                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-1938
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
      v.                                * Appeal from the United States
                                        * District Court for the
Angela Euans, also known as             * Northern District of Iowa
Angela Mangine,                         *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: October 16, 2001

                                  Filed: April 3, 2002
                                   ___________

Before HANSEN,1 Chief Judge, and McMILLIAN and BEAM, Circuit Judges.
                               ___________

McMILLIAN, Circuit Judge.

       Angela Mangine (“defendant”) was charged in one count of a five-count
superseding indictment with conspiring to distribute methamphetamine within 1,000
feet of a protected location. Defendant pled guilty to 21 U.S.C. § 846, the conspiracy
offense, but reserved the issue of whether she had violated 21 U.S.C. § 860, the
protected location offense. The case proceeded to a combined bench trial and
sentencing hearing, in which the district court found “that the government ha[d]

      1
       The Honorable David R. Hansen became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on February 1, 2002.
proven beyond a reasonable doubt that the conspiracy in this case involving
[defendant] occurred within 1,000 feet of a school, and, therefore, [that] the school
zone enhancement under 21 U.S.C. § 860 applie[d].” The district court accordingly
sentenced defendant pursuant to the federal sentencing guidelines, including U.S.S.G.
§ 2D1.2(a)(2), the enhancement for drug violations occurring near protected
locations. Defendant now appeals from the final judgment entered in the United
States District Court2 for the Northern District of Iowa enhancing her sentence for
distributing methamphetamine within 1,000 feet of a protected location. For reversal,
defendant argues that the district court erred by increasing her sentence by one
offense level pursuant to U.S.S.G. § 2D1.2(a)(2) because the government did not
prove beyond a reasonable doubt that she actually distributed methamphetamine
within 1,000 feet of a protected location in violation of 21 U.S.C. § 860. For the
reasons expressed below, we affirm the judgment of the district court.

      Jurisdiction in the trial court was proper pursuant to 18 U.S.C. § 3231. The
notice of appeal was timely filed pursuant to Fed. R. App. P. 4(b)(1). Jurisdiction is
proper in this court pursuant to 28 U.S.C. § 1291 (review of final decisions) and 18
U.S.C. § 3742(a) (review of sentencing decisions).

                                  I. Background

       On February 9, 2000, defendant and her husband, Robert Mangine (“Robert”),
were named in a five-count indictment. Counts one, four, and five pertained to both
defendant and Robert; the remaining counts pertained only to Robert. Count one
charged that, from January 1997 through February 1999, defendant and Robert were
engaged in a criminal conspiracy in violation of 21 U.S.C. § 846, and that the object
of that conspiracy was the distribution of methamphetamine in violation of 21 U.S.C.


      2
      The Honorable Michael J. Melloy, United States District Judge for the
Northern District of Iowa.
                                         -2-
§ 841. Count four charged that, from January 1998 through January 1999, defendant
and Robert were engaged in a criminal conspiracy in violation of 21 U.S.C. § 846, the
object of which was the distribution of 500 grams or more of methamphetamine in
violation of 21 U.S.C. § 841, and that this violation of the federal drug laws occurred
within 1,000 feet of Fredericksburg High School, in violation of 21 U.S.C. § 860.
Count five charged that, on or about November 7, 1999, defendant and Robert
possessed with intent to distribute 20.85 grams of methamphetamine in violation of
21 U.S.C. § 841.

       On March 9, 2000, a superseding indictment amended count four to add that
the offense also occurred within 1,000 feet of Fredericksburg Elementary School, in
addition to Fredericksburg High School.

       On October 12, 2000, defendant pled guilty to count four of the superseding
indictment, but reserved the right to challenge the 21 U.S.C. § 860 element of the
count. Defendant did not deny that the object of the conspiracy was to distribute
methamphetamine or even that the conspiracy took place within 1,000 feet of a
protected location. Rather, she argued that her role in the drug distribution
conspiracy did not actually include distributing drugs and that she therefore could not
be sentenced for any crime requiring proof that she actually distributed drugs. The
parties agreed to a combined bench trial and sentencing hearing to determine whether
21 U.S.C. § 860 applied (and by extension, whether U.S.S.G. § 2D1.2(a)(2) applied).
The government dismissed all of the remaining counts of the superseding indictment
as to defendant.

