United States v. Rashad McKay

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1823
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United States of America, *
*
Appellee, *
*
v. *
* Appeals From the United States
Rashad McKay, also known as * District Court for the
Rashod McKay, * District of Nebraska.
*
Appellant. *
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No. 05-2032
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United States of America, *
*
Appellee, *
*
v. *
*
Sterling McKoy, *
*
Appellant. *
___________

Submitted: November 17, 2005
Filed: December 13, 2005
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Before SMITH, HEANEY, and BENTON, Circuit Judges.
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HEANEY, Circuit Judge.

Following a jury trial, Rashad McKay and Sterling McKoy were found guilty
and convicted of conspiracy to distribute cocaine base (crack). The district court1
sentenced McKay to 210 months of imprisonment, and McKoy to 300 months. Both
defendants contend that: (1) the evidence was insufficient to sustain their
convictions, (2) the court committed evidentiary error by admitting evidence of
McKoy’s gang membership and alias, (3) the court committed sentencing error by
sentencing them on the basis of drug quantities not proven to a jury, and (4) their
sentences are unreasonably long. McKay further alleges that his rights under the
Speedy Trial Act and Interstate Agreement on Detainers were violated by pretrial
delay, and that the court erroneously admitted hearsay evidence under the
coconspirator exception. McKoy additionally claims that the government violated
Batson v. Kentucky, 476 U.S. 79 (1986), by striking the only African American
venireperson, the district court erred in failing to suppress evidence from an illegal
arrest, and the district court incorrectly calculated his criminal history. We affirm.

BACKGROUND

On June 18, 2003, cousins Rashad McKay and Sterling McKoy were indicted
for conspiracy to distribute fifty grams or more of crack from October of 1998
through June of 2003. At trial, the government presented evidence from several
witnesses, many of whom were cooperating coconspirators. Each of these witnesses
testified consistently about large-scale drug dealings with McKay and McKoy in and
around Omaha, Nebraska.

1
The Honorable Lyle E. Strom, United States District Judge for the District of
Nebraska.

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 Kevin Birdine was indicted with McKay and McKoy, pled guilty, and testified
against his codefendants. Birdine knew both McKoy and McKay from drug dealings
with them early in 1998. He testified that he escaped from a halfway house in the
spring of 2003. After Birdine’s escape, he again started dealing drugs with McKoy.
McKoy obtained nine ounces of powder cocaine from Marcell Bennett, cooked it into
crack, and gave Birdine a portion to sell. Shortly thereafter, McKoy obtained nine
more ounces of powder cocaine, cooked it into crack again, and again divided it with
Birdine. Birdine and McKoy continued their endeavor for some time, purchasing
between six ounces and eighteen ounces of powder cocaine at a time, converting it
to crack, and selling it. This continued until Birdine was apprehended on June 6,
2003.

Marcell Bennett corroborated Birdine’s story. Bennett testified that he
received a small amount of crack twice from McKoy in 1998 or 1999. Then in 2000
or 2001, Bennett became one of McKoy’s sources, selling McKoy powder cocaine
that McKoy converted to crack. By Bennett’s estimate, he sold McKoy about eight
kilograms of crack over an eight-month period.

Victor Henderson testified that he also sold cocaine and crack to Birdine and
McKoy. They engaged in four transactions from March to May of 2003. The first
time Henderson sold six ounces of cocaine. The next two sales involved nine ounces.
Finally, Henderson sold Birdine and McKoy eighteen ounces of cocaine. On one
occasion, Henderson saw Birdine and McKoy cooking the powder into crack.

From 1998 through his arrest on October 6, 2001, William Watson dealt crack
to McKoy. According to Watson, McKay pooled his money with McKoy for three
purchases in 1998, and the two received four and one-half ounces of crack from
Watson each time. In October of 1998, McKay moved to Denver. After that, McKoy
dealt with Watson on his own, usually buying four and one-half or nine ounces of
cocaine or crack from Watson. In November of 2000, Watson saw McKay at an

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associate’s residence with McKoy. Watson bought six ounces of cocaine from
McKoy that day, which McKoy had received from McKay.

Levi Brown testified that he knew both McKoy and McKay. In the early part
of 1998, Brown purchased crack from McKoy. He knew that both McKoy and
McKay had moved to Denver, but that McKoy moved back to Omaha after a few
months. Brown remained in contact with McKay while McKay was in Denver. At
least three times in 2000, McKay returned to Omaha and sold Brown eighteen ounces
of powder cocaine each time. Brown testified that he knew that McKay was
McKoy’s source, and that most of his deals with McKoy involved cocaine McKoy
received from McKay in Denver.

