United States v. Ricardo Wilson , 314 F. App'x 239 ( 2009 )


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    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT            FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 07-11226                  FEBRUARY 3, 2009
    ________________________            THOMAS K. KAHN
    CLERK
    D.C. Docket No. 05-00311-CR-12-ODE-1
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    RICARDO WILSON,
    a.k.a. Reek,
    a.k.a. Rico Wilson,
    GEORGE RICHARDSON,
    a.k.a. Easy,
    PROSPER SENYO KUDZO COKER-OFORI,
    a.k.a. Senyo,
    ANDREW E. JONAH,
    a.k.a. Rain,
    a.k.a. Busy,
    Defendants-Appellants.
    ________________________
    Appeals from the United States District Court
    for the Northern District of Georgia
    _________________________
    (February 3, 2009)
    Before TJOFLAT and CARNES, Circuit Judges, and HOOD,* District Judge.
    PER CURIAM:
    Andrew Jonah, Prosper Coker-Ofori, George Richardson, and Ricardo
    Wilson (collectively, “Defendants”) were convicted of various drug, firearm, and
    money laundering offenses. Each defendant appealed his conviction on several
    grounds. Defendant Prosper Coker-Ofori also appeals his sentence. After a
    thorough review of the record and having had the benefit of oral argument, we
    AFFIRM.
    I. BACKGROUND
    On October 3, 2006, a grand jury in the Northern District of Georgia
    returned a 16-count superceding indictment against eight defendants, including the
    four Defendants involved in this appeal. Count One charged all eight defendants
    with conspiring to possess with the intent to distribute heroin, cocaine, and ecstasy,
    in violation of 
    21 U.S.C. § 846
    . The remaining counts charged individual
    defendants with possessing and distributing narcotics, possessing firearms during
    and in relation to the drug offenses, and money laundering in relation to the drug
    offenses.
    Following a 12-day jury trial, the district court granted Jonah’s motion for
    *
    Honorable Joseph M. Hood, United States District Judge for the Eastern District of
    Kentucky, sitting by designation.
    2
    judgment of acquittal on the money laundering charged in Counts Fifteen and
    Sixteen. All defendants were found guilty of the conspiracy charged in Count One.
    Additionally, the jury found Jonah guilty of distributing and possessing with the
    intent to distribute heroin, attempting to possess with the intent to distribute
    cocaine, conspiring to import heroin, wiring money in furtherance of drug
    trafficking, and possessing ecstasy with the intent to distribute. Jonah was
    acquitted of possessing ecstasy with the intent to distribute and possession of a
    firearm in furtherance of same. Richardson was acquitted of possessing ecstasy
    with the intent to distribute and possession of a firearm. In addition to Count One,
    Wilson was found guilty of attempting to possess with the intent to distribute at
    least five kilograms of cocaine and being an unlawful user of a controlled
    substance in possession of a firearm. Defendants filed timely notices of appeal.
    Defendants appeal their convictions on numerous grounds. Only Coker-Ofori
    appeals his sentence. Due to the lengthy nature of the facts surrounding this case,
    the facts pertinent to this appeal are discussed below as they relate to the various
    issues on appeal.
    II. DISCUSSION
    A.    Wiretap orders
    Jonah complains that the fruits of the wiretap orders granted in this case
    3
    should have been suppressed because the affidavits in support of the wiretap orders
    did not demonstrate the necessity of the wiretaps. In the course of its investigation
    from September 2004, until the arrests in August 2005, the Government applied for
    and was granted thirteen wiretap orders. Claiming that the case agent’s affidavit in
    support of the wiretap warrant contained a material misstatement, Jonah moved for
    an evidentiary hearing pursuant to Franks v. Delaware, 
    438 U.S. 154
     (1978). No
    evidentiary hearing was held. After reviewing the magistrate judge’s report and
    recommendation to deny the motions to suppress the wiretap evidence and Jonah’s
    objections to same, the district court denied the motions to suppress the wiretap
    evidence.
    Pursuant to 
    18 U.S.C. § 2518
    , court-ordered electronic surveillance is
    prohibited unless the government demonstrates the necessity of such techniques.
    See United States v. Carrazana, 
    921 F.2d 1557
     (11th Cir. 1991). A judge may
    authorize a wiretap based upon facts submitted by the applicant that ordinary
    “investigative procedures have been tried and have failed or reasonably appear to
    be unlikely to succeed if tried or to be too dangerous.” 
    18 U.S.C. § 2518
    (1)(c).
    Citing information learned through other investigative techniques, Jonah argues
    that the Government failed to prove the necessity of the wiretaps. The Government
    is not required to show that all other investigative methods have been wholly
    4
    unsuccessful. United States v. Alonso, 
    740 F.2d 862
    , 868 (11th Cir. 1984).
    The district court’s determination that the Government’s application
    established the requisite necessity is subject to review for clear error. United States
    v. Weber, 
    808 F.2d 1422
    , 1424 (11th Cir. 1987). The Government admits that as
    of July 2004, prior to its application for the wiretap order, the confidential
    informant (“CI”) had enabled the Government to “build a solid case against Jonah
    and [co-defendant] Amoo-Adare.” The DEA’s use of traditional investigative
    techniques had not, however, enabled it to obtain information regarding Jonah’s
    drug suppliers, transportation methods, down-line distributors, and financial
    resources. The Government sought the wiretap orders in an attempt to obtain such
    information. While Jonah argues that such information could have been obtained
    using traditional surveillance techniques or the CI, the Government found these
    methods unsuccessful due to Jonah’s use of counter-surveillance and the CI’s
    inability to continue in the investigation.1
    The judge to whom the wiretap application is made is clothed with broad
    discretion in considering the application, Alonso, 
    740 F.2d at 868-69
    . In the instant
    case, the district court did not clearly err in granting the wiretap application.
    1
    At the time of his cooperation with the Government, the CI was on parole in the State
    of Georgia. Upon learning of the CI’s continued cocaine use, the parole board revoked its
    permission for the CI to participate in the DEA’s investigation.
    5
    B.    Franks hearing
    Jonah argues that the district court erred in denying his request for an
    evidentiary hearing pursuant to Franks v. Delaware, 
    438 U.S. 154
     (1978),
    regarding the affidavits submitted in support of the wiretap orders. While this
    Court has not articulated the precise standard of review of a district court’s denial
    of a Franks hearing, normally a district court’s decision regarding the need for an
    evidentiary hearing is reviewed for abuse of discretion. United States v. Arbolaez,
    
