United States v. Shawn Barth

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 04-1747
___________

United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Shawn Leo Barth, *
*
Defendant - Appellant. *

___________
Appeal from the United States
No. 04-1609 District Court for the
___________ District of North Dakota

United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Rosalio Guitron-Vargas, also known *
as Gregorio Arechigo Velasco, also *
known as Josue Efrain Nino, *
*
Defendant - Appellant. *
 __________

No. 04-1681
__________

United States of America, *
*
Plaintiff - Appellee, *
*
v. *
*
Nancy Elizabeth Ferneau *
*
Defendant - Appellant. *

___________

Submitted: November 17, 2004
Filed: September 14, 2005
___________

Before MURPHY, HANSEN, and MELLOY, Circuit Judges.
___________

MELLOY, Circuit Judge.

This action is a consolidated appeal following the convictions of Shawn Leo
Barth, Rosalio Guitron Vargas, and Nancy Elizabeth Ferneau. Each individual was
found guilty of conspiracy to distribute and to possess with intent to distribute
methamphetamine. Barth was also found guilty of possession with intent to distribute
methamphetamine, distribution of methamphetamine, possession of marijuana with
intent to distribute, possession of a firearm in furtherance of a drug trafficking crime,

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and being a felon in possession of a firearm or ammunition. In addition, Vargas was
found guilty of distribution of methamphetamine, distribution of marijuana, and
possession of a firearm by an illegal alien.

The consolidated appeals raise overlapping issues. Barth argues that: 1) the
evidence established multiple conspiracies while the indictment alleged a single
conspiracy; 2) the evidence was insufficient to support the conspiracy conviction; and
3) Blakely v. Washington, 124 S.Ct. 2531 (2004), requires the facts of his past
convictions be submitted to the jury if they are used to enhance his sentence. Vargas
argues that: 1) the evidence established multiple conspiracies, but the indictment
alleged a single conspiracy; 2) the district court violated his rights under Federal Rule
of Criminal Procedure 43 when it conducted a status conference outside of his
presence; and 3) the district court erred when it failed to admonish the jury not to
discuss the case when it recessed. Ferneau argues that: 1) the evidence was
insufficient to support the conspiracy conviction; 2) the district court violated her
rights under Federal Rule of Criminal Procedure 43 when it conducted a status
conference without her present; 3) the court erred when it failed to admonish the jury
not to discuss the case when it took recesses; and 4) the court erred in refusing to give
Ferneau a minor participant reduction at sentencing. In addition, this court asked for
supplemental briefing from all of the defendants regarding possible Blakely claims.
We affirm the judgment of the district court in each appeal.1

I. Background

This case arises out of an alleged conspiracy to distribute drugs, in particular
methamphetamine, in the Bismarck, North Dakota area. Viewing the evidence in a
light favorable to the government shows the following. Initially, the drugs were

1
The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.

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obtained in Iowa, but eventually they were brought into North Dakota from
Washington state. The distribution activity principally involved Shawn Barth,
Rosalio Vargas, Nancy Ferneau, and persons they employed to transport drugs on
their behalf. The defendants purchased methamphetamine and marijuana to sell in
Bismarck and the surrounding area. Ferneau often permitted her residence to be used
as a distribution point. These events occurred between 1999 and 2003.

Barth’s efforts to distribute methamphetamine in Bismarck began when he and
Blaine Martinez purchased methamphetamine in Iowa and transported it to Bismarck.
On each trip, they purchased one pound of methamphetamine. Upon returning to
North Dakota, they divided the drugs into smaller quantities, distributed them, and
split the proceeds.

In February 2000, Martinez informed Barth that Vargas had methamphetamine
available for purchase. Barth met Vargas at Nancy Ferneau’s home in Bismarck,
where Martinez also resided at that time. Martinez and Barth purchased
methamphetamine from Vargas at this meeting, and approximately four or five other
times between February 2000 and April 2000, in one pound quantities.

In May 2000, Vargas hired Rigoberto Fernandez-Castillo (“Fernandez”) to
transport methamphetamine and marijuana from Washington state to Bismarck for
later sale by Barth and Ferneau in exchange for $1,000 per trip. Vargas supplied the
vehicles for the transportation of the drugs.

