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

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 94-3560
D. C. Docket No. 94-05014-2 LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
IRMA ESTELLA CALDERON ALRED,
ROY JAVON ALRED,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Florida
(June 30, 1998)
Before HATCHETT, Chief Judge, BIRCH, Circuit Judge, and CLARK,
Senior Circuit Judge.
BIRCH, Circuit Judge:
This consolidated appeal by Irma Estella Calderon Alred and
Roy Javon Alred from convictions for their participation in a
marijuana distribution conspiracy presents trial and sentencing
issues. The appeal raises challenges to the government's single
conspiracy theory, its alleged misuse of the grand jury, the district
court's disqualification of preferred counsel, determination of the
accountable marijuana amounts, and enhancements for
possession of firearms and a leadership role in the marijuana
distribution operation. We affirm the convictions and Irma Alred's
sentence. Because the district court erred by according a
leadership role to Roy Alred for being a buyer/seller of marijuana,
we vacate his sentence and remand for resentencing consistent
with this opinion.
I. BACKGROUND
From 1984 until 1994, a group of individuals, known as the
"Alred Organization," in Holmes County, Florida, engaged in an
extensive marijuana distribution conspiracy involving thousands
of pounds of marijuana. They primarily purchased the marijuana
in the Texas/Mexico area and transported it by vehicles to
2
Holmes County, where it was sold. The principal source for
obtaining Mexican marijuana was defendant-appellant Irma Alred,
who was Irma Calderon in the mid 1980's when the conspiracy
began. After delivering approximately 300 pounds of marijuana
to coconspirator Charles Douglas Mixon in Holmes County and
remaining there until it was sold, she became an active
participant in the organization. Defendant-appellant Roy Alred
became acquainted with Irma Calderon when he flew to Houston,
Texas, to obtain from her 200 pounds of marijuana, which he
transported in a rental car to Holmes County for sale there.
Subsequently, Irma Calderon moved to Holmes County and later
married coconspirator Charlie Alred, Roy Alred's cousin.
Irma Alred continued to be integrally involved in obtaining
marijuana from Texas/Mexico. Numerous shipments intercepted
through traffic stops by law enforcement agents were destined for
her. On occasion, the marijuana was concealed in an extra
propane gas tank on trucks traveling from Texas to Holmes
3
County. Eventually, Irma and Charlie Alred separated and
divorced. Thereafter, competition between Irma, Charlie and Roy
Alred became not only a price war but also an aggressive
recruitment of each other's customers as the wire intercept
evidence at trial demonstrated.
On June 15, 1994, a federal grand jury for the Northern
District of Florida returned a one-count, superseding indictment
charging Irma Alred, Roy Alred, and seven codefendants with
conspiracy to possess with intent to distribute marijuana in
violation of 21 U.S.C. §§ 841(a)(1) and 846.1 Because some of
the original codefendants pled guilty, only Irma Alred, Roy Alred,
and three codefendants went to trial.2 At least twenty-one
smuggling ventures were documented by law enforcement
1
In addition to Irma Alred and Roy Alred, the other seven
defendants named in the superseding indictment were: Charlie Junior
Alred, Virginia Lee Blackmon, Clayton Michael Blackmon, Ardis James
("Junior") Hightower, Thomas Robert White, Adrian Dickey Gonzalez,
and O'Don Newell.
2
The other three defendants who went to trial with Irma Alred
and Roy Alred were Virginia Lee Blackmon, Michael Clayton Blackmon,
and O'Don Newell.
4
seizures, wire intercepts, testimony from cooperating, former
codefendants,3 and other witnesses, such as Collis Hobby, Willard
and Shirley Womble, Jose Cuellar, and Jesus Galaviz.4
Irma Alred, Roy Alred and the three remaining codefendants
3
Former codefendants testified at trial against Irma Alred
and Roy Alred. Junior Hightower sold marijuana for Irma
Alred from December, 1992, until shortly before
his arrest in 1994. Thomas White assisted Irma
Alred by allowing her to park vehicles used to
transport marijuana on his property. White became
involved during Irma Alred's divorce proceedings
when she needed a place to conduct business
without her estranged husband and coconspirator,
Charlie Alred's, knowledge. Adrian Gonzalez made
deliveries of several hundred pounds of marijuana
to Irma Alred in March and April, 1994. The
marijuana was hidden in an extra propane gas tank
concealed on trucks during the trip from Texas to
North Florida. Following delivery of 200 pounds
of marijuana in Holmes County, Gonzalez was
stopped by the Florida Highway Patrol after
leaving the North Florida area on April 22, 1994.
Agents seized approximately $160,000 in cash from
the extra propane tank on the truck that Gonzalez
was driving.
4
Hobby and Willard and Shirley Womble testified that, between
1986 and 1989, Roy Alred was a buyer/seller of marijuana in various
transactions with them. On one occasion, the Wombles accompanied
Roy Alred to Texas to obtain marijuana. Cuellar and Galaviz were
stopped by law enforcement agents in the course of delivering
marijuana to Roy Alred.
