                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2505
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Western District of Arkansas.
Tracy Smith,                           *
also known as Trashawn Johnson,        *
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: January 11, 2005
                                Filed: June 3, 2005
                                 ___________

Before LOKEN, Chief Judge, MORRIS SHEPPARD ARNOLD and MURPHY,
Circuit Judges.
                            ___________

MURPHY, Circuit Judge.

      A jury convicted Tracy Smith of conspiracy to distribute more than fifty grams
of cocaine base and conspiracy to commit money laundering, and he was sentenced
to 292 months. Smith appeals, arguing that the district court1 should not have
allowed the case agent to answer a question to which he objected and that his
sentence violated his constitutional rights. We affirm.


      1
      The Honorable Robert T. Dawson, United States District Judge for the
Western District of Arkansas.
                                           I.

      Troy Mendenhall was the head of an organization distributing crack cocaine
in Malvern, Arkansas. Both his brother James Mendenhall and his nephew Keishawn
Reed were involved in selling the drugs. The organization obtained powder cocaine
from Tracy Smith in California, converted it to crack, and then sold it in Arkansas.
The organization used at least six couriers to transport the drugs and to take money
to California in payment. They generally traveled by commercial airlines or
Greyhound bus. One of the couriers told investigators she made one or two trips to
California each month and returned with one to two kilograms of cocaine each time.
She reported that she made the trips at the direction of Troy Mendenhall or Tracy
Smith and was paid $1,000 to $2,000 per trip.

       On several occasions couriers for the Mendenhall organization were
intercepted while carrying drugs or large amounts of cash to pay Smith for cocaine.
Keishawn Reed and another man were stopped in the St. Louis airport with $29,020
concealed in their shoes. Officers encountered Smith's sister at the Little Rock airport
with $9,322 which she indicated belonged to Troy Mendenhall, and another courier
stopped there had $9,700 in cashier checks purchased by Troy Mendenhall. One
courier linked to the Mendenhalls was found at the Greyhound bus station in
Texarkana with 695.3 grams of powder cocaine.

       The organization began sending purchase money to Smith in California by
Western Union in approximately 1998. Records from Western Union show that no
fewer than 132 transfers totaling $70,420 were made by Reed and Troy Mendenhall,
payable to individuals in Arkansas, Louisiana, Texas, Illinois, and California. At
least 28 money orders totaling $45,250 were sent to or by Smith to facilitate the
distribution of cocaine base. Reed also bought two vehicles for Smith as payment for
cocaine and registered the vehicles in his own name to conceal their true ownership.



                                          -2-
According to Reed, the Mendenhall organization sold more than 4 kilograms of crack
each month between 1997 and 1999.

      Smith, Troy and James Mendenhall, and Reed were charged in a second
superseding indictment with conspiring to distribute more than 50 grams of a mixture
or substance containing a detectable amount of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), and 846 (count 1), and conspiring to conduct financial
transactions affecting interstate commerce involving proceeds from the distribution
of cocaine base, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), (a)(1)(B)(i), and (h)
(count 2). Troy Mendenhall was charged with one other count and James Mendenhall
with five additional counts. The indictment alleged that as part of the conspiracy
Smith sold cocaine base to Troy Mendenhall and received drug proceeds and two
vehicles in return. The Mendenhalls and Reed pled guilty, but Smith went to trial.
He was convicted by the jury on both counts and sentenced to 292 months.

                                         II.

        During its case in chief the prosecution called Rochelle Boswell Washington
to testify. Washington is the mother of Smith's child and a niece of Troy Mendenhall.
Although she proved to be a somewhat reluctant witness, she testified that she had
delivered money from Mendenhall to Smith in California and had also wired it by
Western Union. At first she denied that Smith had asked her to wire him money from
Mendenhall, but on further questioning she admitted that she had testified to that
before the grand jury. She testified that she, along with Smith and another man, had
been stopped by police on one of her trips to California. When the police inquired
about the large amount of cash she had, she answered that she had come to California
to buy merchandise for a fashion business. She first denied she had been told to use
a cover story if stopped while carrying drug money, then subsequently admitted she
had told the grand jury that Mendenhall had given her that instruction.



