United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 04-1293
                                ________________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *       Appeal from the United States
      v.                                  *       District Court for the
                                          *       Northern District of Iowa.
Ann Victoria Ellefson,                    *
                                          *
             Appellant.                   *

                                ________________

                                Submitted: October 19, 2004
                                    Filed: August 23, 2005
                                ________________

Before COLLOTON, LAY, and GRUENDER, Circuit Judges.
                         ________________

GRUENDER, Circuit Judge.

       Ann Victoria Ellefson was convicted of distributing and aiding and abetting the
distribution of 2,887 pseudoephedrine pills knowing, or having a reasonable cause
to believe, the pseudoephedrine would be used to manufacture methamphetamine, in
violation of 21 U.S.C. § 841(c)(2) and 18 U.S.C. § 2 (Count 1); possession with intent
to distribute and aiding and abetting possession with intent to distribute 260.5 grams
of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) and 18 U.S.C. §
2 (Count 2); and possession of methamphetamine and marijuana, in violation of 21
U.S.C. § 844(a) (Count 3). The district court1 sentenced Ellefson to 188 months’
imprisonment pursuant to U.S. Sentencing Guidelines Manual §§ 2D1.1 and 2D1.11.
Ellefson appeals her conviction as to Counts 1 and 2, claiming that there was
insufficient evidence to support the jury verdicts. She also appeals her sentence,
claiming that the lack of a “mitigating-role cap” in U.S.S.G. § 2D1.11 violated her
rights to due process and equal protection, and that she should be resentenced under
advisory guidelines. We affirm.

I.    BACKGROUND

       Ellefson’s convictions arose from her involvement with the drug-related
activities of her then boyfriend, Ryan Buchheim. The case against Ellefson centered
around a September, 2002, transfer of 2,887 pseudoephedrine pills from Ellefson and
Buchheim to undercover police officer Josh Lupkes and confidential informant Flint
Hillman in exchange for two tanks purportedly containing anhydrous ammonia.

       Lupkes and Hillman met Buchheim and Ellefson outside of her residence in
Cedar Rapids, Iowa. With Ellefson present, Hillman helped Buchheim move the
purported anhydrous ammonia tanks from his car into Buchheim’s van. Hillman,
Buchheim and Ellefson then went into her apartment, leaving Lupkes in Hillman’s
car. Inside her apartment, Ellefson quizzed Hillman about how well he knew Lupkes.
Ellefson asked Hillman: “Why are you afraid to bring him up?”; “How long have you
known him?”; “Does he know what you’re coming here for?”; “Then it doesn’t really
matter, does it?” Hillman told Ellefson that Lupkes was “where I got all my crank
from” and that Lupkes knew why Hillman was in her apartment.




      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
                                        -2-
      While Hillman was in Ellefson’s apartment, Buchheim spoke on the telephone
with his pseudoephedrine supplier to set up a delivery of pseudoephedrine. As soon
as Buchheim hung up the phone, Ellefson asked him “Do you know when?” and
“Who? When? Where?” Buchheim replied, “At my place, about half an hour and a
case. It’s like 8,640 pills.” Ellefson then asked to use Buchheim’s van to run an
errand. Buchheim noted that the purported anhydrous ammonia tanks were in the
back and stated, “See, unless you want to take them and drop them off at [his storage
garage] . . . .” Ellefson responded, “You want me to?” and Buchheim replied,
“Actually, I kinda want to go with you, if you go.” Ellefson replied, “Okay,” but
Buchheim ultimately decided to drive because Ellefson might “take a wrong turn or
something.”

       Still inside Ellefson’s apartment, Ellefson and Buchheim agreed to meet
Hillman later that day at Buchheim’s apartment to deliver the pseudoephedrine.
Buchheim kept his pseudoephedrine in a garage he rented for storage. Aware of the
reason for their trip, Ellefson rode with Buchheim to the garage in which Buchheim
kept a safe containing cocaine, pseudoephedrine, a triple-beam scale, numerous glass
pipes and other items related to the production of methamphetamine, such as starter
fluid, rubber tubing and empty tanks for storing anhydrous ammonia. Buchheim
placed the anhydrous ammonia tanks in the garage and retrieved pseudoephedrine and
cocaine to give to Hillman.