5
were convicted. Both Irma Alred and Roy Alred received
sentence enhancements for being leaders or managers in the
marijuana distribution conspiracy. Irma Alred was sentenced to
364 months of imprisonment, ten years of supervised release, and
a fine of $25,000. Roy Alred was sentenced to 293 months of
imprisonment and five years of supervised release.
On appeal, Irma Alred contests the district judge's
disqualification of her counsel of choice. Roy Alred contends that
the government misused the grand jury to investigate further his
involvement in the marijuana distribution conspiracy after the case
was scheduled for trial and that the district court erred in
enhancing his sentence for possession of firearms and for being
a leader in the marijuana distribution conspiracy. Both Irma Alred
and Roy Alred challenge the single conspiracy theory under which
the government prosecuted this case, which they argue involved
multiple conspiracies, and the amounts of marijuana for which
they were held accountable at sentencing. We address these
6
contentions as trial and sentencing issues and include the
pertinent facts relating to each issue.
II. ANALYSIS
A. Trial Issues
1. Choice of Counsel
Irma Alred argues that she was deprived of her Sixth
Amendment right to counsel when the district court disqualified
her original attorney and counsel of choice, John F. Daniel.
Because Daniel represented both Irma Alred and her ex-husband
and coconspirator, Charlie Alred, and the government had
suggested that one of Daniel's former clients might testify against
Charlie Alred, the district judge conducted a hearing
approximately six weeks prior to trial to determine whether there
was a conflict of interests. Although Irma Alred purported to
waive any conflicts that might result from Daniel's representing
Charlie Alred and her, the district judge, after questioning her,
7
was not convinced that her waiver was knowing and intelligent.5
5
The district judge's questioning of Irma Alred and her
responses establish his concern that her waiver of Daniel's dual
representation of her codefendant and ex-husband, Charlie Alred,
and her was not knowing and intelligent:
THE COURT: How would you like to think that your attorney
told him [Charlie Alred] to cop the plea and come into
court and testify against you? How would you like for
your attorney to do that?
MRS. ALRED: I wouldn't like it.
. . . .
THE COURT: But it doesn't concern you that maybe he
would, because he's Charlie's attorney, too, he's got to
get the best deal he can get for him, right?
MRS. ALRED: Yes, sir. Sir, I don't know what to tell
you.
THE COURT: Well, you're the only one that can do that.
So just have a seat there a minute and let me speak to
Mr. Charlie Alred . . . .
. . . .
THE COURT: All right, Ms. Alred, if you would come back,
please. You have heard us discuss it a little further
with Charlie Alred. Have you had any opportunity or any
thoughts on this question?
MRS. ALRED: Sounds like everybody wants to convict me,
that's all I know.
THE COURT: That's not the issue here.
MRS. ALRED: Well, sir, I don't know how to answer. Like
I said before, this has just been sprung on me. I would
like to keep Mr. Daniel.
THE COURT: Well, I know that, but . . . in spite of the
conflict, in spite of the fact that he might convict you
and get off Charlie?
MRS. ALRED: Well, sir, I would like to discuss it with
them, too, if you would permit me.
THE COURT: Well, you are the one that you can discuss it
with really anybody that you want. But I suggest to you
that it's a little silly to ask Charlie Alred whether--
MRS. ALRED: Basically I would be asking Mr. Daniel.
THE COURT: But he represents Charlie.
MRS. ALRED: He represents me.
THE COURT: Well, that's the point. If he wasn't your
attorney, would you ask Charlie Alred's attorney what's
best for you?
MRS. ALRED: Do what now?
THE COURT: Would you ask Charlie Alred's attorney what's
best for you?
MRS. ALRED: No, sir.
8
Accordingly, the district judge entered a order stating that Daniel
could represent either Irma Alred or Charlie Alred but not both.
As a result, Irma Alred and Charlie Alred each engaged different
counsel; neither retained Daniel. Charlie Alred subsequently pled
guilty and, consequently, was not Irma Alred's codefendant at
trial. In retrospect after trial and her conviction, Irma Alred now
contends that the perceived conflict at the time of the hearing was
potential, not actual, and, therefore, that Daniel should have been
permitted to represent her.
"[W]hile the right to select and be represented by one's
preferred attorney is comprehended by the Sixth Amendment, the
THE COURT: Well, that's what you would be doing when you
ask Mr. Daniel, because he's Charlie Alred's attorney?
MRS. ALRED: I would ask him on my behalf.
THE COURT: All right, I don't know if I can simplify it
any further. I truly am just mystified. . . . I gather
. . . that neither of these two have indicated that they
have any understanding or feelings in this, the ability
to intelligently waive the potential conflict. I think
that's the finding that I must make first as to whether
to even accept that waiver or not. I think that's the
obligation on the Court. And so I don't see how it's
possible that I can accept your representation of both of
these defendants.
R5-23, 24, 28-30 (emphasis added).
9
essential aim of the Amendment is to guarantee an effective
advocate for each criminal defendant rather than to ensure that a
defendant will inexorably be represented by the lawyer whom he
prefers." Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct.