    450 F.3d 1283
    , 1293 (11th Cir. 2006). We shall apply that standard here.
    “[W]here the defendant makes a substantial preliminary showing that a false
    statement knowingly and intentionally, or with reckless disregard for the truth, was
    included by the affiant in the warrant affidavit, and if the allegedly false statement
    is necessary to the finding of probable cause, the Fourth Amendment requires that
    a hearing be held at the defendant's request.” Franks v. Delaware, 
    438 U.S. 154
    ,
    155-56, (1978). The Eleventh Circuit applies the Franks analysis in evaluating an
    affidavit offered in support of a wiretap order. See United States v. Novaton, 
    271 F.3d 968
    , 986 (11th Cir. 2001).
    The allegedly false statement relied upon by Jonah is DEA Special Agent
    Julio Alba’s failure to include in his affidavit the fact that “a very significant
    contact between Jonah and [the CI] . . . occurred on September 8, 2004.” Offering
    6
    no support for his contention, Jonah argues that “[t]his information would have
    been crucial to a judge’s determination as to whether the investigation could
    proceed with [the CI] and without wiretap surveillance.” 
    Id.
     The omission of this
    allegedly material fact is insufficient to conclude that the district court abused its
    discretion in determining that Jonah had not made a substantial preliminary
    showing that a false statement was contained in the affidavit and declining to
    conduct a Franks hearing.
    C.    Batson challenge
    For the first time on appeal, Jonah argues that the district court erred in
    rejecting co-defendant Richardson’s Batson challenge to the Government’s use of
    its peremptory strikes. Richardson challenged the Government’s use of
    peremptory challenges to eliminate three African-American women from the jury
    venire, and to eliminate another African-American woman as an alternate juror.
    This Court “consider[s] objections raised for the first time on appeal under the
    plain error standard.” United States v. Mangaroo, 
    504 F.3d 1350
    , 1353 (11th Cir.
    2007) (citing United States v. Neely, 
    979 F.2d 1522
    , 1523 (11th Cir. 1992)).
    In Batson v. Kentucky, 
    476 U.S. 79
     (1986), the Supreme Court outlined a
    three-part test to evaluate the validity of challenges to peremptory strikes. First, a
    moving party must make a prima facie showing that a peremptory challenge has
    7
    been exercised on the basis of race or gender. To do so, the defendant must show
    that he is as member of a cognizable racial group, and that the prosecutor exercised
    peremptory challenges in such a way so as to remove from the venire members of
    the defendant’s race. Once the defendant makes a prima facie showing, the burden
    shifts to the prosecutor to offer a race-neutral basis for striking the juror in
    question. Finally, in light of both parties’ submissions, the trial court must
    determine whether the moving party has shown purposeful discrimination. The
    trial court’s determination is pure fact-finding and will be reversed only if it is
    clearly erroneous. 
    Id. at 98
    .
    Upon considering Richardson’s Batson challenge, the trial court found that
    the Government offered valid, race-neutral reasons for using its peremptory
    challenges on four African-American women and overruled Richardson’s Batson
    challenge. Specifically, the trial court stated: “I do not believe that any of the
    reasons are pretextual. In other words, that any of the reasons are a pretext for
    race.”
    The Government’s stated reasons for striking the various jurors are as
    follows:
    Juror No. 8 -      She was very assertive in responding to questions from
    the Government, and it felt she could hang a jury if she
    disagreed with the decision-making of other jurors; both
    she and the cooperating defendant in this case, who
    8
    supplied phones to Jonah’s drug organization, had
    worked for Nextel, and the Government feared she would
    be biased against the cooperating defendant
    Juror No. 18 -       She had been involved in prison ministry work and the
    Government believed she may be sympathetic to the
    defendants
    Juror No. 23 -       She stated she would have a difficult time passing
    judgment on another person
    Juror No. 31 -       Her history of holding jobs for only short periods of time
    indicated that she may have trouble working with a group
    or dealing with conflict; and she was very vague about
    her reasons for leaving her employment as a corrections
    officer
    The record does not indicate, and in fact Jonah conceded during oral argument, that
    there is no evidence in the record of any white or male jurors with similar
    characteristics who were not stricken from the jury panel.
    “Under Batson, almost any plausible reason can satisfy the striking party’s
    burden, as long as the reason is race or gender neutral.” United States v. Walker,
    
