                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-2810
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                  Marcell Shavers

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                          Submitted: November 13, 2019
                              Filed: April 6, 2020
                                 ____________

Before SHEPHERD, GRASZ, and KOBES, Circuit Judges.
                           ____________

SHEPHERD, Circuit Judge.

       Following a jury trial, Marcell Shavers was found guilty of one count of
conspiracy to possess with intent to distribute methamphetamine, in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(B), and 846, and was acquitted of one count of using a
firearm during a drug trafficking offense to commit murder, in violation of 18
U.S.C. §§ 2, 924(c), and 924(j)(1). He was sentenced to the statutory maximum of
480 months imprisonment. On appeal, Shavers challenges the sufficiency of the
evidence, the district court’s1 jury instructions, the admission of evidence showing
that he was previously incarcerated, and his sentence. Having jurisdiction under 28
U.S.C. § 1291, we affirm.

                                          I.

      On the morning of January 1, 2014, James Roberts and Ronald Wilson drove
around together in a silver Hyundai Sonata selling drugs in Kansas City, Missouri.2
In the early afternoon, they drove to Discount Smokes & Liquor. While there,
Matthew Milton also entered the store. Roberts approached Milton, who had never
met Roberts or Wilson prior to this encounter, and asked whether Milton had, or
knew where Roberts could purchase, methamphetamine. Milton informed Roberts
that he knew where to purchase it. The two exchanged phone numbers and left
separately. After returning to the silver Hyundai, Roberts reported to Wilson that he
found someone from whom he could purchase drugs.

       Milton later called his friend Jose Medellin to arrange a sale of
methamphetamine to Roberts. Medellin told Milton to meet him later that day at
Medellin’s apartment building to complete the deal. Milton then called Roberts to
inquire how much methamphetamine Roberts would like to purchase and to negotiate
a price. Roberts initially requested one ounce, and the parties discussed a sale price
of $800 to $1,000. Roberts later inquired whether he could purchase two ounces
instead of one ounce, and they agreed to meet that evening at Discount Smokes &
Liquor.


      1
       The Honorable Greg Kays, United States District Judge for the Western
District of Missouri.
      2
       We recount the relevant testimony and other evidence presented at trial in the
light most favorable to the jury’s verdict. See United States v. Washington, 318 F.3d
845, 850 (8th Cir. 2003).

                                         -2-
      Later that evening, Wilson drove the silver Hyundai to his mother’s house to
pick up the defendant, Marcell Shavers, who was living with Wilson’s mother at the
time. Shavers was also acquainted with Roberts, as the two had spent just under 17
months together in a Missouri state prison, and Roberts had helped Shavers while the
two were incarcerated. Before leaving the residence, Shavers told Wilson’s mother
that Roberts was “blowing up his phone” and that he was leaving to meet Roberts.
Shavers, who was armed with a handgun, left with Wilson. Wilson and Shavers then
picked up Roberts. At some point, Roberts asked Wilson to drive him back to
Discount Smokes & Liquor so Roberts could “holler at the dude from earlier.”
Wilson interpreted this to mean that Roberts had set up a drug deal, and, at
approximately seven in the evening, Wilson drove back to Discount Smokes &
Liquor and dropped off Roberts.

      Milton met Roberts at the liquor store and told Roberts that they would go
together to the Sterling Court apartments, where Medellin lived, to finish the deal.
After meeting Milton, Roberts told Wilson and Shavers to follow him as he purchased
drugs that evening and to provide him with “backup” at the deal. Roberts
accompanied Milton in Milton’s vehicle, and Wilson and Shavers followed them in
Wilson’s silver Hyundai. On the way to the apartment building, Milton and Roberts
stopped at a gas station so that Milton could purchase gas. As Milton finished paying
for gas, he observed Roberts walking away from a silver Hyundai. Milton and
Roberts continued towards the apartment building. Milton pulled into the parking lot
of a QuikTrip convenience store adjacent to the apartment building and told Roberts
he was going to walk to the apartment building to get the drugs and bring them back
to Roberts. Roberts, however, insisted that the two continue to drive to Medellin’s
apartment building and complete the deal there.

       In the meantime, Wilson and Shavers also arrived at the QuikTrip in Wilson’s
silver Hyundai while Milton and Roberts were still there. At some point that evening,
Roberts had told Wilson to leave Shavers at the QuikTrip. Shavers exited the vehicle,

                                         -3-
still carrying the handgun, while Wilson left the QuikTrip and returned to his home.
Wilson understood that he was leaving Shavers to serve as Roberts’s “backup.”