                                         -3-
        When Washington was asked if she had ever seen anyone deliver cocaine to
Smith, she answered that she had once seen a woman deliver a bag to Smith but she
had not seen the contents. She testified about an incident in which Smith asked her
to follow him to a house and they exchanged vehicles after he stopped inside; she
then drove his car to his sister's apartment where the sister took a package from under
the driver seat. The prosecutor also asked Washington if she remembered hearing a
conversation between Troy Mendenhall and Smith about drug prices. After
refreshing her memory with the transcript of her grand jury testimony, Washington
testified that she had heard Mendenhall tell Smith how much he paid for cocaine and
that he sold crack to generate the most profit. On cross examination defense counsel
asked her whether she had ever seen Smith with a powdery white substance or seen
him sell cocaine or crack. She said that she had not. In answer to other questions by
defense counsel, she denied ever seeing any cocaine during the time she lived in
California or seeing Smith with an exorbitant amount of money or doing anything for
which he deserved jail time.

       Special Agent Harness, who had investigated the case and had interviewed
Washington before she testified to the grand jury, was also called as a prosecution
witness at trial. After Harness gave his testimony on direct, defense counsel asked
him about his grand jury testimony in which he had repeated statements made by
Washington in her interview. Defense counsel asked Harness if he had told the grand
jury that Washington had heard Troy Mendenhall tell Smith what he usually paid for
cocaine. Harness answered that he had and that Washington had told him
Mendenhall was talking about his profit margin. Defense counsel asked why
Mendenhall would tell Smith about the price he paid for cocaine if Smith were his
supplier of cocaine. Harness answered that this reference was only part of what
Washington had told him.

      On redirect the prosecutor attempted to put Washington's statement in context
and asked the question at issue on Smith's appeal: whether Washington had made it

                                         -4-
clear throughout her interview and grand jury testimony that Smith supplied cocaine
to Mendenhall. Defense counsel's objection to this question was that Washington had
already given her testimony. The district court overruled the objection on the basis
that the evidence counsel had elicited on cross examination of Harness could be
misleading if not put in context. Harness then answered yes to the question.

       Although the objection made at trial was that Washington had already testified
and that defense counsel had only asked Harness about his own grand jury testimony,
Smith now raises a new objection to the evidence. He argues that the question to
Harness called for a hearsay answer which should not have been admitted. The
government responds that the evidence was not hearsay and that it was admissible
under Federal Rule of Evidence 801(d)(1)(A) because Washington's grand jury
testimony was inconsistent with what she said at trial. It also contends that it was
proper redirect because defense counsel had asked Harness about Washington's
statement and created a false impression about it. Moreover it says, admission of the
evidence was at most harmless error because of overwhelming evidence of Smith's
guilt.

       After examining the record, we conclude that the district court did not abuse
its discretion in overruling Smith's objection at trial. The challenged evidence was
relevant, and the objection raised at trial lacked merit. Defense counsel opened up
the subject of Washington's interview with Harness by his earlier questioning,
creating an incomplete and misleading impression of her statement and grand jury
testimony. See United States v. Womochil, 778 F.2d 1311, 1315 (8th Cir. 1985). An
objection on the basis that the question was leading might have been sustained, but
that objection was not made.

      No hearsay objection was made at trial, see Fed. R. Evid. 103(a)(1) (objection
must state specific ground if not apparent), and Smith has not shown plain error. See
Fed. R. Evid. 103(d). Harness did not repeat any statements Washington made nor

                                         -5-
vouch for their truth. Since Washington testified at trial and was subject to cross
examination, any inconsistent grand jury testimony would not be hearsay, see Fed.
R. Evid. 801(d)(1)(A), but it is not clear from the record before us whether or not the
testimony was actually inconsistent.

