                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-4216
                                   ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Southern District of Iowa.
Aaron Duane Rees,                      *
                                       *
            Appellant.                 *
                                   __________

                             Submitted: May 16, 2006
                                Filed: May 23, 2006
                                 ___________

Before WOLLMAN, BRIGHT, and RILEY, Circuit Judges.
                          ___________

RILEY, Circuit Judge.

      Aaron Rees (Rees) appeals the district court’s1 denial of Rees’s motion for
judgment of acquittal or new trial following Rees’s methamphetamine manufacturing
convictions. We affirm.

I.    BACKGROUND
      A jury convicted Rees of one count of conspiracy to manufacture in excess of
500 grams of a mixture or substance containing methamphetamine, in violation of 21

      1
       The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
U.S.C. §§ 841(b)(1)(A)(viii) and 846, and one count of use of a minor to manufacture
methamphetamine, in violation of 21 U.S.C. § 861(a)(1). Count one was based in
part on police recovery from Rees’s home of two quantities of waste products, which
together weighed in excess of 500 grams and contained minimal, but detectable
amounts of methamphetamine. Following his convictions, Rees moved for a
judgment of acquittal or for a new trial. As part of his argument, Rees first conceded
the waste products found at his residence could be used, as a matter of law, to support
his conviction:

      The Courts have held that the measure of a mixture or substance
      containing controlled substances, including methamphetamine, includes
      the total weight of the mixture or substance, and is not limited to the
      amount of usable drug. United States v. Kuenstler, 325 F.3d 1015, 1023
      (8th Cir. 2003); Chapman v. United States, 500 U.S. 453, 461-62
      (1991).

Rees argued, however, the evidence was insufficient to show he could have
reasonably foreseen being held accountable for the mixtures found at his residence.
See, e.g., United States v. Davidson, 195 F.3d 402, 410 (8th Cir. 1999) (Guidelines
sentencing) (holding “a defendant in a drug conspiracy case is responsible for all
contraband within the scope of criminal activity jointly undertaken by the defendant
and reasonably foreseeable to her” (internal quotation and alterations omitted)). Rees
rested his argument on a government witness’s testimony that she had rarely, if ever,
encountered a methamphetamine manufacturing byproduct like one of the waste
products found at Rees’s residence, thus no reasonable jury would find Rees could
have foreseen that byproduct being used to support his conviction.

      The district court denied the motion. Rees now argues, contrary to his
concession before the district court, that courts may not include post-production




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waste product, such as that found at his residence, as part of a “mixture or
substance”containing methamphetamine.

II.    DISCUSSION
       Following a conviction, we review de novo questions of sufficiency of the
evidence, considering the evidence in the light most favorable to the government.
United States v. Brooks, 174 F.3d 950, 954 (8th Cir. 1999). “An argument not raised
below cannot be raised on appeal for the first time unless the obvious result would be
a plain miscarriage of justice.” United States v. Gutierrez, 130 F.3d 330, 332 (8th
Cir. 1997) (internal quotation omitted).

       We hold Rees waived his argument that post-production waste cannot be
considered as part of a “mixture or substance” containing methamphetamine
supporting a conviction under section 841(b)(1)(A)(viii). While Rees did raise an
insufficiency of the evidence claim before the district court, Rees rested his argument
on the rarity, and thus unforeseeability, of the drug manufacturing byproducts found
at his residence. However, Rees specifically and unequivocally conceded the
substances found at his residence could be used to support his conviction. Because
Rees not only failed to raise his “mixture or substance” argument, but in fact
expressly conceded the argument before the district court, we will not address it.

III. CONCLUSION
     For the reasons stated, we affirm the district court’s denial of Rees’s motion for
judgment of acquittal or new trial, and affirm Rees’s convictions.
                          ______________________________




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