1692, 1697 (1988). In cases of joint representation, the Federal
Rules of Criminal Procedure direct that a trial judge "promptly
inquire with respect to such joint representation" and "personally
advise each defendant of the right to the effective assistance of
counsel, including separate representation." Fed. R. Crim. P.
44(c); see Wood v. Georgia, 450 U.S. 261, 272, 101 S.Ct. 1097,
1104 (1981) (reversing a conviction because the trial court failed
to inquire into defense counsel's potential conflict of interest even
though the court "should have been aware of the problem") . The
danger in representing conflicting interests is not only in what an
advocate does but also in what the attorney must refrain from
doing at possible pretrial plea negotiations, trial, and sentencing.
See Burden v. Zant, 24 F.3d 1298, 1305-06 (11th Cir. 1994).
10
Absent apparent good cause to believe that there is no potential
conflict of interest, the trial court must take appropriate measures
to protect each defendant's right to counsel. See Fed. R. Crim.
P. 44(c). Although "a defendant may waive his right to the
assistance of an attorney unhindered by a conflict of interests,"
Holloway v. Arkansas, 435 U.S. 475, 483 n.5, 98 S.Ct. 1173,
1178 n.5 (1978), "such waivers are not to be lightly or casually
inferred and must be knowingly and intelligently made," United
States v. Alvarez, 580 F.2d 1251, 1259 (5th Cir. 1978). Our
circuit recognizes that a defendant's waiver of conflict-free
counsel is constitutional when "a defendant after thorough
consultation with the trial judge knowingly, intelligently and
voluntarily . . . waive[s] this protection." United States v. Garcia,
517 F.2d 272, 278 (5th Cir. 1975); see United States v. Zajac, 677
F.2d 61, 63 (11th Cir. 1982) (per curiam) (recognizing that Garcia
established a procedure for determining a valid waiver of conflict-
free counsel). The record must show "that the defendant was
11
aware of the conflict of interest; realized the conflict could affect
the defense; and knew of the right to obtain other counsel."
United States v. Rodriguez, 982 F.2d 474, 477 (11th Cir. 1993)
(per curiam).
Furthermore, "a district court must pass on the issue whether
or not to allow a waiver of a conflict of interest by a criminal
defendant not with the wisdom of hindsight after the trial has
taken place, but in the murkier pre-trial context when relationships
between parties are seen through a glass, darkly." Wheat, 486
U.S. at 162, 108 S.Ct. at 1699. Therefore, district judges are
"allowed substantial latitude in refusing waivers of conflicts of
interest not only in those rare cases where an actual conflict may
be demonstrated before trial, but in the more common cases
where a potential for conflict exists which may or may not burgeon
into an actual conflict as the trial progresses." Id. at 163, 108
S.Ct. at 1699. At the pretrial hearing devoted to determining
whether Daniel could represent both Irma Alred and Charlie
12
Alred, the district judge was confronted with Irma Alred's desire to
retain her counsel, who not only had represented a potential
government witness but also who represented two codefendants
with apparent conflicting interests. It is inconsequential to our
review that Charlie Alred pled guilty and did not go to trial. We
view the testimony and evidence presented to the district judge at
the time of the hearing concerning the conflict of interests in
Daniel's representing both Irma Alred and Charlie Alred.
Irma Alred's responses to the district judge's questions
concerning the conflicting interests involved in Daniel's
representing both Charlie Alred and her demonstrate that she did
not understand the potential detriment to her case if Daniel
continued to represent these codefendants who clearly had
conflicting interests as coconspirators and former spouses.6
Because her answers do not show a knowing and intelligent
6
In her appellate brief, Irma Alred states that she
"acknowledged [to the trial judge] that she would not like it if
her attorney allowed the interest of her co-defendant to override
her interests." Appellant Irma Alred's Brief at 39.
13
waiver of conflicts inherent in representing codefendants, the
district judge acted within his discretion in declining to accept Irma
Alred's waiver. See Wheat, 486 U.S. at 164, 108 S.Ct. at 1700.
Contrary to Irma Alred's contention that the district judge
disqualified Daniel from representing her, the district judge
ordered that Daniel could not represent both Irma Alred and
Charlie Alred, codefendants with conflicting interests. Either Irma
Alred or Charlie Alred was free to continue with Daniel's
representation. Instead, both chose to engage different counsel.
Significantly, because Charlie Alred obtained another attorney,
the district judge's order would not have precluded Irma Alred's
continued representation by Daniel. At the time of the hearing
concerning Daniel's joint representation of Irma Alred and Charlie
Alred, however, the district judge properly acted within his
discretion in declining to allow Daniel to continue to represent
Irma Alred and Charlie Alred because her purported waiver of
conflicting interests was not knowing and intelligent.
