United States v. Carlos Whitehead, 487 F.3d 1068 (8th Cir. 2007). · Go Syfert
United States v. Carlos Whitehead, 487 F.3d 1068 (8th Cir. 2007). Cases Citing This Book View Copy Cite
“he government need not show the presence of sodium bicar- bonate in order to prove that cocaine is crack. . . .”
43 citation events (43 in the last 25 years) across 3 distinct courts.
Strongest positive: United States v. Bryant, Thomas (ca7, 2009-02-26)
Treatment trajectory · 2008 → 2026 · click a year to view as-of
2008 2017 2026
Top citers, strongest first. 32 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) United States v. Bryant, Thomas
7th Cir. · 2009 · signal: see · quote attribution · 1 verbatim quote · confidence high
he government need not show the presence of sodium bicar- bonate in order to prove that cocaine is crack. . . .
discussed Cited as authority (rule) United States v. Richard Brown, Jr.
8th Cir. · 2023 · confidence medium
“We review the denial of the motion for a continuance for a prejudicial abuse of [the district court’s broad] discretion.” United States v. Woods, 978 F.3d 554, 567 (8th Cir. 2020) (citation omitted); United States v. Chahia, 544 F.3d 890, 896 (8th Cir. 2008) (recognizing “a ‘district court’s discretion is at its zenith when the issue [of a continuance] is raised close to the trial date’” (quoting United States v. Whitehead, 487 F.3d 1068, 1071 (8th Cir. 2007))).
discussed Cited as authority (rule) United States v. Deaviea Brown
8th Cir. · 2021 · confidence medium
Under this proportionality principle, “[a]n Eighth Amendment violation may be found only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” United States v. James, 564 F.3d 960, 964 (8th Cir. 2009) (quoting United States v. Whitehead, 487 F.3d 1068, 1070 (8th Cir. 2007)).
discussed Cited as authority (rule) United States v. Jonathan Woods
8th Cir. · 2020 · confidence medium
Finally, we note that although Paris pleaded guilty, (1) he asserted his right not to testify, and (2) the government’s witness and exhibit list remained unchanged. “[A] ‘district court’s discretion is at its zenith when the issue [of a continuance] is raised close to the trial date.’” United States v. Chahia, 544 F.3d 890, 896 (8th Cir. 2008) (second alteration in original) (quoting United States v. -21- Whitehead, 487 F.3d 1068, 1071 (8th Cir. 2007)).
discussed Cited as authority (rule) United States v. Zimny
1st Cir. · 2017 · confidence medium
See United States v. Jones, 733 F.3d 574, 587 (5th Cir. 2013) (rejecting argument for application of de novo review because Gonzalez-Lopez's reference to trial court’s discretion "is inconsistent with de novo review”); see, e.g., United States v. Sinclair, 770 F.3d 1148, 1150, 1154 (7th Cir. 2014); United States v. Griffiths, 750 F.3d 237, 241-42 (2d Cir. 2014); United States v. Flanders, 491 F.3d 1197, 1216 (10th Cir. 2007); United States v. Whitehead, 487 F.3d 1068, 1071 (8th Cir. 2007). 18 .
discussed Cited as authority (rule) United States v. Malcolm Redmon (2×) also: Cited "see"
8th Cir. · 2017 · confidence medium
We review for clear error the district court’s determination of drug quantity and type, “applying the preponderance-of-the-evidence standard.” Yellow Horse, 774 *475 F.3d at 496 (citation omitted) (quantity); Whitehead, 487 F.3d at 1071 (type).
discussed Cited as authority (rule) United States v. Arlend Stewart
8th Cir. · 2013 · confidence medium
“It is well established that ‘the identity of a controlled substance can ... be proved by circumstantial evidence and opinion testimony,’ ” United States v. Covington, 133 F.3d 639, 644 (8th Cir.1998) (quoting United States v. Williams, 982 F.2d 1209, 1212 (8th Cir.1992)), including the testimony of experienced law-enforcement officers who describe the appearance of the substance and the conditions under which it was recovered, United States v. Whitehead, 487 F.3d 1068, 1072 (8th Cir.) (relying on opinion of experienced police officer to sustain district court’s finding that drug was…
examined Cited as authority (rule) United States v. Juan Lugo (3×) also: Cited "see, e.g."
8th Cir. · 2013 · confidence medium
This Court submitted Lugo’s case without argument on March 12, 2012, but subsequently vacated that submission on April 24 and ordered supplemental briefing on three issues: (1) “whether it is clear error for the district court to sentence on the basis of ‘ice’ methamphetamine despite the government’s failure to test whether the seized methamphetamine is in fact ‘a mixture or substance containing d-metham *1089 phetamine hydrochloride of at least 80% purity’ (2) “whether the analysis may be different depending on whether there was an actual seizure of methamphetamine”; and (3)…
discussed Cited as authority (rule) United States v. Jones
8th Cir. · 2011 · confidence medium
