United States v. Charles Franklin

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_______________

NO. 00-2818EM
_______________

United States, *
*
Appellee, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri
*
Charles Franklin, * [PUBLISHED]
*
Appellant. *
*

_______________

Submitted: May 17, 2001

Filed: May 22, 2001
_______________

Before WOLLMAN, Chief Judge, MURPHY, Circuit Judge, and
CARMAN, Judge.1

CARMAN, Judge:

In August 1999, Charles Franklin (Appellant) was indicted and

charged with three counts of violating 21 U.S.C. §841(a)(1). Specifically,

Mr. Franklin was indicted for: (1) knowingly and intentionally possessing

1
The Honorable Gregory W. Carman, Chief Judge of the United States Court of
International Trade, sitting by designation.
with the intent to distribute over 50 grams of cocaine base; (2) knowingly

and intentionally possessing with the intent to distribute an unspecified

amount of heroin; and (3) knowingly and intentionally possessing with the

intent to distribute an unspecified amount of cocaine powder. In July

2000, Mr. Franklin was tried and convicted on all three counts. The

United States District Court for the Eastern District of Missouri (Jackson,

J.) sentenced Mr. Franklin to 240 months on each count to be served

concurrently. Mr. Franklin appealed, raising a number of evidentiary and

constitutional issues. We affirm.

I. BACKGROUND

In December 1997, St. Louis Police Department officers Brian

Dolan and Charles Johnson were conducting surveillance in the 4700

block of Northland Avenue, St. Louis. The officers were assigned to

this location because a string of armed robberies had occurred in the

neighborhood. While on surveillance, Officer Dolan and Officer

Johnson witnessed a man cross in front of the residence at 4753

Northland Avenue (the “residence”). As the officers approached the

man, he discarded a vial containing what was later determined to be

crack cocaine. The officers apprehended the man who identified

-2-
himself as Kerry Dillon. Unable to produce verification of his identity,

Mr. Dillon explained that several persons located inside the residence

could confirm his identity.

As the officers escorted Mr. Dillon through a gangway leading to

the back of the residence, they encountered Appellant. Appellant, upon

being confronted, threw down a bag he was carrying, shouted “it’s the

police,” and ran across the gangway toward the back of the residence.

Officer Dolan chased Appellant and apprehended him as he was

attempting to enter the back of the residence. Officer Dolan arrested

Appellant and recovered a .38 caliber pistol from Appellant’s waistband.

Additionally, Officer Dolan recovered $1040.00 from Appellant’s

pockets.

Officers Dolan and Johnson took Appellant into the residence,

secured the eight occupants inside the house and called for assistance.

Upon the arrival of additional officers, Officer Dolan opened the bag

Appellant had thrown down and discovered “a large amount of narcotics,

as well as a scale, and a video camera and a Polaroid camera.”

-3-
 Appellant was tried and the jury returned guilty verdicts on each

count. Appellant raises six2 issues on appeal: (1) the district court erred

in admitting evidence of Appellant’s prior arrest and conviction for drug

possession; (2) the district court erred in overruling Appellant’s objection

to certain comments made by the United States during the government’s

rebuttal portion of closing arguments; (3) the district court erred in

overruling Appellant’s objection to the United States’ description of a

pistol witnessed in the residence and to the United States’

mischaracterization of a defense witness’ prior criminal history; (4) the

district court violated Appellant’s due process rights when it failed to

instruct the jury on every element of the offenses charged and to further

instruct the jury that each element of the offense must be proven beyond

a reasonable doubt; (5) the district court violated Appellant’s due process

rights when it inappropriately applied the penalty provisions in 21 U.S.C.

§841(b) to Count II and Count III of the indictment; and (6) the district

court erred in imposing enhanced sentences based upon a prior drug

conviction because no judgment had become final as to Appellant’s

earlier state court conviction.

2
Although Appellant’s brief enumerates seven issues, the legal bases underlying two of these
issues are identical and, therefore, can be combined.