14
2. Use of Grand Jury Testimony
Roy Alred argues that the district judge erred in admitting
the grand jury testimony of Dale Sconiers, who testified
concerning the Holmes County marijuana distribution conspiracy
before the grand jury the week prior to trial in this case. Because
Sconiers had refused to talk to the government about his
knowledge of the marijuana operation in Holmes County, he was
subpoenaed to testify before the grand jury. Sconiers and Gwen
Stewart appeared as witnesses before the grand jury on
September 15, 1994, three days before the commencement of the
trial involving Roy Alred. The government provided Roy Alred's
counsel with copies of the grand jury testimony of Sconiers and
Stewart the night after the second day of trial on September 20,
1994.
At the beginning of the third day of trial, Roy Alred's attorney
objected to the use of the testimonies of Sconiers and Stewart
and unsuccessfully moved to quash, limit or exclude the
15
testimonies of these two witnesses. Roy Alred's counsel alleged
that the government improperly had used the grand jury as a
means of discovery against individuals who had been indicted and
were going to trial the next week. Following Sconiers's trial
testimony, Roy Alred's counsel moved for a mistrial on the same
grounds; the district judge denied the motion.
The grand jury investigation of the extensive marijuana
distribution operation in Holmes County was ongoing. Review of
Sconiers's grand jury testimony reveals that the government's
purpose in questioning him was to obtain information on the
participation of Jim Alred, who was unindicted at the time of the
trial involving Roy Alred. Because Sconiers knew both Jim Alred
and Roy Alred, his grand jury testimony described his knowledge
of the participation of both men in the marijuana distribution
operation. Significantly, Jim Alred and others were indicted and
prosecuted after the trial involving Roy Alred.
To perform its public responsibility, a grand jury has broad
16
investigative authority in determining whether a crime has been
committed and in identifying the perpetrators. See United States
v. Calandra, 414 U.S. 338, 344, 94 S.Ct. 613, 618 (1974). A
grand jury investigation is not complete until all clues have been
exhausted and every witness examined. See id. "[T]he law
presumes, absent a strong showing to the contrary, that a grand
jury acts within the legitimate scope of its authority." United
States v. R. Enters., Inc., 498 U.S. 292, 300, 111 S.Ct. 722, 728
(1991). When it is shown that a subpoena might assist the grand
jury in its investigation, the subpoena should issue, even though
the prosecutor possibly will use the information procured for a
purpose other than obtaining evidence for the particular grand jury
investigation. See In re Grand Jury Proceedings No. 92-4, 42
F.3d 876, 878 (4th Cir. 1994). Although the government may not
use a grand jury for discovery concerning a pending prosecution,
it may continue an investigation from which information relevant
to a pending prosecution "may be an incidental benefit." United
17
States v. Beasley, 550 F.2d 261, 266 (5th Cir. 1977); see Beverly
v. United States, 468 F.2d 732, 743 (5th Cir. 1972).
In this case, Sconiers would not talk with the government
until he received his grand jury subpoena and an offer of
immunity. When Roy Alred's attorney moved to exclude
Sconiers's testimony, the Assistant United States Attorney
explained to the district judge that the government became aware
of Sconiers's information concerning Roy Alred during its
investigation of the activities of Jim Alred in the Holmes County
marijuana distribution operation. She explained that she did not
know what Sconiers's testimony would be and that she
expeditiously provided defense counsel a transcript of Sconiers's
testimony regarding Roy Alred. After reviewing Sconiers's grand
jury testimony, hearing his trial testimony, and considering the
relevant law, the district judge determined that Jim Alred was the
target of the grand jury investigation when Sconiers was
subpoenaed to testify and that there was no misuse of the grand
18
jury process in this case that would preclude his trial testimony.7
We agree and conclude that the proximity in time of
Sconiers's testimony before the grand jury to the trial in this case
was coincidental. Because Sconiers had refused to cooperate
with the government investigation of the extensive marijuana
distribution operation in Holmes County until he was subpoenaed
by the grand jury and received immunity, obtaining his testimony
7
After hearing Sconiers's trial testimony and reviewing the
relevant law, the district judge denied Roy Alred's motion to
exclude Sconiers's testimony based on the following reasoning:
With regard to the motion to exclude the testimony
of Mr. Sconiers . . . based on the claim that the
government had misused the grand jury process, . . . .
courts may not interfere with grand juries' investigation
so long as the sole and dominant purpose is to discover
facts relating to other matters . . . . [There is] the
presumption that the government is acting in good faith,
and . . . it's the defendant's burden to prove the reason
and abuse . . .[;] in the absence of clear evidence to
the contrary, we presume the prosecutor acted properly in
issuing the subpoena.
. . . .
Turning to the transcripts, I think it is clear that
the government announced before the grand jury . . . that
they were engaged in an inquiry and investigation of drug
use in Holmes County. They were also engaged,
specifically, from the questioning, in searching out any
potential charges against [J]im Alred and any others that
were involved in the conspiracy.
So, I . . . cannot . . . say that they have misused
or abused the process. So, for that reason, the motion
will be denied.
R19-636-37.
19
was delayed. In addition to trying the case in which Roy Alred
was convicted, the government continued to conduct its
investigation of the extensive marijuana distribution conspiracy in
Holmes County, which resulted in the indictment and prosecution
of others, including Jim Alred. Because the government did not
know what Sconiers's testimony would be, it could not have
known that he would describe involvement of Roy Alred in the
marijuana distribution conspiracy. The Assistant United States
Attorney promptly provided the transcript of Sconiers's grand jury
testimony to defense counsel prior to his testimony at trial.