       Milton and Roberts arrived at Medellin’s apartment building and initially
parked to the side of the building. Milton went into the front entrance of the building,
where he encountered Medellin and told Medellin that he had a buyer for the
methamphetamine. Medellin asked Milton to wait while he went upstairs. Milton
returned to his vehicle and pulled around to the back of the apartment building. A
man wearing an olive green coat and a scarf covering his face approached Milton and
Roberts and said something to Roberts. Milton and Roberts told this man to leave,
and the man complied. Medellin subsequently appeared at the rear door of the
apartment building. Milton instructed Roberts to give him the money for the
methamphetamine, but Roberts refused. Milton then went inside and asked Medellin
to give him the methamphetamine to give to Roberts, but Medellin refused. Roberts
went inside to talk to Medellin.

       Once inside, Roberts, Milton, and Medellin went into the nearby laundry room
to discuss the deal. Milton brought scales, which he placed on a dryer, and Medellin
produced the methamphetamine. Roberts pulled out some money, but initially
hesitated and asked about the quality of the methamphetamine that he was about to
purchase. Medellin offered to let Roberts sample it and pulled out a glass smoking
pipe, but Roberts declined the offer and told Medellin, “No, I don’t smoke.” Roberts
then exited the building to urinate. While Roberts was outside, Medellin and Milton
weighed two bags of methamphetamine, and Medellin instructed Milton to sell
Roberts the lighter of the two bags, if Roberts would only purchase one, at a price of
$1,000.

       After Roberts returned to the door of the building, Milton let Roberts back
inside, and the two returned to the laundry room to continue negotiating. Milton’s
vehicle alarm then started sounding, and he left the building to investigate. As Milton

                                          -4-
walked outside, he noticed the man wearing an olive green coat and a scarf over his
face walk into the building. After checking on his vehicle, Milton returned to the
back door of the building, which was locked. Inside, he saw Medellin with his hands
in the air and the man wearing the olive green coat pointing a handgun at Medellin.
Roberts was searching Medellin’s pockets. Milton banged on the door and demanded
to be let inside. Roberts backed away from Medellin, and the man wearing the olive
green coat shot Medellin twice. Medellin fell to the floor. Milton fled, and after
briefly being pursued by Roberts and the man wearing the olive green coat, he
escaped to the QuikTrip, where a clerk alerted the police.

       Roberts subsequently called Wilson and told him to drive to a nearby IHOP
restaurant to pick up him and Shavers. When Roberts and Shavers entered the car,
Roberts said “Celly did something stupid, Celly did something stupid.” Shavers later
told Wilson that he was with Medellin, Milton, and Roberts in the apartment building
and that he shot Medellin after he observed Medellin reaching into his pocket for a
gun. After Wilson dropped off Roberts at home, Wilson asked Shavers what
happened to the handgun. Shavers responded that he dropped it when he hopped a
fence near the IHOP. Although Shavers wanted to recover the weapon, Wilson drove
Shavers back to Wilson’s mother’s residence.

      Police and paramedics were dispatched to Medellin’s apartment building.
Paramedics confirmed Medellin had died at the scene—three bullets caused seven
wounds, resulting in Medellin’s death. The police recovered seven shell casings
around the laundry area and two baggies containing 55.3683 grams of 80 percent pure
methamphetamine from Medellin’s pockets. They also found a glass pipe with
methamphetamine and amphetamine residue in Medellin’s hand.

      The following day, Shavers told Wilson’s mother that “it all went bad” and that
“We didn’t get no money. We didn’t get no drugs . . . it just all went bad, Ms.
Jackson . . . I should have listened to you and not went with him.” Moreover, he

                                         -5-
mentioned to Wilson’s sister that he and Roberts went on a “mission” to rob a
“Mexican guy,” but that his mission failed and that he had to shoot an individual after
observing the man pull out a weapon. Shavers later left Kansas City for Detroit.

       Investigators later recovered a handgun on a hill near the IHOP that was close
to Medellin’s apartment building. The bullets and cartridges found at the murder
scene were determined to have been fired from that handgun. Moreover, DNA found
on the weapon matched that of Shavers and excluded Milton, Roberts, and Wilson as
contributors.

      Shavers and Roberts were subsequently charged by superseding indictment
with one count of conspiracy to possess methamphetamine with intent to distribute
and one count of using a firearm during a drug trafficking offense to commit murder.
Roberts pled guilty to the drug conspiracy charge and was sentenced to 282 months
imprisonment. Following a jury trial, Shavers was convicted on the drug conspiracy
charge and acquitted of the firearm charge. The district court sentenced him to 480
months imprisonment. This appeal follows.

                                          II.

       Shavers argues that the district court erred by denying his motions for judgment
of acquittal and for a new trial. He asserts that there was insufficient evidence to
prove a conspiracy to possess with intent to distribute methamphetamine. First, he
argues that the evidence at trial showed only a “buyer-seller” relationship between
Milton and Roberts and contends that this is insufficient to prove that any conspiracy
existed between Roberts and any other person, including Shavers. Second, he argues
that the government failed to present evidence showing that Shavers knew that the
drug transaction in question involved methamphetamine. Third, he suggests that the
government failed to prove anything beyond Shavers’s “mere presence” at the scene
of the failed drug transaction.

