F.2d 1211, 1216-17 (8th Cir.), cert. denied, 496
U.S. 942 (1990).      The evidence does not support Hester's proposed
instruction because no reasonable juror could have believed that he was in
a mere one-time buyer-seller relationship.

      Additionally, the instructions given provided the jury with ample
opportunity to conclude, consistent with Hester's defense, that he was not
a knowing member of the conspiracy. Instruction No. 21 provided in part
as follows:

            You should understand that merely being present at the
      scene of an event, or merely acting in the same way as others
      or merely associating with others, does not prove that a person
      has joined in an agreement or understanding. A person who has
      no knowledge of a conspiracy but who happens to act in a way
      which advances some purpose of one, does not thereby become a
      member.

(Hester's App. at 108.) This instruction sufficiently presented Hester's
defense.    The district court's choice of instructions adequately and
correctly covered the substance of Hester's defense that his mere presence
and actions as an addict, which may have been consistent with some purpose
of the conspiracy, did not necessarily indicate that he was a member of the
conspiracy.3 Hester's requested instruction was not supported



      3
        Ample evidence also existed here for the district court to give an instruction
allowing the jury to conclude that Hester's standing agreement to receive all the drugs
he needed was part of a continuing relationship, which may be properly viewed as
proof that he was a coconspirator in the drug distribution conspiracy. See United
States v. Fregoso, 60 F.3d 1314, 1327 (8th Cir. 1995) (citing with approval the
buyer/seller relationship instruction from United States v. Cabbell, 35 F.3d 1255, 1259
n.1 (8th Cir. 1994), which includes language that multiple drug purchases "as part of
a continuing buyer/seller relationship" may be proof that the defendant is a
coconspirator in the drug distribution conspiracy). The district court could have given
this instruction, but did not.


                                          -8-
by any evidence in the record, including his own testimony. We conclude
that the district court did not abuse its discretion by refusing to give
Hester's proposed theory of defense instruction.

      Hester's second argument is that the district court erred by making
an improper and prejudicial statement to the jury. Early in the trial,
defense counsel objected to hearsay statements of alleged coconspirators
offered by Lorinda Mason, whose testimony detailed the nature of each
defendant's involvement in the conspiracy.      At one point during her
testimony, the district court stated the following:

     I think the government has proven that Hester and Allen were
     members of the conspiracy by the preponderance of the evidence,
     so any statements previously admitted made by either Shultz,
     Mason or Sullivan will be admissible as to Hester and Allen.

(Trial Tr. at 80-81.) Immediately, out of the presence of the jury, Hester
sought a mistrial on the basis of the court's comment. The district court
denied the motion for a mistrial, responding that it believed it had only
commented that "the evidence presented by the government showed that the
jury could find that Hester was a member of the conspiracy." (Id.) Then,
in the presence of the jury, the district court made the following
statement:

     Members of the jury, if I stated that the government had proven
     that Hester and Allen were members of the conspiracy, I
     misspoke. All I said was there was sufficient evidence for the
     jury to determine that Hester and




                                   -9-
Allen were members of the conspiracy. Whether or not Hester and Allen were
members of the conspiracy is for the jury to determine, not the court.

(Id. at 82.)

      The next morning, Hester and Allen renewed their motions for mistrial,
which the court again denied.      At the close of evidence that day, the
district court again cautioned the jury as follows:

           Now, in regard to out-of-court statement[s] or acts of
     alleged co-conspirators, it's for the Court to determine the
     admissibility of such statements or acts. It's for the jury to
     determine just who was a member of the conspiracy.

           Now, if by any chance yesterday I instructed the jury that
     the government had proven that Thomas Allen and William Henry
     Hester were co-conspirators with Randy Allen Shultz and Lorinda
     Mason, that was a misstatement.       I think I told you that
     yesterday afternoon.    And as I stated earlier, it's for the
     Court only to determine the admissibility of evidence. It's for
     the jury to make a determination who -- from the out-of-court
     statements and acts who are members of the conspiracy.

           Now, is there anyone on the jury that doesn't understand
     the instruction? If so, raise your hand.

           All right.   I think everybody understands the instruction.


(Trial Tr. at 368.)