       If there were any error in allowing the challenged evidence, it would be
harmless since there was so much evidence of Smith's guilt.2 See United States v.
White, 11 F.3d 1446, 1451 (8th Cir. 1993) (harmless error if other evidence to the
same effect is properly before the jury). Washington was only one of the witnesses
who gave evidence implicating Smith. Keishawn Reed, a coconspirator, testified that
Smith was a supplier of cocaine and had traveled from California to Arkansas to help
sell crack cocaine. Reed told the jury that he and others had been stopped in airports
in St. Louis and Little Rock while carrying large amounts of cash to be used to
purchase cocaine from Smith in California. They sent money to Smith by Western
Union and used drug money to purchase cashier checks to pay Smith for cocaine.
Money from the sale of crack cocaine had also been used to buy two vehicles in
Smith's name. Reed's testimony was corroborated by records from Western Union,
bank records showing the purchase of cashier checks, and records about the purchase
of the two vehicles. Other witnesses added their testimony about delivering money
and cocaine for Smith, and Agent Harness testified about admissions Smith had made
to him. Smith had admitted, for example, that he regularly sold cocaine to people in
Arkansas from his base in California and that he received payment from Arkansas by
couriers or Western Union.




      2
       Although Smith did not argue in the district court or on appeal that the
challenged evidence violated his right to confrontation, any error in its admission
would be harmless beyond a reasonable doubt given the strength of the evidence
against him. See United States v. Copley, 938 F.2d 107, 110 (8th Cir. 1991).

                                         -6-
                                          III.

       In Smith's pro se supplemental brief he argues that his sentence violated his
right to a jury trial and his right to due process, citing Blakely v. Washington, 124 S.
Ct. 2531 (2004).3 Smith contends that his sentence was based on a court finding that
he was responsible for 96 kilograms of cocaine base, rather than on the jury finding
of more than 50 grams. He says this was plain error.

       The Presentence Investigation Report (PSR) calculated that Smith's relevant
conduct under U.S.S.G. § 1B1.3 involved more than 96 kilograms of crack cocaine
and set Smith's base offense level at 38. That is the base offense level the guidelines
manual provides for 1.5 kilograms or more of cocaine base. The PSR also
recommended a three level enhancement for managerial or supervisory role under
U.S.S.G. § 3B1.1(b) and reported Smith's criminal history at category VI. With a
total offense level of 41 and criminal history category of VI, Smith's guideline
sentencing range would have been 360 months to life.

        Although Smith did not file a written objection to the PSR calculation of drug
quantity, the district court asked his counsel at sentencing if Smith should be held
responsible for less than 1.5 kilograms. Counsel responded that only one witness had
testified about receiving a package of cocaine from Smith and that it contained less
than that amount. The district court found, however, that there was "overwhelming"
evidence that more than 1.5 kilograms of crack were attributable to Smith. It set his
base offense level at 38 and declined to impose a role enhancement under § 3B1.1(b).

      3
        Although Smith has protected his appellate record by raising a Blakely issue
on direct appeal, he asserts his counsel was ineffective for not having done it and
supports counsel's motion to withdraw. Claims of ineffective assistance should
almost always be resolved in collateral proceedings, rather than on direct appeal, so
that a fuller record can be made on the issues. See United States v. Lee, 374 F.3d 637,
654 (8th Cir. 2004).

                                          -7-
It also found Smith entitled to a two level reduction for acceptance of responsibility
under U.S.S.G. § 3E1.1(a), resulting in a total offense level of 36. The court then
made an adjustment to Smith's criminal history category, finding it had been
overstated by two points because of misdemeanors for which he had received
probation or a suspended sentence. The court reduced Smith's criminal history
category to V which combined with his total offense level of 36 resulted in a
sentencing range of 292 to 365 months, instead of the recommended range of 360
months to life. The court then sentenced Smith to 292 months.