-4-
 II. Discussion

A. The Admission of Appellant’s Prior Arrest and Conviction for
Drug Possession for the Purpose of Demonstrating Knowledge
and Intent

At trial, the United States sought to enter evidence of Appellant’s

prior arrest and guilty plea for possession of cocaine base to establish in

the present case Appellant’s knowledge that he possessed narcotics and

his intention to distribute those narcotics. Appellant objected to the

admission of this evidence on the grounds that it did not meet the

requirements of Fed. R. Evid. 404(b) and that its prejudicial effect

significantly outweighed its probative value under Fed. R. Evid. 403.

The district court overruled Appellant’s objection and the evidence was

admitted.

The United States presented testimony from the officer who

arrested Appellant in 1992. The officer stated that Appellant was one of

seven people arrested in a raid on a suspected drug house. Prior to the

raid, undercover police officers purchased drugs from the home. The

transaction occurred through a mail slot in the home’s front door,

-5-
 preventing the police from identifying the individual who sold the drugs.

However, upon entering the house police found Appellant exiting a

bathroom that contained a plate, razor blades, and quantities of crack

cocaine, and money used by the police to purchase drugs. Appellant was

arrested and charged with possession with the intent to distribute. The

United States presented additional expert testimony from an officer who

established that razor blades and plates are paraphernalia ordinarily

associated with drug distribution. Finally, the United States presented a

valid copy of Appellant’s judgment of conviction in which he pled guilty

to possession of cocaine base.

It is well settled that the prosecution may not introduce evidence

of prior criminal conduct to establish a defendant’s character in an attempt

to prove conformity therewith. See Fed. R. Evid. 404(b). Federal Rule

of Evidence 404(b),3 however, creates several exceptions to this broad

prohibition, including the admission of prior criminal conduct to

demonstrate a defendant’s knowledge and intent. This Court has stated

that evidence of other crimes is admissible under Rule 404(b) if it is: (i)

3
FRE 404(b): Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, provided that upon request by the accused, the
prosecution in a criminal case shall provide reasonable notice in advance of trial….

-6-
relevant to a material issue; (ii) proved by a preponderance of the

evidence; (iii) higher in probative value than in prejudicial effect; and (iv)

similar in kind and close in time to the crime charged. See, e.g., United

States v. Rush, 240 F.3d 729, 731 (8th Cir. 2001). An appellate court

reviews the admission of evidence under FRE 404(b) for abuse of

discretion, and will disturb a district court’s decision “only when such

evidence clearly had no bearing on the case and was introduced solely to

prove the defendant’s propensity to commit criminal acts.” United States

v. Howard, 235 F.3d 366, 372 (8th Cir. 2000), quoting, United States v.

Brown, 148 F.3d 1003, 1009 (8th Cir. 1998), cert. denied, 525 U.S. 1169,

119 S.Ct. 1092, 143 L.Ed.2d 92 (1999). The evidence admitted by the

District Court clearly had a direct bearing on the crimes charged, was

properly admitted for purposes other than to establish a defendant’s

propensity to commit criminal acts, and, for the reasons stated below,

satisfied the four-prong test adopted by this Circuit.

First, this Circuit has frequently held that “evidence of prior

possession of drugs, even in an amount consistent only with personal use,

is admissible to show such things as knowledge and intent of a defendant

charged with a crime in which intent to distribute drugs is an element.”

United States v. Hardy, 224 F.3d 752, 757 (8th Cir. 2000), quoting,

-7-
United States v. Logan, 121 F.3d 1172, 1178 (8th Cir. 1997); see also

United States v. Oates, 173 F.3d 651, 659-60 (8th Cir. 1999) (rejecting

defendant's argument that a prior conviction involving 4.4 grams of crack

cocaine was irrelevant to offenses at issue, which involved 53.1grams of

crack cocaine); United States v. Wiley, 29 F.3d 345, 351 (8th Cir. 1994)

(evidence of prior possession of cocaine base admissible in prosecution

for possession of cocaine base with intent to distribute), cert. denied, 513

U.S. 1005, 115 S.Ct. 522, 130 L.Ed.2d 427 (1994); United States v. Wint,

974 F.2d 961, 967 (8th Cir. 1992) (finding that evidence of prior

possession of a distributable amount is relevant to a defendant’s intent to

distribute drugs.) The admitted evidence was, therefore, relevant to a

material issue.