    490 F.3d 1282
    , 1293 (11th Cir. 2007). As the fact-finder for the purposes of a
    Batson challenge, “the trial judge is in the best position to evaluate an attorney’s
    candor and ferret out purposeful discrimination.” 
    Id. at 1294
    . Given the deference
    afforded to the trial judge’s determination regarding the legitimacy of the
    Government’s race-neutral explanations for its strikes, and the lack of any record
    evidence demonstrating that similarly situated white male jurors were not stricken,
    Jonah has failed to show that the denial of co-defendant Richardson’s Batson
    9
    challenge rises to the level of plain error.
    D.     Sufficiency of the evidence
    Defendants Coker-Ofori, Richardson, and Wilson argue that the evidence
    was insufficient for the jury to find them guilty of the conspiracy charged in Count
    One.2 When reviewing the sufficiency of the evidence, this Court’s review is de
    novo, but “all reasonable inferences and credibility evaluations” must be resolved
    in favor of the jury’s verdict. United States v. Medina, 
    485 F.3d 1291
    , 1296 (11th
    Cir. 2007). This Court “will reverse a conviction based on insufficient evidence
    only if no reasonable trier of fact could have found guilt beyond a reasonable
    doubt.” Walker, 
    490 F.3d at 1296
    .
    To support a conviction for conspiracy, the evidence must show, beyond a
    reasonable doubt, that: 1) a conspiracy existed; 2) each defendant knew of the
    essential objectives of the conspiracy; and 3) each defendant knowingly and
    voluntarily participated in the conspiracy. United States v. Thompson, 
    422 F.3d 1285
    , 1290 (11th Cir. 2005). The following is simply a portion of the evidence
    which was adduced at trial.
    2
    Although Jonah attempted to assert an insufficiency of the evidence argument by
    simply adopting the arguments of his co-defendants in his brief, this Court does not consider
    insufficiency arguments raised only by adoption. See United States v. Khoury, 
    901 F.2d 948
    ,
    963 n.13 (11th Cir. 1990) (noting that “the fact-specific nature of an insufficiency claim requires
    independent briefing if we are to reach the merits”).
    10
    Coker-Ofori
    1) Relayed messages and transported heroin to and from the New York-
    based heroin supplier known as Solo
    2) Laryea directed Solo to pay Coker-Ofori for connecting them
    3) Numerous references to “we” and “our” in phone calls between Solo and
    Coker-Ofori, indicating a shared objective or activity
    4) Solo instructed Laryea to contact Coker-Ofori when he needed heroin
    from Solo
    5) On March 6, 2005, Laryea and Coker-Ofori spoke seven times regarding
    the need to replace heroin that was seized at the airport
    6) In a March 25, 2006 phone call, Laryea told Coker-Ofori that “your share
    of the money is huge,” and that “you are the only one, the only one who is
    controlling our affairs.”
    7) In an April 2, 2005 phone call, Solo and Coker-Ofori discussed meeting
    to exchange heroin
    8) Solo asked Coker-Ofori to drive to Atlanta to deliver heroin to Jonah
    9) After their arrests, Laryea and Coker-Ofori agreed that their cover story
    would be that the transactions concerned Coker-Ofori’s business, not heroin
    Richardson
    11
    1) Incorporated the business, Panther, to act as a front for drug trafficking
    2) Laryea testified that on July 12, 2004, he met Jonah, Amoo-Adare, and
    Richardson in New York City where Jonah introduced Richardson as “part of his
    crew”
    3) Before the September 21, 2004 sale of heroin to undercover agents,
    Amoo-Adare told the CI that Jonah didn’t have an entire kilogram to sell because
    Richardson, a..k.a. “EZ”, had gotten 100 grams
    4) Jonah’s girlfriend, Angela Glass, testified that Jonah told her that
    Richardson was in her basement, a place where Jonah’s “crew” would package
    drugs
    5) On September 30, 2004, $1,500 was wired from Panther’s bank account
    to Laryea’s account to pay the plane fare for a heroin courier to travel from Ghana
    to the United States
    6) Jonah financed a vacation weekend in Miami for members of his
    “crew,”including Richardson
    7) Drug ledgers seized from Jonah’s residence reflected that ecstasy pills had
    been distributed to “EZ” and that money had been received from “EZ”
    8) Shortly after Jonah’s arrest, Richardson arrived at Jonah’s residence
    Wilson
    12
    1) Telephone conversations with Jonah in September 2004 reference a trip to
    California to recover six kilograms of cocaine
    2) Wilson’s name appears numerous times in the drug ledgers seized from
    Jonah’s residence
    While not an exhaustive recitation of the evidence presented at trial,
    resolving all reasonable inferences and credibility evaluations in favor of the jury’s
    verdict, Medina, 
    485 F.3d at 1296
    , the above-listed evidence is more than
    sufficient to prove beyond a reasonable doubt that a conspiracy existed, that each
    defendant knew of the essential objectives of the conspiracy, and that each
    defendant knowingly and voluntarily participated in the conspiracy, Thompson,
    