       Smith did not raise his constitutional issue in the district court, and he concedes
that his sentence is therefore reviewed for plain error. See United States v. Olano, 507
U.S. 725, 731-32 (1993). In order to obtain relief under plain error review, there must
have been an error that is plain and which affected Smith's substantial rights. United
States v. Cotton, 535 U.S. 625, 631 (2002); Olano, 507 U.S. at 732-36. For an error
to affect substantial rights it must generally be prejudicial and must have affected the
outcome of the district court proceedings. Olano, 507 U.S. at 734-35. Even if there
were plain error affecting substantial rights, reversal would only be called for if "the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings." Cotton, 535 U.S. at 631 (quotations and internal marks omitted). Plain
error review is thus circumscribed. See Jones v. United States, 527 U.S. 373, 389
(1999); United States v. Pirani, No. 03-2871, slip op. at 8 (8th Cir. en banc Apr. 29,
2005).

      There was error in this case that was plain because Smith's sentence was
imposed under a mandatory guideline system which was held to be unconstitutional
in United States v. Booker, 125 S. Ct. 738, 756-57 (2005), see Pirani, slip op. at 8,
and Smith's sentence was based on a finding by the court that he was responsible for




                                           -8-
more drugs than the jury had found.4 See Booker, 125 S. Ct. at 755-56. If his base
offense level had been calculated on the more than 50 grams of cocaine base found
by the jury, it would have been 32 instead of the assigned level of 38 based on the
court finding of 1.5 kilograms. Assuming that Smith would have then been classified
at criminal history category V without a role enhancement or reduction for
acceptance, the resulting guideline range would have been 188-235. The 292 month
sentence imposed by the district court was well above that possible range, and under
an advisory guideline system other statutory sentencing factors could have affected
Smith's final sentence. 18 U.S.C. § 3553(a); Booker, 125 S. Ct. at 764-66.

        Smith bears the burden of showing that Booker error prejudiced him and that
it affected his substantial rights. Olano, 507 U.S. at 734. A defendant has not met that
burden if the effect of an error is uncertain. See Jones, 527 U.S. at 394-95. Here, the
district court did express some concern about the applicable sentencing range,
observing that it was about double the combined sentences of the codefendants who
had pled guilty. The court went on to note, however, that Smith's criminal history
category was higher than those of his codefendants. The sentence imposed was
justified the court said, due to Smith's involvement in drug dealing over an extended
period of time and due to the seriousness of his offense. It explicitly found that the
proof was overwhelming that the conspiracy involved more than 1.5 kilograms of
cocaine base. After not imposing the recommended role enhancement for manager
or supervisor, finding Smith accepted responsibility by making an early and detailed
statement to law enforcement and granting him an unusual two level reduction after
going to trial, see United States v. Greger, 339 F.3d 666, 673 (8th Cir. 2003), and

      4
        In Apprendi v. New Jersey, 530 U.S. 466, 489 (2000), the Supreme Court held
that based on due process and the Sixth Amendment "[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt." In Booker, the Supreme Court applied the Apprendi rule to the federal
sentencing guidelines but also indicated that such error could be remedied by treating
the guidelines as merely advisory. 125 S. Ct. at 756-57, 764.
                                          -9-
finding his criminal history category overstated by two points despite seven adult
criminal convictions, the court appears to have fashioned what it considered to be the
appropriate sentence.5 Near the end of the sentencing hearing, the judge told Smith
that he thought "justice will be served by this lengthy sentence."

       After examining the record we conclude that Smith has not shown that the
sentencing error affected his substantial rights because he has not demonstrated a
reasonable probability that the district court would have imposed a more favorable
sentence if the guidelines had been treated as advisory rather than mandatory. Pirani,
slip op. at 11. The court made findings which adjusted Smith's sentence to a level it
found appropriate, and it did not indicate that Smith's sentence was unreasonable, see
Pirani, slip op. at 12 n.6. In fact it said his sentence was justified. Since Smith has
not shown that there is a reasonable probability that but for the Booker error he would
have received a more favorable sentence, he has failed to demonstrate plain error.

     Accordingly, we affirm the judgment of the district court and deny defense
counsel's pending motion to withdraw.6
                      ______________________________




      5
       We note that the government has not challenged the court's application of the
guidelines.
      6
        Counsel may renew his motion after informing Smith about his option to
petition for rehearing and about the procedures for petitioning the Supreme Court for
certiorari, in compliance with Part V of our plan to implement the Criminal Justice
Act.
                                         -10-