                                          -6-
       “[W]e will review the sufficiency of the evidence to sustain a conviction de
novo, viewing the evidence in the light most favorable to the jury’s verdict and
reversing the verdict only if no reasonable jury could have found the defendant guilty
beyond a reasonable doubt.” United States v. Ramos, 852 F.3d 747, 753 (8th Cir.
2017) (internal quotation marks omitted). We review the district court’s denial of a
motion for a new trial for an abuse of discretion, United States v. Slagg, 651 F.3d
832, 839 (8th Cir. 2011), and will reverse only if “the evidence weighs heavily
enough against the verdict that a miscarriage of justice may have occurred.” United
States v. Espinosa, 300 F.3d 981, 983 (8th Cir. 2002) (quoting United States v. Lacey,
219 F.3d 779, 783 (8th Cir. 2000)).

       In order to prove that Shavers conspired to possess methamphetamine with
intent to distribute, the government needed to show that: (1) there was an agreement
between Shavers and Roberts to possess drugs with the intent to distribute, (2)
Shavers knew of the conspiracy, and (3) Shavers intentionally joined in the
conspiracy. See United States v. Davis, 826 F.3d 1078, 1081 (8th Cir. 2016).
Because count one charged that Shavers conspired with Roberts, and not any other
person, the government needed to prove a conspiracy between those two. So long as
it found beyond a reasonable doubt that Shavers and Roberts were both participants
in the conspiracy, a jury could convict Shavers of count one even if there was
evidence suggesting that there were also other participants in that conspiracy.

       Further, “a defendant may be convicted for even a minor role in a conspiracy,
so long as the government proves beyond a reasonable doubt that he or she was a
member of the conspiracy.” United States v. Lopez, 443 F.3d 1026, 1030 (8th Cir.
2006) (en banc). Because conspiracies are often secretive, their existence may be
proven through circumstantial evidence alone, United States v. Mann, 701 F.3d 274,
296 (8th Cir. 2012), and evidence of an agreement to join the conspiracy may be
inferred from the facts. See Lopez, 443 F.3d at 1030-31. However, mere presence
at a drug transaction, even if the defendant knows that someone else intends to buy

                                         -7-
and sell drugs, is insufficient to establish that the defendant is a part of a drug
conspiracy. See United States v. Jimenez-Villasenor, 270 F.3d 554, 558 (8th Cir.
2001).

       It is clear from the trial record that there was sufficient evidence showing that
Roberts sought to possess methamphetamine with intent to distribute. The jury heard
evidence that Roberts was distributing drugs earlier that day. See United States v.
Turpin, 920 F.2d 1377, 1383 (8th Cir. 1990) (noting that past distribution of drugs
can support finding of intent to distribute drugs). It heard evidence showing that
Roberts approached Milton and asked if Milton had methamphetamine, or knew
where Roberts could purchase it. The evidence also showed that Roberts reported to
Wilson that he found someone from whom he could purchase drugs, and Roberts
arranged to buy a very large amount—at least one ounce—of methamphetamine from
Milton’s friend Medellin. Medellin also brought 55.3683 grams—just under two
ounces—of 80 percent pure methamphetamine to the scene of the failed deal. See
United States v. Schubel, 912 F.2d 952, 956 (8th Cir. 1990) (“Intent to distribute may
be inferred solely from the possession of large quantities of narcotics.”); cf. United
States v. Fang, 844 F.3d 775, 779 (8th Cir. 2016) (holding that 25 grams of
methamphetamine, with $3,900 in cash and small plastic bags, supports an inference
of intent to distribute). Moreover, evidence was presented at trial that Roberts did not
smoke methamphetamine, which further supported the conclusion that he was
attempting to purchase the drug for resale. Finally, the transaction itself occurred in
the presence of cash, firearms, and a scale—the presence of such items are indicia of
drug trafficking and support a finding of intent to distribute. Schubel, 912 F.2d at
956 (“The presence of equipment to weigh and measure the narcotics, paraphernalia
used to aid in their distribution, and large sums of cash are common indicia of drug
trafficking and are all circumstantial evidence of intent to distribute.”). For these
reasons, we conclude there was ample evidence from which a reasonable jury could
find that Roberts sought to possess the methamphetamine with the intent to distribute.