      The district court's sua sponte ruling on the admissibility of
coconspirator evidence before the jury, which included a statement that the
evidence was sufficient to find by a preponderance of the evidence that
Hester and Allen were members of the conspiracy, was indeed an unfortunate
error. In United States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978), we
held that the district court should rule on the admissibility of




                                    -10-
a coconspirator's statement on the record but out of the hearing of the
jury.   See Fed. R. Evid. 104(c).      Nevertheless, we believe that the
district court's comment was not so prejudicial as to require a mistrial
or reversal in this case.      The district court immediately offered a
curative instruction, admitting that it misspoke and that the jury must
decide whether the defendants were actually members of the conspiracy. The
next day, the district court again offered a curative instruction, after
renewed motions for mistrial, stressing the duty of the court to rule on
the admissibility of evidence and the duty of the jury to determine who was
part of the conspiracy.

      We have noted that the Bell procedures are flexible. United States
v. Legato, 682 F.2d 180, 183 (8th Cir.), cert. denied, 459 U.S. 1091
(1982).    Specifically, we have held that errors of ruling on the
admissibility of a coconspirator's statement before the close of all
evidence and errors of making the admissibility determination in front of
the jury do not necessarily result in reversible error. Id. While in this
instance, the district court did state, to Hester's prejudice, that the
government had proven by a preponderance of the evidence that he was a
member of the conspiracy, the court immediately corrected the mistake
(after a conference at the bench) by admitting that the court misspoke.
The district court then correctly instructed the jury that it was the
court's duty to determine the admissibility of the evidence and the jury's
duty to determine credibility and who were the members of the conspiracy.
Hester argues that the court's curative instructions came too late, but we
disagree.   The district court believed that the jurors understood the
curative instruction.      Additionally, the comment and the curative
instruction also applied to defendant Allen, yet the case against Allen
resulted in a hung jury at the first trial. Apparently, the jury did not
feel compelled by the court's comment to conclude that Allen was a member
of the conspiracy. We are convinced that the district court's curative
instructions were sufficient to purge any prejudicial effect of the court's
earlier misstatement, rendering the error harmless. See id.




                                   -11-
      Finally, Hester argues that the district court erred by permitting the
government to admit into evidence certain prejudicial photographs,
depicting Hester's minor children in the presence of illegal drugs and
weapons.    The district court denied Hester's motion in limine, which
attempted to exclude two photographs. One photograph shows Hester holding
his young son, who appears to be holding a handgun. On a table in the
forefront of the photograph is a large platter full of a white powdery
substance, which Mason testified was freshly manufactured methamphetamine.
Another photograph shows Hester's wife holding their young daughter in
close proximity to a platter of methamphetamine.

      "A trial court has discretion to admit a relevant photograph unless
it is 'so gruesome or inflammatory that its prejudicial impact
substantially outweigh[s] its probative value.'"        United States v.
Davidson, 122 F.3d 531, 538 (8th Cir.) (quoting United States v. Petary,
857 F.2d 458, 463 (8th Cir. 1988)), cert. denied, 118 S. Ct. 639 (1997).
A district court has broad discretion when ruling on the admissibility of
evidence. United States v. Moore, 38 F.3d 977, 981 (8th Cir. 1994). We
will not reverse the district court's decision regarding the admissibility
of evidence absent a clear abuse of discretion. McCrary-El v. Shaw, 992
F.2d 809, 811 (8th Cir. 1993); see also United States v. Burton, 485 F.2d
715, 717 (8th Cir. 1973) ("The admissibility of photographs is left to the
sound discretion of the trial court and will not be overturned except for
a clear abuse of discretion" (internal quotations omitted)).       "In the
context of a conspiracy trial, district courts have particularly broad
discretion in determining the nature of evidence to be admitted." United
States v. Scott, 64 F.3d 377, 381 (8th Cir. 1995).

      The photographs at issue were relevant to defining Hester's role in
the conspiracy.    The pictures were not taken by the government but by
coconspirators during the course of the conspiracy, and the government
seized them pursuant to valid search warrants. The pictures show Hester
casually holding a child and proudly displaying large amounts of
methamphetamine, which is consistent with the




                                   -12-
government's theory that he was knowingly involved in the conspiracy to
manufacture and to distribute. The pictures serve to refute Hester's claim
that his only involvement was as a mere user. The pictures show him with
large quantities of methamphetamine, consistent with distribution not
personal use. The fact that his wife and children are in the pictures
demonstrates his comfort with handling large amounts of methamphetamine in
his home with the conspirators, tending to refute his claim that he was not
part of the conspiracy.      The pictures are prejudicial because Hester
allowed himself and his children to be photographed in this context;
however, they are not unfairly prejudicial and the probative value of the
photographs outweighs the prejudicial effect. See Fed. R. Evid. 403. The
district court did not clearly abuse its discretion by permitting the
admissibility of the challenged photographs.