Second, the prior criminal conduct was proved by more than a

preponderance of the evidence. As stated, the United States offered the

testimony of both the 1992 arresting officer and an expert on drug

paraphernalia. In addition, the United States admitted a copy of

Appellant’s 1992 judgment of conviction. Although Appellant argues the

testimony of the two officers establishes little more than Appellant’s

proximity to drugs in the 1992 case, the Court is persuaded that this

-8-
testimony is sufficient to demonstrate some evidence of knowledge and

intent.

Third, although admitting evidence of prior criminal conduct has

some prejudicial effect on the defendant, whether this effect substantially

outweighs the evidence’s probative value is left to the discretion of the

trial court. See United States v. Valencia, 61 F.3d 616, 618 (8th Cir.

1995). Because the trial court must balance the amount of prejudice

against the probative value of the evidence, this Circuit will normally

defer to that court’s judgment. See id. Moreover, the presence of a

limiting instruction diminishes the danger of any unfair prejudice arising

from the admission of other acts. See United States v. Gustafson, 728

F.2d 1078, 1084 (8th Cir. 1984). The District Court explicitly instructed

the jury that:

You may not use [the evidence of prior criminal conduct] to decide
whether the defendant carried out the acts involved in the crimes
that are charged in the present indictment… Remember, even if
you find that the Defendant committed a similar act in the past, this
is not evidence that he committed such an act in this case. You
may not convict a person simply because you think or believe that
he may have committed similar acts in the past… you may
consider evidence of prior acts only on the issues of knowledge
and intent.

-9-
This instruction sufficiently diminished the prejudicial effect of the

contested evidence so as to permit its admission under Fed. R. Evid.

404(b). Similarly, this instruction was sufficient to allow for admission

under the balancing test of Fed. R. Evid. 403.

Fourth, the prior conduct admitted by the United States occurred

in 1992. In the present case, Appellant was indicted for conduct that

occurred in 1997. The length of time between incidents clearly affects the

relevance of the offered evidence, but “there is no specific number of

years beyond which prior bad acts are no longer relevant to the issue of

intent.” United States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995),

quoting, United States v. Burkett, 821 F.2d 1306, 1309-10 (8th Cir. 1987).

The closer in time to the crime charged, the more likely the evidence is to

be admissible; but we have approved the admission of other crimes’

evidence for acts committed up to 13 years before the crime charged. See

id., citing, United States v. Engleman, 648 F.2d 473, 479 (8th Cir. 1981).

To determine if evidence is too remote, “the court applies a

reasonableness standard and examines the facts and circumstances of

each case.” Shoffner, 71 F.3d at 1432.. In other drug cases, we have

held that a lapse of time comparable to that present here was sufficiently

close in time to render the other crimes or bad acts evidence admissible.

-10-
See, e.g., Wint, 974 F.2d at 967 (five-year lapse is reasonably close in

time).

Additionally, the two incidents are sufficiently similar in kind to

warrant admission. As we have held, “when admitted for the purpose of

showing intent, the prior acts need not be duplicates, but must be

sufficiently similar to support an inference of criminal intent.” Shoffner,

71 F.3d at 1432, quoting, United States v. Burkett, 821 F.2d at 1309. In

1992, Appellant was arrested inside a known drug-house, in proximity to

cocaine base, plates and razor blades. In the present case, Appellant was

arrested outside, in possession of cocaine base, cocaine powder, heroin,

and several forms of drug paraphernalia. Although the details surrounding

the prior incidents are not identical, they are sufficiently similar to

demonstrate knowledge and intent. Accordingly, the record clearly

demonstrates that the district court did not abuse its discretion in

admitting evidence of Appellant’s prior criminal conduct for the purpose

of establishing knowledge and intent.

B. The Allowance of Certain Comments Made by the United States
During Closing Arguments

In its case-in-chief, the United States provided testimony from

Officer Dolan regarding the circumstances surrounding Appellant’s arrest.

-11-
Officer Johnson testified that he ran down the gangway adjacent to 4723

Northland Avenue, rounded the rear corner of the building and witnessed

Officer Dolan apprehend Appellant as he was about to enter the rear door

of the residence.

