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United States v. Mandi L. Smiley, 04-1587 (2005)

Court: Court of Appeals for the Eighth Circuit Number: 04-1587 Visitors: 92
Filed: Jul. 05, 2005
Latest Update: Mar. 02, 2020
Summary: United States Court of Appeals FOR THE EIGHTH CIRCUIT _ No. 04-1587 _ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska. Mandi L. Smiley, * * [UNPUBLISHED] Appellant. * _ Submitted: November 30, 2004 Filed: July 5, 2005 _ Before RILEY, McMILLIAN, and GRUENDER, Circuit Judges. _ PER CURIAM. Mandi Smiley (Smiley) appeals the sentence imposed by the district court1 after she pled guilty to conspiring to possess pseudoephedri
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                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1587
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Mandi L. Smiley,                        *
                                        *      [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: November 30, 2004
                                Filed: July 5, 2005
                                 ___________

Before RILEY, McMILLIAN, and GRUENDER, Circuit Judges.
                            ___________

PER CURIAM.

       Mandi Smiley (Smiley) appeals the sentence imposed by the district court1 after
she pled guilty to conspiring to possess pseudoephedrine, knowing or having
reasonable cause to know it would be used to manufacture a controlled substance, in
violation of 21 U.S.C. § 846. For reversal, Smiley argues the district court erred in
finding her responsible for a drug quantity that included pseudoephedrine purchased
by her codefendants. She also argues the drug-quantity finding violated her Sixth




      1
         The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
Amendment rights, because the amount was determined by the district court after a
contested hearing.

      A defendant is accountable for all of the reasonably foreseeable acts and
omissions of others in furtherance of jointly undertaken criminal activity. See
U.S.S.G. § 1B1.3(a)(1)(B) & comment. (n.2). At sentencing, testimony was received
concerning the efforts of Smiley and her codefendants to buy pseudoephedrine at
various drug stores. The testimony shows Smiley and her codefendants traveled
together and coordinated their movements for the common purpose of obtaining
pseudoephedrine, and each was aware of the other’s activities. In fact, they
coordinated their movements, so as not to appear suspicious, by entering the stores
and returning to the car separately. In these circumstances, we conclude the district
court did not clearly err in holding Smiley responsible not only for the
pseudoephedrine she personally purchased, but also for the pseudoephedrine
purchased by her codefendants as part of their jointly undertaken criminal activity.
See United States v. Alexander, No. 04-1537, 
2005 WL 1309074
, at *4 (8th Cir. June
3, 2005) (standard of review).

       As to the Sixth Amendment challenge, while Smiley objected at sentencing that
she should be held responsible only for the pseudoephedrine she purchased, this
objection was insufficient to preserve a claim of error under United States v. Booker,
125 S. Ct. 738
(2005). See United States v. Pirani, 
406 F.3d 543
, 549-50 (8th Cir.
2005) (en banc) (objection to sufficiency of proof alone does not preserve Booker
error; defendant can preserve error by referencing Blakely v. Washington, 
124 S. Ct. 2531
(2004), Apprendi v. New Jersey, 
530 U.S. 466
(2000), or by arguing that
Sentencing Guidelines are unconstitutional). Thus, we review for plain error, and
conclude Smiley has not shown a “reasonable probability” she would have received
a lesser sentence but for the Booker error. See 
id. at 550,
552.

      Accordingly, we affirm.
                     ______________________________

                                         -2-

Source:  CourtListener

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