                                No. 96-1244


United States of America,           *
                                    *
     Plaintiff - Appellee,          *
                                    *   Appeal from the United States
v.                                  *   District Court for the Western
                                    *   District of Missouri.
Richard H. Strange,                 *
                                    *
     Defendant - Appellant.         *



                                No. 96-1634


United States of America,           *
                                    *
     Plaintiff - Appellee,          *
                                    *   Appeal from the United States
v.                                  *   District Court for the Western
                                    *   District of Missouri.
Charles A. Zamorano,                *
                                    *
     Defendant - Appellant.         *




                 Submitted:      September 10, 1996

                       Filed:    December 13, 1996


Before MAGILL, FLOYD R. GIBSON, and MORRIS SHEPPARD ARNOLD, Circuit
     Judges.


FLOYD R. GIBSON, Circuit Judge.


     Richard Strange and Charles Zamorano pleaded guilty to
violating 21 U.S.C. §§ 841(a)(1), 846 (1994), by conspiring to
distribute and possess with intent to distribute controlled
substances. Strange and Zamorano appeal the sentences imposed by
the district court,1 and we affirm.

I.   BACKGROUND


     In February of 1993, Strange, a drug dealer, told his friend
and customer Robert Scott that he had located a connection for
guaranteed quantities of marijuana, and in subsequent conversations
Strange disclosed that Zamorano was his supplier. A few months
later, Strange inquired whether Scott would be willing to accept
delivery of a package from El Paso, Texas containing marijuana. In
exchange, Strange agreed to forgive Scott's $50 outstanding balance
and to give Scott a discount on future narcotics purchases. Scott
consented to this arrangement, and during the first week of July in
1993 a shipment of approximately five pounds of marijuana arrived
at his home. Scott received a second parcel from El Paso, also
consisting of about five pounds of marijuana, in the middle of that
month. On both occasions, Strange promptly travelled to Scott's
house and retrieved the contraband.


     In late July of 1993, members of the El Paso Airport Drug Task
Force, acting in response to a call from an employee of the United
Parcel Service, intercepted a package addressed to Scott's Kansas
City residence. The officers located inside the carton 239.5 grams
of cocaine hidden within a pair of cowboy boots.      On August 2,
1993, after conducting a controlled delivery of the box to its
intended destination, federal agents arrested Scott. Scott agreed
to cooperate with law enforcement personnel, and he provided
information indicating that Zamorano transferred drugs to him from
El Paso; Scott further divulged that Strange was responsible for
taking possession of the narcotics and wiring the illicit proceeds
back to Zamorano. In fact, an investigation revealed that various
wire transfers were made to Zamorano from a man in Kansas City


     1
      The HONORABLE FERNANDO J. GAITAN, JR., United States
District Judge for the Western District of Missouri.

                                2
using the name "Bob Scott." A handwriting expert concluded that
Strange was the person who had signed as "Bob Scott" to authorize
the transfers, and documents on file at Western Union positively
identify Zamorano as the individual who collected the wired funds
in Texas. In total, approximately $14,410 passed from Kansas City
to El Paso during the relatively short life of the machination.


     On June 26, 1995, a federal grand jury issued a four count
indictment against Strange and Zamorano. Both men pleaded guilty
to the first count in the indictment,2 which described a conspiracy
to distribute and possess with intent to distribute illegal drugs
in violation of 21 U.S.C. §§ 841(a)(1), 846, in return for the
Government's pledge to dismiss the remaining charges against them.
At sentencing, both defendants denied knowledge that the third
delivery contained cocaine instead of marijuana, and Scott
testified that no one had ever told him what would be included in
that final shipment. Nonetheless, the district court, over defense
objections, held Strange and Zamorano accountable for the quantity
of cocaine found in the parcel.


     In this appeal, Strange and Zamorano contend the district
court committed error when it found they could have reasonably
foreseen that the package addressed to Scott might be laden with
cocaine.    In addition, Strange argues the district court
inappropriately calculated the criminal history points assessed
against him. We consider these points seriatim.