      After retrieving the pseudoephedrine, Ellefson and Buchheim met Hillman at
Buchheim’s apartment. Upon arrival, both Ellefson and Buchheim described two
surveillance vehicles that followed them from the garage. Ellefson stated that one of
the vehicles following them was a blue or black Dodge. Before leaving Buchheim’s
apartment, Hillman received 2,887 pseudoephedrine tablets (60mg each) and some
cocaine.




                                         -3-
       On December 2, 2002, Police executed an arrest warrant on Buchheim at
Ellefson’s residence. When Buchheim was arrested, he informed officers that he
lived at Ellefson’s apartment. Police allowed Ellefson to leave while they secured the
apartment and applied for a search warrant. Before leaving, Ellefson removed $3,500
of drug proceeds from Buchheim’s duffle bag and tried to hide the money in the
waistband of her jeans. An officer stopped Ellefson and removed the money from her
waistband. The officer asked Ellefson whether there was anything else in the bag he
needed to know about. Ellefson replied, “Drugs.”

       While executing the search warrant, police found a large vacuum-sealed bag
of cocaine, smaller amounts of cocaine, methamphetamine and marijuana in
Buchheim’s duffle bag. Police also found numerous drug-related materials scattered
and readily accessible throughout Ellefson’s apartment, including a small scale, an
electronic scale, a box of small sandwich bags, a partially burnt marijuana cigarette,
rolling papers, several marijuana “bongs,” torches and glass pipes used to ingest
methamphetamine, and methamphetamine.

       An investigating officer testified that Buchheim told police that his source
delivered large amounts of pseudoephedrine to Ellefson’s apartment and that Ellefson
was present when he repackaged the pills. Buchheim testified that he packed the
drugs found in his duffle bag for a recent weekend stay at a hotel, where he and
Ellefson consumed drugs from the bag. Buchheim testified that he sometimes stayed
at Ellefson’s apartment and that she knew he was selling pseudoephedrine, marijuana,
cocaine and methamphetamine from her apartment.




                                         -4-
II.   DISCUSSION

      A.     Sufficiency of the Evidence

       Ellefson argues that there was insufficient evidence to convict her of aiding and
abetting the distribution of pseudoephedrine with intent to manufacture
methamphetamine (Count 1) and aiding and abetting possession with intent to
distribute cocaine (Count 2).2 Ellefson contends that, at most, the evidence
demonstrated that she knew of Buchheim’s activities but did not participate in those
activities as required to sustain an aiding and abetting conviction. We disagree.

       When reviewing the sufficiency of evidence to support a jury verdict, this
Court “views the evidence in the light most favorable to the government, resolving
evidentiary conflicts in favor of the government, and accepting all reasonable
inferences drawn from the evidence that support the jury’s verdict.” United States v.
Espino, 

, 791 (8th Cir. 2003). This standard of review is very strict, and
a jury verdict will not be overturned lightly. United States v. Crossland, 

, 913 (8th Cir. 2002). We may reverse a jury’s verdict only if “no reasonable jury
could have found the accused guilty beyond a reasonable doubt.” United States v.
Collins, 

, 678 (8th Cir. 2003). A jury verdict may be based on
circumstantial as well as direct evidence, and “[t]he evidence need not exclude every
reasonable hypothesis except guilt.” United States v. Williford, 

, 509
(8th Cir. 2002) (quoting United States v. Erdman, 

, 389 (8th Cir. 1992))
(internal quotations omitted).

      There are three elements for aiding and abetting distribution of controlled
substances: “(1) the defendant associated herself with the unlawful venture; (2) the


      2
        Ellefson does not challenge the sufficiency of the evidence to support the
jury’s verdict on Count 3 regarding possession of methamphetamine and marijuana.
                                          -5-
defendant participated in it as something she wished to bring about; and (3) the
defendant sought by her actions to make it succeed.” United States v. Mitchell, 

, 1143-44 (8th Cir. 2004); United States v. Rojas, 

, 878 (8th
Cir. 2004). This Court has acknowledged that “[m]ere association between the
principal and those accused of aiding and abetting is not sufficient to establish guilt;
nor is mere presence at the scene and knowledge that a crime was to be committed
sufficient to establish aiding and abetting.” Snyder v. United States, 

,
718 (8th Cir. 1971) (citations omitted). Nonetheless, “[j]urors can be assumed to
know that criminals rarely welcome innocent persons as witnesses to serious crimes
and rarely seek to perpetrate felonies before larger-than-necessary audiences.” United
States v. Baker, 

, 338 (8th Cir. 1996) (quoting United States v. Ortiz, 

, 712 (1st Cir. 1992)) (internal quotations omitted).