Greg Figures knew both McKoy and McKay and dealt drugs with both of them.
He started dealing with McKoy in 1997, selling McKoy relatively small amounts of
crack. McKoy eventually started buying more crack from Figures, including
quantities as large as nine ounces. Figures testified that he bought drugs from McKay
twice after McKay moved to Denver. When McKay came to Omaha, he went to
Figures’s residence and sold Figures a kilogram of powder cocaine. McKay cooked
half of this quantity into crack so as to assure Figures that it would easily convert.
A few weeks later, McKay, accompanied by McKoy, again went to Figures’s
residence, and Figures bought another kilogram of cocaine from McKay.

Terrell Reed grew up with McKoy and McKay. During the charged period,
Reed bought several ounces of crack from McKoy. McKoy told Reed that he got the
drugs from his cousin, Rashad. Jeremy Smith stated that he dealt with McKoy from
the summer of 1999 until his arrest on October 25, 2001. He testified that he had at
least ten deals with McKoy, selling him more than 100 ounces of crack and powder
cocaine.

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 In response to the above evidence, McKay and McKoy called two cellmates of
Birdine’s and Bennett’s. One of these witnesses testified that he overheard Birdine
and Bennett say that they were going to testify falsely. The other witness heard
Birdine brag that his testimony was going to result in life sentences for McKay and
McKoy. McKoy and McKay also called a number of witnesses who testified that
they both maintained jobs, lived frugally, and were good members of the community.

The jury received the case on June 1, 2004, and returned guilty verdicts against
both defendants the next day. A presentence report was prepared for each defendant,
charging them with responsibility for extremely large amounts of crack, and
computing very high criminal history categories. Both defendants had guidelines
ranges of 360 months to life. The district court departed from a criminal history
category V to a IV for McKay based on the view that a category V overstated his
criminal history. This decreased McKay’s sentencing range to 324 to 405 months.
Granting a further 17-month departure to account for the time McKay had spent in
custody, the court sentenced McKay to 307 months. McKoy’s range remained 360
months to life, but the district court adjusted McKoy’s sentence to account for the 12
months he had been in custody, resulting in a sentence of 348 months.

Both defendants appealed. Before their briefs were due, the Supreme Court
issued its decision in United States v. Booker, 543 U.S. 220 (2005). Based on the
parties’ joint motion to remand, our court returned these cases to the district court for
resentencing in accordance with Booker. At McKay’s resentencing hearing, the
district court recalculated the drug quantity at a lower level, resulting in a guidelines
range of 262 to 327 months. The court then sentenced outside the guidelines,
imposing 210 months of imprisonment, in contrast to its original 307-month sentence.
At McKoy’s resentencing, the court found that its original guidelines range of 360
months to life still applied, yet gave McKoy the benefit of a lower sentence, imposing
300 months instead of its original 348-month sentence. This appeal followed.

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 ANALYSIS

I. MCKOY’S ILLEGAL SEIZURE CLAIM

McKoy argues that evidence gathered as a result of an arrest for suspicion of
crack possession should have been suppressed because his arrest was not supported
by probable cause. We review the district court’s factual findings for clear error, but
consider its ultimate determination about whether the Fourth Amendment was
violated de novo. United States v. Brown, 49 F.3d 1346, 1348-49 (8th Cir. 1995).

Probable cause to arrest exists if the facts and circumstances known to an
officer would warrant a person of reasonable caution in believing that the suspect has,
is, or will soon, commit an offense. Id. at 1349. Because such a determination rests
on the totality of circumstances, “evidence that tends to negate the possibility that a
suspect has committed a crime is relevant to whether the officer has probable cause.”
Kuehl v. Burtis, 173 F.3d 646, 650 (8th Cir. 1999). To that end, “[a]n officer
contemplating an arrest is not free to disregard plainly exculpatory evidence, even if
substantial inculpatory evidence (standing by itself) suggests that probable cause
exists.” Id.