     2
      Although the plea agreements were similar, they differed in
at least one respect warranting brief comment. Specifically,
Strange pleaded guilty to conspiring to distribute marijuana.
Zamorano, on the other hand, admitted in his plea that he
conspired to distribute a "controlled substance."

                                3
II.   DISCUSSION


      A.   Relevant Conduct


     To arrive at the appropriate sentencing range for a drug
defendant, it is invariably necessary for the district court to
reference the "relevant conduct" provisions of the United States
Sentencing Guidelines. See United States v. Hayes, 971 F.2d 115,
117 (8th Cir. 1992)("[A] key step in sentencing a drug defendant is
to calculate the type and quantity of drugs attributable to that
defendant.").   In the present case, the district judge applied
Guideline § 1B1.3(a)(1)(B) to hold Strange and Zamorano answerable
for the 239.5 grams of cocaine located in the third package
delivered to Scott. Under that paragraph, a defendant engaged in
"jointly undertaken criminal activity" is deemed responsible for
"[t]he conduct of others that was both in furtherance of, and
reasonably foreseeable in connection with, the criminal activity
jointly undertaken by the defendant." U.S. Sentencing Guidelines
Manual § 1B1.3 application note 2 (1995).      In other words, as
relevant to a narcotics conspiracy, a drug defendant is accountable
for all contraband "within the scope of criminal activity jointly
undertaken by [the defendant] and reasonably foreseeable to him."
United States v. Townley, 929 F.2d 365, 370 (8th Cir. 1991).


     Strange and Zamorano now assert, as they did before the
district court, that the Government has failed to prove the scope
of their conspiracy extended to encompass cocaine. Rather, the
dealers maintain the evidence shows that they contrived to
exclusively distribute marijuana.   Similarly, given the limited
nature of their enterprise, they declare that it could not have
been reasonably foreseeable to them that the pertinent package
would include cocaine. For these reasons, they contend that the
district   court  incorrectly   augmented   their  sentences   by
incorporating cocaine into the amount of drugs attributable to
them. We will reverse only if the district court committed clear

                                4
error when ascertaining drug quantity. See United States v. Smith,
49 F.3d 362, 365 (8th Cir.), cert. denied, 115 S. Ct. 2009 (1995).


     Before moving to the merits of this issue, we pause to reflect
upon the conduct to which Strange and Zamorano have admitted or
that the Government proved by a preponderance of the evidence. It
is beyond cavil that both conspirators played instrumental roles in
orchestrating the transportation of the package in question.
Strange introduced Zamorano and Scott, and he concedes that he
acted as a "facilitator" for the various narcotics shipments. To
be sure, his awareness of the final conveyance is evidenced by a
phone call he made to Scott during which he queried whether the
parcel had arrived. Likewise, Zamorano confirms that he arranged
the delivery through his "source" in El Paso. Thus, though Strange
and Zamorano acknowledge considerable involvement with the illegal
mailing, each of the confederates professes to have believed that
the carton would contain marijuana, not cocaine.3


     Within this factual context, we are persuaded that it would
have been more fitting to assess the conspirators' responsibility
for the cocaine under Guideline § 1B1.3(a)(1)(A).4           Unlike
paragraph (a)(1)(B), which the district court utilized to hold
Strange and Zamorano liable for the "acts and omissions of others,"
paragraph (a)(1)(A) appertains to conduct personally undertaken by


     3
      The appellants proffer quite different explanations for the
presence of the cocaine within the package. Strange speculates
that Zamorano, without consulting either of his associates, might
have taken it upon himself to include cocaine in the shipment.
Zamorano, of course, does not join in this postulation, but
instead posits that his "source" probably sent the wrong box to
Scott's address. It is worth mentioning that, to date, Zamorano
has not identified his "source."
     4
      The district court did not address paragraph (a)(1)(A) at
sentencing, but it is well established that we may affirm a
defendant's sentence on any ground supported by the record. See
United States v. Garrido, 995 F.2d 808, 813 (8th Cir.), cert.
denied, 510 U.S. 926 (1993).

                                5
the defendant being sentenced.5  See U.S. Sentencing Guidelines
Manual § 1B1.3(a)(1) (1995). For instant purposes, the following
elaboration within the Guideline's application notes is of
particular moment:

     With respect to offenses involving contraband (including
     controlled substances), the defendant is accountable for
     all quantities of contraband with which he was directly
     involved . . . .