After reviewing the record in this case, we conclude that the
primary purpose of Sconiers's testimony before the grand jury was
to obtain information concerning Jim Alred's involvement in the
marijuana distribution conspiracy as part of the government's
continuing investigation of this conspiracy. Because Sconiers's
testimony regarding Roy Alred was an incidental benefit of this
ongoing investigation rather than a substitute for discovery, we
20
determine that there was no misuse of the grand jury process in
using that testimony at Roy Alred's trial. See United States v.
Jenkins, 904 F.2d 549, 559 (10th Cir. 1990) (concluding that the
government had not used the grand jury process as a substitute
for discovery in a pending prosecution). Roy Alred has presented
no strong evidence to the contrary to cause us to deviate from our
presumption that the government acted within the scope of its
authority. See R. Enters., 498 U.S. at 300, 111 S.Ct. at 728;
Jenkins, 904 F.2d at 559-60. Accordingly, the district judge did
not err in refusing to exclude Sconiers's trial testimony concerning
Roy Alred.
3. Single Conspiracy
Both Irma Alred and Roy Alred argue that the proof at trial
showed the existence of multiple conspiracies and, therefore, was
inconsistent with the single marijuana distribution conspiracy
charged in the indictment. Both allege that they were involved in
marijuana distributions with some coconspirators but not others.
21
To demonstrate the multiple conspiracies, they contend that the
evidence at trial revealed competition among the conspirators,
particularly following the divorce of Irma and Charlie Alred, after
which different allegiances among the coconspirators developed.
Irma Alred and Roy Alred represent that the possibility that the jury
may have attributed to each of them marijuana distribution
conspiracies in which they were not involved resulted in
substantial prejudice to them and, consequently, deprived them of
a fair trial.
We do not reverse 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. See United States v.
Coy, 19 F.3d 629, 633 (11th Cir. 1994) (per curiam). "A material
variance between an indictment and the government's proof at
trial occurs if the government proves multiple conspiracies under
an indictment alleging only a single conspiracy." United States v.
22
Castro, 89 F.3d 1443, 1450 (11th Cir. 1996), cert. denied, ___
U.S. ___, 117 S.Ct. 965 (1997). Because the jury determines the
question of fact as to whether the evidence establishes a single
conspiracy, however, 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. See
United States v. Adams, 1 F.3d 1566, 1584 (11th Cir. 1993);
United States v. Reed, 980 F.2d 1568, 1581 (11th Cir. 1993).
Accordingly, we will not disturb the determination of the jury that
a single conspiracy exists if supported by substantial evidence.
See United States v. Calderon, 127 F.3d 1314, 1327 (11th Cir.
1997). 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.23
The evidence in this case showed that the coconspirators
purchased marijuana during the time that the marijuana
distribution conspiracy existed from deliveries that were arranged
principally by Irma Alred, who had connections for obtaining the
marijuana. The record further reveals various marijuana
distribution transactions in which both Irma Alred and Roy Alred
participated. These transactions were substantiated by
eyewitnesses, cooperating coconspirators, and tape recorded
conversations. All of the participants in the conspiracy shared a
common goal of distributing marijuana, which, for some, included
its transportation. It is irrelevant that particular conspirators may
not have known other conspirators or participated in every stage
of the conspiracy; all that the government must prove to establish
conspiracy liability is an agreement or common purpose to violate
the law and intentional joining in this goal by the coconspirators.
See United States v. Cole, 755 F.2d 748, 764 (11th Cir. 1985).
"If there is one overall agreement among the various parties to
24
perform different functions in order to carry out the objectives of
the conspiracy, then it is one conspiracy." United States v. Perez,
489 F.2d 51, 62 (5th Cir. 1973).
Similarly, the various marijuana distribution transactions were
virtually the same. Both Irma Alred and Roy Alred consistently
participated in a distribution chain where marijuana was obtained
in Texas, transported to Florida, and sold in Holmes County.
Throughout the conspiracy, there was an overlap of many of the
participants, particularly, Irma Alred, Roy Alred, and Charlie Alred.
These facts demonstrate substantial evidence from which a
reasonable jury could have concluded that a single, ongoing
conspiracy existed for a period of ten years as charged in the
indictment. See Calderon, 127 F.3d at 1327-28.
Our test of material variance and substantial prejudice to the
defendant is stated in the conjunctive. Consequently,
determining that there was no material variance because
substantial evidence was presented for the jury to have found a
25
single conspiracy necessarily ends our inquiry into the alleged
variance between the indictment and the evidence at trial. See id.
at 1328. Nevertheless, we emphasize that "[v]ariance from an
indictment is not always prejudicial, nor is prejudice assumed."