The facts relied upon by the government to establish probable cause are these:
at about 5:00 p.m. on June 1, 2003, Omaha Police Officers Jeffrey Gassaway and
George Collins were on patrol as part of their assignment with the gang suppression
unit. They saw two cars parked in the lot of Big Jim’s gas station and convenience
store. The cars, a Dodge Intrepid and a Ford Mustang, were parked parallel to one
another but facing different directions, such that their driver’s doors were next to one
another. The officers heard very loud music emanating from the direction of the cars,
and they approached the vehicles. They determined that the music was coming from
the Intrepid, which was unoccupied, but had the keys in it and was running.
Gassaway noticed two people in the front seats of the Mustang, and McKoy talking

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to them through the window, standing between the vehicles. Gassaway recognized
McKoy from a prior contact weeks earlier in which he cited McKoy for driving with
a suspended license. As Gassaway neared McKoy, McKoy stated that he knew
nothing about the Intrepid and arrived at the store in the Mustang. The Mustang’s
condition, however, belied such a claim: the vehicle’s front seats were both occupied,
and its back seat was filled with clothes that looked undisturbed. As Gassaway
conversed with McKoy, Collins approached the Intrepid so as to turn down the stereo.
Before he opened the vehicle’s door, he looked through the passenger window and
saw what he recognized as crack on the center console.

Clearly, there was probable cause to search the Intrepid, because officers
developed a prudent belief that it contained contraband. McKoy does not dispute
this, but rather suggests that nothing connected him to the vehicle. He asserts that
any suspicion that he was associated with the Intrepid was negated by the fact that no
one in Big Jim’s knew who drove the Intrepid into the lot, and that a registration
check on the Intrepid indicated it was a rental, registered to Sandra Claudio. To be
sure, these circumstances are relevant to the probable cause inquiry, but they are not
dispositive. Indeed, in this case, these isolated facts are overcome by the totality of
circumstances that linked McKoy to the Intrepid. First, he was physically near the
vehicle. While the Mustang’s occupants were close to the Intrepid as well, they were
actually in their vehicle, whereas McKoy was standing between the Intrepid and the
Mustang. The Intrepid was still running, leading to a reasonable inference that it had
recently been, and would soon be again, occupied by its driver. There were no other
vehicles in the parking lot, and McKoy’s contention that he arrived in the Mustang
was reasonably viewed by the officers as dubious. We thus find no error in the
district court’s denial of McKoy’s suppression motion.

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II. MCKAY’S SPEEDY TRIAL CLAIMS

McKay argues that his rights under the Speedy Trial Act2 and the Interstate
Agreement on Detainers Act3 (IAD) were violated because his trial was not held in
a timely fashion. Under the Speedy Trial Act, a federal criminal defendant must be
tried within seventy days of the filing of his indictment or his arraignment, whichever
is later. 18 U.S.C. § 3161(c)(1). The IAD provides that when a defendant is in
custody and indicted in another jurisdiction for an offense that causes a detainer to
be placed on him, the other offense must be tried within 180 days of the prisoner’s
written request for disposition, 18 U.S.C. app. 2, § 2 art. III(a), or within 120 days of
his arrival in the receiving jurisdiction, 18 U.S.C. app. 2, § 2 art. IV(c). If a
defendant’s rights under the Speedy Trial Act or the IAD are violated, the court must
dismiss the indictment. 18 U.S.C. § 3162(a)(2); 18 U.S.C. app. 2, § 2 art. III(d) &
IV(e). The dismissal may be with or without prejudice. 18 U.S.C. § 3162(a)(2); 18
U.S.C. app. 2 § 9(1).

A notice of detainer was served on McKay, who was in prison in Colorado, on
July 7, 2003, and he signed a request for final disposition of the detainer on July 8,
2003. Thus, the 180 days allotted until trial under the IAD began running on that
date. McKay had his first appearance on September 9, 2003, starting both the 70-day
deadline under the Speedy Trial Act and the 120-day deadline under the IAD.

Both acts at issue here contain tolling provisions for certain events. As
relevant to McKay’s case, the Speedy Trial Act excludes periods of delay that are due
to the filing of pretrial motions by either party, 18 U.S.C. § 3161(h)(1)(F), or to
joinder of another defendant, 18 U.S.C. § 3161(h)(7). The Speedy Trial Act also
excludes delay due to a continuance granted by the court to serve the ends of justice

2
18 U.S.C. § 3161.
3
18 U.S.C. app. 2, §§ 1-9.