     The requirement of reasonable foreseeability applies only
     in respect to the conduct (i.e., acts and omissions) of
     others under subsection (a)(1)(B). It does not apply to
     conduct that the defendant personally undertakes . . .;
     such conduct is addressed under subsection (a)(1)(A).

U.S. Sentencing Guidelines Manual § 1B1.3 application note 2
(1995). Simply stated, reasonable foreseeability is significant
solely when evaluating relevant conduct under § 1B1.3(a)(1)(B); it
is   completely   immaterial  to   the   analysis   guided  by   §
                6
1B1.3(a)(1)(A). See United States v. Lockhart, 37 F.3d 1451, 1454
(10th Cir. 1994)("Because defendant personally participated in the
transaction giving rise to the 1.5 kilograms that the trial court
attributed to defendant, the foreseeability of the quantity was


     5
      We emphasize that it is wholly appropriate to employ
paragraph (a)(1)(A) even when, as here, the defendant being
sentenced stands convicted of a conspiracy only. United States
v. Chalarca, 95 F.3d 239, 243 (2d Cir. 1996)("The fact that one
is convicted of conspiracy to distribute narcotics does not
necessarily call for the application of the jointly undertaken
criminal activity Guidelines.").

     6
      To the degree that our opinion in Hayes, 971 F.2d at 117-
18, might be read to interpolate reasonable foreseeability as a
factor for consideration under paragraph (a)(1)(A), we note that
the decision there predated the 1992 amendments to the Sentencing
Guidelines. In November of that year, the United States
Sentencing Commission modified § 1B1.3 and its application notes
to expressly clarify that reasonable foreseeability is not
germane to an evaluation of acts and omissions personally pursued
by the defendant. See U.S. Sentencing Guidelines Manual app. C
at 256-64 (1992)(amendment 439).

                                6
irrelevant."); United States v. Corral-Ibarra, 25 F.3d 430, 438
(7th Cir. 1994)("[T]he critical distinction is between direct and
remote involvement in an illegal activity because only the latter
will trigger a reasonable foreseeability inquiry."); cf. United
States v. Tran, 16 F.3d 897, 905 (8th Cir. 1994)(declining to
consider reasonable foreseeability where the appellant was
intimately involved with the drugs at issue).


     Mindful of these precepts, we have no difficulty in
determining that the district court correctly attributed the 239.5
grams of cocaine to Strange and Zamorano.       Through their own
actions, the two men aided, abetted, and wilfully caused the
conveyance to Scott of at least three packages.          See U.S.
Sentencing Guidelines Manual § 1B1.3(a)(1)(A) (1995).        Their
convictions verify that they embarked upon this behavior with the
requisite criminal intent and with every expectation of receiving
some type of illegal drug to distribute. Accordingly, under the
scheme sanctioned by Congress, and without regard to reasonable
foreseeability, they are accountable at sentencing for the full
quantity of all illegal drugs located within the parcels.7 See id.
§ 1B1.3 application note 2, illus. (a)(1) (suggesting that a drug
defendant is chargeable at sentencing for any narcotic with which
he was directly involved "regardless of his knowledge or lack of


     7
      To qualify as relevant conduct under § 1B1.3(a)(1), the act
or omission must also have occurred, among other impertinent
alternatives, "during the commission of the offense of
conviction." U.S. Sentencing Guidelines Manual § 1B1.3(a)(1)
(1995). The Government has satisfied this prerequisite in the
current appeal. We have previously interpreted the term "offense
of conviction" to mean "the substantive offense to which the
defendant pleads guilty," United States v. Morton, 957 F.2d 577,
579 (8th Cir. 1992), and a conspiracy does not expire until
"after the last overt act committed during the existence of the
conspiracy," United States v. Lewis, 759 F.2d 1316, 1347 (8th
Cir.), cert. denied, 474 U.S. 994 (1985). By coordinating the
shipment of drugs to Scott's home, Strange and Zamorano committed
overt acts during the commission of the conspiracy to which each
pleaded guilty.

