                       United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 03-3387
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Southern District of Iowa.
Rodney Phillip Hill,                      *
                                          *
             Appellant.                   *
                                     ___________

                              Submitted: May 11, 2004
                                 Filed: June 8, 2005
                                  ___________

Before WOLLMAN, HANSEN, and BYE, Circuit Judges.
                         ___________

WOLLMAN, Circuit Judge.

        Rodney Phillip Hill was indicted on one count of conspiracy to manufacture
and distribute methamphetamine and marijuana in violation of 21 U.S.C. § 846. After
a trial at which nearly 20 non-law enforcement witnesses testified about their drug-
related interactions with, and observations of, Hill, he was convicted and sentenced
to life in prison. On appeal, Hill argues (1) that the district court1 erred in admitting
testimony that Hill tried to have a number of people, including two grand jury
witnesses, murdered; (2) that the evidence was insufficient to support the jury’s

      1
        The Honorable Ronald E. Longstaff, Chief Judge, United States District Court
for the Southern District of Iowa.
conclusion that there was a single, large drug conspiracy; and (3) that the sentencing
enhancements found by the district court were unconstitutional in light of Blakely v.
Washington, 124 S. Ct. 2531 (2004). We affirm.

                                             I.
       Hill first argues that the district court erred in denying his in limine motion to
exclude co-conspirator Greg Gilley’s testimony that on three occasions Hill provided
Gilley with a firearm and asked that he use the firearm to kill or maim an individual.
Hill argues that Gilley’s testimony constituted “other crimes, wrongs, or acts”
evidence, the admission of which is governed by Fed. R. Evid. 404(b). The
government contends that Rule 404(b) is inapplicable because evidence of violent
acts committed in furtherance of a drug conspiracy is admissible as substantive
evidence of the existence of the alleged conspiracy. We agree with the government’s
position and conclude that Gilley’s testimony was properly admitted by the district
court.

       Gilley testified about actions that were clearly intended to further the drug
conspiracy. Two of the intended victims were slated to testify before a grand jury.
Another intended victim had stolen drugs and other property from the conspiracy.
The final intended victim had created problems for the conspiracy by drawing police
attention to a location where members of the conspiracy manufactured
methamphetamine. Because Gilley testified that Hill ordered him to commit these
shootings in furtherance of the conspiracy, the testimony was admissible as
substantive evidence of the existence of the conspiracy and was probative of the
charged crime. United States v. Maynie, 257 F.3d 908, 915-16 (8th Cir. 2001).
Accordingly, Rule 404(b) is inapplicable. Id. The district court did not abuse its
discretion in concluding that Gilley’s testimony was not unfairly prejudicial, because
the details of his interactions with Hill tended to illustrate the nature of Hill’s
involvement in the conspiracy and the lengths to which he would go to further it. Id.



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       Even if Gilley’s testimony constituted “other crimes, wrongs, or acts” evidence
it would still be admissible. Rule 404(b) is a rule of inclusion, meaning that we
presume that other crimes evidence is admissible to prove motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident, unless the
party seeking its exclusion can demonstrate that it serves only to prove the
defendant’s “criminal disposition.” United States v. Campa-Fabela, 210 F.3d 837,
840 (8th Cir. 2000). Other crimes evidence is admissible if it is relevant to a material
issue, the other crimes are similar and reasonably close in time to the charged crime,
the evidence is sufficient to support a jury’s finding that the defendant committed the
other crimes, and the probative value of the evidence is not substantially outweighed
by unfair prejudice. United States v. Carroll, 207 F.3d 465, 469 n. 2 (8th Cir. 2000).

        Here, Gilley’s testimony was clearly probative of the existence, extent, and
duration of the alleged drug conspiracy as well as Hill’s involvement in the
conspiracy and was thus relevant to a material issue. Additionally, the acts Gilley
testified about were closely related in time to the charged crime because they
occurred in the midst of the conspiracy and were intended to extract retribution for
drugs stolen from the conspiracy or to ensure the security of the enterprise. It was for
the jury to judge Gilley’s credibility based on all available evidence, including the
fact that Gilley testified pursuant to a limited immunity agreement. Finally, although
the testimony was prejudicial to Hill (as is all evidence tending to prove a defendant’s
guilt), it was not unfairly so because the evidence was closely related to the charged
crime and the detail given was necessary to show that relation. United States v.
Shoffner, 71 F.3d 1429, 1433 (8th Cir. 1995).

                                            II.
        Hill next argues that the evidence adduced at trial was insufficient as a matter
of law to support the jury’s conclusion that he was a member of a single drug
conspiracy. We review de novo the sufficiency of the evidence, viewing the evidence
in the light most favorable to the verdict and upholding it if, based on all the evidence

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and all reasonable inferences in favor of the verdict, any reasonable juror could find
the defendant guilty beyond a reasonable doubt. United States v. Martin, 369 F.3d
1046, 1059 (8th Cir. 2004); United States v. Hamilton, 332 F.3d 1144, 1148-49 (8th
Cir. 2003). To establish the existence of a conspiracy, the government must prove
that an agreement was made to do something illegal—in this case, that Hill and others
agreed to manufacture and distribute drugs. United States v. Hester, 140 F.3d 753,
760 (8th Cir. 1998). A person must intentionally enter into the conspiracy and must
know its ultimate goal. Id. However, it is not necessary that the participants or
activities remain static throughout the duration of the conspiracy. United States v.
Pullman, 187 F.3d 816, 821 (8th Cir. 1999). Indeed, participants may be uninvolved
in, or even unaware of, all acts committed in furtherance of the conspiracy. The jury
must simply be able to find that there was an overall agreement to pursue a common,
unlawful end. Id.