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such that the public’s interest outweighs the defendant’s interest in a fair trial. 18
U.S.C. § 3161(h)(8)(A). Similarly, the IAD permits the court to grant “any necessary
or reasonable continuance” for good cause. 18 U.S.C. app. 2, art. III(a) & IV(c). The
operation of these provisions forecloses McKay’s claims. Following McKay’s
September 9, 2003 arraignment, the court continued the matter until September 22 on
the government’s motion for detention. On that date, the parties filed a joint motion
to continue the detention hearing until October 22, 2003. On November 3, 2003, the
court ruled on the motion. On November 24, the government filed a motion to set a
trial date. A hearing was held on the motion on December 12, 2003, at which time
the court concluded that it could not have a trial until March 29, 2004, and the court
specifically concluded that justice would be served by continuing the trial until
March 29, 2004. Thus, this period was excluded from speedy trial consideration by
operation of the acts. In the meantime, McKoy was arrested. He filed a motion to
continue the joint trial on March 16, 2004, and the court granted a continuance until
May 24, 2004. The court’s order continuing the trial again found that the continuance
was necessary to serve the ends of justice. As with the earlier continuance, this
finding meant that the delay did not count toward the limits in either the Speedy Trial
Act or the IAD. By operation of these statutes and their exclusions, a total of no more
than twenty-one days ran from the time of his date of arrival in Nebraska and
subsequent arraignment until trial, well under the limits of the Speedy Trial Act (70
days) and the IAD (120 days). Moreover, a total of sixty-three days ran from the date
of McKay’s request for final disposition to trial, far less than the 180 days allotted by
the IAD. Thus, the district court properly refused to dismiss the indictment.

III. MCKOY’S BATSON CHALLENGE

In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court reaffirmed the
position that the Equal Protection Clause is violated by racial discrimination in jury
selection. The Batson Court set forth a procedure for determining if a prosecutor was
racially discriminatory in his or her use of peremptory challenges. First, the

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defendant must make a prima facie showing of discrimination. The burden then shifts
to the government to articulate a race-neutral explanation for the challenge. If the
government proffers such a reason, the defendant may show that it is pretextual. Id.
at 96-98; United States v. Jones, 245 F.3d 990, 992 (8th Cir. 2001). The court must
then make the ultimate determination whether the defendant has shown purposeful
discrimination. Batson, 476 U.S. at 98.

The Batson issue in this case concerns the government’s use of a peremptory
challenge to exclude Joyce Blakey, an African American woman. She was the only
minority on the venire. Blakey was employed as the admissions classifications
director of the Douglas County Youth Center. She stated during voir dire that she
may know Levi Brown, a government witness. She said she thought Brown was a
close friend of her daughter’s father, and was currently in prison. Blakey also stated
that her brother was convicted of a drug offense in Omaha, and was incarcerated in
South Dakota. She also had a cousin who was attempting to be pardoned for his
felony drug conviction. Blakey also stated that she had previously been employed at
a drug treatment center.

After the government struck Blakey, McKoy raised a Batson objection. We
assume for purposes of our analysis that McKoy made a prima facie case, since the
government struck the only African American person on the venire. For its
nondiscriminatory reason, the government stated that Blakey’s job often put her in
contact with law enforcement officers and criminals; that Blakey’s brother was
serving time for a drug offense, which was probably a federal conviction; that
Blakey’s cousin had also been convicted of a felony drug offense; and that she may
know one of the government’s witnesses. While these reasons may or may not have
supported striking Blakey for cause, they are certainly appropriate nondiscriminatory
reasons for removing Blakey by way of a peremptory strike. See United States v.
Roebke, 333 F.3d 911, 913 (8th Cir. 2003) (“If there is no inherently discriminatory
intent in the prosecutor’s explanation, ‘the reason offered will be deemed race

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neutral.’” (quoting Purkett v. Elam, 514 U.S. 765, 768 (1995))); see also Batson, 476
U.S. at 89 (recognizing that peremptory challenges can be used by the government
to strike jurors for any racially neutral reason related to the potential juror’s perceived
view of the case).

IV. CLAIMED EVIDENTIARY ERROR

Both McKoy and McKay argue that the district court committed reversible
error by admitting evidence that McKoy was involved in the 40th Avenue Crips gang,
and went by the alias “Mafioso.” McKay further argues that the court impermissibly
admitted two hearsay statements of coconspirators.

We review district court rulings on the admission of prejudicial evidence such
as alleged gang affiliation for an abuse of discretion. United States v. Sparks, 949
F.2d 1023, 1026 (8th Cir. 1991). While “[e]vidence of gang membership is
admissible if relevant to a disputed issue,” United States v. Lemon, 239 F.3d 968, 971
(8th Cir. 2001), gang affiliation evidence is not admissible where it is meant merely
to prejudice the defendant or prove his guilt by association with unsavory characters,
United States v. Roark, 924 F.2d 1426, 1433-34 (8th Cir. 1991); see also United
States v. Bradford, 246 F.3d 1107, 1117 (8th Cir. 2001) (“To be certain, there is great
potential for prejudice when evidence regarding gangs is at issue.”).