On cross-examination, Appellant’s Trial Counsel (“Trial Counsel”)

made a sustained attack on Officer Johnson in an attempt to elicit

inconsistent statements and to diminish the impact of his testimony. In

this attack, Trial Counsel repeatedly questioned Officer Dolan as to

whether he could see the residence’s rear door from the corner of the

building. Officer Johnson conceded that it was not possible to see the

rear door while standing immediately adjacent to the building’s corner,

but consistently stated that he witnessed Appellant’s arrest as he “came

around” the rear of the house. Officer Johnson explained that he was able

to see the arrest because, as he rounded the corner, he came into the rear

of the residence. In essence, Officer Johnson refuted Trial Counsel’s

attempts to place him at the literal rear corner of the building and

established his position further toward the rear of the residence.

Throughout cross-examination and during closing arguments, Trial

Counsel made several attacks on the propriety of the police action on the

night in question, the competency of the officers involved in Appellant’s

-12-
arrest, and the perceived state of corruption within law enforcement in

general. In response, the Assistant United States Attorney (the

“Prosecutor”) prosecuting the case made several comments during his

closing argument that related to Trial Counsel’s attempts to “trick”

Officer Johnson. Trial Counsel objected to these references and

characterized them as a personal attack. The district court overruled Trial

Counsel’s objection and the Prosecutor continued with his references.

Appellant argues the district court abused its discretion when it

overruled Trial Counsel’s objection. In support of his argument,

Appellant cites United States v. Nelson, 988 F.2d 798, 807 (8th Cir. 1993)

in which this Court stated that “Prosecutors should refrain from personal

attacks on defense counsel.” Appellant fails to note, however, that “[t]he

trial court has broad discretion in controlling closing arguments and

without a clear showing of abuse, that discretion will not be overturned.”

Id., quoting, United States v. Wesley, 798 F.2d 1155, 1156 (8th Cir.

1986). Further, “[i]nappropriate prosecutorial comments, standing alone,

[do] not justify a reviewing court to reverse a criminal conviction obtained

in an otherwise fair proceeding. Instead, ... the remarks must be

examined within the context of the trial to determine whether the

Prosecutor’s behavior amounted to prejudicial error.” Id., at 807,

-13-
quoting, United States v. Young, 470 U.S. 1, 11-12, 105 S.Ct. 1038,

1044, 84 L.Ed.2d 1 (1985). Thus, the district court must determine

whether the challenged comments were actually improper and, if so,

whether the defendant was prejudiced by such remarks.

It is unclear whether the district court found these comments to be

proper or concluded that prejudice simply did not attach. Irrespective of

the court’s reasoning, the context in which the challenged comments were

made indicates that any inappropriateness of the word “trick” did not

translate into prejudice against the Appellant. As stated, Trial Counsel

repeatedly attacked Officer Johnson’s credibility and the integrity of law

enforcement in general. In this Circuit, “[w]here the Prosecutor, his

witnesses, or the work of the government agents is attacked [by defense

counsel], the District Attorney is entitled to make a fair response and

rebuttal.” United States v. Williams, 97 F.3d 240, 246 (8th Cir. 1996),

quoting, United States v. Lee, 743 F.2d 1240, 1253 (8th Cir. 1984).

Similarly, the Supreme Court has stated that, when attacked, a

prosecuting attorney may “respond substantially in order to ‘right the

scale.’” United States v. Young, 470 U.S. 1, 12-13, 105 S.Ct. 1038

(1985). In the present case, the Prosecutor’s comments were calculated

to rebut allegations made by Trial Counsel. Although counsel would be

-14-
well-served in the future to be circumspect in his remarks, it is evident

nothing unfairly prejudiced the defendant in the prosecutor’s rebuttal.

Additionally, prior to and subsequent to the presentation of evidence, the

district court instructed the jury that closing arguments did not constitute

evidence. For these reasons, the Court finds that the challenged

comments were not prejudicial. Accordingly, the district court did not

abuse its discretion by denying Trial Counsel’s objection.

C. Admission of Statements Regarding a Witness’s Prior Criminal
Conduct and the Description of a Trial Exhibit

Appellant challenges the district court’s decision to allow two

separate comments made by the Prosecutor during the course of the trial.

Because Appellant challenges the district court’s rulings on objections to

remarks made by counsel, we apply an abuse of discretion standard. For

the reasons stated below, the Court finds Appellant’s challenges to be

without merit and the district court did not abuse its discretion.

