                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT



                                   No. 00-3123



United States of America,                *
                                         *
      Plaintiff/Appellee,
                                         *
      v.                                 *         Appeal from the United States
                                         *         District Court for the Northern
Gregory Lee Newton,                                District of Iowa.
                                         *
                                         *
      Defendant/Appellant.
                                         *



                              Submitted: May 15, 2001
                                 Filed: August 9, 2001


Before WOLLMAN, Chief Judge, HANSEN, Circuit Judge, and SCHREIER,1 District
Judge.


SCHREIER, District Judge.

       Gregory Lee Newton appeals his conviction for possession with intent to
distribute more than 500 grams of a mixture or substance containing a detectable


      1
        The Honorable Karen E. Schreier, United States District Judge for the
District of South Dakota, sitting by designation.
amount of methamphetamine and his sentence as a career offender. Newton argues that
the district court2 erred in denying Newton’s motion to suppress evidence, when it
admitted the surprise testimony of Dennis Boyer, and when it found defendant to be a
career offender. We affirm.

       While driving a commercial truck, Newton stopped at a weigh station in Cedar
County, Iowa, for a routine commercial motor vehicle inspection. Newton’s truck was
selected for a level II inspection in which the driver, his paperwork, and the truck are
inspected for approximately 45 minutes by the Department of Transportation of the
State of Iowa. DOT officer Scott Knudtson checked Newton’s logbook for compliance
and noticed that an inspection was completed in Nebraska. Newton indicated that he
had not been inspected in Nebraska, but that he had received citations for possessing
a radar jammer and a radar detector, both illegal in commercial vehicles. Although
Newton said that the radar detector was packed away, Knudtson could see the radar
detector under a baseball cap on the dash.

        Knudtson directed Newton to exit his truck and come to the building with
paperwork to complete the inspection. When Officer Knudtson asked Newton if there
was anything else illegal in the truck that he should know about, Newton returned to
the truck and produced a small bag of methamphetamine. Newton’s paperwork was
examined and no violations were found. He was not placed under arrest at that time.
When asked when he had last used methamphetamine, Newton admitted that he snorted
it six hours earlier to stay awake and drive longer. Knudtson then requested consent
to search the truck and Newton responded affirmatively. Newton later gave written
consent to search the truck, acknowledging his earlier oral consent to search.




      2
      The Honorable Michael J. Melloy, United States District Judge for the
Northern District of Iowa.

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       The inspectors began the search of the cab of the truck. When Knudtson reached
the sleeping compartment, Newton became particularly nervous, walking toward the
driver’s side door after being told to stay in front of the truck. Knudtson found
hypodermic needles, a spoon with white residue, and a black metal box. Through the
holes, Knudtson could see a white powder substance and cash. Because of Knudtson’s
training as a drug recognition expert, and because Newton had earlier given Knudtson
methamphetamine, Knudtson believed that the black box contained a controlled
substance. The search also produced drug notes, instructions on extracting
methamphetamine from an inhaler, and a listing of police frequencies.

       Newton was placed under arrest for possession of methamphetamine. Officers
searched for weapons on Newton’s person and found $1,199 cash. Newton was then
given his Miranda warnings. A drug dog searched the interior compartment of the
truck and the dog alerted to a box. The officers pried open the box and discovered
approximately 230.9 grams of methamphetamine and $24,980 in cash.

                                           I.

        Newton contends that the district court erred in denying defendant's motion to
suppress. A district court’s factual findings are reviewed for clear error and its
conclusion as to whether the search violated the Fourth Amendment is reviewed de
novo. United States v. Martinez, 78 F.3d 399, 401 (8th Cir. 1996). Newton did not
object to the magistrate judge’s report and recommendation finding that he consented
to the search and denying his motion to suppress evidence. After a de novo review, the
district court adopted the report and recommendation. “Appellant’s failure to file any
objections waived his right to de novo review by the district court of any portion of the
report and recommendation of the magistrate judge as well as his right to appeal from
the findings of fact contained therein.” Griffini v. Mitchell, 31 F.3d 690, 692 (8th Cir.
1994). “[W]here the defendant fails to file timely objections to the magistrate judge’s
report and recommendation, the factual conclusions underlying that defendant’s appeal

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are reviewed for plain error.” United States v. Looking, 156 F.3d 803, 809 (8th Cir.
1998).

       The United States argues, and the court found, that Newton consented, both
orally and in writing. It is well settled that “[law enforcement] may conduct a search
without a warrant and without probable cause if the suspect voluntarily consents to the
search.” United States v. Reinholz, 245 F.3d 765, 780 (8th Cir. 2001). Miranda
warnings need not be given prior to requesting consent to search. United States v.
Payne, 119 F.3d 637, 643 (8th Cir. 1997). Because it was not plain error for the district
court to find that Newton consented to the search, the motion to suppress was correctly
denied.

                                           II.

        Newton claims that the district court erred in allowing the testimony of Dennis
Boyer because his counsel did not learn of Boyer until the afternoon prior to trial.
Newton claims that by allowing Boyer to testify, the court allowed trial by ambush. At
trial, Newton objected to Boyer’s testimony.