    422 F.3d at 1290
    . Defendants’ arguments that the evidence was insufficient to
    support their convictions fail.
    E.     Single conspiracy
    Defendants Richardson, Wilson, and Coker-Ofori argue that because the
    indictment charged only a single conspiracy but the evidence presented at trial
    established multiple conspiracies, their convictions on the conspiracy charged in
    Count One of the indictment must be overturned.3 This Court does not “reverse
    3
    While only defendant Richardson presented legal and factual analysis of this issue in
    his brief, in their briefs, defendants Wilson and Coker-Ofori adopted Richardson’s argument as
    their own, pursuant to FRAP 28(i).
    13
    convictions because a single conspiracy is charged in the indictment while multiple
    conspiracies may have been revealed at trial unless the variance is material and
    substantially prejudiced the defendants.” United States v. Alred, 
    144 F.3d 1405
    ,
    1414 (11th Cir. 1998).
    Because the jury determines the question of fact as to whether the
    evidence establishes a single conspiracy, the arguable existence of
    multiple conspiracies does not constitute a material variance from the
    indictment if, viewing the evidence in the light most favorable to the
    government, a reasonable trier of fact could have found that a single
    conspiracy existed beyond a reasonable doubt. Accordingly, we will
    not disturb the determination of the jury that a single conspiracy exists
    if supported by substantial evidence. To decide whether the jury
    could have found a single conspiracy, we review (1) whether a
    common goal existed; (2) the nature of the underlying scheme; and (3)
    the overlap of participants.
    