However, “[t]he right to choice of counsel is not absolute, and is ‘circumscribed in several important respects.’ ” United States v. Whitehead, 487 F.3d 1068, 1071 (8th Cir.2007) (quoting Gonzalez-Lopez, 548 U.S. at 144 , 126 S.Ct. 2557 ).
discussed Cited as authority (rule) United States v. Scott
8th Cir. · 2010 · confidence medium
See, e.g., United States v. Williams, 534 F.3d 980, 986 (8th Cir.2008); United States v. Whiting, 528 F.3d 595, 597 (8th Cir.2008) (per curiam); United States v. Whitehead, 487 F.3d 1068, 1070-71 (8th Cir.2007); United States v. Collins, 340 F.3d 672, 679-80 (8th Cir. 2003).
cited Cited as authority (rule) United States v. Martin
8th Cir. · 2009 · confidence medium
United States v. Whitehead, 487 F.3d 1068, 1071 (8th Cir.2007).
cited Cited as authority (rule) United States v. Joseph Martin, Jr.
8th Cir. · 2009 · confidence medium
United States v. Whitehead, 487 F.3d 1068, 1071 (8th Cir. 2007).
discussed Cited as authority (rule) United States v. Booker
8th Cir. · 2009 · confidence medium
Moreover, one of the arresting officers, who had experience in narcotics investigations, confirmed at trial that he “field tested” the seized substance and determined that it was comprised of forty three rocks of crack cocaine. ■ Since “[i]t is well established that the identity of a controlled substance can ... be proved by circumstantial evidence and opinion testimony,” United States v. Whitehead, 487 F.3d 1068, 1072 (8th Cir.), cert. denied, - U.S. -, 128 S.Ct. 693 , 169 L.Ed.2d 528 (2007) (alterations in the original) (quotation omitted), the jury’s drug quantity determination …
discussed Cited as authority (rule) United States v. Edward Booker
8th Cir. · 2009 · confidence medium
Since "[i]t is well established that the identity of a controlled substance can . . . be proved by circumstantial evidence and opinion testimony," United States v. Whitehead, 487 F.3d 1068, 1072 (8th Cir.), cert. denied, 128 S. Ct. 693 (2007) (alterations in the original) (quotation omitted), the jury's drug quantity determination was supported by sufficient evidence which renders Booker’s 4 Janis Jackson, whose son in law was a public defender, and Paul Stephenson, who suggested that “the government would be throwing people in jail left and right” without the reasonable doubt standard. …
discussed Cited as authority (rule) United States v. Steven James (2×)
8th Cir. · 2009 · confidence medium
“An Eighth Amendment violation may be found only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” United States v. Whitehead, 487 F.3d 1068, 1070 (8th Cir. 2007) (quotation omitted).
discussed Cited as authority (rule) United States v. James
8th Cir. · 2009 · confidence medium
“An Eighth Amendment violation may be found only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” United States v. Whitehead, 487 F.3d 1068, 1070 (8th Cir.2007) (quotation omitted).
discussed Cited as authority (rule) United States v. Ralph Cordy (2×)
8th Cir. · 2009 · confidence medium
United States v. Whitehead, 487 F.3d 1068, 1071 (8th Cir.), cert. denied, 128 S. Ct. 693 (2007).
cited Cited as authority (rule) United States v. Cordy
8th Cir. · 2009 · confidence medium
United States v. Whitehead, 487 F.3d 1068, 1071 (8th Cir.), cert. denied, — U.S. —, 128 S.Ct. 693 , 169 L.Ed.2d 528 (2007).
discussed Cited as authority (rule) United States v. Alberto Chahia
8th Cir. · 2008 · confidence medium
Further, a “district court’s discretion is at its zenith when the issue [of a continuance] is raised close to the trial date.” United States v. Whitehead, 487 F.3d 1068, 1071 (8th Cir.), cert. denied, 128 S. Ct. 693 (2007).
discussed Cited as authority (rule) United States v. Chahia
8th Cir. · 2008 · confidence medium
Further, a “district court’s discretion is at its zenith when the issue [of a continuance] is raised close to the trial date.” United States v. Whitehead, 487 F.3d 1068, 1071 (8th Cir.), cert. denied, — U.S. —, 128 S.Ct. 693 , 169 L.Ed.2d 528 (2007).
discussed Cited as authority (rule) United States v. Dan Nguyen (2×) also: Cited "see"
8th Cir. · 2008 · confidence medium
A “district court’s discretion is at its zenith when the issue [of a continuance] is raised close to the trial date.” United States v. Whitehead, 487 F.3d 1068, 1071 (8th Cir.), cert. denied, 128 S. Ct. 693 (2007).
discussed Cited as authority (rule) United States v. Dan Thanh Nguyen (2×) also: Cited "see"
8th Cir. · 2008 · confidence medium
A “district court’s discretion is at its zenith when the issue [of a continuance] is raised close to the trial date.” United States v. Whitehead, 487 F.3d 1068, 1071 (8th Cir.), cert. denied, - U.S. -, 128 S.Ct. 693 , 169 L.Ed.2d 528 (2007).
discussed Cited "see" United States v. Michael Strain
8th Cir. · 2021 · signal: see · confidence high