                                7
knowledge of the actual type or amount of that controlled
substance"); United States v. Salazar, 5 F.3d 445, 446 (9th Cir.
1993)("The base offense level for guideline sentencing may be
determined by the volume of the drug actually [embraced by the
offense of conviction], whether or not the defendant knows either
the volume or the nature of the substance . . . ."). While we
recognize full well that this could, in some cases, result in what
might appear to be disproportionate sentences, it is certainly
within the province of Congress to resolve that there is some
deterrent value in exposing a drug trafficker to liability for the
full consequences, both expected and unexpected, of his own
unlawful behavior. Cf. United States v. Obi, 947 F.2d 1031, 1032
(2d Cir. 1991)(per curiam)("Congress, for purposes of deterrence,
intended that narcotics violators run the risk of sentencing
enhancements concerning other circumstances surrounding the
crime.").

     B.   Strange's Criminal History Category


     Strange additionally propounds that the district court
committed a number of errors in calculating his criminal history
category. "We review de novo the district court's construction and
interpretation of Chapter Four of the Guidelines, and we review for
clear error the district court's application of Chapter Four to the
facts." United States v. Jones, 87 F.3d 247, 248 (8th Cir.)(per
curiam), cert. denied, 65 U.S.L.W. 3309 (U.S. Oct. 21, 1996)(No.
96-6074). As explicated below, we conclude that the district court
correctly computed Strange's criminal history category.

          1.   Strange's prior sentences as "related cases"


     A defendant's criminal history category is dictated by the
amount of criminal history points levied against him. In large
measure, the sum of criminal history points is linked to the
defendant's "prior sentences."   See U.S. Sentencing Guidelines

                                 8
Manual § 4A1.1 (1995). Although the Guidelines direct a district
court to assess separate points for prior sentences decreed in
unrelated cases, they further instruct that "[p]rior sentences
imposed in related cases are to be treated as one sentence." Id.
§ 4A1.2(a)(2).


      Because many of Strange's manifold past convictions were
consolidated for sentencing, he asked the district court to treat
those adjudications as related cases under the Guidelines. The
court denied this request, however, based on a 1991 amendment to
the application notes which specifies that "[p]rior sentences are
not considered related if they were for offenses that were
separated by an intervening arrest (i.e., the defendant is arrested
for the first offense prior to committing the second offense)."
U.S. Sentencing Guidelines Manual § 4A1.2 application note 3
(1995). Strange does not deny that his previous sentences were for
offenses separated by intervening arrests, but he still insists
that the district court should have used the pre-1991 version of
the Guidelines when tallying his criminal history points.


     This assertion is untenable. We have often held that "the
sentencing court should apply the Sentencing Guidelines in effect
at the time of sentencing unless the court determines that such
application would violate the ex post facto clause." United States
v. Cooper, 35 F.3d 1248, 1251-52 (8th Cir. 1994), vacated, 115 S.
Ct. 1820 (1995), and reinstated by 63 F.3d 761, 763 (8th Cir.
1995)(per curiam), cert. denied, 116 S. Ct. 1548 (1996).         An
infringement of the ex post facto clause occurs only if the
operative Guidelines at sentencing "produce a sentence harsher than
one permitted under the Guidelines in effect at the time the crime
is committed." United States v. Reetz, 18 F.3d 595, 598 (8th Cir.
1994)(quotation omitted); see also California Dep't of Corrections
v. Morales, 115 S. Ct. 1597, 1602 n.3 (1995)("[T]he focus of the ex
post facto inquiry is . . . on whether any [legislative] change
alters the definition of criminal conduct or increases the penalty

                                9
by which a crime is punishable."). Here, the Guideline provisions
under discussion remained the same from the time Strange committed
his crime, in the summer of 1993, until the date of his sentencing.
Consequently, he cannot seriously suggest that he should be the
beneficiary of the pre-1991 Guidelines.8

          2.   Strange's prior uncounseled conviction


     Strange did not have legal representation in 1989 when the
State of Missouri convicted him for possession of under 35 grams of
marijuana.   He now protests that he did not make a knowing and
intelligent waiver of counsel in that case. Hence, according to
Strange, the district court committed error when it assessed a
criminal history point applicable to that offense.


