                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 04-1601
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *    Appeal from the United States
      v.                                  *    District Court for the
                                          *    Western District of Missouri.
Alonzo F. Ellerman,                       *
                                          *
             Appellant.                   *
                                     ___________

                              Submitted: October 29, 2004
                                 Filed: June 20, 2005
                                  ___________

Before WOLLMAN, MORRIS S. ARNOLD, and SMITH, Circuit Judges.
                          ___________

SMITH, Circuit Judge.

       Alonzo F. Ellerman was found guilty of conspiracy to distribute 500 grams or
more of methamphetamine (count one) and being a felon in possession of a firearm
(count two). He was sentenced1 to 360 months on count one and 120 months on count
two, with the sentences to run concurrently. On appeal, Ellerman raises five
arguments challenging his conviction on count one and his sentence. Specifically, he
avers that the district court erred in: (1) failing to dismiss the indictment or suppress
evidence of his cooperation; (2) refusing Ellerman's proffered jury instruction "A";

      1
       The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
(3) refusing Ellerman's proffered jury instruction "B"; (4) concluding Ellerman was
a career offender; and (5) in applying a two-level upward adjustment to Ellerman's
sentence for obstruction of justice. We find no error and affirm Ellerman's conviction
and sentence.

                                   I. Background
      Narcotics and drug paraphernalia were found in Ellerman's Branson, Missouri,
residence. Ellerman admitted owning and using the drugs and pleaded guilty to a state
narcotics possession charge. In January 2002, Ellerman then began cooperating with
police in an investigation of his acquaintances suspected of dealing in narcotics.
Howard Neustel and Michael R. Burns were believed to be sellers and manufacturers
of methamphetamine. Ellerman met with Officer Britton of the COMET2 Drug Task
Force. Ellerman told Britton that Burns was his drug supplier. Ellerman admitted
purchasing ½ to 1½ ounces of methamphetamine from Burns which he would resell
in 1ounce to 1 gram quantities. Ellerman also admitted receiving methamphetamine
from Neustel.

       To document his cooperation, Ellerman signed a COMET Informant
Memorandum. Pursuant to the agreement, Ellerman was to cooperate fully, truthfully,
and honestly with law enforcement, not to possess or use drugs during this period, not
to commit future crimes, and to report to Britton in a timely manner when required.
In exchange, the police agreed to inform the prosecutor of Ellerman's cooperation on
a case by case basis. On January 25, 2002, with instructions from Britton, Ellerman
purchased c ounce of methamphetamine from Neustel. He also arranged a buy
between Britton and Neustel where Britton purchased 3½ grams of
methamphetamine. Britton made a third purchase without Ellerman's involvement.
Neustel was subsequently arrested. Britton had no contact with Ellerman after


      2
       Combined Ozarks Multi-Jurisdictional Enforcement Team.


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January 31, 2002. Police terminated Ellerman's informant status in the spring 2002
after a search of his home uncovered narcotics, and because Ellerman was suspected
of having disclosed Britton's identity as an undercover narcotics officer.

      After Neustel's arrest, he also began cooperating with police and implicated
Burns as the head of their drug operation. Neustel helped the police make a controlled
purchase from Burns leading to Burns's arrest and his indictment on a charge of
conspiracy to distribute methamphetamine. Burns sold Britton one ounce of
methamphetamine and fronted him a second ounce. Burns talked freely with Britton
about his drug activities.

       Neustel's account of the development of the conspiracy implicated Ellerman
as an actual participant in methamphetamine distribution and not merely as a user.
Neustel told how he received small quantities of methamphetamine from Burns for
resale. Burns introduced Neustel to Ellerman in the summer of 1998.3 Neustel
observed Burns distribute methamphetamine to Ellerman and eventually Neustel
himself distributed methamphetamine to Ellerman.