    Id.
     (internal citations omitted).
    In determining whether one or multiple conspiracies exist, “there is no
    requirement that each conspirator participated in every transaction, knew the other
    conspirators, or knew the details of each venture making up the conspiracy.”
    United States v. Taylor, 
    17 F.3d 333
    , 337 (11th Cir. 1994). Importantly, for the
    purposes of this action, “a single conspiracy may be found where there is a ‘key
    man’ who directs the illegal activities, while various combinations of other people
    exert individual efforts towards the common goal.” 
    Id.
    Viewing the evidence in a light most favorable to the Government, a
    14
    reasonable jury could have found, and in fact did find, that a single conspiracy
    existed. The evidence presented at trial showed that Jonah acted as the hub of this
    drug conspiracy, directing and financing various endeavors to obtain and distribute
    heroin, cocaine, and ecstasy. While every co-defendant was not involved in every
    transaction, they would, on occasion, work in concert with one another, and their
    actions furthered the conspiracy headed by Jonah. Richardson, Wilson, and Coker-
    Ofori argue, unsuccessfully, that differing methods of obtaining and distributing
    the heroin, cocaine, and ecstasy lead to the conclusion that there was not a single
    conspiracy. Defendants’ variance argument is without merit.
    F.    Richardson’s conviction on the conspiracy charge
    The jury found Richardson not guilty of possessing ecstasy with the intent to
    distribute, but found him guilty of conspiring to distribute. Citing United States v.
    Ohayon, 
    483 F.3d 1281
     (11th Cir. 2007), Richardson argues for the first time on
    appeal that his acquittal on the charge of possessing ecstasy with the intent to
    distribute is irreconcilable with the guilty verdict on the conspiracy charge and that
    the guilty verdict must be set aside.
    The issue in Ohayon was “whether an acquittal on a charge of an attempted
    drug offense requires, under the Double Jeopardy Clause of the Fifth Amendment,
    the dismissal of a charge of a drug conspiracy on which the jury was unable to
    15
    reach a verdict.” 
    Id. at 1282
    . Ohayon was charged with attempt to possess ecstasy
    with the intent to distribute and conspiracy to possess ecstasy with the intent to
    distribute. 
    Id.
     A jury acquitted Ohayon of the attempt charge, but could not reach a
    verdict on the conspiracy charge. 
    Id.
     When the United States sought to retry
    Ohayon on the conspiracy charge, the district court determined that because the
    same evidence was offered to support both charges, Ohayon’s acquittal on the
    attempt charge collaterally estopped the United States from retrying him on the
    conspiracy charge.
    Ohayon is inapposite to the case at bar. In the instant case, the ecstasy
    which formed the basis of the charges against Richardson was discovered during
    an inventory at a storage facility several hours after Jonah was arrested and the car
    he and Richardson were riding in at the time of the arrest was towed. Based upon
    these facts, the jury found reasonable doubt that Richardson possessed the ecstasy
    with the intent to distribute; however, the additional evidence of drug ledgers
    indicated distribution of ecstasy pills to “EZ,” Richardson’s nickname, supports the
    jury’s finding that Richardson conspired to distribute the drugs.
    “Conspiracy and the substantive offense that is the object of the conspiracy
    are separate and distinct crimes.” United States v. Hernandez, 
    141 F.3d 1042
    ,
    1052 (11th Cir. 1998). The jury’s determination that Richardson was not guilty of
    16
    possession but was in fact guilty of conspiracy to possess will not be disturbed.
    G.    Entrapment defense
    Jonah contends that the district court erred in denying his request to instruct
    the jury on an entrapment defense. It is Jonah’s position that “[t]he heroin crimes
    charged in the indictment were the product of [the CI] inducing [Jonah] to become
    involved in the drug trade.” “The determination of whether a sufficient evidentiary
    foundation exists in the record which could support a jury’s acceptance of an
    entrapment defense is properly a question for the trial judge, the standard of review
    being abuse of discretion.” United States v. Alston, 
    895 F.2d 1362
    , 1369 (11th Cir.
    1990) (internal citations omitted).
    An affirmative defense of entrapment consists of two elements: 1)
    government inducement of the crime; and 2) lack of predisposition of the part of
    the defendant to commit the crime. United States v. Ryan, 
    289 F.3d 1339
    , 1343
    (11th Cir. 2002). “In laying an evidentiary foundation for entrapment, the
    defendant bears the initial burden of production as to government inducement;
    once the defendant meets this burden, the burden shifts to the government to prove
    beyond a reasonable doubt that the defendant was predisposed to commit the
    crime.” 
    Id.
    “[E]vidence of the government’s mere suggestion of a crime or initiation of
    17
    contact is not enough” to satisfy the defendant’s burden to show government
    inducement of the crime. 
    Id. at 1344
    . To meet his burden of showing government
    inducement, Jonah must demonstrate that the government persuaded or mildly
    coerced him to commit the crime. 
    Id.
     “Persuasion or mild coercion may be shown
    if defendant demonstrat[es] that he had not favorably received the government
    plan, and the government had to ‘push it’ on him, or that several attempts at setting
    up an illicit deal had failed and on at least one occasion he had directly refused to
    participate.” The evidence must be viewed in the light most favorable to the
    defendant. 
    Id.
     (internal citations omitted). “If the defendant meets his initial
    burden . . . the question of entrapment becomes a factual one for the jury to
    decide.” 
    Id.
    After hearing the evidence, the trial judge denied Jonah’s request for an
    entrapment instruction, stating:
    The thing that bothers me the most about your request for an
    entrapment instruction is what seems to me to be the absence of any
    evidence in the record of inducement or persuasion.
    ...
    I think there is some evidence like you say that could be construed to
    say that Mr. Jonah was not real experienced in dealing with heroin,
    but that’s different from persuasion. I mean you could have a person
    who doesn’t have any prior dealings who wants to do the deal and
    says look, just tell me what I need to do and they’re told what they
    need to do and they do it and there’s no real persuasion involved.
    ...
    [T]here is no evidence from anyone suggesting that there was any
    18
    pressure put on Mr. Jonah to make those [drug] sales. Obviously, Mr.
    Jonah did not get the heroin from [the CI]. He got it from Mr. Laryea
    and [the CI], insofar as the record reflects, had nothing to do with that
    ...
    There is a wealth of evidence which contradicts Jonah’s assertion that the
    Government induced Jonah to commit the crimes. Jonah began talking with his
    heroin supplier in the Summer of 2003, prior the CI’s agreement to assist the DEA
    in the Spring of 2004. Jonah was able to procure heroin without any direction
    from the CI and in fact bought heroin from individuals who were not cooperating
    with the DEA. Jonah supervised and financed underlings Wilson and Amoo-
    Adare, who flew to California to obtain six kilograms of cocaine and $1,000,000,
    without any Government involvement. Angela Glass testified that Jonah was
    involved in drug trafficking prior to the CI cooperating with the DEA.
    Ample evidence refuted Jonah’s contention that the Government persuaded
    or coerced him into drug trafficking. The trial judge did not abuse his discretion in
    refusing to give an entrapment instruction.
    H.    Coker-Ofori’s sentence
    Coker-Ofori appeals his 120-month sentence, imposed after a jury found him
    guilty of conspiring to possess with the intent to distribute at least one gram of
    heroin and at least five kilograms of cocaine, in violation of 
    21 U.S.C. § 846
    .
    Because Coker-Ofori’s guideline range was less than the mandatory minimum term
    19
    of ten years of imprisonment, Coker-Ofori was sentenced to the mandatory
    minimum term of 120 months. See 
    21 U.S.C. § 841
    (b)(1)(A)(i). On appeal,
    Coker-Ofori argues that the district court clearly erred in holding him accountable
    for two kilograms of heroin.
    A district court’s determination of the amount of drugs for which a
    defendant can be held accountable at sentencing is reviewed for clear error. United
    States v. Lee, 
    68 F.3d 1267
    , 1274 (11th Cir. 1995). “When a defendant objects to a
    factual finding that is used in calculating his guideline sentence, such as drug
    amount, the government bears the burden of establishing the disputed fact by a
    preponderance of the evidence.” United States v. Rodriguez, 
    398 F.3d 1291
    , 1296
    (11th Cir. 2005).
    “For sentencing purposes a member of a drug conspiracy is liable for his
    own acts and the acts of others in furtherance of the activity that the defendant
    agreed to undertake and that are reasonably foreseeable in connection with that
    activity.” United States v. Ismond, 
    993 F.2d 1498
    , 1499 (11th Cir. 1993).
    [T]o determine a defendant's liability for the acts of others, the district
    court must first make individualized findings concerning the scope of
    criminal activity undertaken by a particular defendant. Once the
    extent of a defendant's participation in the conspiracy is established,
    the court can determine the drug quantities reasonably foreseeable in
    connection with that level of participation. If the court does not make
    individualized findings, the sentence may nevertheless be upheld if
    the record supports the amount of drugs attributed to a defendant.
    20
    