     B.   Sullivan's Appeal

      Sullivan contends that the district court erred in denying his motion
for judgment of acquittal because there was insufficient evidence to
support the conclusion that Sullivan was a member of the conspiracy to
manufacture or to distribute methamphetamine.

           Our standard of review on this issue is quite narrow. We
     review the denial of a motion for judgment of acquittal based
     upon sufficiency of the evidence by viewing the evidence in the
     light most favorable to the verdict. We give the government the
     benefit of all the reasonable inferences that could logically
     be drawn from the evidence. We must uphold the verdict if the
     evidence so viewed is such that there is an interpretation of
     the evidence that would allow a reasonable-minded jury to find
     the defendant guilty beyond a reasonable doubt.

United States v. Smith, 104 F.3d 145, 147 (8th Cir. 1997) (internal
quotations and citations omitted).




                                   -13-
      Sullivan argues that he provided his methamphetamine manufacturing
knowledge to Shultz and Mason only for their personal use, not for the
large-scale distribution that became the object of the conspiracy at issue
in this trial. Sullivan argues that he did not agree to participate in the
single conspiracy which was ultimately proven at trial.

      In count I of the third superseding indictment, the government charged
Sullivan and all of the defendants with knowingly and intentionally
conspiring to manufacture and to distribute methamphetamine, from at least
as early as June 1995 through about July 10, 1996. At trial, the district
court instructed the jury that it was not necessary for the government to
prove both a conspiracy to manufacture and a conspiracy to distribute, as
long as the jury unanimously agreed upon which of the two offenses was the
object of the conspiracy. The district court also instructed the jury that
the indictment charged the defendants with one single conspiracy, and if
Sullivan was not a member of the single conspiracy charged in the
indictment but of some other conspiracy between only him and Shultz, then
he could not be found guilty of this charge.

      "Whether a single conspiracy or multiple conspiracies exists is a
question of fact for the jury to decide." United States v. Robinson, 110
F.3d 1320, 1324 (8th Cir.), cert. denied, 118 S. Ct. 432 (1997). "If the
record contains evidence from which the jury could find one overall
agreement to commit an illegal act, the evidence establishes a single
conspiracy." United States v. Regan, 940 F.2d 1134, 1135 (8th Cir. 1991).
To prove that a defendant was a member of a conspiracy to manufacture or
to distribute illegal drugs, the government must demonstrate (1) that there
was a conspiracy, i.e., an agreement to manufacture or to distribute, (2)
that the defendant knew of the conspiracy, and (3) that the defendant
intentionally joined the conspiracy.     United States v. Jones, 101 F.3d
1263, 1267 (8th Cir. 1996), cert. denied, 117 S. Ct. 1346 (1997), and cert.
denied, 117 S. Ct. 1966 (1997).




                                   -14-
      Considering the evidence in the light most favorable to the verdict,
we conclude that the government presented sufficient evidence from which
a reasonable jury could find that from the very beginning, Sullivan was a
member of the conspiracy to manufacture and to distribute methamphetamine.
In April 1995, Sullivan went to the Shultz residence and taught Shultz how
to manufacture methamphetamine. He and Shultz cooked the first batch of
methamphetamine, which produced approximately an ounce or two. He appeared
with Shultz in a photograph, together showing off the methamphetamine they
had produced.    After manufacturing it, he and Shultz then divided the
methamphetamine between themselves -- one-half to Sullivan and one-half to
Shultz and Mason.       This act of delivery and transfer amounts to
distribution by Sullivan (and by Shultz as well), even if Shultz and Mason
planned to use it only for personal use. The term "distribute" is defined
by 21 U.S.C. § 802(11) to mean, "to deliver . . . a controlled substance."
"Deliver" means the "actual, constructive, or attempted transfer of a
controlled substance." 21 U.S.C. § 802(8). "Sharing drugs with another
constitutes 'distribution' under § 841(a)(1)."           United States v.
Washington, 41 F.3d 917, 919 (4th Cir. 1994) (citing United States v.
Ramirez, 608 F.2d 1261, 1264 (9th Cir. 1979)). See also Fregoso, 60 F.3d
at 1325 (distribution of cocaine occurs when one gives cocaine to another
-- no sale is required to violate the distribution prong of the statute).
Additionally, from the amounts produced and kept by Sullivan, a jury could
infer that he intended to further distribute his share of the
methamphetamine. Sullivan returned to the Shultz residence for the purpose
of manufacturing methamphetamine four or five more times between April and
June of 1995.