      On January 8, 2001, the bench trial and sentencing hearing was held on the
§ 860 facet of the conspiracy charge. The evidence was uncontroverted that the
distance between the front door of the apartment that defendant and Robert rented and
Fredericksburg High School was approximately 530 feet, and the distance between



                                          -3-
the front door of the apartment and Fredericksburg Elementary School was
approximately 810 feet.

      The government introduced evidence which showed that, since 1998, law
enforcement officers had observed a high volume of known drug users entering and
leaving defendant’s apartment. In December 1998, when law enforcement officers
began searching the garbage at the residence, they seized marijuana, drug
paraphernalia, the phone number of a known drug distributor from Des Moines, Iowa,
named Suey Cavan, phone records showing calls placed to Cavan from defendant’s
apartment, and an envelope marked “$10,575.”

        Deputy Sheriff Kevin Rieck of the Chickasaw County Sheriff’s Office in New
Hampton, Iowa, testified that he had been involved in the investigation of the
narcotics activity of defendant and Robert since February 1998. Rieck testified that,
on January 14, 1999, officers from the Chickasaw County Sheriff’s Office executed
a search warrant and seized drug paraphernalia, ammunition for handguns, and a
stolen shotgun from the apartment. The officers also searched defendant’s purse and
seized papers listing names, badge numbers, radio frequencies, and radio codes used
by law enforcement. Defendant’s financial records seized from the apartment
revealed that defendant paid bills totaling more than $5,000 in cash, and deposited
more than $6,600 in cash into her checking account over a six-month period when she
and Robert were both unemployed. Special Agent Scott Green of the Iowa Division
of Narcotic Enforcement, who was also assigned to the investigation and worked with
Rieck in obtaining the warrant to search the apartment, corroborated Rieck’s
testimony regarding the evidence seized in the search on January 14, 1999. Rieck
testified that he arrested defendant that same morning based on the evidence seized
during the search.

      Defendant did not contest at the bench trial that drugs were distributed from her
apartment or that she was involved, at some level, with that distribution. Defendant

                                          -4-
admitted that she collected money for drugs while she was at the apartment. Deborah
Moore, defendant’s mother, testified that when she visited her daughter’s apartment
she observed people going with Robert into their bedroom to buy drugs, but that
defendant would not accompany them into the bedroom. Defendant also denied that
she had ever gone into the bedroom while drug transactions were taking place or that
she had ever personally distributed drugs to anyone that came to the apartment.
Defendant denied that she had ever packaged any of the drugs. Defendant said that
she felt coerced by Robert to do what he asked her to do.

       The government presented numerous witnesses at the bench trial to support its
theory that defendant actually distributed methamphetamine from the apartment and
to challenge defendant’s characterization that her role in the drug conspiracy was
minimal. Jody Van Horn testified that she and Robert’s father, Bob Zoll, often went
to the apartment to buy drugs. Van Horn testified that, although defendant did not
sell drugs to them in plain view of her, she did see defendant accompany Robert into
the bedroom when drug transactions were taking place. Jeanne Kuker testified that
she had bought methamphetamine from defendant in the apartment whenever Robert
was not present, and from both defendant and Robert when he was present. Kuker
further testified that defendant weighed the methamphetamine and packaged it in
plastic bags before selling it. Kuker testified that she saw defendant personally sell
drugs to other people, as well. Chad Mikesh testified that he purchased marijuana
from defendant in the apartment “quite a few times,” and that one of defendant’s roles
in the drug distribution conspiracy was to collect money for drugs sold in the
apartment.