    Id.
     (internal citations omitted).
    The district court must take into account all “relevant conduct” when
    determining the quantity of drugs attributable to the defendant, including “all acts
    and omissions committed, aided, abetted, counseled, commanded, induced,
    procured, or willfully caused by the defendant[.]” U.S.S.G. § 1B1.3(a)(1)(A). If
    the case involves drugs, “the defendant is accountable for all quantities of
    contraband with which he was directly involved and, in the case of a jointly
    undertaken criminal activity, all reasonably foreseeable quantities of contraband
    that were within the scope of the criminal activity that he jointly undertook.”
    U.S.S.G. § 1B1.3, comment. (n.2); see also U.S.S.G. § 1B1.3(a)(1)(B). “In an
    offense involving an agreement to sell a controlled substance, the agreed-upon
    quantity of the controlled substance shall be used to determine the offense level
    . . .” U.S.S.G. § 2D1.1, comment. (n.12).
    The record supports the district court’s finding that Coker-Ofori could have
    reasonably foreseen that the drug transaction would involve two kilograms of
    heroin. In March 2005, Laryea contacted Coker-Ofori, Solo’s intermediary, in
    order to purchase heroin from Solo. In recorded telephone conversations, Laryea
    told Coker-Ofori that his share of the money would be “huge,” and that “a big load
    is coming.” The telephone conversations eventually led to a three-way agreement
    21
    by which Solo would provide two kilograms of heroin to Laryea for Jonah. The
    evidence of record establishes, by a preponderance of the evidence, that Coker-
    Ofori facilitated the two-kilogram heroin deal by connecting Laryea and Solo and
    that Coker-Ofori knew that the “big load” would provide him a “huge” share of the
    money.
    Because of Coker-Ofori’s role in facilitating an agreement to purchase two
    kilograms of heroin, his relationship with the heroin dealer, and the evidence
    showing that he was aware the deal was to involve a large amount of heroin, the
    district court did not clearly err at sentencing in finding that he was responsible for
    two kilograms of heroin. Accordingly, we affirm as to this issue.
    AFFIRMED.
    22
    

