                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2542
                                   ___________

United States of America,            *
                                     *
           Plaintiff-Appellee,       *
                                     * Appeal from the United States
     v.                              * District Court for the
                                     * Eastern District of Missouri.
Heather Louise Vanderpool,           *
                                     *
           Defendant-Appellant.      *
                                ___________

                             Submitted: January 14, 2009
                                Filed: May 14, 2009
                                 ___________

Before LOKEN, Chief Judge, WOLLMAN, and SHEPHERD, Circuit Judges.
                             ___________

SHEPHERD, Circuit Judge.

       Heather Louise Vanderpool pled guilty to one count of possessing with intent
to distribute more than five grams of actual methamphetamine in violation of 21
U.S.C. § 841(a)(1) and 841(b)(1)(B)(viii). The district court1 applied a two-level
sentencing enhancement because Vanderpool distributed methamphetamine in a
correctional facility. The district court then sentenced Vanderpool to 77 months
imprisonment. We affirm.



      1
       The Honorable Carol E. Jackson, Chief Judge, United States District Court for
the Eastern District of Missouri.
       On January 24, 2008, Vanderpool traveled to the Thomas F. Eagleton United
States Court House in St. Louis, Missouri, to be sentenced after pleading guilty to
participating in a conspiracy to manufacture methamphetamine. On her way to the
courthouse, Vanderpool was pulled over by police officers in Wentzville, Missouri,
and arrested pursuant to warrants for outstanding traffic violations. Unbeknownst to
the officers, Vanderpool possessed approximately 18 grams of methamphetamine at
the time of her arrest. The following day, Vanderpool was sentenced to 46 months
imprisonment, remanded to the custody of the United States Marshals Service, and
transported to jail in Lincoln County, Missouri, to await designation by the Federal
Bureau of Prisons. Vanderpool failed to advise law enforcement officials that she
possessed methamphetamine.

      While incarcerated in Lincoln County, Vanderpool shared a cell with Gina
Morrison. On February 3, 2008, prison personnel received an anonymous tip that
Morrison possessed methamphetamine. A female correctional officer searched
Vanderpool and Morrison and discovered a small, plastic bag inside Vanderpool’s
mouth that contained actual methamphetamine. Later that day, prison personnel
received information from another female inmate that Vanderpool may have
concealed something inside her jumpsuit. When a female correctional officer
confronted Vanderpool with this new information, Vanderpool retrieved another small
bag containing actual methamphetamine from inside her vagina. Vanderpool then
confessed that she had distributed some methamphetamine to Morrison inside the
prison facility.

      Vanderpool pled guilty to one count of possessing with intent to distribute more
than five grams of actual methamphetamine in violation of 21 U.S.C.
§ 841(a)(1) and 841(b)(1)(B)(viii). At the sentencing hearing, the district court
calculated a base offense level of 26. See United States Sentencing Commission,
Guidelines Manual, §2D1.1(c)(7) (“at least 5 G but less than 20 G of
Methamphetamine (actual)”). The court increased the offense level by two levels,

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finding that the object of Vanderpool’s offense was the distribution of a controlled
substance in a correctional facility. See id. §2D1.1(b)(3). The court decreased the
offense level by three levels for acceptance of responsibility, see id. §3E1.1, resulting
in a total offense level of 25. With a criminal history category of IV, Vanderpool’s
initial Guidelines range was 84 to 105 months. However, the court granted a
downward departure of one offense level because Vanderpool provided useful
testimony against Morrison, resulting in an ultimate Guidelines range of 77 to 96
months. See id. §5K1.1, p.s. The court then sentenced Vanderpool to 77 months
imprisonment. Absent the enhancement for distributing a controlled substance in a
correctional facility, Vanderpool’s ultimate Guidelines range would have been 63 to
78 months. Improperly calculating the Guidelines range constitutes significant
procedural error. E.g., United States v. Spikes, 543 F.3d 1021, 1023 (8th Cir. 2008).