United States v. Ard, 731 F.2d 718, 725 (11th Cir. 1984). To
demonstrate substantial prejudice, Irma Alred and Roy Alred
respectively would have to show that "1) that the proof at trial
differed so greatly from the charges that [each] appellant was
unfairly surprised and was unable to prepare an adequate
defense; or 2) that there are so many defendants and separate
conspiracies before the jury that there is a substantial likelihood
that the jury transferred proof of one conspiracy to a defendant
involved in another." Calderon, 127 F.3d at 1328 (emphasis
added). Neither Irma Alred nor Roy Alred has represented that
she or he was surprised by the evidence at trial. Both were well
aware of most of the evidence before trial. For example, they
used the tape-recorded conversations to argue that they were
26
competitors during the later stages of the conspiracy.
Furthermore, only five defendants went to trial in this case.
Irma Alred consistently was portrayed as the original distributor
with Mexico/Texas connections. She arranged to transport
marijuana to the Holmes County area. Nothing in the record
suggests that the jury would have been confused or misled by the
evidence at trial. Additionally, we note that neither Irma Alred nor
Roy Alred moved to sever her or his trial because of concern that
the jury would interrelate their criminal acts.
In its case-in-chief, the government presented evidence that,
while the divorce of Irma and Charlie Alred resulted in competition
among some of the coconspirators during the later stages of the
conspiracy, the goal of obtaining and distributing marijuana
through known sources remained the same. Disagreements
among participants in a conspiracy does not mean that they have
not been and continued to be involved in the overall conspiracy.
The conspirators in this marijuana distribution were a relatively
27
small and closed group, essentially Alred family members. The
defense presented no evidence that either Irma Alred or Roy
Alred legally withdrew from the conspiracy.8 To the contrary, both
continued to distribute marijuana from Texas until they were
indicted. Even if there had been a variance between the single
marijuana distribution conspiracy charged in the indictment and
the evidence at trial, neither Irma Alred nor Roy Alred has
demonstrated substantial prejudice to her or his case that resulted
in the respective convictions; thus, any purported variance is
immaterial.9 See Calderon, 127 F.3d at 1328; United States v.
8
"A conspiracy is an ongoing criminal activity for which a
participant remains culpable until the conspiracy ends or the
participant withdraws." United States v. Davis, 117 F.3d 459, 462
(11th Cir.), cert. denied, ___ U.S. ___, 118 S.Ct. 355, and cert.
denied, ___ U.S. ___, 118 S.Ct. 395 (1997). The burden of proving
withdrawal from a conspiracy is upon the defendant, who must show
affirmative acts "'to defeat or disavow the purpose of the
conspiracy.'" United States v. Phillips, 664 F.2d 971, 1018 (5th
Cir. Unit B Dec. 1981) (quoting United States v. Wentland, 582 F.2d
1022, 1025-26 (5th Cir. 1978)). Such affirmative acts, inconsistent
with the object of the conspiracy, must be communicated to the
other members of the conspiracy by a means reasonably calculated to
reach them. Id.9
This court has recognized and upheld a series of various
criminal acts as comprising a single, ongoing conspiracy as charged
in the indictment when the jury has so found. See Cole, 755 F.2d
at 753-65 (four defendants were convicted for a single marijuana
importation conspiracy involving numerous airplane deliveries from
Colombia, South America, and off-loads from various vessels);
28
Champion, 813 F.2d 1154, 1168 (11th Cir. 1987). Accordingly,
Irma Alred and Roy Alred's challenge to their convictions based
on the alleged variance between the single conspiracy charged in
the indictment and the evidence at trial is meritless.
B. Sentencing Issues
1. Accountable Amounts of Marijuana
Irma Alred and Roy Alred argue that the district court erred
in calculating the amounts of marijuana for which they were held
accountable at sentencing. Both fault the district judge for
miscalculating her and his base offense level by including 1,200
pounds of marijuana that Shirley Womble testified that she and
her husband, Willard, purchased from Roy Alred, who argues that
this amount is inconsistent with Shirley Womble's trial testimony.
Irma Alred contends that she should not be held accountable for
United States v. Brito, 721 F.2d 743, 746-48 (11th Cir.1983) (three
defendants were convicted under a single conspiracy charged in the
indictment for a marijuana importation conspiracy involving five
smuggling ventures and nine coconspirators); United States v.
Solomon, 686 F.2d 863, 868-71 (11th Cir. 1982) (three defendants
were convicted for six thefts under a one-count indictment).
29
Roy Alred's marijuana transactions with the Wombles. Roy Alred
additionally argues that 2,800 pounds of marijuana that he
obtained from sources outside of the conspiracy in this case
should not have been attributable to him.
Following separate sentencing hearings wherein these
arguments were raised, the district judge determined that Irma
Alred and Roy Alred each had a base offense level of 32.10 In
making this determination, the judge adopted the accountable
amounts in both presentence reports ("PSRs") based on his
credibility evaluation of the witnesses' testimonies used to
establish the respective marijuana amounts as well as his
consideration of conspiracy liability and relevant conduct. On
appeal, Irma Alred and Roy Alred argue that the elimination of
these disputed amounts would result in reduced base offense
10
Under U.S.S.G. § 2D1.1 (1994), offenses involving at least
1,000 kilograms but less than 3,000 kilograms of marijuana have a
base offense level of 32. Irma Alred's PSR states that her base
offense level is 32 because her crime involved 2,899 pounds or
1,315 kilograms of marijuana. Roy Alred's PSR states that his base
offense level is 32 because his crime involved 5,662 pounds or
2,568 kilograms of marijuana.