See United States v. Whitehead, 487 F.3d 1068, 1071 (8th Cir. 2007) (court has broad discretion to grant or deny a continuance, discretion is at its zenith when continuance is sought close to the trial date).
cited Cited "see" United States v. Ladoucer
8th Cir. · 2009 · signal: see · confidence high
See United States v. Whitehead, 487 F.3d 1068, 1071 (8th Cir.2007).
cited Cited "see" United States v. Todd Ladoucer
8th Cir. · 2009 · signal: see · confidence high
See United States v. Whitehead, 487 F.3d 1068, 1071 (8th Cir. 2007).
discussed Cited "see" United States v. Bryant
7th Cir. · 2009 · signal: see · confidence high
See United States v. Whitehead, 487 F.3d 1068, 1072 (8th Cir.2007) (“[T]he government need not show the presence of sodium bicarbonate in order to prove that cocaine is crack....”); United States v. Eli, 379 F.3d 1016, 1022 (D.C.Cir.2004) (“The Sentencing Guidelines do not insist that crack can be made only with sodium bicarbonate; they merely state that it is ‘usually prepared’ that way.” (internal citation omitted)); Waters, 313 F.3d at 155 (“[I]t is not necessary for the government to show that a substance contains sodium bicarbonate in order to demonstrate by a preponderance …
discussed Cited "see" United States v. Cole
8th Cir. · 2008 · signal: see · confidence high
See United States v. Whitehead, 487 F.3d 1068, 1072 (8th Cir.), cert. denied, — U.S. -, 128 S.Ct. 693 , 169 L.Ed.2d 528 (2007); United States v. Brown, 156 F.3d 813, 816 (8th Cir.1998); United States v. Stewart, 122 F.3d 625, 628 (8th Cir.1997).
discussed Cited "see" United States v. Justin Cole
8th Cir. · 2008 · signal: see · confidence high
See United States v. Whitehead, 487 F.3d 1068, 1072 (8th Cir.), cert. denied, 128 S. Ct. 693 (2007); United States v. Brown, 156 F.3d 813, 816 (8th Cir. 1998); United States v. Stewart, 122 F.3d 625, 628 (8th Cir. 1997). -4- Cole asserts that these holdings are not controlling because they were rendered in the sentencing context where the burden of proof is by a preponderance of the evidence rather than beyond a reasonable doubt.
discussed Cited "see, e.g." United States v. Nicole Walker
8th Cir. · 2012 · signal: see, e.g. · confidence medium
See, e.g., United States v. Whitehead, 487 F.3d 1068, 1071-72 (8th Cir. 2007) (rejecting defendant’s argument the government failed to prove the identity of a controlled substance through chemical testing and reminding “that the identity ... can be proved by circumstantial evidence and opinion testimony” (quoting United States v. Covington, 133 F.3d 639, 644 (8th Cir.1998)) (internal marks omitted)).
discussed Cited "see, e.g." United States v. Fenner
8th Cir. · 2010 · signal: see also · confidence medium
Id. at 597 ; United States v. Williams, 534 F.3d 980, 986 (8th Cir.2008) (“Our circuit precedent upholding the constitutionality of life sentences imposed under § 841(b)(1)(A) mandates affirmance” where defendant convicted of conspiring to and possessing with intent to distribute more than fifty grams of crack cocaine and had two prior felony drug convictions); see also United States v. Whitehead, 487 F.3d 1068, 1070-71 (8th Cir.2007).
discussed Cited "see, e.g." United States v. Darius Whiting
8th Cir. · 2008 · signal: see, e.g. · confidence medium
See, e.g., United States v. Whitehead, 487 F.3d 1068, 1070-71 (8th Cir.), cert. denied, 128 S. Ct. 693 (2007) (52.06 grams of crack cocaine, .91 grams of powder cocaine, 17.31 grams of marijuana, and 2.71 grams of heroin); United States v. Collins, 340 F.3d 672, 679-80 (8th Cir. 2003) (more than 500 grams of methamphetamine); Prior, 107 F.3d at 660 (1,147.6 grams of methamphetamine); United States v. Jones, 965 F.2d 1507, 1511, 1517-18 (8th Cir. 1992) (more than 50 grams of cocaine base).
discussed Cited "see, e.g." United States v. Whiting
8th Cir. · 2008 · signal: see, e.g. · confidence medium
See, e.g., United States v. Whitehead, 487 F.3d 1068, 1070-71 (8th Cir.), cert. denied, — U.S.-, 128 S.Ct. 693 , 169 L.Ed.2d 528 (2007) (52.06 grams of crack cocaine, .91 grams of powder cocaine, 17.31 grams of marijuana, and 2.71 grams of heroin); United States v. Collins, 340 F.3d 672, 679-80 (8th Cir.2003) (more than 500 grams of methamphetamine); Prior, 107 F.3d at 660 (1,147.6 grams of methamphetamine); United States v. Jones, 965 F.2d 1507, 1511, 1517-18 (8th Cir.1992) (more than 50 grams of cocaine base).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Carlos WHITEHEAD, Appellant
06-3278.
Court of Appeals for the Eighth Circuit.
Jun 1, 2007.
487 F.3d 1068
Stephen R. Welby, argued, St. Louis, MO, for appellant., Cristian M. Stevens, Asst. U.S. Atty., argued, St. Louis, MO (Catherine L. Hana-way, on the brief), for appellee.
Wollman, Smith, Benton.
Cited by 32 opinions  |  Published
WOLLMAN, Circuit Judge.