      Additionally, defendant admitted that she regularly drove Robert around her
neighborhood to distribute drugs to the homes of drug users who also lived within
1,000 feet of Fredericksburg High School and Fredericksburg Elementary School.
Further, defendant confirmed that she drove Robert to Des Moines to pick up drugs
from Cavan approximately ten times. Defendant testified that she also went twice to

                                         -5-
Des Moines to pick up the drugs with Mikesh instead of Robert because there was a
warrant out for Robert’s arrest. The first time defendant went to Des Moines without
Robert, she succeeded in purchasing and subsequently delivering the drugs to Robert
as planned. The second time, she was arrested before she was able to purchase the
drugs. Defendant testified that, when she was questioned by police in conjunction
with that arrest, she confessed that she was in Des Moines to pick up drugs and that
she had done so several times in the past. In a written statement to law enforcement
on December 3, 1999, defendant stated that she had personally purchased
methamphetamine from Cavan on at least ten different occasions, and believed she
was personally responsible for five to six pounds of methamphetamine over the
course of the conspiracy. The evidence also showed that, after Robert was
incarcerated, defendant borrowed $3,000 from Mikesh to buy drugs from Cavan that
she intended to sell as part of the continuing drug distribution conspiracy.

      Based on the evidence adduced at the bench trial, the district court found that
the government had proven beyond a reasonable doubt that defendant distributed
drugs as part of the conspiracy; that she did so in the apartment, which was within
1,000 feet of a protected location; and that she could accordingly be sentenced as
though she was convicted of 21 U.S.C. § 860 as well as § 846.

       In accordance with U.S.S.G. § 2D1.1, the parties stipulated to a base offense
level of level 34. The district court ruled that defendant qualified for a two-level
decrease for her minor role in the offense pursuant to U.S.S.G. § 3B1.2(b), finding
that Robert probably coerced her into participating in the conspiracy. The district
court then determined that the firearm enhancement pursuant to U.S.S.G. § 2D1.1 did
not apply because the firearms in question belonged to Robert only and defendant did
not ever use or carry them. The district court decreased the offense level by another
three levels for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. Pursuant
to U.S.S.G. § 2D1.2(a)(2), the district court added one offense level for distributing



                                         -6-
methamphetamine within 1,000 feet of a protected location, resulting in an offense
level of level 30.

      The district court next assessed one criminal history point pursuant to U.S.S.G.
§ 4A1.2(a)(1) for defendant’s prior conviction in state court,3 and two criminal history
points pursuant to U.S.S.G. § 4A1.1(d) because the instant offense was committed
while defendant was on probation, putting her in criminal history category II.

      Based on a total offense level of level 30 and a criminal history category of
category II, the district court sentenced defendant to the mandatory minimum of 120
months imprisonment, ten years of supervised release, and a special assessment of
one hundred dollars. The district court waived the fine because it determined that
defendant did not have the ability to pay. The district court entered final judgment
on April 13, 2001. This appeal followed.

                                    II. Discussion

      We review de novo the district court’s legal interpretation of the federal
sentencing guidelines, see United States v. Stuckey, 220 F.3d 976, 976 (8th Cir.
2000) (Stuckey), and review the district court’s factual determinations for clear error.
See United States v. Stevens, 149 F.3d 747 (8th Cir. 1998).




      3
       On October 19, 1999, defendant had pled guilty in state court to possession of
marijuana, possession of drug paraphernalia, and possession of a stolen firearm.
Defendant received a deferred sentence, fines and restitution, and two years of
probation.

                                          -7-
                                          A.