                                          -8-
        There was also sufficient evidence from which a reasonable jury could find that
Shavers knew of, agreed to, and intended to participate in Roberts’s plan to possess
methamphetamine with intent to distribute. The jury heard testimony that Roberts
contacted Shavers repeatedly via cell phone on the day in question and that, at some
point in the evening, Roberts asked Shavers to accompany him to the scene of the
drug transaction in order to provide “backup.” There was also testimony presented
at trial showing that Roberts and Shavers were acquainted with one another while
they were in prison, and the jury could reasonably infer from their personal
relationship that Shavers had a motive to help Roberts complete the drug deal in order
to repay Roberts for helping Shavers while the two were incarcerated. Further, when
Wilson picked up Shavers, Shavers was carrying the handgun that was later used to
kill Medellin. The jury also heard evidence that Shavers later told Wilson’s mother
that (1) the deal “went bad,” (2) Roberts and Shavers didn’t obtain any drugs or
money, and (3) Shavers regretted accompanying Roberts.

       Shavers argues that the evidence at trial merely shows a small drug transaction
between a buyer, Roberts, and a seller, Milton, which does not support a finding of
a broader conspiracy. See, e.g., United States v. Boykin, 794 F.3d 939, 948 (8th Cir.
2015) (“Because the crime of conspiracy requires a concert of action among two or
more persons for a common purpose, the mere agreement of one person to buy what
another agrees to sell, standing alone, does not support a conspiracy conviction.”
(quoting United States v. Huggans, 650 F.3d 1210, 1222 (8th Cir. 2011)). But as
discussed above, there was substantial evidence that Roberts sought to possess
methamphetamine with intent to distribute and that Shavers actively joined him in
that endeavor, regardless of whether Milton or Medellin, the putative sellers, or
Wilson, were also a part of that conspiracy. Moreover, the evidence is also
inconsistent with the argument that Roberts and Milton had a mere “buyer-seller”
relationship, given the large quantity of methamphetamine at issue and other evidence
of Roberts’s intent to further distribute the drug. Cf. Boykin, 794 F.3d at 948 (noting
that the “[b]uyer-seller relationship cases involve only evidence of a single transient

                                         -9-
sales agreement and small amounts of drugs consistent with personal use” (emphasis
omitted) (internal quotation marks omitted)). Finally, that the government failed to
present direct evidence of distribution of methamphetamine by Roberts is of no
moment—again, the jury could reasonably infer Roberts’s intent to distribute from,
among other things, the quantity involved, his prior conduct, and the fact that Roberts
did not personally smoke methamphetamine. See, e.g., Schubel, 912 F.2d at 956;
Turpin, 920 F.2d at 1383.

       Shavers also argues the government failed to prove he had knowledge of the
type of drug involved in the sale or that the quantity involved was of distribution
weight. However, in light of the substantial circumstantial evidence of Shavers’s
intent to participate in the conspiracy, we are unpersuaded. The jury heard evidence
that Roberts was “blowing up” Shavers’s phone and that Roberts asked Shavers to
serve as backup at the deal. It would be reasonable for a jury to infer from these facts
that Roberts informed Shavers about the nature of the deal, including the type of drug
and general quantity to be purchased. Additionally, Shavers made an appearance as
the drug transaction was underway and thus potentially in a position to see the type
of drug and quantity involved.

       Shavers further argues that, at most, the evidence shows that he was merely
present at the drug deal. See Jimenez-Villasenor, 270 F.3d at 558 (mere presence at
a drug deal is insufficient to establish that defendant intended to join the conspiracy).
Contrary to his argument, a reasonable jury could find from the evidence that Shavers
was an active participant in the deal between Roberts, Milton, and Medellin. Again,
as discussed above, the jury heard, among other things, that Shavers and Roberts had
a personal relationship, Roberts repeatedly contacted Shavers on the day in question,
Shavers went to act as “backup” at the deal, and Shavers reported the failure of the
deal to Wilson’s mother.




                                          -10-
      Accordingly, there is enough evidence to sustain Shavers’s conviction on the
conspiracy charge. We see no error in the district court’s decision to deny his
motions for a judgment of acquittal and for a new trial.

                                          III.

       Shavers next challenges the district court’s jury instructions in two respects.
First, he argues that the district court’s jury instructions constructively amended, or
fatally varied from, count one of the superseding indictment. Second, he argues that
the district court erred by failing to give his proposed theory-of-the-defense
instructions, namely, a “buyer-seller” instruction and a “mere presence” instruction.

                                          A.