       Viewed in the light most favorable to the verdict, there was sufficient evidence
for a reasonable jury to conclude beyond a reasonable doubt that Ellefson aided and
abetted both the distribution of pseudoephedrine and possession with intent to
distribute cocaine. That Ellefson associated herself with Buchheim’s unlawful
activities is undeniable, and the prosecution presented ample evidence that Ellefson
both participated in those activities and sought by her actions to make them succeed.

       With regard to the distribution of pseudoephedrine, the jury heard testimony
that Ellefson allowed Buchheim to receive and package large amounts of
pseudoephedrine in her apartment. The jury also learned that Ellefson believed the
tanks contained anhydrous ammonia to be used in the manufacture of
methamphetamine and that she not only allowed the tanks to be exchanged outside
of her apartment but also that she invited Hillman into her apartment to discuss when
and where they would complete the transaction. See 

(holding
that there was sufficient evidence for aiding and abetting where the jury could
reasonably conclude that the defendant “knew that drugs were being sold and that he
intentionally provided his apartment as a location for their sale”).

                                          -6-
       Moreover, the jury heard a recording on which Ellefson grilled Hillman about
the extent of the knowledge of the undercover officer in his car and testimony that she
described the vehicles that she understood to be police surveillance following her
when she accompanied Buchheim to retrieve the pseudoephedrine. This evidence
demonstrated that she understood the illegal nature of the activity and sought to
protect the operation. In addition, the jury learned that Ellefson offered to transfer
the purported anhydrous ammonia tanks to Buchheim’s storage locker, which
provided further evidence of her willingness to participate. Based on this evidence,
a reasonable jury could have found that Ellefson wished to bring about this transfer
of pseudoephedrine and acted to make it succeed.

       The jury also could have reasonably found that she aided and abetted
possession with intent to distribute the large amount of cocaine that she knew was
stored in her bedroom. The police search of Ellefson’s apartment produced
substantial evidence from which a jury could have reasonably inferred Ellefson’s
intent to participate in Buchheim’s illegal drug distribution. This evidence included
large quantities of assorted controlled substances and drug paraphernalia, including
a vacuum-sealed bag containing 260.5 grams of cocaine, two scales for weighing
controlled substances and a large amount of money stored with controlled substances.
See United States v. Brett, 

, 1370 (8th Cir. 1989) (holding that intent
to distribute “may be inferred solely from the possession of large quantities of
drugs”); United States v. LaGuardia, 

, 319 (8th Cir. 1985) (“The
presence of equipment to weigh and measure cocaine may be viewed as evidence of
intent to distribute.”); United States v. Johnson, 

, 458 (8th Cir. 1992)
(“[I]ntent to distribute ‘may be inferred from circumstantial evidence such as a large
sum of cash, and a quantity of a controlled substance.’”) (quoting United States v.
Knox, 

, 588 (8th Cir. 1989)).

      Ellefson also argues that because Buchheim had already been arrested when he
asked her to remove the money from his duffle bag before police could seize it, she

                                          -7-
could only be found guilty as an accessory after the fact. See United States v. Delpit,

, 1150 (8th Cir. 1996) (holding that co-conspirator whose role began
after the crime was completed could only be an accessory after the fact). This
argument fails as there was more than sufficient evidence presented at trial, including
Buchheim’s testimony that Ellefson used drugs stored in his bag during a recent
weekend trip, that Ellefson knew the drugs were in his bag in the bedroom of her
apartment. United States v. McCracken, 

, 541 (8th Cir. 1997) (holding
that a person has constructive possession if she has “dominion over the premises in
which the contraband is concealed”); United States v. Cruz, 

, 697 (8th
Cir. 2002) (noting that “knowledge of presence, combined with control over the thing
is constructive possession”) (internal quotations omitted).