       Based on the totality of the circumstances, id., we conclude that the evidence
in this case was sufficient to sustain the jury’s finding that Hill was a member of a
single, massive conspiracy. The record reveals the existence of a large, but typical,
“hub and spokes” conspiracy, with Hill as a hub: he purchased drugs and drug
precursors from a variety of individuals; he manufactured or processed the purchased
drugs and drug precursors; and he packaged and distributed the drugs to consumers
and lower-level dealers. This evidence is consistent with the finding of a single
conspiracy. United States v. Slaughter, 128 F.3d 623, 630 (8th Cir. 1997).

      Hill also briefly argues that the district court erroneously failed to give a
multiple conspiracy instruction and failed to find a variance between the indictment
and the proof at trial. Because Hill did not raise these issues before the district court,
we review them for plain error. Id. Because the evidence adduced at trial was
consistent with the jury’s finding that there was a single drug conspiracy, the district
court did not err in not giving a multiple conspiracy instruction. Id. Similarly,



                                           -4-
because the evidence was consistent with the allegations made in the indictment,
there was no variance. United States v. Novak, 217 F.3d 566, 576 (8th Cir. 2000).

                                          III.
       We granted Hill’s post-oral-argument motion for supplemental briefing in light
of the Supreme Court’s decision in Blakely, 124 S. Ct. 2531. Hill argues that his
Fifth and Sixth Amendment rights were violated when the district court enhanced his
sentence under the United States Sentencing Guidelines Manual (U.S.S.G.) based on
facts not admitted by him or found by a jury.2 The Supreme Court has since decided
United States v. Booker, 125 S. Ct. 738 (2005), in which it concluded that a sentence
imposed under a mandatory guidelines scheme based on judicially found facts
constitutes a violation of the Sixth Amendment. Id. at 756. The Booker Court
remedied the constitutional error in the sentencing scheme by excising the provisions
of the Sentencing Reform Act of 1984 that made the guidelines mandatory and
rendering advisory the guidelines scheme. Id. at 764.

       Hill failed to preserve this issue before the district court, and we accordingly
review for plain error. See United States v. Pirani, No. 03-2871, slip op. at 6 (8th Cir.
Apr. 29, 2005) (en banc). In order for Blakely/Booker error to be preserved, a
defendant must have “argued Apprendi or Blakely error or that the Guidelines were
unconstitutional.” Id. (quoting United States v. Antonakopoulos, 399 F.3d 68, 76 (1st
Cir. 2005)). The only objections that Hill made at sentencing were in relation to the
adequacy and reliability of the evidence relied upon by the district court in making
the factual findings that resulted in the enhancements—challenges he has not raised
on appeal. Hill thus failed to preserve Booker error because he did not challenge the
constitutionality of the guidelines or their application below.


      2
        We grant Hill’s motion to amend his supplemental brief and conclude that the
additional argument he raises regarding the appropriate base offense level has no
effect on our reasoning or the result we reach.

                                          -5-
       The district court set Hill’s base offense level at 36 because it found that Hill’s
offense involved at least 500 grams but less than 1.5 kilograms of actual
methamphetamine. U.S.S.G. § 2D1.1. The district court also imposed a two-level
increase for possession of a firearm in connection with the offense, U.S.S.G. §
2D1.1(b)(1), a three-level increase for the creation of a substantial risk of harm to the
lives of others through the manufacture of methamphetamine, U.S.S.G. §
2D1.1(b)(5)(B), a four-level increase for being a leader or organizer of a group with
five or more participants, U.S.S.G. § 3B1.1(a), and a two-level increase for
obstruction of justice, U.S.S.G. § 3C1.1. These enhancements resulted in an offense
level of 47. The district court sentenced Hill to a life term of imprisonment, which
is the only sentence available at level 43, the highest offense level in the guidelines’
sentencing table.

       In conducting plain error review, we consider the four-part test of United States
v. Olano, 507 U.S. 725, 732(1993), as applied in Pirani. We ask whether there is (1)
error (2) that is plain and (3) that affects substantial rights, but we may remedy the
error only (4) if it “seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Olano, 507 U.S. at 732 (quotation omitted). Hill has the
burden of demonstrating prejudicial plain error. See Pirani, slip op. at 11. The
district court committed constitutional error in this case due to the combination of the
enhancements and the fact that they were imposed under a mandatory regime. See
id. at 9. In other words, the resulting sentence itself would not be illegal under an
advisory scheme so long as the guidelines were properly applied, but was illegal in
this case because it was computed under a mandatory process. Id. at 13. This error
is plain under Booker. Our analysis therefore turns on the application of the third
Olano factor: whether the error affected Hill’s substantial rights. That factor is
established only if Hill can show that there is “a ‘reasonable probability,’ based on
the appellate record as a whole, that but for the error he would have received a more
favorable sentence,” Pirani, slip op. at 11, a fact-specific inquiry.



                                           -6-
       No statement by the district court indicates that it would likely have issued a
different sentence had the guidelines been advisory at the time of sentencing. The
district court rejected the total offense level of 52 recommended in the presentence
investigation report, finding a lesser quantity of drugs and declining to apply one of
the recommended enhancements. In doing so, it stated that it was giving Hill the
benefit of the doubt. The guidelines, however, mandated a life sentence for any
offense level at or above 43. The district court noted as a general matter that it did
not take any pleasure in giving a life sentence, Sentencing Tr. at 44, but gave no
indication that it believed the sentence was unwarranted or unfair under the
circumstances or that it would have imposed a lesser sentence had it been free to do
so. We therefore conclude that Hill has failed to meet his burden of demonstrating
plain error.

      The conviction and sentence are affirmed.
                      ______________________________




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