Carlos Whitehead was convicted by a jury of manufacturing and possessing cocaine base with intent to distribute, a felony in violation of 21 U.S.C. § 841(a)(1); and possession of heroin, cocaine, and marijuana, misdemeanor violations of 21 U.S.C. § 841(a). The district court [1] sentenced Whitehead to a mandatory minimum of life imprisonment for the felony and concurrent three-year sentences on each of the misdemeanors. Whitehead appeals from his sentence and conviction. We affirm.

I. Background

Officers of the St. Louis Police Department, including Detective John Applegate, entered a second floor apartment at 4220 Ellenwood with a search warrant at the culmination of a narcotics investigation of the residence. They encountered Whitehead standing in a hallway. As Whitehead expressed surprise over the officers’ presence, the kitchen microwave “dinged.” In the microwave, officers found a glass vial containing a damp off-white substance that Applegate believed to be crack cocaine.[*1070] Next to the appliance was a small baggie of powder cocaine, seven chunks of loose crack cocaine, and one chunk of crack cocaine wrapped in clear plastic. Applegate also noticed and seized a metal spoon and knife on the kitchen counter, as well as a box of sandwich bags and a coffee grinder — items commonly used in narcotics manufacturing and distribution. In the bedroom, the officers found heroin and marijuana, as well as a digital scale, white residue, and a plastic bag of marijuana. When asked to whom the drugs belonged, Whitehead said, “You know you got me, so don’t play.”