       First, we consider whether the district court’s jury instructions constructively
amended, or varied from, count one of the superseding indictment. It is unclear what
standard of review we apply to such claims. Some panels of this Court have applied
an abuse of discretion standard, e.g., United States v. Lasley, 917 F.3d 661, 664 (8th
Cir. 2019) (per curiam), while others have applied de novo review, e.g., United States
v. Stuckey, 220 F.3d 976, 979 (8th Cir. 2000). Although the earlier-filed opinion
generally controls in the event of an actual intra-circuit conflict, see Jones v. Aetna
Life Ins. Co., 856 F.3d 541, 546 (8th Cir. 2017), we need not resolve the issue
because “[l]ittle turns . . . on whether we label the review of this particular question
abuse of discretion or de novo, for an abuse-of-discretion standard does not mean a
mistake of law is beyond appellate correction.” Avon State Bank v. BancInsure, Inc.,
787 F.3d 952, 959 n.3 (8th Cir. 2015) (quoting Henley v. Brown, 686 F.3d 634, 639
(8th Cir. 2012)).

      “A constructive amendment occurs when the essential elements of the offense
as charged in the indictment are altered in such a manner . . . that the jury is allowed

                                         -11-
to convict the defendant of an offense different from or in addition to the offenses
charged in the indictment.” United States v. Whirlwind Soldier, 499 F.3d 862, 870
(8th Cir. 2007). This often occurs “through the evidence presented at trial or the jury
instructions.” Id. A constructive amendment to an indictment implicates a
defendant’s grand jury right under the Fifth Amendment.3 United States v. Jarrett,
684 F.3d 800, 802 (8th Cir. 2012). “In order to determine whether an indictment was
constructively amended, we consider whether the jury instructions, taken as a whole,
created a substantial likelihood that the defendant was convicted of an uncharged
offense.” United States v. Buchanan, 574 F.3d 554, 564 (8th Cir. 2009) (internal
quotation marks omitted).

       “A variance arises when the evidence presented proves facts that are materially
different from those alleged in the indictment.” Id. (internal quotation marks
omitted). A variance implicates the defendant’s Sixth Amendment right to adequate
notice and is subject to harmless error review. United States v. Harris, 344 F.3d 803,
805 (8th Cir. 2003) (per curiam). “The basic difference between a constructive
amendment and a variance is this: a constructive amendment changes the charge,
while the evidence remains the same; a variance changes the evidence, while the
charge remains the same.” Stuckey, 220 F.3d at 981.

      Count One of the superseding indictment charges that “the defendants, JAMES
P. ROBERTS and MARCELL SHAVERS, did knowingly and intentionally combine,
conspire, confederate and agree together and with each other” to possess


      3
        Although some panels of this Court have held that a constructive amendment
to an indictment constitutes per se reversible error, “at least one panel has observed
that the per se rule exists only in repeated dicta and may be inconsistent with Supreme
Court precedent.” United States v. Lasley, 917 F.3d 661, 664 n.1 (8th Cir. 2019) (per
curiam). In any event, we need not decide whether a constructive amendment to an
indictment constitutes per se reversible error because, for the reasons given below,
we find that no such amendment occurred in this case.

                                         -12-
methamphetamine with the intent to distribute. In Jury Instruction No. 19, the district
court instructed the jury that the first element of the conspiracy charge is that “on or
before January 1, 2014, two or more persons reached an agreement or came to an
understanding to possess with intent to distribute methamphetamine.” Shavers
contends that, by using “two or more persons” rather than naming “James P. Roberts
and Marcell Shavers,” the jury instructions constructively amended or fatally varied
from the indictment in this case.

       We are not persuaded that any constructive amendment occurred on account
of Jury Instruction No. 19. Taken as a whole, the jury instructions focused on the two
co-conspirators alleged in the indictment: Roberts and Shavers. Jury Instruction No.
2 stated that “Count One of the Indictment alleges that on or about January 1, 2014,
in the Western District of Missouri, defendant Marcell Shavers knowingly and
intentionally conspired with James Roberts to commit the crime of possessing with
intent to distribute five (5) grams or more of methamphetamine.” Moreover, the jury
was further instructed that Shavers “is on trial only for the crimes charged, not for
anything else.” In light of these instructions, we do not think that there was a
substantial likelihood that Shavers was found guilty of an uncharged offense simply
because Jury Instruction No. 19 did not specifically identify Shavers and
Roberts—the remainder of the instructions sufficiently focused on them as the alleged
co-conspirators. See United States v. Morton, 412 F.3d 901, 906 (8th Cir. 2005)
(rejecting similar argument in light of the arguments presented at trial and another
instruction given by the district court); see also United States v. Leahy, 82 F.3d 624,
630-31 (5th Cir. 1996).