1. Alleged Improper Admission of Comments Regarding a
Trial Exhibit
Appellant contends the district court erred by allowing the

Prosecutor to make a reference during his closing argument that the gun

-15-
viewed inside the residence at 4753 Northland Avenue “looks a lot like”

the derringer that had been used in a robbery committed earlier that night.

Appellant argues this comment improperly justified the actions of Officers

Dolan and Johnson on the night Appellant was arrested, and that the

statement constitutes an extrajudicial fact that should have been excluded.

At trial, Appellant’s counsel objected to the comment but was overruled

by the district court.

Counsel may not intimate information outside the scope of the trial.

See, e.g., Williams, 97 F.3d at 245. Where such a statement is made, the

district court must determine whether the statement was improper and, if

so, whether that statement prejudiced the opposing party. Id. at 245-46.

The statement at issue is, “Officer Johnson saw a silver gun. He had a

description of a robber that had a silver gun – a Derringer. A Derringer

looks a lot like the gun that’s in evidence.” There was nothing in

evidence to substantiate the Prosecutor’s claim that a Derringer is similar

in appearance to the gun seized by the police. This remark clearly

stemmed from the Prosecutor’s personal knowledge and, therefore, was

improper. See United States v. Grunberger, 431 F.2d 1062, 1068 (8th

Cir. 1970) (noting that statements based upon a Prosecutor’s personal

knowledge are improper).

-16-
 A mere finding of impropriety does not establish that the district

court abused its discretion in admitting the challenged comments. Once

a statement is determined to be improper, the Court must consider

whether the opposing party has suffered any prejudice. Whether

improper remarks have caused prejudice depends upon three factors: (1)

the strength of the properly admitted evidence; (2) the curative actions

taken by the trial court; and (3) the cumulative effect of the misconduct.

See United States v. Benitez-Meraz, 161 F.3d 1163, 1166 (8th Cir. 1998).

First, despite Appellant’s contentions otherwise, the evidence

submitted by the United States was sufficiently strong to warrant

conviction. The United States submitted as evidence the drugs and drug

paraphernalia seized from Appellant at the time of his arrest, testimony

from two officers establishing the facts and circumstances of Appellant’s

arrest, and testimony concerning his 1992 arrest and conviction for drug

possession. Although Appellant produced two witnesses who gave

different accounts of what occurred on the night Appellant was arrested,

this does not so diminish the weight of the United States’ evidence.

Indeed, when contrasted with the United States’ overwhelming evidence

the improper prosecutorial statement pales to insignificance. Second, as

-17-
stated, the challenged comment occurred during the United States’ closing

argument. On several occasions, the district court instructed the jury that

counsel’s arguments did not constitute evidence and that they were to

base their judgment only upon properly admitted evidence. These

instructions were sufficient to negate any prejudice that may have

attached to the Assistant United States Attorney’s improper remarks.

Third, the Court cannot find any cumulative effect of the alleged

misconduct. The improper statement was an isolated event and isolated

incidents of improper argument will not warrant reversal unless egregious.

See United States v. Johnson, 968 F.2d 768, 771 (8th Cir. 1992). Here,

the statement was clearly not egregious. Accordingly, we find that the

district court did not abuse its discretion in overruling Appellant’s

objection.

2. Alleged Improper Comments Regarding a Defense Witness’
Criminal History

In his defense, Appellant’s Trial Counsel placed Kerry Dillon on

the witness stand. During the course of direct examination, Trial Counsel

established that Mr. Dillon had been convicted for three assault

misdemeanors. On cross-examination, the Prosecutor asked Mr. Dillon

-18-
to restate the number of assaults for which he had been convicted. In

response, Mr. Dillon stated “I don’t know. Probably about one.” The

Prosecutor then responded and asked a question which the trial transcript

reflects as: “Well, when [Trial Counsel] was asking you some questions,

did you say you had been convicted of twenty-three assaults.” Trial

Counsel began to address the court, but the Prosecutor withdrew the

question and moved on to a different topic.