       Vanderpool appeals her sentence, arguing that the district court erred in
applying the two-level enhancement pursuant to USSG §2D1.1(b)(3) because the
government did not prove that the object of Vanderpool’s offense was to distribute a
controlled substance in a correctional facility. Instead, Vanderpool contends that the
court impermissibly rested its finding on the fact that she knowingly distributed drugs
in such a facility. “This court reviews the district court’s interpretation of the
Sentencing Guidelines de novo, and its application of the Guidelines to the facts for
clear error.” United States v. Miller, 560 F.3d 751, 753 (8th Cir. 2009).

       Guidelines section 2D1.1(b)(3) reads: “If the object of the offense was the
distribution of a controlled substance in a prison, correctional facility, or detention
facility, increase by 2 levels.” Id. §2D1.1(b)(3). In applying this enhancement, the
district court reasoned as follows:

      [D]efendant’s intent may be discerned by defendant’s conduct. That is
      acts the defendant knowingly commits may be indicative of the
      defendant’s intent.


                                          -3-
      Here [] it’s undisputed that Miss Vanderpool had methamphetamine in
      her possession in the jail from as early as January 24th until February the
      3rd when it was discovered by the jail authorities. She never told anyone
      that she had it in her possession. She kept it concealed for more than a
      week and she was in a jail facility when she distributed some of that
      methamphetamine to her cellmate. We know . . . Miss Vanderpool
      intended to distribute methamphetamine in a jail facility because she
      distributed methamphetamine in a jail facility. It wasn’t an accident.
      She intended and deliberately and knowingly shared the meth with her
      cellmate, so the guideline in issue provides that an offense level is to be
      increased by two levels . . . .

      Now maybe on January 24th she had some different plan with respect to
      . . . the methamphetamine that she was concealing on her person. . . .
      [But] [w]hat she did was she kept it concealed and then ultimately she
      distributed it . . . to someone within the jail . . . . She did it deliberately,
      she did it knowingly, she did it intentionally and that was her object. She
      pled guilty to possession with intent to distribute actual
      methamphetamine. She had possession and she had the intent to
      distribute and she did in fact distribute methamphetamine and . . . she
      knew she was in jail.

(Sentencing Tr. 7-8.)

       Because Vanderpool pled guilty to possession with intent to distribute actual
methamphetamine, there can be no dispute that the object of her offense was to
distribute a controlled substance.2 However, Vanderpool believes the government
must prove that, prior to her incarceration, she formed the intent to transport drugs
into the jail with the purpose of distributing them therein. We find this argument
unpersuasive. The Guidelines require only that “the object of the offense was the


      2
      The terms “object” and “intent” are synonymous. Compare Webster’s Third
New International Dictionary 1176 (1986) (defining “intent” as “an end or object
proposed”), and id. at 1555 (defining “object” as “something (as an end, aim, or
motive) by which the mind or any of its activities is directed”).

                                            -4-
distribution of a controlled substance in a prison, correctional facility, or detention
facility . . . .” USSG §2D1.1(b)(3). There simply is no temporal requirement that
intent to distribute a controlled substance in a correctional facility must be formed
prior to entering the correctional facility. Section 2D1.1(b)(3) is not ambiguous, and
we decline Vanderpool’s invitation to apply the rule of lenity. See United States v.
Clawson, 408 F.3d 556, 558-59 (8th Cir. 2005) (refusing to apply rule of lenity to
Guidelines enhancement in the absence of a “grievous ambiguity or uncertainty in [its]
language or structure”).

       When Vanderpool committed the instant offense, the object of her offense was
to distribute a controlled substance to her cellmate in the Lincoln County jail. We
hold that the district court correctly interpreted Guidelines section 2D1.1(b)(3) and did
not clearly err when it applied section 2D1.1(b)(3) to increase Vanderpool’s offense
level by two levels. Accordingly, Vanderpool’s sentence is affirmed.
                          ______________________________




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