Joseph Crow, a supervisor of the Drug-Chemistry Section of the St. Louis Metropolitan Police Department’s Laboratory Division tested the substances seized from the apartment and concluded that the total weight of all crack cocaine seized was 52.06 grams. [2] Additionally, he identified .91 grams of powder cocaine (cocaine hydrochloride), 17.31 grams of marijuana, and 2.71 grams of heroin.

Upon Whitehead’s conviction for manufacturing with intent to distribute and possessing more than 50 grams of crack cocaine, the district court imposed a mandatory life imprisonment enhancement pursuant to 21 U.S.C. § 841 because Whitehead had previously been convicted of five felony drug offenses. Whitehead appeals, arguing that (1) the mandatory minimum life sentence imposed constitutes cruel and unusual punishment, (2) the district court erroneously applied the enhanced sentence without a jury finding that the government had proved the existence of prior convictions beyond a reasonable doubt, (3) the enhancement was not justified because the government had not demonstrated that more than 50 grams of the cocaine was crack cocaine, and (4) the district court abused its discretion when it denied Whitehead’s motion for a continuance to retain new counsel. Whitehead also insisted that his counsel present an additional list of issues in his reply brief.

II. Analysis

A.

Whitehead urges us to apply the proportionality review established in Solem v. Helm, 463 U.S. 277, 290-92, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), and Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991), and find the mandatory life sentence imposed under 21 U.S.C. § 841(b)(l)(A)(iii) cruel and unusual punishment in violation of the Eighth Amendment. An Eighth Amendment violation may be found only “ ‘in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.’ ” See Henderson v. Norris, 258 F.3d 706, 712 (8th Cir.2001) (quoting Harmelin, 501 U.S. at 1005, 111 S.Ct. 2680 (opinion of Kennedy, J.)); see also Lockyer v. Andrade, 538 U.S. 63, 73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (noting that the “gross disproportionality principle ... [is] applicable only in ... ‘exceedingly rare’ and ‘extreme’ case[s].” (citation omitted)). This is not such a case. Because Whitehead had been convicted of five prior felony drug offenses, see Rummel v. Estelle, 445 U.S. 263, 276, 284-85, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980) (holding that recidivism may support the imposition of a severe penalty), and because cocaine distribution represents a grave threat to society, United [*1071] States v. Johnson, 944 F.2d 396, 408-09 (8th Cir.1991), we do not consider his sentence grossly disproportionate to the crime. See, e.g., United States v. Collins, 340 F.3d 672, 679-80 (8th Cir.2003) (upholding a life sentence for possession with intent to distribute more than 500 grams of methamphetamine when defendant had been convicted of two prior drug felonies). Accordingly, the sentence does not constitute cruel and unusual punishment. [3]

B.

We find similarly unavailing the contention that the district court violated Whitehead’s Sixth Amendment right to a jury trial by imposing an enhanced sentence based on his prior convictions without proving to a jury factual issues related to his criminal record. Evidence of a prior conviction need not be submitted to the jury for the enhancement to apply. Collins, 340 F.3d at 679 (responding to an identical argument).

C.