Following the trial, Appellant alleged that the Prosecutor’s

statement constituted Prosecutorial misconduct. The United States

claimed that the trial transcript did not accurately reflect the question that

had been asked and then withdrawn and moved the district court for a

hearing to correct the trial transcript. The district court granted the United

States’ motion and conducted an evidentiary hearing. During the course

of the hearing, the trial judge noted that she did not possess independent

recollection of the question asked. Several witnesses were examined,

including the court reporter and two witnesses called by Appellant who

testified that the record accurately reflected the question asked. After

hearing the testimony, the district court rejected the testimony of

Appellant’s two witnesses and stated that “we have to sort of try to make

sense of what likely happened… based on the context and based on what

-19-
we would normally expect people to say and do under these

circumstances.”

After reviewing the evidence, the district court concluded “the

transcript does not accurately reflect the question that was asked.” This

conclusion was based on the court’s belief that an attorney of Appellant’s

Trial Counsel’s stature would not allow such a statement to be made

without objection or without taking some other corrective measure during

the course of the trial – i.e., asking for a mistrial, seeking an order

correcting the record. Moreover, the district court relied upon testimony

from the court reporter that she could have entered the number

incorrectly. However, because it was not possible to ascertain the exact

words used in the question, the district court concluded that the transcript

could not be amended.

Appellant now contends that pursuant to Fed. R. App. P. 10(e), the

district court’s conclusion is not adequate to serve as the certified

correction of a purported misstatement in the trial transcript. Rule

10(e)(2) states that a material misstatement in the trial record “may be

corrected and a supplemental record may be certified and forwarded… by

the district court.” Appellate courts will “of course give great deference

to the district court’s view and must accept the [district] court’s

-20-
reconstruction of the record under Federal Rule of Appellate Procedure

10[e] unless it was intentionally falsified or plainly unreasonable.” United

States v. Zichettello, 208 F.3d 72, 93, (2nd Cir. 2000), quoting, United

States v. Keskey, 863 F.2d 474, 478 (7th Cir.1988) (internal quotations

omitted). Appellant has not demonstrated that the district court falsified

the record, nor that the district court’s interpretation was plainly

unreasonable. The district court properly exercised its discretion in

disregarding the testimony of Appellant’s witnesses, each of whom

possessed significant bias for Appellant. Based on the court’s knowledge

of Appellant’s Trial Counsel and the impartial testimony of the court

reporter, the district court reached a reasoned and reasonable conclusion.

Accordingly, we find that the district court did not abuse its discretion in

its treatment of the record.

D. Apprendi and Due Process Issues

The jury found Appellant guilty on all three indicted counts.

Appellant challenges the jury’s verdicts on the grounds that the district

court violated his due process rights as interpreted by the Supreme Court

in Apprendi v. New Jersey, 530 U.S. 466 (2000) by failing to instruct the

jury that (a) the amount of narcotics and (b) Appellant’s prior drug

-21-
conviction were elements of the indicted crimes that must be proven

beyond a reasonable doubt.

1. Failure to Instruct on the Amount of Drugs Possessed

The Court rejects Appellant’s arguments. In Apprendi, 120 S.Ct.

at 2362-63, the Supreme Court stated that the Constitution requires any

fact other than a prior conviction that increases the penalty for a crime

beyond the prescribed statutory maximum be submitted to a jury and

proved beyond a reasonable doubt. (emphasis added). This Circuit has

had the opportunity to interpret the Supreme Court’s decision and has

held that Apprendi does not apply when a specific factual finding “only

narrows the sentencing judge’s discretion within the range already

authorized by the offense of conviction.” United States v. Aguayo-

Delgado, 220 F.3d 926, 933-34 (8th Cir. 2000). See also, United States

v. Robinson, 241 F.3d 115, 121 (1st Cir. 2001) (“[S]entence-enhancing

facts may may be found by the judge under a preponderance-of-the-

evidence standard as long as those facts do not result in a sentence that

exceeds the original statutory maximum.”). Franklin was charged with

three violations of 42 U.S.C. §841(a)(1) for possession with the intent to

distribute cocaine base, powder cocaine, and heroin. Without considering

his prior drug conviction, the maximum sentence that Franklin faced on

-22-
each count was 20 years regardless of drug quantity. See 42 U.S.C.

§841(a)(1)(C). Since Franklin was sentenced to twenty years concurrent

on each count, his sentence was within the statutory maximum and there

was no Apprendi violation. See Aguayo-Delgado, 220 F.3d at 933-34.