        The United States contends that until preparing for trial it was unaware of
Boyer, that it immediately listed him in its trial packet, and informed defense counsel
that a subpoena was being served. The United States learned of Boyer from Newton’s
drug notes found in the truck which were included in the government’s discovery file
in accordance with its open file discovery policy.

       During trial, the district court offered Newton the opportunity to take additional
time to read the Jencks material or the summary of Boyer’s testimony and additional
time to prepare for cross examination. Newton declined additional time to prepare and
read the summary material during a break in the trial. At the end of the government’s


                                          -4-
case in chief, the court sent the jury home to give Newton more time to prepare in light
of the unexpected witness.

       Whether information should be produced pursuant to the Jencks Act is to be
determined by the district court, which should be upheld unless it is clearly erroneous.
United States v. Grunewald, 987 F.2d 531, 535 (8th Cir. 1993). We will not “overturn
a conviction for a Jencks violation in the absence of bad faith on the part of the
government and prejudice to the defendant.” United States v. Williams, 165 F.3d
1193, 1196 n.4 (8th Cir. 1999). Newton's drug notes referencing Boyer were included
in the government's discovery file. There is no evidence of bad faith on the part of the
government, nor prejudice to Newton. We, therefore, conclude that no reversible
Jencks error occurred.

                                          III.

      Newton claims the district court erred in finding him to be a career offender. We
review de novo the district court’s application of the United States Sentencing
Guidelines. United States v. Hascall, 76 F.3d 902, 904 (8th Cir.), cert. denied, 519
U.S. 948 (1996). “The guidelines require the sentencing court to increase a
defendant’s criminal history category and offense level if the defendant is a career
offender.” United States v. Mau, 958 F.2d 234, 236 (8th Cir. 1992).

       Newton argues that he is not a career offender because he does not have the
requisite two felony convictions under U.S.S.G. § 4B1.1 for a crime of violence or
controlled substance offense. Newton was previously convicted of involuntary
manslaughter and possession of a controlled substance.

      A career offender is defined in the United States Sentencing Guidelines as:




                                          -5-
      (1) [he] was at least eighteen years old at the time [he] committed the
      instant offense of conviction, (2) the instant offense of conviction is a
      felony that is either a crime of violence or a controlled substance offense,
      and (3) [he] has at least two prior felony convictions of either a crime of
      violence or a controlled substance offense.

U.S.S.G. § 4B1.1.

      The first two elements of the career offender guideline are not in dispute.
Newton was at least eighteen when he committed the instant offense and the instant
offense is a felony controlled substance offense.

       Newton first alleges that his Nevada state-court involuntary manslaughter
conviction is not a “crime of violence” under the third element of the career offender
statute. U.S.S.G. § 4B1.2(a)(2) defines the term “crime of violence” to mean "any
offense under federal or state law, punishable by imprisonment for a term exceeding
one year, that – . . . otherwise involves conduct that presents a serious potential risk of
physical injury to another.” Newton’s conduct, speeding and colliding with the rear
end of a car, killing the other driver and an infant and injuring three passengers, clearly
involves conduct that presents a serious potential risk of physical injury to another. We
find that Newton’s conviction for involuntary manslaughter meets the definition of
“crime of violence.”

      Furthermore, the drafters of the Guidelines clearly indicated that manslaughter
was to be considered a “crime of violence.” Application note 1 to § 4B1.2 lists
manslaughter as a “crime of violence” and makes no distinction between voluntary and
involuntary manslaughter. We conclude that it encompasses both. See United States
v. Fry, 51 F.3d 543 (5th Cir. 1995) (holding that involuntary manslaughter conviction
arising from causing death of another while driving under the influence constituted
crime of violence); United States v. Payton, 28 F.3d 17, 19 (4th Cir.) (holding that


                                           -6-
previous involuntary manslaughter conviction constituted a crime of violence under the
Guidelines), cert. denied, 513 U.S. 976, 115 S. Ct. 452, 130 L. Ed. 2d 361 (1994).

       Newton also argues that his prior California conviction for transportation of a
controlled substance is not a “controlled substance offense” as defined under § 4B1.2.
Newton claims that although he was convicted of transportation of a controlled
substance in 1993 and of possession of a controlled substance in 1996, these felonies
do not trigger the § 4B1.1 enhancement because he was not convicted of possession
or transportation with the intent to distribute.

      Pursuant to U.S.S.G. § 4B1.2(b):

      The term “controlled substance offense” means an offense under federal
      or state law, punishable by imprisonment for a term exceeding one year,
      that prohibits the manufacture, import, export, distribution, or dispensing
      of a controlled substance (or a counterfeit substance) or the possession of
      a controlled substance (or counterfeit substance) with intent to
      manufacture, import, export, distribute, or dispense.

       Newton’s presentence investigation report contains uncontested facts indicating
that Newton was attempting to sell two ounces of methamphetamine for $1,600 to use
the proceeds to buy a half pound of methamphetamine for $2,800. As the district court
found, the actual document issued by the state of California states that Newton was
convicted of selling controlled substances. Thus, the district court's ruling that
Newton's previous conviction was a “controlled substance offense” was not error.

      The judgment is affirmed.




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A true copy.

      ATTEST:

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




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