       Defendant bases her appeal on the premise that the government impermissibly
relied solely on her 21 U.S.C. § 846 conspiracy conviction to establish that she
distributed methamphetamine near a protected location in violation of 21 U.S.C.
§ 860. Defendant contends that, because 21 U.S.C. § 846 is not referenced in 21
U.S.C. § 860 (whereas 21 U.S.C. §§ 841 and 856 are referenced), a conviction of 21
U.S.C. § 846 cannot be used to satisfy the foundational requirements of 21 U.S.C.
§ 860. Defendant argues that because the inclusion of certain provisions is
tantamount to the intentional exclusion of others, Congress must have specifically
intended that 21 U.S.C. § 846 not be used as a predicate offense for 21 U.S.C. § 860.
See Stuckey, 220 F.3d at 985 (explaining that reference to “serious drug offense” in
18 U.S.C. § 924 was precisely defined using “listing approach,” and not broadly
defined using “categorical approach”). Defendant argues that the government
therefore failed to carry its burden of proving beyond a reasonable doubt that she
actually distributed, possessed with intent to distribute, or manufactured
methamphetamine near a protected location in violation of 21 U.S.C. § 860.

       The issue in this case, however, is not whether defendant was erroneously
convicted of violating 21 U.S.C. § 860. First, while the district court determined that
the government had proven beyond a reasonable doubt that defendant’s actions were
in violation of 21 U.S.C. § 860, the district court did not convict defendant of 21
U.S.C. § 860. The only conviction at issue was precipitated when defendant pled
guilty to conspiring to distribute methamphetamine in violation of 21 U.S.C. § 846.
Defendant does not challenge the district court’s acceptance of her guilty plea.
Hence, defendant’s arguments with respect to whether she was properly convicted of
21 U.S.C. § 860 are irrelevant. As the district court correctly understood, defendant’s
sentence (and her appeal thereof) must stem from 21 U.S.C. § 846.




                                          -8-
                                           B.

       Although defendant was convicted of 21 U.S.C. § 846 rather than 21 U.S.C.
§ 860, the plain language of 21 U.S.C. § 846 provides that defendant also may be
sentenced in accordance with 21 U.S.C. § 860. Section 846, addressing attempt and
conspiracy to violate the federal drug laws, provides that “[a]ny person who attempts
or conspires to commit any offense defined in this subchapter shall be subject to the
same penalties as those prescribed for the offense, the commission of which was the
object of the attempt or conspiracy.” This court has previously approved the
sentencing of offenders convicted of drug conspiracies in accordance with the
penalties prescribed for the substantive drug offenses which were the objects of those
conspiracies, even though the offenders were not convicted of the substantive drug
offenses, and even though the substantive offense statutes did not reference 21 U.S.C.
§ 846. See, e.g., United States v. Wessels, 12 F.3d 746, 752 (8th Cir. 1993)
(“[C]onvicted drug conspirators are subject to the same penalties as those prescribed
for the [underlying substantive] offense. Thus, the enhancement provision of [21
U.S.C.] § 841(b) applies whether the conviction was for violating the substantive
statute or for conspiring to violate the substantive statute.”) citing United States v.
Askew, 958 F.2d 806, 812 (8th Cir. 1992) (same). Here, the object of the criminal
conspiracy was the distribution of methamphetamine within 1,000 feet of a protected
location, which is a violation of 21 U.S.C. §§ 841 and 860. Thus, pursuant to 21
U.S.C. § 846, defendant is subject to the same penalties for a conviction of 21 U.S.C.
§ 846 as those prescribed for 21 U.S.C. § 860. It is the role of the fact finder to weigh
the evidence and determine whether defendant’s conduct indeed established the
elements of 21 U.S.C. § 860.

                                           C.

      It was not clearly erroneous for the district court to find that the government
proved the elements of 21 U.S.C. § 860 beyond a reasonable doubt. The evidence

                                           -9-
was sufficient to support the district court’s conclusion that the object of the
conspiracy was the distribution of methamphetamine within 1,000 feet of a protected
location, and that defendant actually distributed and helped to distribute drugs within
1,000 feet of a protected location as part of this conspiracy.