The district court did not abuse its discretion by denying Whitehead’s request for a continuance to obtain new counsel. The right to choice of counsel is not absolute and is “circumscribed in several important respects.” United States v. Gonzalez-Lopez, — U.S.-,-, 126 S.Ct. 2557, 2561, 165 L.Ed.2d 409 (2006) (citation omitted). Whitehead acknowledges not only that the trial court has broad discretion to grant or deny a continuance for the purpose of retaining new counsel, but also that the district court’s discretion is at its zenith when the issue is raised close to the trial date. See United States v. Vallery, 108 F.3d 155, 157 (8th Cir.1997). Here, Whitehead moved for a continuance to retain new counsel on the very morning of trial. The district court reasoned that denial of the motion was justified because Whitehead had had ample time to retain a new attorney, a jury was ready, Whitehead had already changed his counsel once, an additional continuance would be prejudicial to the government, and five continuances had already been granted to Whitehead, which cumulatively amounted to a delay of over two years. In light of these considerations, the district court did not abuse its discretion by denying Whitehead’s motion. See, e.g., United States v. Armstrong, 112 F.3d 342, 344-45 (8th Cir.1997) (denying an eleventh-hour request for new counsel and continuance); Vallery, 108 F.3d at 157-58; Urquhart v. Lockhart, 726 F.2d 1316, 1319 (8th Cir.1984).

D.

We review for clear error a district court’s identification of a controlled substance at sentencing. Garrett v. United States, 211 F.3d 1075, 1076 (8th Cir.2000) (per curiam). We will reverse only if “left with a definite and firm conviction that a mistake has been made.” Id. (quoting United States v. Brown, 156 F.3d 813, 816 (8th Cir.1998)). The Sentencing Guidelines define crack cocaine as “the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form.” U.S.S.G. § 2Dl.l(c), Note D (2006). Whitehead argues that the government failed to prove that the substance retrieved from the apartment that weighed[*1072] in excess of 50 grams was crack cocaine because it had not been tested for the presence of sodium bicarbonate. This argument is unavailing. We have previously held that the government need not show the presence of sodium bicarbonate in order to prove that cocaine is crack. United States v. Stewart, 122 F.3d 625, 628 (8th Cir.1997) (observing that the language of the Sentencing Guidelines definition does not require evidence of sodium bicarbonate or cocaine hydrochloride); see also Brown, 156 F.3d at 816.

Additionally, “[i]t is well established that ‘the identity of a controlled substance can ... be proved by circumstantial evidence and opinion testimony.’ ” United States v. Covington, 133 F.3d 639, 644 (8th Cir.1998) (alteration in original) (quoting United States v. Williams, 982 F.2d 1209, 1212 (8th Cir.1992)). Here, Ap-plegate testified that he believed the substance was crack cocaine. DEA Special Agent James McHugh, an individual who had been involved in more than 250 drug distribution or manufacturing investigations, testified that he had examined the cocaine and that it appeared to be crack cocaine. He also stated that crack cocaine can be prepared in a microwave. Although the cocaine removed from the microwave was still damp and may not have been in chunks at the time it was weighed, McHugh testified that properly cooked crack cocaine takes on its characteristic rock-like form when allowed to dry out. Crow observed that the cocaine had taken on a rock-like form after drying in an evidentiary envelope. Crow had also determined that the cocaine identified as crack was not cocaine hydrochloride (cocaine powder) and testified that there were more than 50 grams of crack cocaine. Accordingly, the district court’s determination was not clearly erroneous.

E.

Although we do not normally consider issues raised for the first time in a reply brief, the government has raised no objection to our addressing them. Having considered these newly raised arguments, we conclude that they are without merit.

The judgment is affirmed.

1

. The Honorable Jean C. Hamilton, United States District Judge for the Eastern District of Missouri.

2

. Crow analyzed the damp substance removed from the microwave and concluded that it was cocaine base (also known as crack cocaine). The cocaine in the microwave amounted to 45.03 grams of the 52.06 gram total. During the time it was held as evidence, the damp cocaine dried into a single large chunk.

3

. Our conclusion is consistent with our prior observation that "Section 841 and its mandatory minimum sentencing provisions have consistently withstood constitutional scrutiny.” United States v. Regenos, 54 Fed.Appx. 245, 245 (8th Cir.2002) (unpublished per cu-riam) (collecting cases); see also United States v. Jones, 965 F.2d 1507, 1517-18 (8th Cir.1992) (holding that a life sentence pursuant to § 841 (b)(l)(A)(iii) was not a cruel and unusual punishment); United States v. Johnson, 944 F.2d 396, 408-09 (8th Cir.1991).