      Neustel, as a sort of bookkeeper, kept a drug ledger that recorded the
organization's drug sales. The drug ledger listed the person who purchased
methamphetamine, payments received, new purchases, and an ending balance. The
ledger also tracked purchases from Burns. Ellerman's name appeared in the ledger
approximately eighteen times. Neustel distributed about 342¼ grams of


      3
       A search warrant was served on Burns in April of 1998. In a search of his
house, officers seized a small amount of methamphetamine, scales, four vials,
snorting devices, a scanner, surveillance equipment, hundreds of baggies, eight
firearms, and an address book with the name "Lonzo." In August 1999, Burns's
vehicle was searched by California highway patrol. Officers found a jar with 340.61
grams of methamphetamine.


                                         -3-
methamphetamine and received $20,580.00, plus several guns from Ellerman as
payment.

      Before trial, Ellerman filed a motion to dismiss, or in the alternative, to
suppress the evidence obtained as the result of his cooperation. The district court
denied the motion and found that Ellerman's Informant Agreement with COMET was
not binding on the government, that Ellerman had breached his agreement with
COMET by possessing methamphetamine, and that evidence showed Ellerman
disclosed Britton's identity to Burns.

       Prior to submission to the jury, the district judge refused Ellerman's requested
jury instructions on his theory of defense (jury instruction "A") and on his being a
user or possessor of methamphetamine as opposed to a dealer (jury instruction "B").
The jury found Ellerman guilty of conspiracy to distribute and being a felon in
possession. At sentencing, the court determined Ellerman was a career offender under
the United States Sentencing Guidelines and gave him a two-level enhancement for
obstruction of justice.

                                    II. Discussion
            A. Dismissal of the Indictment and Suppression of Evidence
       Ellerman first argues that the government acted in bad faith by charging him
with conspiracy after he cooperated with local police and by using evidence gained
from his cooperation and not requesting a downward departure. Ellerman contends
that the district court erred in refusing to dismiss the indictment or suppress the
evidence obtained from his cooperation. Critical to this argument, is Ellerman's
allegation that he had a cooperation agreement with the government. The only
agreement that Ellerman signed was with COMET, a non-federal entity. United States
v. Glauning, 211 F.3d 1085, 1087 (8th Cir. 2000) (state and local government
officials have no power to bind the federal government). Assuming arguendo that
COMET could have bound the government, Ellerman's lack of full cooperation would

                                         -4-
excuse any non-performance on the government's part. The COMET agreement
specified:

      I understand that if it becomes apparent, for whatever reason or from
      whatever source, that I have not fully cooperated as required by this
      agreement, this agreement will become null and void and law
      enforcement authorities may immediately present evidence, including
      information provided by me pursuant to this agreement, to a federal
      and/or state prosecuting authority for charge(s) on all known violations
      of the law.

The benefits under this agreement were contingent upon Ellerman's full cooperation.
Part of that cooperation required that Ellerman refrain from drug use. Ellerman does
not dispute that he illegally used drugs at the time that he was cooperating with
COMET. COMET officers, during their investigation, not the government during its
prosecution, terminated the agreement with Ellerman for his misconduct. Because the
government had no agreement with Ellerman, there is no basis for suppressing
evidence.4

                                B. Jury Instruction "A"
      Ellerman contends that the district court abused its discretion in refusing to
give his offered instruction "A" regarding multiple conspiracies. According to
Ellerman, if the government failed to prove beyond a reasonable doubt that he was
involved in a conspiracy that lasted from April 1998 through July 2002, the jury must
acquit. Ellerman maintains that the actual conspiracy began at the earliest in 2000 and
with only few "isolated" events to 2002. We review for abuse of discretion an



      4
       Ellerman neglected to object to the government's decision not to move for a
downward departure as instructed by the district judge. Consequently, the
government's action must be reviewed as plain error. United States v. Pirani, No. 03-
2871, slip op., 6 (8th Cir. Apr 29, 2005). We find no plain error.

                                         -5-
accused's challenge to a court's refusal to give a specifically worded theory of defense
instruction. United States v. Gonzales, 90 F.3d 1363, 1371 (8th Cir. 1996).