       Viewing the evidence in the light most favorable to the government, we hold
that there was sufficient evidence for a reasonable jury to find Ellefson guilty beyond
a reasonable doubt of aiding and abetting the distribution of pseudoephedrine and
aiding and abetting possession with intent to distribute cocaine. Therefore, we affirm
her convictions on Count 1 and Count 2.

      B.     Sentencing

       Ellefson also appeals her sentence on two grounds: first, that the district court’s
failure to apply the “mitigating-role cap” of U.S.S.G. § 2D1.1 to her sentence under
Count 1 violated her constitutional rights to due process and equal protection of the
law under the Fifth Amendment of the U.S. Constitution, and second, that the district
court committed plain error by sentencing her under advisory guidelines. We reject
both of these arguments and affirm Ellefson’s sentence.

      The district court determined Ellefson’s sentence for her convictions on Counts
1 and 2 utilizing U.S.S.G. § 2D1.11 and U.S.S.G. § 2D1.1. The district court applied
§ 2D1.11 to her conviction on Count 1 because that section covers convictions

                                           -8-
involving methamphetamine and amphetamine precursor chemicals, including
pseudoephedrine. The district court applied 2D1.1 to Ellefson’s conviction on Count
2 because that conviction involved possession with intent to distribute an actual
controlled substance, which in this case was cocaine. Section 2D1.1 caps the offense
level at 30 for any person, such as Ellefson, who receives a two-level “minor-role”
adjustment under § 3B1.2. U.S.S.G. § 2D1.1(a)(3). Unlike § 2D1.1, § 2D1.11 does
not have a similar mitigating-role cap.

       Applying § 2D1.1 to Count 2, the district court found Ellefson responsible for
260.5 grams of cocaine and relevant conduct involving 2,494.32 grams of
pseudoephedrine. These drug quantities would have produced a base offense level
of 36, but Ellefson’s base offense level was capped at 30 under the mitigating-role
cap of § 2D1.1(a)(3). The district court also subtracted two levels for a § 3B1.2
minor-role adjustment, giving Ellefson a total offense level of 28 for Count 2.
Applying § 2D1.11 to Count 1, the district court found Ellefson’s relevant conduct
involved the same 2,494.32 grams of pseudoephedrine, which also produced a base
offense level of 36. Because § 2D1.11 does not have a mitigating-role cap, Ellefson’s
base offense level for Count 1 remained 36. The district court likewise subtracted
two offense levels for a minor-role adjustment pursuant to § 3B1.2, which gave
Ellefson an offense level of 34 for Count 1.

      Because Count 1 and Count 2 were closely related counts, the grouping rules
of § 3D1.2 and § 3D1.3 required the district court to use the higher of the two base
offense levels to calculate Ellefson’s sentence. U.S.S.G. §§ 3D1.2(d) and 3D1.3(b).
Ellefson’s final offense level of 34 combined with her criminal history category of III
to produce a sentencing range of 188-235 months. The district court sentenced
Ellefson to concurrent 188-month sentences for both Count 1 and Count 2.3


      3
       The district court also sentenced Ellefson to 24 concurrent months’
imprisonment for her conviction on Count 3, but Ellefson does not appeal that part
                                          -9-
      We review a sentencing court’s interpretation and application of the guidelines
de novo. United States v. Mashek, 

, 1017 (8th Cir. 2005) (holding that
United States v. Booker, 

(2005), did not affect this Court’s de novo
standard of review for the interpretation and application of the sentencing guidelines).
“‘When construing the Guidelines, we look first to the plain language, and where that
is unambiguous we need look no further.’” United States v. Ashley, 

,
852 (8th Cir. 2003) (quoting United States v. Andreas, 

, 676 (7th Cir.
2000)). We review constitutional challenges to the guidelines de novo. United States
v. Martinez, 

, 761 (8th Cir. 2003).