       Although Shavers relies heavily on United States v. Yeo, 739 F.2d 385 (8th
Cir. 1984) in support of his argument, we think Yeo is distinguishable on the facts.
In Yeo, the indictment alleged that the defendant used “extortionate means to collect
and attempt to collect [a debt] from Jim Crouch,” but the jury instructions would have
permitted the jury to find the defendant guilty if he used “extortionate means to

                                         -13-
collect or attempt to collect from Jim Crouch or another.” 739 F.2d at 386. Thus, the
instructions in Yeo would have allowed the jury to convict the defendant even if it
found that the defendant used extortionate means to collect a debt from someone
other than Crouch, despite the fact that the defendant was indicted only for his use of
extortionate means to collect a debt from Crouch. See id. at 387. But in this case, the
jury instructions, when taken as a whole, did not permit the jury to find that Shavers
conspired with someone other than Roberts—as further explained below, they would
permit a jury to find, at most, that Shavers conspired with Roberts and another
person.

       Similarly, we find that no fatal variance occurred. Even if the jury found that
Shavers also conspired with someone other than Roberts—Wilson, Milton, or
Medellin—based on the evidence presented at trial, the instructions required the jury
to find that Shavers also conspired with Roberts. Indeed, Roberts was the central
player in this conspiracy: he set up the purchase through Milton, he asked Wilson to
drive to and later follow him to some of the locations before the deal, and he
personally instructed Shavers to accompany him. Roberts was the one “blowing up”
Shavers’s phone earlier that day and needed Shavers to serve as his “backup” at the
deal. After the deal soured, Roberts was the one who called Wilson to pick him and
Shavers up. Roberts was very clearly the “hub” of this conspiracy, while Shavers was
merely a “spoke”—even if there were also other co-conspirator “spokes,” they were
all connected to one another through Roberts. See United States v. Slaughter, 128
F.3d 623, 630 (8th Cir. 1997) (discussing “hub” and “spoke” conspiracies). Thus,
Shavers necessarily conspired with Roberts, even if Shavers also conspired or acted
in concert with any other person. This conclusion is also supported by the fact that
the government principally argued at trial that Shavers conspired with Roberts, his
indicted co-conspirator. See United States v. Adams, 604 F.3d 596, 600 (8th Cir.
2010) (“We conclude no variance occurred either, particularly because the
government never wavered in its theory of the case at trial[.]”). Accordingly, we
reject Shavers’s variance argument.

                                         -14-
                                           B.

      Next, we consider Shavers’s challenge to the district court’s failure to give his
proposed “buyer-seller” and “mere presence” instructions. “We review the rejection
of a defendant’s proposed instruction for abuse of discretion.” United States v.
Meads, 479 F.3d 598, 601 (8th Cir. 2007).

       We have explained that “[a] defendant is entitled to a theory of defense
instruction that is timely requested, supported by the evidence, and correctly states
the law. However, a defendant is not entitled to a particularly worded instruction.”
Id. (internal citations and quotation marks omitted). “The district court has broad
discretion in formulating the jury instructions.” United States v. Johnson, 278 F.3d
749, 751 (8th Cir. 2002). A district court does not abuse its discretion if it denies the
defendant’s specific instruction but gives an instruction that adequately and correctly
covers the substance of the requested instruction. Meads, 479 F.3d at 601.

      Shavers proposed the following buyer-seller instruction:

             A conspiracy requires more than just a buyer-seller
             relationship between a defendant and another person. In
             addition, a buyer and seller of methamphetamine do not
             enter into a conspiracy to possess methamphetamine with
             intent to distribute simply because the buyer resells the
             methamphetamine to others, even if the seller knows that
             the buyer intends to resell the methamphetamine.

             To establish that a buyer knowingly became a member of
             a conspiracy with a seller to possess methamphetamine
             with intent to distribute, the government must prove that
             the buyer and seller had a joint criminal objective of
             distributing methamphetamine to others.



                                          -15-
The district court declined to give this instruction, though it did not give a clear
reason for its refusal to do so. Nonetheless, “[w]e may affirm a judgment on any
ground supported by the record even if not relied upon by the district court.” Lane
v. Peterson, 899 F.2d 737, 742 (8th Cir. 1990). Here, Shavers’s proposed buyer-seller
instruction does not correctly state the law in this circuit and the district court did not
abuse its discretion in declining to give it.

       We have emphasized that buyer-seller theories are “limited to a narrow
category of cases. [B]uyer-seller relationship cases involve only evidence of a single
transient sales agreement and small amounts of drugs consistent with personal use.”
Boykin, 794 F.3d at 948 (alteration in original) (internal quotation marks omitted).
But when the evidence shows that drugs are purchased for resale, we have held that
the buyer-seller relationship does not apply and that such evidence supports a finding
of a conspiracy. Id. at 949 (“By contrast, evidence is sufficient to show a conspiracy
where drugs are purchased for resale.” (emphasis omitted) (internal quotation marks
omitted)). Shavers’s proposed instruction, which is patterned from a Seventh Circuit
model instruction, goes far beyond our precedent in Boykin because it permits the
jury to find a buyer-seller relationship even if the evidence suggests that the drugs
were purchased for resale. Cf. id.; see also United States v. Davis, 867 F.3d 1021,
1033-34 (8th Cir. 2017) (affirming district court’s refusal to give a similar buyer-
seller instruction).