During cross-examination of Officer Gassaway, McKoy established that
Gassaway had failed to perform any type of controlled buy from McKoy. On redirect,
Gassaway explained that controlled buys typically involve cooperating individuals
who have access to the suspect. Gassaway went on to note that for McKoy, those
candidates would have been his fellow members of the 40th Avenue Crips, but since
they were all under indictment or in custody, officers could not penetrate McKoy’s
circle of dealers. While McKoy’s street name of “Mafioso” was referenced, we
cannot say that this merits reversal. First, we note that this occurred three times over

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six days of testimony. Moreover, in its jury instructions, the court cautioned the jury
about its use of gang membership evidence, stating that with regard to a conspiracy,
“merely being a member of a gang[] does not prove that a person has joined in an
agreement or understanding.” (Jury Instruction 11.) Because the limited gang-related
testimony was relevant on redirect as to why the government did not attempt a
controlled buy, and because the court cautioned the jury against using gang affiliation
as a ground for conviction, we find no abuse of discretion in admitting such
evidence.4

McKay challenges the admission of two hearsay statements. In the first,
Birdine said that when he escaped from custody in 2003 and began dealing with
McKoy, McKoy told him that McKay was sending him drugs from Denver. In the
second, Terrell Reed testified that McKoy asked Reed to pool their money so that
they could buy from McKay. We review the admission of these statements for an
abuse of the district court’s discretion, “‘keeping in mind that its discretion is
particularly broad in a conspiracy trial.’” United States v. Manfre, 368 F.3d 832, 837
(8th Cir. 2004) (quoting United States v. Dierling, 131 F.3d 722, 730 (8th Cir. 1997)).

The Federal Rules of Evidence deem an out-of-court statement not hearsay if
it is offered against the defendant and is a statement of the defendant’s coconspirator
made in furtherance of the conspiracy. Fed. R. Evid. 801(d)(2)(D); Manfre, 368 F.3d
at 837. Although we interpret the phrase “in furtherance of the conspiracy” broadly,
“a statement that simply informs [the] listener of the declarant’s criminal activities is
not made in furtherance of the conspiracy.” Manfre, 368 F.3d at 838-39.

4
With regard to McKay, witnesses affirmatively stated that McKay was not in
a gang. While McKay argues that the issue of gang membership and affiliation so
permeated the proceedings as to prejudice his right to a fair trial, we respectfully
disagree.

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 Both of the challenged statements fall within the coconspirator exception to the
hearsay rule. Birdine stated that McKoy told him he was getting cocaine from
McKay in Denver to inform Birdine about their drug source. Birdine was clearly a
conspirator, and the statement was made to keep Birdine abreast of changes in the
conspiracy that had taken place while Birdine was in prison. As to the statement to
Reed, Reed was also obviously a conspirator, as he was purchasing large amounts of
crack from McKoy. When McKoy asked Reed to pool their money to get more
cocaine from McKay, it was a statement in furtherance of the conspiracy, since
McKoy was trying to acquire more drugs to sell. Admission of these statements was
not an abuse of discretion.

V. SUFFICIENCY OF THE EVIDENCE

Both defendants challenge the sufficiency of the evidence. They assert that the
evidence linking them to a conspiracy to distribute crack came from unreliable
government witnesses who were highly motivated to lie, and was outweighed by their
credible evidence that they were good citizens who held jobs and lived modestly.
“When reviewing a jury verdict for sufficiency of the evidence, we view the evidence
in the light most favorable to the jury’s verdict, overturning it only if no reasonable
jury could conclude that the government has proven all the elements of the offense
beyond a reasonable doubt.” United States v. Cole, 380 F.3d 422, 425 (8th Cir.
2004). To support a conviction for conspiracy, the government must show the
existence of a conspiracy for an illegal purpose, and the defendant’s knowledge and
intentional association with the conspiracy. United States v. Maynie, 257 F.3d 908,
916 (8th Cir. 2001). Attacks on the sufficiency of the evidence that call upon this
court to scrutinize the credibility of witnesses are generally not an appropriate ground
for reversal. Cole, 380 F.3d at 425 (“It is the task of the jury to evaluate the
credibility of witnesses.”).