Fernandez subsequently made eight trips between Washington and North
Dakota, and was accompanied by Vargas on three of them. On each trip he
transported two pounds of methamphetamine and three to five pounds of marijuana.
Vargas told Fernandez to bring the drugs to Ferneau’s home so that Ferneau could
assist in distributing the drugs from there. Each time, Fernandez brought the drugs
to Ferneau’s home. After Fernandez transported the drugs to Ferneau’s home,

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Ferneau assisted Fernandez in dividing the drugs. Ferneau would then make
telephone calls, and shortly thereafter individuals would come to pick up the drugs.
Ferneau would provide various buyers with marijuana, methamphetamine, or both.
During this process, Fernandez never witnessed the actual exchange of drugs between
Ferneau and Barth. However, he did observe Barth enter Ferneau’s home and go into
the room where the drugs were kept. Fernandez also witnessed exchanges of drugs,
weapons, and other items between Vargas and Barth. After all of the drugs were sold,
Ferneau would pay Vargas for the drugs. On some occasions Vargas would arrange
for Fernandez to bring the money back to Vargas’s home in Washington.

Vargas, Barth, and Ferneau continued to obtain and distribute drugs throughout
2000. Fernandez continued to act as courier until his arrest for transporting drugs in
September 2000.

On April 5, 2001, Vargas was arrested in Mandan, North Dakota. He was
prosecuted for an immigration violation and deported on June 29, 2002. Vargas
returned to the United States later that summer. Upon his return, Vargas and Barth
immediately resumed distributing methamphetamine.

The following year, Barth moved from Bismarck to Oliver County, North
Dakota. There, Barth moved in with a dairy farm worker named William Canada.
Barth brought Vargas and another Hispanic male with him to Canada’s residence.
Barth “fronted Canada” methamphetamine, meaning Canada had to sell the
methamphetamine and then repay Barth from the proceeds. In November 2002,
Canada was arrested on unrelated charges. Canada gave Barth the keys to his
residence to return to the property owner. Instead of returning the keys, Barth moved
into the residence in Oliver County.

Barth continued to distribute methamphetamine from Canada’s residence. In
March 2003, Barth sought the assistance of James Chrisikos to distribute

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methamphetamine. Barth offered to provide Chrisikos a vehicle and money if he sold
drugs for Barth. Barth showed Chrisikos around the Canada residence. He showed
him a utility trailer where he kept marijuana, methamphetamine, and a handgun.

On approximately March 24, 2003, Chrisikos, Ryan Brelje, and another man
sought to purchase methamphetamine from Barth. Chrisikos went to the residence
to make the purchase. When he arrived, he saw a white minivan outside the residence
and Barth meeting with two people. During the meeting, Barth and the two people
exchanged something. Following the exchange, Barth entered Chrisikos’s vehicle
and gave Chrisikos a package of methamphetamine. He told Chrisikos that the drugs
had just arrived and that he had paid ten to fifteen thousand dollars for the drugs.
Barth gave Chrisikos one ounce of methamphetamine and some marijuana for his
personal use and told Chrisikos to assist in distributing the rest of the drugs Barth had
purchased.

Soon after this purchase, the police detained Ryan Brelje. At that time, Brelje
was in possession of approximately ten grams of methamphetamine. Brelje told the
police about Chrisikos and his role in the distribution of methamphetamine. Based
on this information, the police obtained a search warrant for Chrisikos’s residence.
At the residence the police found marijuana and methamphetamine. Following the
search, the police interviewed Chrisikos.2 Chrisikos told the police about Barth, the
Oliver County residence, the drugs, the trailer, and the handgun.

Based on the information from Chrisikos, the police pursued Barth and Vargas.
The police executed a search warrant on Canada’s residence, where Barth was living.
Inside the utility trailer Barth had shown to Chrisikos, officers found a handgun and

2
Chrisikos was informed that the police had a warrant for his arrest at a
previously scheduled meeting with his probation officer. He was then detained until
the search was completed.

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ammunition, marijuana, and other drug paraphernalia. The trailer belonged to B &
B Roofing, a business run by Barth’s brother, for which Barth periodically worked.
Inside the residence and a pickup truck at the residence, the officers found marijuana,
methamphetamine and titles to cars purportedly involved in the distribution of the
drugs. The next day, Deputy Sheriff Dion Bitz stopped Vargas in one of the cars for
which officers had found title in their search of the residence. When questioned,
Vargas claimed that the car belonged to his nephew, Juan Quintero, and that he did
not know Barth. Vargas admitted that he was in the United States illegally.