       Ellerman argues for the existence of two separate conspiracies—one conspiracy
to distribute methamphetamine from 1998 to 1999 and another to distribute larger
amounts of methamphetamine from 2000 to 2002. Ellerman cites United States v.
England, 966 F.2d 403, 406 (8th Cir. 1992) for support. But England only indicates
that the existence of multiple conspiracies is a fact question for the jury. The critical
issue is, can a reasonable jury conclude a single conspiracy existed?

        Ellerman is entitled to a theory of defense instruction "if a timely request is
made, the evidence supports the proffered instruction, and the instruction correctly
states the law." United States v. Risch, 87 F.3d 240, 242 (8th Cir. 1996) (citing United
States v. Cheatham, 899 F.2d 747, 751 (8th Cir. 1990)). The district court evaluates
"the adequacy of instructions by reviewing them as a whole." United States v.
McQuarry, 726 F.2d 401, 402 (8th Cir. 1984) (per curiam).

       According to the evidence, during a search of Burns's residence in 1998, police
found an address book with the name Lonzo and a phone number. Neustel was
introduced to Ellerman in the summer of 1998. Sometime later, Neustel began
observing methamphetamine transactions between Burns and Ellerman. Neustel
supplied Ellerman and Ellerman had a long-standing relationship with Burns to move
a large quantities of methamphetamine for Burns. In exchange, Ellerman received a
lower price for methamphetamine supplies. While the evidence is somewhat unclear
as to the dates of Ellerman's involvement, we must consider the totality of the
circumstances, "including the nature of the activities involved, the location where the
alleged events of the conspiracy took place, the identity of the conspirators involved,
and the time frame in which the acts occurred." United States v. McCarthy, 97 F.3d
1562, 1571 (8th Cir. 1996). Given the evidence before the trial court, we cannot say



                                          -6-
there was an abuse of discretion for not giving a multiple conspiracy instruction. No
reasonable jury would conclude that two conspiracies existed.

                               C. Jury Instruction "B"
       Ellerman also contends the district court abused its discretion in failing to give
his offered instruction "B," regarding his being a user and addict, but not a dealer or
distributor, of methamphetamine. We review an accused's challenge to a court's
refusal to give a specifically worded theory of defense instruction for abuse of
discretion. Gonzales, 90 F.3d at 1371.

       In denying Ellerman's motion, the district court found that its jury instructions
covered the subject matter in Ellerman's proffered instruction. United States v. Liebo,
923 F.2d 1308, 1312 (8th Cir. 1991) (an accused is not entitled to a particular jury
instruction if its subject matter is adequately and substantially covered by other
instructions). In reviewing the record, the only possible similar instruction given was
Instruction number 20:

      You should understand that merely being present at the scene of an
      event, or merely acting in the same way as others or merely associating
      with others, does not prove that a person has joined in an agreement or
      understanding. A person who has no knowledge of a conspiracy but who
      happens to act in a way which advances some purpose of one, does not
      thereby become a member.

Instruction number 20 does not address the subject matter of Ellerman's proposed
instruction. Thus, no other instruction actually covered the subject matter of
Ellerman's proposed instruction. However, that fact alone is insufficient for reversal
if additional evidence does not support the requested instruction. Risch, 87 F.3d at
242.




                                          -7-
       At trial, the evidence established Ellerman was consistently receiving quantities
of methamphetamine from Neustel and Burns for distribution. Neustel's drug ledger
showed Ellerman obtained approximately 342¼ grams of methamphetamine from
Neustel during the conspiracy. Neustel characterized Ellerman as his top salesman
and Ellerman admitted obtaining ½ to 1½ ounces of methamphetamine from Burns
on a regular basis.