When Franklin’s prior drug conviction is considered, the statutory

maximum sentence on each count would have been 30 years, see

§841(a)(1)(C), and a prior drug conviction need not be proven to the jury

beyond a reasonable doubt. See Apprendi, 120 S.Ct. at 2362-63; United

States v. Rush, 240 F.3d 729, 731 (8th Cir. 2001).

E. Alleged Error in Sentencing Appellant to 20 Years on Count II and
Count III of the Indictment

Appellant argues the district court erred in sentencing him to prison

terms of 20 years under Count II and Count III of the indictment based on

the court’s belief that Appellant’s prior drug conviction negated any

discretion to impose a shorter sentence. Because Appellant is challenging

the existence of discretion with respect to sentencing, the Court reviews

Appellant’s challenge de novo. See United States v. Whitetail, 956 F.2d

857, 864 (8th Cir. 1992).

-23-
 Appellant’s argument is based upon a strained interpretation of the

district court’s comment, “if the Court were not so constrained to do so,

I am not sure you would be looking at a sentence of this length.”

Irrespective of any sentencing discretion permitted on Count II and Count

III, the presence of a prior conviction mandated the district court to

sentence Appellant to 20 years for Count I. Nothing in the district court’s

remark suggests the district court believed its discretion to be limited, nor

does the fact that the district court imposed sentences of 20 years on each

count indicate an erroneous belief that the court was without discretion on

Count II and Count III. Accordingly, we find that the district court did

not abuse its discretion by sentencing Appellant to 20 years on each count

for which he was judged guilty.

F. The Presence of a Prior Final Conviction

Appellant argues the district court erred in imposing an enhanced

sentence based upon a prior conviction because his prior conviction

resulted in a suspended sentence and, under Missouri law, a suspended

imposition of sentence is not a final judgment. Appellant is challenging

the district court’s statutory interpretation and, as such, we review the

-24-
district court’s ruling de novo. See United States v. Hensley, 36 F.3d 39,

41 (8th Cir. 1994).

Although the Court recognizes that Missouri has chosen not to treat

suspended sentences as final judgments, Missouri law does not control

the question of what constitutes a “conviction” for purposes of 21 U.S.C.

§841. This Circuit has previously stated that “Congress has not…

specified whether state or federal law should be applied to define the term

‘conviction’… [and] ‘in the absence of clear language to the contrary,

federal law governs the application of federal legislation.’” United States

v. Ortega, 150 F.3d 937, 948 (8th Cir. 1998), citing, United States v.

Cisneros, 112 F.3d 1272, 1280 (5th Cir.1997). See Dickerson v. New

Banner Inst., Inc., 460 U.S. 103, 119, 103 S.Ct. 986, 74 L.Ed.2d 845

(1983) (noting that absent a plain indication to the contrary, we assume

"when Congress enacts a statute that it does not intend to make its

application dependent on state law.”) (internal quotations omitted)

(superseded by statute on other grounds). In Ortega, 150 F.3d, at 948,

we adopted the conclusions drawn by several of our sister circuits that

“deferred adjudications or probated sentences constitute convictions in

the context of §841.” See Cisneros, 112 F.3d at 1281; accord, United

States v. Mejias, 47 F.3d 401, 403-04 (11th Cir. 1995); United States v.

-25-
Meraz, 998 F.2d 182, 184-85 (3d Cir. 1993); United States v. Campbell,

980 F.2d 245, 250-51 (4th Cir. 1992), cert. denied, 508 U.S. 952, 113

S.Ct. 2446, 124 L.Ed.2d 663 (1993); United States v. McAllister, 29 F.3d

1180, 1184-85 (7th Cir. 1994).

Appellant invites the Court to reconsider the rule set forth in

Ortega. It is well established, however, that one panel of this Court may

not overrule another and so we must decline Appellant’s invitation to

reconsider our prior decision. See, e.g., United States v. Reynolds, 116

F.3d 328, 329 (8th Cir. 1997) (“One panel may not overrule another”).

III. CONCLUSION

For the reasons stated above Appellant’s conviction and sentence

are affirmed.

A true copy.

Attest:

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

-26-