On July 9, 2003, Barth, Vargas, Ferneau, Fernandez, and Thomas Pinks, Jr.
were named in a multi-count indictment. The first count alleged that between August
1, 1999 and the date of the indictment, the defendants and “others” conspired to
possess methamphetamine with an intent to distribute in violation of 21 U.S.C. §§
841(a)(1) and 846, and 18 U.S.C. § 2. Counts two through six alleged that Barth: 1)
possessed methamphetamine mixture with intent to distribute; 2) actually distributed
methamphetamine; 3) possessed marijuana with an intent to distribute; 4) possessed
a firearm in furtherance of a drug trafficking crime; and 5) was a felon in possession
of a firearm and ammunition. 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2; 18 U.S.C. §
924(c)(1)(A) and (2); 18 U.S.C. § 922(g)(1); 18 U.S.C. § 924(a)(2) and (e). Counts
seven through nine alleged that Vargas distributed methamphetamine and marijuana
and unlawfully possessed a firearm based on his status as an illegal alien in the
United States. 21 U.S.C. § 841(a)(1); 18 U.S.C. § 2; 18 U.S.C. § 922(g)(5)(A); 18
U.S.C. § 924 (a)(2).

The case proceeded to trial on December 8, 2003.3 A pretrial conference
regarding how the trial would proceed was held on December 5, 2003, outside of the
presence of the defendants. The defendants objected to their absence. The jury

The case against Fernandez did not proceed to trial. The government and
3

Fernandez entered into a plea agreement in exchange for his testimony.

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returned a verdict on December 18, 2003. All of the defendants except Pinks, who
was acquitted, were convicted on all counts of the indictment.

II. Discussion

A. Conspiracy Participation

Appellants Barth and Vargas assert that they were prejudiced by a variance
between the government’s indictment that alleged a single conspiracy and the
evidence offered at trial which they allege showed multiple conspiracies. According
to these defendants, they were charged with one conspiracy that existed continuously
from August 1, 1999 until July 9, 2003, but the evidence presented at trial supported
the existence of multiple conspiracies. Barth suggests that the evidence indicates the
existence of at least three separate conspiracies, while Vargas alleges that the
evidence shows at least two separate conspiracies.

We are not convinced that there were multiple conspiracies. In fact, significant
evidence exists to suggest the existence of a single conspiracy, involving the same
drugs and substantially the same people, that lasted several years. Regardless of
whether there was a single conspiracy or multiple conspiracies, “[w]e will reverse
only if we find the evidence adduced at trial does not support a finding of a single
conspiracy, and we determine [the defendants were] prejudiced by the variance.”
United States v. Benford, 360 F.3d 913, 914 (8th Cir. 2004).

We review allegations of a variance for harmless error, and “[r]eversal is
warranted only if the variance infringed a defendant’s substantial rights.” Fed. R.
Crim. P. 52(a); see United States v. Ghant, 339 F.3d 660, 662 (8th Cir. 2003), cert.
denied, sub nom Nichols v. United States, 540 U.S. 1167 (2004). A variance
infringes a defendant’s substantial rights when:

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 (1) the defendant could not reasonably have anticipated from the
indictment the evidence to be presented against him; (2) the indictment
is so vague that there is a possibility of subsequent prosecution for the
same offense; or (3) the defendant was prejudiced by a ‘spillover’ of
evidence from one conspiracy to another.

United States v. Jones, 880 F.2d 55, 66 (8th Cir. 1989).

Here, any variance that may have occurred did not infringe on the substantial
rights of either Barth or Vargas. Neither defendant alleges notice or double jeopardy
claims. When there are not notice or double jeopardy issues, “a variance between the
indictment date and the proof at trial is not fatal so long as the acts charged were
committed within the statute of limitations period, and prior to the return date of the
indictment.” United States v. Stuckey, 220 F.3d 976, 982 (8th Cir. 2000). Barth and
Vargas did not raise a statute of limitations issue and all of the activities occurred
before the indictment was handed down. Thus, the only possible issue in this case is
whether the defendants were prejudiced by the spillover of evidence, that is to say the
jury’s inference of guilt based on evidence not related to that defendant’s conspiracy.