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 In this case, there was more than sufficient evidence to support the defendants’
participation in the conspiracy to distribute crack. Many witnesses, including Kevin
Birdine, Marcel Bennett, Victor Henderson, William Watson, Terrell Reed, and Greg
Figures testified that they bought or sold cocaine or crack to the defendants. While
Birdine and Bennett were both impeached by witnesses who claimed they were lying,
this is generally not a basis for reversal. Rather, it is something for the jury to
consider. Even without their testimony, there was evidence of both McKay’s and
McKoy’s large-scale dealing during the charged timeframe. There is simply no merit
to the defendants’ sufficiency of the evidence claim.

VI. SENTENCING ISSUES

Both defendants assert that the district court erred when it sentenced them
based on drug quantity found by a preponderance of the evidence, rather than
amounts proven to the jury. This claim has been squarely rejected by our circuit.
See, e.g., United States v. Pirani, 406 F.3d 543, 551 n.4 (8th Cir. 2005) (en banc)
(“Nothing in Booker suggests that sentencing judges are required to find sentence-
enhancing facts beyond a reasonable doubt under the advisory Guidelines regime.”);
United States v. Haack, 403 F.3d 997, 1003 (8th Cir. 2005) (“In determining the
appropriate guidelines sentencing range to be considered as a factor under [18 U.S.C.]
§ 3553(a), we see nothing in Booker that would require the court to determine the
sentence in any manner other than the way the sentence would have been determined
pre-Booker.”). Both defendants also contend that their sentences of 210 months and
300 months are unreasonable in light of the sentencing factors enumerated in 18
U.S.C. § 3553(a). These sentences reflected the district court’s decision to give both
defendants the benefit of Booker by sentencing them well below their guidelines
ranges of 262 to 327 months and 360 months to life, respectively. The trial testimony
showed that both defendants dealt in many kilograms of crack, yet they received
sentences that were akin to findings that they had dealt in less than one kilogram of

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the drug. Moreover, their sentences were generally consistent with those of their
coconspirator defendants who pled guilty and testified against them.

McKoy next argues that the court should have grouped a number of his
offenses together because they were consolidated for sentencing. He pled guilty to
a number of traffic-related infractions and marijuana possession offenses for which
he received concurrent sixty-day sentences. The court treated each as a separate
conviction for purposes of McKoy’s criminal history. According to United States
Sentencing Guidelines section 4A1.2(a)(2), prior sentences in related cases are not
to be counted separately. Cases are related if they were consolidated for trial or
sentencing, unless the cases are separated by an intervening arrest. USSG § 4A1.2,
comment. (n. 3). Although McKoy’s cases were consolidated for sentencing, they
were all separated by intervening arrests on different dates. Thus, the district court
properly scored each as a separate offense under the guidelines.

McKoy lastly argues that the court erred by adding two points to his criminal
history under the mistaken view that he was still on probation at the time of the
conspiracy offense. Section 4A1.1(d) calls for the addition of two criminal history
points “if the defendant committed the instant offense while under any criminal
justice sentence, including probation, parole, supervised release, imprisonment, work
release, or escape status.” USSG § 4A1.1(d). The charged conspiracy was alleged
to have begun on or about October 1, 1998. McKoy was on probation until July 28,
1998 for a number of offenses, but on that date his probation was terminated.
According to McKoy, he was incorrectly scored two additional points for being on
probation during the instant offense because his probation had been terminated
several months before this charged conspiracy.

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 McKoy’s failure to raise this objection in the district court limits our review to
plain error.5 United States v. Evans, 285 F.3d 664, 674 (8th Cir. 2002). And as in
Evans, McKoy’s challenge appears to have “merit but no effect.” Id. Without these
two points, McKoy still had well beyond the thirteen points necessary to qualify him
for criminal history category VI. Thus, we need not conclusively decide whether this
assessment was improper.

CONCLUSION

For the reasons stated above, we affirm the defendants’ convictions and
sentences.
______________________________

5
Citing United States v. Paz, 411 F.3d 906 (8th Cir. 2005), the government
argues that McKoy’s failure to object to this criminal history assessment in the
presentence report precludes our consideration of the issue. That is incorrect. Paz
and similar cases hold that facts not objected to in the presentence report are deemed
admitted. Paz, 411 F.3d at 909; cf. Fed. R. Crim. P. 32(i)(3)(A) (permitting a
sentencing court to accept undisputed portions of a presentence report as findings of
fact). That has no application here, since McKoy does not challenge the fact that he
was on probation until July 28. Rather, he argues that the undisputed fact that he was
discharged from probation on July 28 means that he was not on probation during the
conspiracy that was alleged to have started roughly two months later.

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