       The evidence was uncontroverted that defendant’s apartment was located
within 1,000 feet of two protected locations, and that the conspirators regularly
distributed methamphetamine from within the apartment. In addition to the testimony
that defendant personally packaged and distributed drugs from within the apartment
and ran the conspiracy from the apartment while Robert was incarcerated, there is no
dispute that defendant regularly took several other actions to further the crime of
distributing methamphetamine within 1,000 feet of a protected location. For
example, she took phone messages from drug suppliers in the apartment, she
collected money from drug customers in the apartment, she transported Robert to
customers for the purpose of selling drugs in the same neighborhood as the protected
locations and her apartment, she solicited and procured loans to pay for drugs
intended for sale in the apartment, and she made trips to Des Moines to receive drug
shipments to sell in the apartment. It was not unreasonable for the district court to
believe that the testimony of the government witnesses who said that they observed
defendant packaging and selling drugs from the apartment was more credible than
defendant’s insistence that she did not.

                                          D.

      U.S.S.G § 2D1.2 provides that the sentencing court must add one additional
offense level based on its determination that the offender’s conduct violated a federal
drug law by conspiring to distribute methamphetamine near a protected location.
Because the government proved beyond a reasonable doubt that defendant conspired
to commit the substantive offense of distribution of methamphetamine within the



                                         -10-
limits of two protected locations, we conclude that district court properly applied the
offense enhancement for distribution near a protected location.

                                   III. Conclusion

      For the foregoing reasons, the decision of the district court is affirmed.



BEAM, Circuit Judge, dissenting.

       As noted by the court, the defendant entered a plea of guilty to count four of
the superseding indictment, but reserved the right to challenge the 21 U.S.C. § 860
element of the count. Count four charged that from January 1998 through January
1999, defendant and Robert (her spouse) were engaged in a criminal conspiracy in
violation of 21 U.S.C. § 846, the object of which was the distribution of 500 grams
or more of methamphetamine in violation of 21 U.S.C. § 841, and that this violation
(of section 841) of the federal drug laws occurred within 1000 feet of Fredericksburg
Elementary and High School, in violation of 21 U.S.C. § 860.

       In simplified language, the indictment alleged a conspiracy (section 846) the
object of which was to distribute drugs (section 841) within 1000 feet of a school
(section 860). Apparently, the government was concerned that its evidence would not
support a jury finding by proof beyond a reasonable doubt that defendant was guilty
of distribution of drugs, given that the distributor was actually her spouse. This
somewhat unusual "triple whammy" form of indictment, attempting to bootstrap the
defendant into a location crime (section 860) that is one step removed from the
predicate offense of conspiracy (section 846), was pursued, as pointed out by
defendant, because the government could not directly charge her under the statute
with a violation of section 860.



                                         -11-
       "[Section] 860 requires the separate and distinct element of possession with
intent to distribute within 1000 feet of a school. Thus, in order to obtain a conviction
under § 860, possession with intent to distribute within 1000 feet of a school must be
charged and proven by the government beyond a reasonable doubt." United States
v. Gonzalez-Rodriguez, 239 F.3d 948, 953 (8th Cir. 2001). Under the plain language
of the statute, a section 860 violation may not be the object of a section 846
conspiracy, contrary to the government's charges in this case. One must actually
violate section 841(a)(1) or section 856 within 1000 feet of a school, or other form
of public property enumerated in the statute in order to be charged and sentenced
under section 860.

       Even though section 846 applies to "[a]ny person who attempts or conspires
to commit any offense defined in this subchapter," this language does not subsume
section 860. The definition of section 860 explicitly extends only to violations of
sections 841(a)(1) or 856, which must be charged and proven. Here, the government
dismissed the remaining count of the superseding indictment charging the defendant
with intent to distribute a controlled substance, seemingly because the evidence
would not support such a charge. A fortiori, the defendant may not be sentenced as
though she distributed a controlled substance. However, the district court sentenced
the defendant as though she were so charged and convicted. I find no lawful basis for
this approach. Drug crime sentences are onerous enough under a proper use of the
sentencing guidelines. We should not allow the government to use creative pleading
to obtain measures of punishment beyond the guideline's scope.

      Accordingly, I dissent.




                                          -12-
A true copy.

      Attest:

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




                          -13-