     Normally, defendants are not permitted to use a federal
sentencing proceeding as a forum to challenge a prior conviction.
See U.S. Sentencing Guidelines Manual § 4A1.2 application note 6
(1995)(explaining that the district court should not count
sentences resulting from convictions ruled constitutionally invalid
"in a prior case"); United States v. Jones, 28 F.3d 69, 70 (8th
Cir. 1994)(per curiam)("The Sentencing Guidelines simply preclude
[defendant] from collaterally attacking his Nebraska conviction in
this federal sentencing proceeding.").         We have, however,
recognized a constitutionally mandated exception to that general
rule where a defendant claims that a previous conviction was
obtained following a constitutionally unsound waiver of counsel.
See Jones, 28 F.3d at 70 ("The Constitution only requires federal
courts to permit a collateral attack on an earlier state conviction

     8
      We realize that Strange might intend to argue that the pre-
1991 Guidelines should apply because his prior offenses occurred
before that date. This allegation is implausible. Cf. United
States v. Allen, 886 F.2d 143, 146 (8th Cir. 1989)("So long as
the actual crime for which a defendant is being sentenced
occurred after the effective date of the new statute, there is no
ex post facto violation.").

                                10
during federal sentencing when the defendant asserts the state
court violated the defendant's right to appointed counsel."). But
cf. United States v. Porter, 14 F.3d 18, 19 (8th Cir.
1994)(implying, in a panel opinion in which two circuit judges
concurred in the result only, that a constitutional challenge based
on an invalid waiver of counsel is not cognizable at sentencing).
Even so, Strange--through his bare bones, single sentence argument
unsupported by authority--has completely failed to carry his burden
of   demonstrating   that   his    state   court   conviction   was
constitutionally infirm, and we thus reject on the merits this
ground for reversal.9 See United States v. Early, 77 F.3d 242, 245
(8th Cir. 1996)(per curiam)("[O]nce the Government has carried its
initial burden of proving the fact of conviction, it is the
defendant's   burden   to  show   a   prior   conviction  was   not
constitutionally valid."); United States v. Jackson, 57 F.3d 1012,
1018-19 (11th Cir.)(requiring a defendant to sufficiently assert
facts showing that a prior conviction is presumptively void), cert.
denied, 116 S. Ct. 432 (1995).

          3.   Strange's conviction for driving a motor vehicle
               with excessive blood alcohol content


     In 1990, a state court sentenced Strange for driving a motor
vehicle with excessive blood alcohol content, and we summarily rule
that the district court properly added a criminal history point for
that offense.      U.S. Sentencing Guidelines Manual § 4A1.2


     9
      Strange also avers that the district judge should not have
included this offense in his criminal history score because the
state court merely imposed a fine, and no jail time, for the
conviction. Strange is mistaken. Section 4A1.1(c) of the
Guidelines is explicitly designed to apply to prior sentences in
which only a fine was ordered. See U.S. Sentencing Guidelines
Manual § 4A1.1 background at 256 (1995)("Subdivisions (a), (b),
and (c) of §4A1.1 distinguish confinement sentences longer than
one year and one month, shorter confinement sentences of at least
sixty days, and all other sentences, such as . . . fines . . .
.").

                                11
application   note  5   (1995)("Convictions   for  driving   while
intoxicated or under the influence (and similar offenses by
whatever name they are known) are counted. Such offenses are not
minor traffic infractions within the meaning of §4A1.2(c).").
Contrary to Strange's characterization of Missouri's law, driving
a motor vehicle with excessive blood alcohol content is absolutely
not a lesser included offense of driving while intoxicated. See
State v. Robertson, 764 S.W.2d 483, 485 (Mo. Ct. App. 1989)("The
offense of driving a motor vehicle with excessive blood alcohol is
not a lesser included offense of driving while intoxicated.").

III. CONCLUSION


     The district court properly calculated the quantity of drugs
attributable to Strange and Zamorano, and it committed no error in
determining Strange's criminal history category.      As such, we
affirm the sentences in this case.


     AFFIRMED.


     A true copy.


          Attest:


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




                                  12