       First, Ellefson contends that Amendment 640 to the sentencing guidelines,
which enacted the mitigating-role cap for offenses involving actual controlled
substances but not for offenses involving methamphetamine precursors, amounts to
a denial of substantive due process and equal protection of the law under the Fifth
Amendment. Ellefson does not argue that Amendment 640 discriminated against a
protected class or affected a fundamental right. Thus, under both due process and
equal protection, Ellefson bears the burden of proving that the unavailability of the
mitigating-role cap for sentences calculated under § 2D1.11 is not rationally related
to a legitimate governmental purpose. See United States v. Buckner, 

,
978 (8th Cir. 1990) (rejecting due process challenge to the guidelines because “[a]cts
do not offend principles of substantive due process if they bear a reasonable relation
to a proper legislative purpose, and are neither arbitrary or discriminatory”) (internal
quotations omitted); United States v. House, 

, 664 (8th Cir. 1991)
(rejecting equal protection challenge to the guidelines because when a statute does
not discriminate on the basis of race or affect a fundamental right, “the distinction
between penalties need only be rationally related to a legitimate governmental
objective”). Ellefson contends that there is no rational basis for imposing a harsher




of her sentence.
                                          -10-
sentence on the possession of precursor chemicals such as pseudoephedrine than on
the possession of the actual controlled substance.

       It is unclear whether amendments to the sentencing guidelines are subject to
a substantive due process challenge. See United States v. Fortney, 

, 821
(8th Cir. 2004). Assuming without deciding that they are, Ellefson fails to meet her
burden of proof under either due process or equal protection.

       Ellefson argues that Amendment 640 lacked a rational basis because the
Sentencing Commission did not find that offenses involving precursor chemicals are
more harmful than offenses involving the final product. Courts, however, do not
require the Sentencing Commission to provide reasons for its actions. See United
States v. Anton, 

, 336 (8th Cir. 2004) (“Although § 2D1.1 expressly
provides for a possible two-level reduction, the plain language of the applicable
Guideline section – § 2D1.11 – makes no mention of the two level safety valve
reduction. We will not presume the Sentencing Commission intended otherwise.”).
In addition, there is nothing patently irrational about sentencing similar, but distinct,
offenses differently. See 

(holding that the “100 to 1”
sentencing ratio for cocaine to cocaine base is not irrational and does not violate due
process); 

(holding that the “100 to 1” ratio is not irrational
and does not violate equal protection). This Court has recognized that the Sentencing
Commission did not intend § 2D1.1 and § 2D1.11 to produce identical results in all
circumstances. See United States v. Frazier, No. 04-1005, slip op. at 14 (8th Cir.
May 31, 2005) (holding that the district court properly refused to apply a mitigating-
role cap to a sentence calculated under § 2D1.1); 

(holding
that under the plain language of the guidelines, the “safety-valve reduction” of §
2D1.1 does not apply to sentences calculated under § 2D1.11). Because she failed
to prove more than the disparate impact on her sentence, Ellefson fails to carry her




                                          -11-
burden of proving an irrational basis necessary to prevail on her due process and
equal protection arguments.4

      Second, in supplemental briefs Ellefson challenges the district court’s
mandatory application of the sentencing guidelines under United States v. Booker.
Because Ellefson failed to argue Apprendi or Blakely error or that the guidelines were
unconstitutional before the district court, we review for plain error. United States v.
Pirani, 

, 549 (8th Cir. 2005) (en banc).

      We evaluate plain error under the four-part test of United States v. Olano, 

, 732-36 (1993), as stated in Johnson v. United States, 

, 466-67
(1997):




      4
       Amendment 668 to the sentencing guidelines, which took effect on November
1, 2004, eliminated this disparity between § 2D1.1 and § 2D1.11 by eliminating the
mitigating-role cap of § 2D1.1(a)(3), and inserting in both § 2D1.1 and § 2D1.11 a
sliding scale, in which increased sentence-level reductions correspond to increased
base offense levels. See U.S.S.G. §§ 2D1.1(a)(3), 2D1.11(a) (2004). Although
Amendment 668 does not apply to Ellefson, who was properly sentenced under the
guidelines in effect at the time of her sentencing, the amendment removes this
divergence for future cases.