Only Barth raises an allegation of prejudice from the spillover of evidence.
However, he faced little or no risk of prejudice from spillover evidence because he
was involved in all stages and aspects of the crimes committed. Regardless of how
many conspiracies the government alleged were committed, it presented evidence that
Barth was involved in all of them. See, e.g., Ghant, 339 F.3d at 664 (noting that even
if there were multiple conspiracies, sufficient evidence supported a finding that the
defendant participated in all of them). He cannot contend that he was prejudiced by
his own actions. Barth “cited no case in which, despite evidence that the defendant
participated in all of the conspiracies, a variance between the number of conspiracies
charged and the number proven was found to have prejudiced the defendant.” Id.
Even if there were multiple conspiracies in this case, “they were close in time and
similar to each other,” and thus evidence of Barth’s participation likely would have

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been admitted under Federal Rule of Evidence 404(b) because it “would have been
probative of his intent to participate in the other [conspiracy].” Ghant, 339 F.3d at
664.

Barth cites Kotteakos v. United States, 328 U.S. 750, 776-77 (1946), for the
proposition that prejudice existed. In Kotteakos, the Court found that prejudice
existed because the district court failed to give sufficient instruction to prevent the
jury from imputing to each defendant the acts and statements of the other defendants.
Id. at 771, 776-77. In that type of situation there is a danger “of transference of guilt
from one to another across the line separating conspiracies.” Id. 774. The case
before us is distinguishable from Kotteakos because the district court gave a specific
cautionary instruction and because the conspiracy in this case was not as complex as
the situation in Kotteakos. This case involved fewer participants and fewer degrees
of attachment to comprehend and consider.

The possibility of prejudice is diminished by characteristics of this case that
make it not “a particularly ‘complex’ one or one dealing with ‘complicated or
confusing’ transactions.” Ghant, 339 F.3d at 663 (quoting United States v. Hall, 171
F.3d 1133, 1150-51 (8th Cir. 1999)). The evidence in this case was easy to
compartmentalize into certain time periods. All possible conspiracies involved the
same drugs, locations of supply, means of transportation, and points of distribution.
Barth’s participation in the conspiracy, in particular, is easy to identify and separate
from that of the other conspirators.

Even if we believe there was a risk of prejudice, we are confident that the
limiting instruction in this case “prevented the jury from [improperly] transferring
guilt . . . .” United States v. Snider, 720 F.2d 985, 990 (1983). The district court gave
the instruction from the Eighth Circuit Model Jury Instructions. See Eighth Circuit
Manual of Model Jury Instructions - Criminal § 5.06(G) (West 2003) (instructing
juries in cases dealing with single or multiple conspiracies to compartmentalize

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evidence). We believe this instruction conveyed the law of our Circuit as set forth in
United States v. Jackson, 696 F.2d 578, 585-86 (8th Cir. 1982). The use of this
instruction provided strong protection against prejudice from any spillover of
evidence.

Finally, the argument that the jury was confused, or Barth was prejudiced, by
the spillover of evidence is weakened by the fact that the jury found one defendant,
Thomas Pinks, not guilty. Combined with the cautionary instruction, this verdict
shows that the jury was able to compartmentalize the evidence against each
defendant. Accordingly, we conclude that, in this case, even assuming a variance,
none of the defendants were prejudiced by it.

B. Sufficiency of the Evidence

Barth and Ferneau allege the evidence is insufficient to support their
convictions. The applicable standard of review is “very strict.” United States v.
Sanders, 341 F.3d 809, 815 (8th Cir. 2003). When examining the sufficiency of the
evidence, we review the evidence in a light most favorable to the verdict. United
States v. Tensley, 334 F.3d 790, 793 (8th Cir. 2003). Accordingly, if “any rational
trier of fact could have found the essential elements of the crime beyond a reasonable
doubt,” we must uphold the conviction. Miller v. Lock, 108 F.3d 868, 870 (8th Cir.
1997); United States v. Dabney, 367 F.3d 1040, 1042 (8th Cir. 2004) (stating that the
jury’s decision should be reversed “only if no reasonable jury could have found [the
defendant] guilty”). “We resolve evidentiary conflicts in favor of the government and
accept all reasonable inferences drawn from the evidence that support the jury’s
verdict.” Tensley, 334 F.3d at 794.