        Ellerman bases his claim on the testimony of his expert witness, former police
officer Rodney Burk.5 Ellerman's reliance on Burk's testimony is misplaced. Burk had
not worked as a police officer since 1991 and admitted his opinions were based on
reports provided by Ellerman's attorney, not personal interviews. Although Burk
testified Ellerman's name did not frequently appear in Neustel's drug ledger, he later
admitted he was unsure which ledger entries referred to Ellerman. Burk admitted that
if someone purchased an ounce of methamphetamine and then bought another ounce
a week later, as did Ellerman, it was not for personal use. Burk also conceded that
possession of a large amount of unused baggies in close proximity to
methamphetamine could be indicative of distribution. Ellerman has not shown that
the district court abused its discretion in rejecting the proffered instruction.

                           D. Ellerman's Booker Claims
      The district court concluded Ellerman was part of a criminal conspiracy that
began within 15 years of his release from custody on prior state felony convictions
and therefore sentenced him as a career offender pursuant to U.S.S.G. § 4B1.1.6

      5
       At trial, Burk, a retired Springfield Police Department officer, testified that
Ellerman was a methamphetamine user and not a dealer and that it was not unusual
for a user caught with possession of drugs to inflate his credentials claiming to be
more than a user. He also indicated that informants retaliate against other informants,
and that Ellerman's appearance in the drug ledger was infrequent.
      6
       Providing that a defendant with at least two prior felony convictions of either
a crime of violence or controlled substance offense may be sentenced as a career

                                          -8-
Ellerman was convicted of burglary and stealing on April 9, 1979. He received a
suspended sentence and five years' probation. On March 26, 1982, Ellerman was
convicted of second-degree assault and sentenced to five years. Because of the assault
conviction, Ellerman's probation was revoked and he was sentenced to five years to
run concurrently with the assault conviction. Ellerman was released on parole on
December 13, 1983. He was convicted for second degree burglary on December 3,
2002. The district court held Ellerman to be a career offender based on the 1982 and
2002 convictions.

       Ellerman argues that because he was released on parole on December 13, 1983,
the government must prove he joined the conspiracy prior to December 13, 1998—the
15-year period. Ellerman contends the government did not meet its burden of proof
because the only evidence that predates December 13, 1998 is Burns's address book
with the name Lonzo and a phone number, along with Neustel's reference to probably
meeting Ellerman in the summer of 1998, and, that at some unknown date later,
Neustel saw Ellerman receive methamphetamine from Burns.

       Ellerman objected to being sentenced as a career offender. We review de novo
whether the district court correctly applied the Guidelines. United States v. Mashek,
No. 04-2560, slip op., 7-8 (8th Cir. May 10, 2005). In United States v. Kennedy, 32
F.3d 876 (4th Cir. 1994), the Fourth Circuit held, in determining the date of the
instant offense for purposes of calculating the 15-year period, that the district court
should consider all relevant conduct. Id. at 890; U.S.S.G. § 4A1.2, Commentary n.8.
Relevant conduct includes "all acts . . . committed [or] aided . . . by the defendant"
and when a conspiracy is involved "all reasonably foreseeable acts and omissions of
others in furtherance of the [conspiracy]" that occurred "in preparation for that



offender if the sentences were imposed within 15 years of the commission of the
instant offense or the sentences resulted in the defendant being incarcerated during
any part of the 15-year period. See U.S.S.G. § 4B1.1.

                                         -9-
offense." Kennedy, 32 F.3d at 890 (emphasis in original); U.S.S.G. § 1B1.3(a)(1).
Activities that occurred before the date identified by the indictment as the starting
date for the offense are included. Kennedy, 32 F.3d at 890. The commentary to
U.S.S.G. 1B1.3 indicates that "'[c]onduct that is not formally charged or is not an
element of the offense of conviction may enter into the [sentencing] determination.'"
Id.; United States v. Strachan, 968 F.2d 1161, 1163 (11th Cir. 1992) (relevant
conduct includes "conduct which is not formally charged or adjudicated.").