Document Info

Docket Number: 07-11226

Citation Numbers: 314 F. App'x 239

Judges: Tjoflat, Carnes, Hood

Filed Date: 2/3/2009

Precedential Status: Non-Precedential

Modified Date: 11/5/2024

Authorities (21)

United States v. Terrance Ryan , 289 F.3d 1339 ( 2002 )

United States of America, Cross-Appellee v. Binyamin Ohayon , 483 F.3d 1281 ( 2007 )

United States v. George M. Khoury, Howard Kluver, David W. ... , 901 F.2d 948 ( 1990 )

United States v. Carlos Gonzalez , 485 F.3d 1291 ( 2007 )

United States v. Alred , 144 F.3d 1405 ( 1998 )

Franks v. Delaware , 98 S. Ct. 2674 ( 1978 )

United States v. Elizabeth Marie Morse Thompson , 422 F.3d 1285 ( 2005 )

United States v. Thurnell Alston, Ervin Brennon , 895 F.2d 1362 ( 1990 )

United States v. James Bentley Neely , 979 F.2d 1522 ( 1992 )

United States v. Karl Weber, Robert Lee Hill, Jr., Don ... , 808 F.2d 1422 ( 1987 )

United States v. Charles W. Walker, Sr. , 490 F.3d 1282 ( 2007 )

United States v. Elio Jesus Arbolaez , 450 F.3d 1283 ( 2006 )

United States v. Henry Louis Ismond and Winston Daniel ... , 993 F.2d 1498 ( 1993 )

United States v. Mangaroo , 504 F.3d 1350 ( 2007 )

united-states-v-david-carrazana-pablo-carballo-anselmo-cosio-carlos , 921 F.2d 1557 ( 1991 )

United States v. Hernandez , 141 F.3d 1042 ( 1998 )

United States v. Fabio Alonso, Pedro Izaguirre, Robert ... , 740 F.2d 862 ( 1984 )

United States v. Novation , 271 F.3d 968 ( 2001 )

United States v. Lorenzo Lee, A/K/A Ponytail Terrance Lanea ... , 68 F.3d 1267 ( 1995 )

Batson v. Kentucky , 106 S. Ct. 1712 ( 1986 )

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