Ferneau contends that there is no credible evidence that a reasonable jury could
find sufficient to prove beyond a reasonable doubt that she knew the purpose of the
conspiracy. Ferneau argues that although the jury determines the credibility of

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witnesses, no reasonable jury could have believed the testimony of Fernandez and
James Rhone, who also helped transport drugs for the conspiracy. In particular,
Ferneau points to Rhone’s statements that, at all costs, he was not going back to jail.
She also points to the fact that Fernandez made a deal with the prosecution to testify
in exchange for a plea agreement. Moreover, she asserts that she presented evidence
that she was not involved with methamphetamine.

The evidence in this case supports the jury’s finding that Ferneau knew the
purpose of the conspiracy and knowingly joined the conspiracy to distribute
methamphetamine. The jury had the opportunity to hear conflicting testimony
regarding Ferneau’s knowledge. Martinez and a number of other people involved
with the defendants testified that Ferneau lacked knowledge. The government offered
the testimony of Fernandez and Rhone as to Ferneau’s knowledge of, and
participation in, the conspiracy. In particular, Fernandez testified regarding how he
transported methamphetamine to Ferneau’s house where Ferneau and Fernandez
would divide up the drugs for distribution and how Ferneau would call individuals
to pick up the drugs from her residence.

The government also offered numerous exhibits corroborating the testimony
of Fernandez and Rhone. The government produced statements by Ferneau to a DEA
agent in which Ferneau admitted her knowledge of Vargas’ and Fernandez’s
involvement in drug trafficking. The government also presented her admission that
she purchased cellular phones for Fernandez and Vargas. Further, the government
presented Ferneau’s admission that she attempted to retrieve, at Vargas’s request, the
car in which Fernandez was arrested that contained methamphetamine.

It is not the province of this court to weigh the evidence for and against
Ferneau. Rather, we give significant weight to the jury’s determinations as to the
credibility of witnesses. United States v. Meza-Gonzalez, 394 F.3d 587, 592 (8th Cir.
2005). Taking the evidence in a light most favorable to the verdict, the witness

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testimony and other exhibits constitute enough evidence to find, as the jury did, that
Ferneau knew the purpose of the conspiracy.

Barth contends that there is insufficient evidence to convict him of: 1)
possession of methamphetamine with intent to distribute; 2) distribution of marijuana;
3) possession of marijuana with intent to distribute; 4) possession of a firearm in
furtherance of a drug trafficking crime; and 5) being a felon in possession of a firearm
and ammunition. Barth, like Ferneau, is merely asking this Court to reweigh the
evidence presented at trial and evaluate the credibility of witnesses, which it is not
our place to do. Id. The jury had the opportunity to evaluate the credibility of
witnesses against Barth, including Chrisikos, and the merit of the evidence presented.
As we stated earlier, we give significant weight to the jury’s determinations regarding
witness credibility. Id. The government presented additional evidence to corroborate
Chrisikos’s testimony, including physical evidence from the Canada residence and
Chrisikos’s apartment. These items included detailed accounts of Chrisikos’s
partners, amounts of drugs and money, and locations of guns and cars, all relevant to
Barth’s participation. Moreover, the government offered the testimony of others
familiar with Barth’s purchase and distribution of methamphetamine and marijuana,
including Raymond Kershaw and Leslie Beneke Schmidt. Again, the jury was able
to make credibility determinations regarding the testimony of these witnesses, and we
give significant deference to its evaluation. Taking the evidence in Barth’s case in
a light most favorable to the verdict, there was more than enough evidence to convict
Barth.

C. Sixth Amendment Right to Be Present at Trial

We review whether a trial court conducted a proceeding in violation of
defendants’ right to be present during every stage of his trial under an abuse of
discretion standard. United States v. Shepherd, 284 F.3d 965, 967 (8th Cir. 2002).

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If a proceeding was conducted in violation of this right, it is subject to harmless error
analysis. Id. at 967-68.

A criminal defendant has a constitutional right to be present during every stage
of his trial. U.S. Const. amend. VI; Illinois v. Allen, 397 U.S. 337, 338 (1970).
However, “[t]he right to be present at all phases of a criminal trial is not absolute.”
Shepherd, 284 F.3d at 967. This right and its limitations have been codified in Rule
43 of the Federal Rules of Criminal Procedure. Rule 43(b)(3) states that “[a]
defendant need not be present . . . [during a] proceeding [which] involves only a
conference or hearing on a question of law.” Id. Therefore, the defendant’s presence
is not required at a conference regarding trial procedure. See, e.g., Cox v. United
States, 309 F.2d 614, 616 (8th Cir. 1962) (“It is not unusual for a judge to call counsel
into chambers and discuss matters of evidence, the form of questions, instructions
proposed, and other matters looking to a more orderly trial, without having a
defendant present.”). These types of discussions are “not part of the trial within the
meaning of Rule 43.” Id.