       The instant conspiracy began before December 13,1998, and Ellerman's acts,
even though small, are nonetheless relevant when determining career offender status,
as are those of the other conspirators. Neustel met Burns in spring 1998. Neustel
received small quantities of methamphetamine from Burns for distribution. A search
warrant served on Burns in April 1998 revealed methamphetamine, drug
paraphernalia, and a black address book that identified Ellerman as Lonzo. Neustel
was introduced to Ellerman in summer 1998. Ellerman had a long standing
relationship with Burns. Sometime later, Neustel observed Burns distribute
methamphetamine to Ellerman and eventually also distributed methamphetamine to
Ellerman. By joining the conspiracy, Ellerman participated in, and is liable for, all
prior co-conspirators' actions that furthered the conspiracy. Kennedy, 32 F.3d at 890.
These actions predated winter 1998.

       Ellerman also objected to receiving a two-level enhancement for obstruction
of justice pursuant to U.S.S.G. § 3C1.1. We review de novo whether the district court
correctly applied the Guidelines. Mashek, slip op. at 7-8. The enhancement was based
on Ellerman's disclosure of Britton's identity to Burns. Under Britton's direction,
Neustel attempted to arrange a methamphetamine transaction between Britton and
Burns. However, prior to the transaction, Burns contacted Neustel and told Neustel
that he was concerned about dealing with Britton because Ellerman told him Britton
was a police officer. Burns told Neustel that Ellerman stated "they've got [Neustel]
on three counts of selling, three felony counts of selling to an undercover cop." Burns

                                         -10-
indicated that Ellerman described Britton in detail, including his vehicle and
undercover name. Ellerman denied that he disclosed Britton's identity. The district
court found this testimony convincing and corroborated by Burns's changed demeanor
and later method of transacting business.

       An enhancement for obstruction of justice is appropriate where the misconduct
occurs with knowledge of an investigation or at least the correct belief that an
investigation is underway. United States v. Dierling, 131 F.3d 722, 738 (8th Cir.
1997). The government bears the burden of proof that an obstruction enhancement
should apply. United States v. Cox, 985 F.2d 427, 432 (8th Cir. 1993). Ellerman was
aware that there was an ongoing investigation at the time that Britton's identity was
disclosed because Ellerman believed that he was still operating under an informant
agreement with COMET. Neustel provided adequate proof that Ellerman told Burns
Britton was a police officer. That testimony was reasonably accepted by the district
court.

      We find that in both instances the district court correctly applied the guidelines.
However, our analysis does not stop there because in his supplemental brief, Ellerman
argues that his sentence violates the mandates of United States v. Booker, 125 S. Ct.
738 (2005). Because Ellerman failed to raise a Sixth Amendment Apprendi-type
claim,7 we review for plain error, Pirani, slip op. at 6, under the four-part test of
United States v. Olano, 507 U.S. 725 (1993). Under that test

             there must be (1) error, (2) that is plain, and (3) that affects
             substantial rights. If all three conditions are met, an


      7
       "The argument that a Booker error occurred is preserved if the defendant
below argued Apprendi or Blakely error or that the Guidelines were unconstitutional."
United States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir. 2005); see United States
v. Sayre, 400 F.3d 599, 603 (8th Cir. 2005) (Grunder, J., concurring). Ellerman failed
to argue any of these issues.
                                         -11-
             appellate court may then exercise its discretion to notice a
             forfeited error, but only if (4) the error seriously affects the
             fairness, integrity, or public reputation of judicial
             proceedings.

Pirani, slip op. at 7 (citing Olano, 507 U.S. at 732). In Pirani we resolved that "the
third Olano factor turns on whether [a defendant] has demonstrated a reasonable
probability that he or she would have received a more favorable sentence with the
Booker error eliminated by making the Guidelines advisory." Id. at 10. In reviewing
the record, we find no indication that the district court would have given Ellerman a
more favorable sentence under an advisory Guideline scheme.

       Finally, we must review Ellerman's sentence for reasonableness. Booker, 125
S. Ct. at 765; Mashek, slip op. at 8. In doing so, we find that Ellerman's sentence is
reasonable.

      For the foregoing reasons, we affirm the conviction and sentence.
                      ______________________________




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