       Further, the government argued that Roberts conspired with Shavers to possess
methamphetamine with the intent to distribute, and a buyer-seller instruction would
not bear on their agreement. Whether Roberts also conspired with Milton or
Medellin, or merely had a buyer-seller relationship with them, does not necessarily
mean that there was no conspiracy between him and Shavers. Additionally, for the
reasons discussed in Section II, the evidence simply did not support giving the
instruction. Again, Roberts was attempting to purchase a distribution-level quantity
of methamphetamine, there was evidence that he did not personally smoke it, and he

                                           -16-
had sold drugs earlier in the day. This proof, together with the fact that the deal
occurred in the presence of a firearm and scales, is inconsistent with a purchase of a
small quantity for personal use. See United States v. Conway, 754 F.3d 580, 591-92
(8th Cir. 2014).

       Shavers also proposed the following “mere presence” instruction: “A
defendant’s mere presence at the scene and knowledge that another is going to engage
in a drug transaction is not sufficient to support a finding of guilt beyond a reasonable
doubt that the defendant entered into a conspiracy to possess with intent to distribute
a controlled substance.” The district court, however, gave an instruction containing
the following language:

             Evidence that a person was present at the scene of an event,
             or acted in the same way as others or associated with
             others, does not, alone, prove that the person joined a
             conspiracy . . . A person’s mere knowledge of the existence
             of a conspiracy, or mere knowledge that an objective of a
             conspiracy was being considered or attempted, or mere
             approval of the purpose of a conspiracy, is not enough to
             prove that the person joined in a conspiracy.

The instruction given by the district court adequately and correctly covered the
substance of Shavers’s proposed “mere presence” instruction. See United States v.
Solis, 915 F.3d 1172, 1178 (8th Cir. 2019) (affirming the district court’s rejection of
a “mere presence” instruction where it gave a similar instruction to the one given by
the district court in this case); see also United States v. Vore, 743 F.3d 1175, 1182
(8th Cir. 2014). Accordingly, we find no abuse of discretion in the district court’s
decision to refuse Shavers’s proposed instruction.4

      4
       Shavers also argues that the district court improperly allowed the government
to decide whether this instruction should be given. We reject this argument, as it
appears that the district court suggested it would give Shavers’s proposed instruction

                                          -17-
                                           IV.

       Shavers also argues that the district court erred by permitting the government
to elicit testimony showing that Shavers and Roberts knew one another when they
were incarcerated in state prison and that Roberts had “helped” Shavers while the two
were in prison.5 We review the district court’s decision to admit such evidence for
an abuse of discretion. United States v. Nguyen, 608 F.3d 368, 376 (8th Cir. 2010).

      Shavers asserts that evidence of a prior criminal conviction is admissible for
impeachment purposes under Rule 609 only when the defendant testifies and the
probative value of the evidence outweighs any prejudicial effect. See Fed. R. Evid.
609(a)(1)(B). Because Shavers did not testify, he contends that the district court
erroneously admitted the evidence of his prior imprisonment. He does not, however,
appear to challenge the admission of this evidence under Rule 403 or Rule 404.

       Shavers’s Rule 609 argument is unconvincing. The evidence of Shavers’s and
Roberts’s acquaintance in state prison was not offered to impeach Shavers, as he did
not testify at trial. Rather, it was offered to show Shavers’s prior relationship with
Roberts and to explain why Shavers would join the conspiracy. Because this
evidence was relevant and admissible for “the purpose of providing the context in
which the charged crime occurred” and to demonstrate Shavers’s motive for
participating, the district court did not abuse its discretion in admitting this testimony.
 United States v. Young, 753 F.3d 757, 770 (8th Cir. 2014) (quoting United States v.
Johnson, 463 F.3d 803, 808 (8th Cir. 2006)).


if the government did not object; however, the court noted that it believed the
instruction was duplicative and that it was otherwise inclined not to give it to the jury.
       5
       Specifically, a witness testified that Roberts “helped [Shavers] out in [prison]
so [Shavers] wanted to be there for [Roberts].”

                                           -18-
                                          V.

       Finally, Shavers appeals his sentence. Specifically, he argues that the district
court erred in applying the murder cross-reference located in USSG § 2D1.1(d)(1).
He asserts that this was procedural error and that it resulted in a substantively
unreasonable sentence. We review de novo the district court’s interpretation and
application of the United States Sentencing Guidelines, and we review its underlying
factual findings for clear error. United States v. Jackson, 782 F.3d 1006, 1013 (8th
Cir. 2015).