Vargas and Ferneau assert that they should have been present because factual
issues were discussed and because the discussion regarding potential witnesses
constituted a discussion of factual issues. In this case, the pretrial proceeding
involved discussion of: 1) the voir dire procedure to be followed by the court; 2)
production of the government’s witness and exhibit lists to the Court by the start of
trial; 3) the amount of time required for opening statements and the daily trial
schedule; 4) the procedure for handling objections to trial evidence by one or more
defendants; and 5) parties’ objections to the court’s proposed jury instructions. No
testimony was heard or discussed, and no decisions regarding the admissibility of
evidence nor objections to jury instructions were made. Appellants’ argument fails
because the conference only concerned how to conduct the trial in an orderly manner.
It did not involve a discussion of questions of fact. Accordingly, the pretrial

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conference addressed questions of law, thereby making the defendants’ presence
unnecessary. Fed. R. Crim. P. 43(b)(3).

D. Jury Separation

Vargas and Ferneau also argue that the district court committed error when it
occasionally failed to admonish the jury not to discuss the case among themselves or
with others.

It is essential to a fair trial, civil or criminal, that a jury be cautioned as
to permissible conduct and conversations outside the jury room. . . . It
is fundamental that a jury be cautioned from the beginning of a trial and
generally throughout to keep their considerations confidential and to
avoid wrongful and often subtle suggestions offered by outsiders.

United States v. Williams, 635 F.2d 744, 745-46 (8th Cir. 1980). Nevertheless, this
Court stated in Kleven v. United States, 240 F.2d 270, 274 (8th Cir. 1957), that
“[w]hile this Court has pointed out the vital importance of proper admonitions to a
jury . . . we have never held . . . that such admonition must be repeated at every
recess, and we do not believe it is error to fail to do so when, as here, the Court had
earlier given a continuing admonition to the jury.” In the present case, the district
court admonished the jury on numerous occasions. It is uncontested that the court
warned the jury on at least twenty occasions, but did not do so on at least eleven
occasions. The instances in which the jury was not given an admonition only
occurred during mid-morning or mid-afternoon recesses when the jury did not leave
the courthouse. There is no claim of prejudice from failure to admonish the jury
before an overnight separation.

We held in United States v. Weatherd, 699 F.2d 959, 962 (8th Cir. 1983), and
United States v. McGrane, 746 F.2d 632, 635 (8th Cir. 1984), that repeated
admonitions, even if not given in every instance, adequately cautioned the jury as to

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its obligations. We stated that “[i]n light of the repeated admonitions, we are satisfied
that the jurors were adequately apprised of their duty not to discuss the case outside
the jury room.” Weatherd, 699 F.2d at 962; see McGrane, 746 F.2d at 635 (finding
that ten admonitions “adequately cautioned the jury concerning its obligations”). We
cannot say that there was prejudice in this case. The jurors were sufficiently apprised
of their duty such that the district court’s failure to admonish the jury on every
occasion does not constitute reversible error.

E. Minor Participant Reduction

Ferneau argues that the court erred in refusing to give a minor participant
reduction upon sentencing. We review a district court’s determination regarding a
defendant’s role in an offense for clear error. United States v. Brubaker, 362 F.3d
1068, 1070 (8th Cir. 2004).

A trial judge may reduce a defendant’s offense level by two levels if the court
finds that the defendant was a minor participant in a conspiracy. U.S.S.G. § 3B1.2.
A “minor participant” is someone who is “less culpable than most other participants,
but whose role could not be described as minimal.” U.S.S.G. § 3B1.2 cmt. 5. The
burden is on the defendant to prove she is eligible for the reduction. Brubaker, 362
F.3d at 1071. The fact that a defendant is less culpable than other participants in a
crime does not mean the defendant is entitled to a minor role reduction. United States
v. Johnson, 358 F.3d 1016, 1018 (8th Cir. 2004).

Ferneau was not a minor participant. The record indicates that: Ferneau was
actively involved in the conspiracy to distribute methamphetamine; her home was a
distribution center for the drugs; she provided resources – such as cellular telephones
– to assist in the conspiracy; she weighed, cut, and packaged drugs; and she collected
money on behalf of the methamphetamine supplier. This evidence suggests that
Ferneau’s actions could reasonably be found to constitute more than minor

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participation in the drug conspiracy. Accordingly, the district court’s determination
that Ferneau was not entitled to a minor participant reduction does not constitute clear
error.