      Sullivan contends that his original conduct with Shultz and Mason was
a separate conspiracy from the one proven at trial and that there was not
sufficient evidence that he agreed to be a member of the larger-scale
conspiracy proven at trial. To the contrary, however, the evidence at
trial indicated that Sullivan also participated in later decisions with
other conspirators, from which a jury could infer that he knowingly
participated in the overall single conspiracy charged in the indictment.
Sullivan participated in the January 1996 decision to begin making
methamphetamine with




                                   -15-
lithium, a readily accessible ingredient which would allow them to produce
more methamphetamine and to make more money. Even assuming he was not at
that time aware of the scale of distribution taking place, there is ample
evidence that Sullivan knew and willingly participated in Shultz and
Mason's efforts to make and distribute methamphetamine. "Once a conspiracy
is established, even slight evidence connecting a defendant to the
conspiracy may be sufficient to prove the defendant's intentional
involvement." United States v. Kinshaw, 71 F.3d 268, 272 (8th Cir. 1995).
The evidence is sufficient to support a reasonable juror's conclusion that
Sullivan knowingly participated in the single charged conspiracy to
manufacture and to distribute methamphetamine.      There was no variance
between the proof offered at trial and the single conspiracy charged in the
indictment. The jury was correctly instructed on single versus multiple
conspiracies. The district court properly denied Sullivan's motion for
acquittal.

     C.   Allen's Appeal

      Allen challenges his sentence, arguing that the district court
violated Federal Rule of Criminal Procedure 32(c)(1) by failing to rule on
his objections to the presentence investigation report (PSR) prior to
pronouncing his sentence.     Allen made several objections to the PSR,
disputing the relevant conduct and the base offense level because he
disagreed with the quantity of drugs attributed to him, disputing the
adjustment for his role in the offense, and objecting to the total offense
level assessed.

      Rule 32(c)(1) requires the sentencing judge to give the defendant and
the government the opportunity to comment on the PSR and requires the
district court to "rule on any unresolved objections to the presentence
report." Further, "[f]or each matter controverted, the court must make
either a finding on the allegation or a determination that no finding is
necessary because the controverted matter will not be taken into account
in, or will not affect, sentencing." Fed. R. Crim. P. 32(c)(1). "We have
consistently held that when a defendant objects to portions of the PSR, the
district




                                   -16-
court must base its findings on evidence rather than on the disputed PSR
information." United States v. Mayer, 130 F.3d 338, 339 (8th Cir. 1997).


      At the outset of Allen's sentencing hearing, the district court noted
that Allen had submitted a number of objections to the PSR. The court
specifically asked whether Allen wished to be heard on those objections.
Allen responded that he would like to have all his "objections remain as
stated," but he chose to specifically address the court regarding only the
downward departure issue. (Allen's Sent. Tr. at 5.)

      The entire hearing revolved around the downward departure issue.
Allen testified concerning his family obligations and work history. The
government opposed any downward departure and asked that the remaining
objections be overruled based upon the trial testimony. At the close of
the hearing, the government asked the court to consider a sentence within
the range stated by the PSR (188 to 235 months). Allen did not object to
the government's statement of the applicable sentencing range at this time.
He merely requested a departure below that recommended range.

      The court denied the downward departure, sentenced Allen to 188 months
of imprisonment, and then gave the defendant one last opportunity to
respond or object regarding the sentence. Allen's attorney responded only
by requesting the court to recommend Allen for substance abuse treatment.
Allen did not renew or raise any objection to the 188-month term of
imprisonment, he did not request a ruling on his objection to the PSR's
drug quantity determination, and he did not request a hearing on the
quantity of drugs attributable to him. Because he never requested a ruling
from the court on his objections to the PSR and he allowed sentencing to
proceed without specifically renewing his objections to the quantity
determination or offense level computation, we conclude that Allen waived
these objections, and we will not consider them for the first time on
appeal.    See United States v. Goodwin, 72 F.3d 88, 90 (8th Cir. 1995)
(holding defendant waived objections to quantity determination where he




                                   -17-
argued only the departure issue and failed to pursue his quantity objection
or request an evidentiary hearing on the issue when given opportunities to
do so).

                             III.   Conclusion

      Accordingly, for the reasons stated above we affirm the judgments of
the district court.

     A true copy.

           Attest:

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




                                    -18-