       USSG § 2D1.1 establishes the base offense level for conspiracy to possess with
intent to distribute methamphetamine and various specific offense characteristics that
increase or decrease the base offense level. Id. USSG § 2D1.1(d)(1) instructs the
district court to apply the base offense level under § 2A1.1 (first-degree murder) or
§ 2A1.2 (second-degree murder) if a victim was killed during the commission of the
underlying drug conspiracy “under circumstances that would constitute murder under
18 U.S.C. § 1111 had such killing taken place within the territorial or maritime
jurisdiction of the United States.”

      In applying the § 2D1.1(d)(1) cross reference, the district court explicitly
found, by a preponderance of the evidence, that Shavers killed Medellin during the
commission of the offense. It noted that:

             Based on the evidence I heard, you and your co-defendant
             went to go buy dope, and I note that the jury wasn't
             satisfied that you were guilty beyond a reasonable doubt,
             but I believe clearly by the preponderance of the evidence
             you were the shooter in this case, and you caused the death
             of Mr. Medellin. I believe that was very clear, at least
             greater than the preponderance of the evidence.

                                         -19-
Accordingly, the district court applied a base offense level of 38, instead of 26, which
resulted in a sentencing range of 360 months imprisonment to life imprisonment.
Because the statutory maximum for the offense of conviction is 480 months
imprisonment, Shavers’s range was effectively 360 months to 480 months
imprisonment.

       First, Shavers contends that the application of § 2D1.1(d)(1) was erroneous
because this case does not involve “circumstances that would constitute murder under
18 U.S.C. § 1111 had such killing taken place within the territorial or maritime
jurisdiction of the United States.” Specifically, he asserts that this phrase means that
the cross reference applies only to murders that are committed outside of the
“jurisdictional reach” of the United States. Because Medellin’s murder occurred in
Kansas City, Missouri, Shavers asserts it was within the jurisdictional reach of the
United States. He argues that the application of the murder cross reference was
improper, and that the district court should have used a base offense level of 26,
resulting in a range of 120 months to 150 months imprisonment.

        Shavers’s argument fails both as a factual and legal matter. Even assuming that
his reading of the statute is correct, Medellin’s murder occurred outside of the
“territorial or maritime jurisdiction of the United States.” Indeed, this phrase refers
to particular places under the exclusive or concurrent territorial jurisdiction of the
federal government, including certain statutorily defined places, Native American
reservations, the high seas, and certain vessels and aircraft. See 18 U.S.C. § 7; United
States v. Smith, 925 F.3d 410, 415-18 (9th Cir. 2019) (noting that 18 U.S.C. § 7
applies to reservations); see also United States v. Parker, 622 F.2d 298, 301-02 (8th
Cir. 1980). This, however, does not include the apartment building where Medellin
was murdered in Kansas City, Missouri. The government even concedes in its brief
that it could not prosecute him for murder under 18 U.S.C. § 1111 because federal
jurisdiction would be lacking.

                                         -20-
       Moreover, we have previously rejected this argument as a matter of law. See
United States v. Weasel Bear, 356 F.3d 839, 841 (8th Cir. 2004) (rejecting same
argument to identical language found in USSG § 2B3.1(c)(1)). The phrase “under
circumstances that would constitute murder under 18 U.S.C. § 1111 had such killing
taken place within the territorial or maritime jurisdiction of the United States” simply
“requires a sentencing court to consider the full context of the defendant’s offense
and to account for any killing in the course of [the offense], regardless of the situs of
the killing.” Id.

      Second, Shavers argues that the application of the murder cross reference was
inappropriate because the killing was not relevant conduct to the count of conviction.
He asserts that, based on the evidence presented at trial, Shavers could not have
reasonably foreseen “the killing of Medellin by someone who is still unidentified.”
However, there was ample evidence presented at trial supporting the district court’s
finding, by the preponderance of the evidence, that Shavers was the one who killed
Medellin during the course of, and in furtherance of, a drug deal, even if the jury
acquitted Shavers on the firearm charge. See United States v. Watts, 519 U.S. 148,
157 (1997) (“[A] jury’s verdict of acquittal does not prevent the sentencing court
from considering conduct underlying the acquitted charge, so long as that conduct has
been proved by a preponderance of the evidence.”); see also United States v. Gamez,
301 F.3d 1138, 1147 (9th Cir. 2002). Accordingly, we think that the district court
correctly found that the murder of Medellin was relevant conduct.

       Third, we reject Shavers’s argument that, due to the district court’s improper
use of the cross reference, his sentence is substantively unreasonable. Because we
find that the district court did not commit a procedural error with respect to applying
the cross reference, Shavers’s substantive reasonableness challenge must fall.

      Accordingly, we find no error in Shavers’s sentence.



                                          -21-
                                  VI.

For these reasons, we affirm the judgment of the district court.
                ______________________________




                                 -22-