       In any event, we do not find the differences between § 2D1.1 and § 2D1.11 that
were applicable to Ellefson to be without rational justification. For example, both
Congress and the courts have recognized that the manufacture of methamphetamine
is an inherently dangerous activity that creates substantial risks to public health and
safety. See, e.g., 

n.5 (“Congress found that
methamphetamine manufacturing ‘poses serious dangers to both human life and to
the environment,’ and that the manufacturing process is ‘unstable, volatile, and highly
combustible.’”); United States v. Walsh, 

, 734 (8th Cir. 2002) (noting
that the “potential hazards of methamphetamine manufacture are well documented”).


                                         -12-
      [B]efore an appellate court can correct an error not raised at trial, there must
      be (1) error, (2) that is plain, and (3) that affects substantial rights. 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 affects the fairness, integrity,
      or public reputation of judicial proceedings.

Following Pirani, Ellefson has established the first two parts of the Olano test. See

(“The district court (understandably) committed Booker error
by applying the Guidelines as mandatory, and the error is plain, that is, clear or
obvious, at this time.”). To establish the third part, Ellefson bears the burden of
demonstrating “a reasonable probability that [she] would have received a more
favorable sentence with the Booker error eliminated by making the Guidelines
advisory.” 

       Ellefson cannot establish a reasonable probability that the district court would
have imposed a more favorable sentence under advisory guidelines. The district court
stated that in determining where to sentence Ellefson within the applicable guidelines
range, it considered the nature and circumstances of Ellefson’s offense as well as her
history and character and imposed a sentence “to afford adequate deterrence to
criminal conduct and protect the public.” In addition, that Ellefson was sentenced at
the bottom of the applicable guidelines range “is insufficient, without more, to
demonstrate a reasonable probability that the court would have imposed a lesser
sentence absent the Booker error.” 

. After a careful review of
the record, we find no evidence indicating that the district court would have imposed
a lesser sentence under advisory guidelines. The arguments Ellefson makes regarding
the probability of receiving a lesser sentence on remand are based only on speculation
about the effect of Booker error on her sentence, and, therefore, she “‘has not met
[her] burden of showing a reasonable probability that the result would have been
different but for the error.’” 

(quoting United States v. Rodriguez, 

, 1301 (11th Cir. 2005)).



                                           -13-
III.   CONCLUSION

      For the reasons set forth above, we affirm both Ellefson’s convictions and her
sentence.

LAY, Circuit Judge, concurring.

       Ann Ellefson was addicted to drugs. During her addiction, she allowed her
boyfriend to use her apartment as a storage and distribution center for his business in
illegal narcotics. The evidence showed that she was aware of his activities,
accompanied him on a delivery of illegal materials, and independently offered to aid
him in carrying out his business. Under these circumstances, the jury reasonably
found her guilty of aiding and abetting the sale of illegal narcotics. Yet I wonder the
extent to which her drug addiction contributed to her crimes and I find myself
doubting whether the interests of society – let alone those of Ellefson – are served by
her 188-month sentence (almost sixteen years in prison). To the extent that her
addiction caused her actions, a sentence addressing her underlying addiction would
better serve the interests of society.

       Unfortunately, our inflexible federal criminal justice policy responds to the
epidemic of drug crimes without adequately providing federal judges with the ability
to address drug addiction – the root cause of this epidemic. In contrast, many states
have created specialized drug courts that approach this epidemic with much greater
success. In most drug courts, nonviolent, substance-abusing offenders charged with
drug-related crimes are channeled into judicially supervised substance abuse
treatment, mandatory drugs testing, and other rehabilitative services in an effort to
reduce recidivism. Eligible offenders typically have the charges against them stayed
and dropped if treatment is successful, or plead guilty with prosecution deferred and
criminal punishment withheld if treatment is successful. Evidence shows that the
flexible and pro-active approach of drug courts reduces recidivism rates to less than

                                         -14-
half of the recidivism rate of those offenders who are simply imprisoned for their drug
crimes. Unfortunately, the federal criminal justice system offers no such alternatives
for nonviolent, substance-abusing offenders. Given the tremendous economic and
human costs of imprisoning nonviolent drug offenders, Congress should seriously
consider creating federal drug courts. Federal drug courts would save a significant
amount of money for taxpayers.
                         ______________________________




                                         -15-