30
levels and, consequently, less incarceration time.
A district judge's attribution of drugs to a particular
defendant under the Sentencing Guidelines is subject to clearly
erroneous review. See United States v. Reese, 67 F.3d 902, 908
(11th Cir. 1995), cert. denied, 517 U.S. 1228, 116 S.Ct. 1866(1996). Facts considered at sentencing need to be proved by
only a preponderance of the evidence. See United States v.
Bennett, 928 F.2d 1548, 1556 (11th Cir. 1991). In reviewing a
sentence under the Sentencing Guidelines, we "give due regard
to the opportunity of the district court to judge the credibility of the
witnesses." 18 U.S.C. § 3742(e).
The prosecutor stated at Roy Alred's sentencing that the
source of the 1,200 pounds of marijuana attributed to both Irma
Alred and Roy Alred was Shirley Womble's grand jury testimony:
"In her grand jury transcript, which defense counsel had at
hearing and at trial, she [Shirley Womble] very clearly stated that
based on her recollection it was 1200 pounds." R25-10. In filing
31
objections to his PSR, Roy Alred's counsel objected to other
testimony attributing certain amounts of marijuana to Roy Alred,
but he agreed that "as to paragraph 7 of the PSR, the Defendant
respectfully submits he should be held accountable for 1,200 per
the Womble testimony." R4-207-1 (emphasis added). On appeal,
Roy Alred argues that he should not be held accountable for this
1,200 pounds of marijuana because Shirley Womble did not state
that amount in her trial testimony. He does not represent that
she did not testify as to this amount in her grand jury testimony.
Shirley Womble was questioned about individual marijuana
purchases at trial, while Willard Womble was asked at trial about
the Wombles' cumulative marijuana purchases from Roy Alred
during the conspiracy in this case.11 From his perspective of
11
As opposed to the 1,200 cumulative pounds of marijuana that
Shirley Womble testified that the Wombles purchased from Roy Alred
in her grand jury testimony, she testified about individual
purchases from 1986 to 1989 at trial. See, e.g., R13-7 (stating
that the Wombles obtained 10 to 80 pounds of marijuana "at
different times" from Roy Alred); id. (20 pounds); id. at 10 (10
pounds); id. at 11 (200 pounds). While Willard Womble also
testified about individual purchases of marijuana from Roy Alred,
see, e.g., R18-169 (10 to 100 pounds at a time); id. (100 pounds on
a few occasions); id. at 170 (40 pounds); id. at 174 (100 pounds);
id. at 187 (10 pounds), he also responded to questions concerning
32
having conducted the trial in which Shirley and Willard Womble
were convicted in another marijuana distribution conspiracy and
their sentencings as well as the trial concerning the marijuana
distribution conspiracy in this case involving Irma Alred and Roy
Alred, the district judge was in the best position to make a
credibility choice regarding whether Shirley or Willard Womble
gave the more accurate estimate of the total amount of marijuana
that they obtained from Roy Alred in this conspiracy.12 See United
the cumulative pounds of marijuana that the Wombles purchased from
Roy Alred, which he estimated to be between 400 and 500 pounds, see
id. at 169, 189-90, based on his memory because he kept no records,
see id. at 190.
12
The prosecutor observed to the district judge at Roy Alred's
sentencing that comparison of the trial testimonies of Shirley and
Willard Womble revealed that "Shirley Womble is obviously a little
better educated and had a better recollection of the events." R25-
10. The district judge explained his decision to credit Shirley
Womble's estimate of the amount of marijuana that the Wombles
obtained from Roy Alred stated in her grand jury testimony as
opposed to that of her husband given at trial:
[T]he 1200 pounds having to do with the Womble matter, I
do accept the testimony of Ms. Womble, having sat through
trials that she was involved with, as well as having been
involved in her own sentence and the determination of who
did what, who was responsible, she or her husband. Do
find that she's the more credible witness and has a
better ability to make those estimates.
R25-15-16.
33
States v. Agostino, 132 F.3d 1183, 1198 (7th Cir. 1997), cert.
denied, ___ U.S.___, 118 S.Ct. 1526 (1998) (recognizing that "the
district court has the best perspective to judge issues of
credibility" with respect to conflicts in grand jury and trial
testimonies). Accordingly, we conclude that the district judge did
not commit clear error by including the 1,200 pounds of marijuana
that Shirley Womble testified before the grand jury was the
cumulative amount that the Wombles purchased from Roy Alred
during the conspiracy in this case because the district judge was
in the best position to make a credibility choice between Shirley
Womble's grand jury testimony and Willard Womble's trial
testimony.