F. Booker

In Blakely v. Washington, the Supreme Court held that the imposition of a
sentence enhancement above the State of Washington’s Sentencing Reform Act’s
range, based solely on the factual findings of the sentencing judge, violated the
defendant’s Sixth Amendment rights. Blakely, 124 S. Ct. at 2537. It constituted a
Sixth Amendment violation because the findings were neither admitted by the
defendant nor found by a jury beyond a reasonable doubt. Id. Following Blakely,
and while this appeal was pending, the Court held in United States v. Booker, 125
S.Ct. 738 (2005), that “the Sixth Amendment as construed in Blakely does apply to
the [Federal] Sentencing Guidelines.” Id. at 746. Under the Booker regime, “[a]ny
fact (other than a prior conviction) which is necessary to support a sentence
exceeding the maximum authorized by the facts established by . . . a jury verdict must
be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id. at
756.

In this case, Barth and Vargas concede that plain error is the appropriate
standard of review. Ferneau argues, however, that she properly preserved the issue.
None of the defendants argued below that the Guidelines were unconstitutional.4
Further, none of them objected based on Blakely or Apprendi v. New Jersey, 530 U.S.
466 (2000). Accordingly, our review is limited to determining whether the sentence
constitutes plain error. See United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005)

4
In Ferneau’s case, she objected to what quantity was used in calculating her
offense level. She did not object to the constitutionality of the application of the
Guidelines as mandatory.

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(en banc). To establish plain error, the defendants must show that (1) there was an
error; (2) the error was plain; and (3) that the error affected substantial rights.
Johnson v. United States, 520 U.S. 461, 466-67 (1997). “If all three conditions are
met, an appellate court may then exercise its discretion to notice a forfeited error, but
only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” Id. (internal quotations omitted). Further, the defendants have
the burden of proving plain error. United States v. Olano, 507 U.S. 725, 734 (1993).

In Pirani, we held that a Booker/Blakely error “affects substantial rights” if
there is a reasonable probability “that, but for the error the defendant would have
received a more favorable sentence.” Pirani, 406 F.3d at 552. Barth, Ferneau, and
Vargas have not met their burden to show that there was a “reasonable probability”
the district court would have imposed more favorable sentences if the Guidelines had
been applied in an advisory manner.

Barth’s sentence of life imprisonment plus five years was not determined based
upon an application of the Guidelines, but rather the mandatory minimum sentences
set forth in the statutes governing his conviction. Thus, Barth cannot prove that it
would be possible for him to receive a more favorable sentence. Barth’s argument
that Blakely requires the facts of his past conviction to be submitted to the jury if they
are used to enhance his sentence also fails. We have held that prior convictions do
not have to be found by the jury. United States v. Scott, 413 F.3d 839, 840 (8th Cir.
2005); United States v. Patterson, 412 F.3d 1011, 1015 (8th Cir. 2005).

Vargas was sentenced at the bottom of the Guideline range. A sentence at the
bottom of the Guideline range “is insufficient, without more, to demonstrate a
reasonable probability that the court would have imposed a lesser sentence absent the
Booker error.” Pirani, 406 F.3d at 553. Further, the record suggests that the district
court would not have imposed a lesser sentence. The district court stated that
Vargas’s sentence, while harsh, was “certainly appropriate and warranted.”

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Therefore, Vargas cannot demonstrate plain error. Finally, Ferneau was sentenced
in the middle of the Guideline range. There is nothing in the record to suggest that
the district court would have imposed a lesser sentence on Ferneau if the Guidelines
were not mandatory. See, e.g., United States v. Clark, 409 F.3d 1039, 1045 (8th Cir.
2005) (concluding that there was no plain error where the defendant’s 180 month
sentence was within the range of 151 to 188 months).

Because the record, when taken as a whole, does not indicate that the district
court would have imposed a more favorable sentence under an advisory sentencing
regime in any of their cases, the defendants cannot establish the prejudice prong of
the analysis. Accordingly, they fail to meet their burden to prove that the district
court committed plain error in imposing the sentence enhancements.

For the foregoing reasons, we affirm the judgment of the district court in each
appeal.
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