Irma Alred poses a different argument concerning the
reason that she should not be held accountable for the 1,200
pounds of marijuana that Shirley Womble testified that Roy Alred
sold to the Wombles. She contends that this amount should not
be attributed to her because she was not involved in those
34
marijuana sales. To the contrary, trial testimony and evidence
show that Irma and Roy were doing business together as
marijuana distributors as early as 1985. Although Roy Alred had
sold marijuana to the Wombles during the time that the Wombles
were involved in another marijuana distribution conspiracy for
which they were convicted, the 1,200 pounds that Roy sold to
them that is at issue in this case was Mexican/Texas marijuana
that Irma supplied to Roy.13 We review de novo a district judge's
13
The record shows that Roy Alred referred to Irma Alred as
his "cousin" and "a Mexican lady," and Shirley and Willard Womble
so identified her as Roy's source of supply in their testimonies at
trial. See R13-23; R18-172. Thomas White, who pled guilty to the
marijuana distribution conspiracy in this case and allowed Irma
Alred to park vehicles containing marijuana in his barn to avoid
detection, testified at trial that, during the relevant period of
the conspiracy is this case, "[i]t was common knowledge" in Holmes
County that Irma was involved in marijuana distribution. R19-583.
At Irma Alred's sentencing, the prosecutor explained that the
Wombles had two, unrelated sources of marijuana supply, Marco Polo,
the conspiracy for which they were convicted, and Roy Alred, the
conspiracy in this case:
Marco Polo was another source of the Wombles. That has
nothing to do with Roy Alred. And we have not attributed
the Marco Polo marijuana weights that Shirley and Willard
Womble were originally convicted with, we haven't
attributed that in any way. It doesn't have anything to
do with this case. The Wombles were buying from this
individual named Marco Polo. And they were also buying
from Roy Alred. . . . [T]he evidence is during this time
frame that Irma and Roy had a conspiracy that was
ongoing, and there was this talk about a cousin. She is
a cousin or married to a cousin.
R16-16-17. The prosecutor further clarified that Irma Alred was of
35
relevant conduct determination under U.S.S.G. § 1B1.3 (1994).
See Reese, 67 F.3d at 908. Under the amendment of section
1B1.3, which became effective on November 1, 1992, see id. at
906, and was applicable to Irma Alred and Roy Alred's sentencing
proceedings on November 29, 1994, see id. at 909, Irma was
"accountable for other conduct that was reasonably foreseeable
and within the scope of the criminal activity that [she] agreed to
undertake," id. at 907. The government proved that a small and
relatively closed group of individuals known as the Alred
Organization operated a marijuana distribution conspiracy from
1984 until 1994, the object of which was to bring large quantities
of marijuana into Holmes County for distribution and sale.
Therefore, Irma Alred was accountable for marijuana that she
acquired for Roy Alred for distribution in Holmes County, as the
district judge found.14 See United States v. Edwards, 115 F.3d
Hispanic descent and that Roy Alred referred to her as being
Mexican. See id. at 15.
14
Irma Alred argues for the first time on appeal that the
district judge committed reversible error at her sentencing by
36
1322, 1329-30 (7th Cir. 1997) (holding that a sentencing judge's
determination that a defendant was part of a larger conspiracy
with concomitant liability deserves great deference and will be
upheld unless it is without foundation).
With respect to relevant conduct, Roy Alred additionally
placing the burden on her to prove that marijuana transactions
between Roy Alred and Shirley and Willard Womble were not in
furtherance of the conspiracy for which she and Roy Alred were
convicted. Absent plain error causing manifest injustice, we will
not review a sentencing argument made for the first time on appeal.
See United States v. Newsome, 998 F.2d 1571, 1579 (11th Cir. 1993).
Finding plain error is a three-step process: (1) error must exist,
(2) the error must be obvious, and (3) it must affect substantial
rights. See United States v. Chandler, 996 F.2d 1073, 1086 (11th
Cir. 1993).
Irma Alred's burden-of-proof argument derives from a
discussion concerning conspiracy liability between her counsel and
the district judge at her sentencing. In context, the judge stated
that the government had established a marijuana distribution
conspiracy, "which in this case was to bring marijuana into their
county and distribute it . . . . And either one [Irma Alred or Roy
Alred] acting in that capacity to carry out that intent of bringing
marijuana into that county to distribute it, each one is
responsible for the other." R16-13. The district judge's
questioning Irma Alred's counsel as to whether Irma had to
demonstrate that Roy Alred's marijuana sales to the Wombles were
separate from the overall conspiracy is inconsequential. Roy
Alred's marijuana sales to the Wombles during the existence of this
marijuana distribution conspiracy were attributable to other
members of the conspiracy, including Irma Alred. While the
district judge may have considered temporarily the possibility,
suggested by Irma Alred's counsel, that she was not responsible for
the marijuana transactions between Roy Alred and the Wombles, this
theory contravenes conspiracy liability law and relevant conduct
considerations required under the Sentencing Guidelines.
Therefore, the district judge correctly rejected this argument and
did not commit plain error in sentencing Irma Alred by holding her
accountable for the marijuana involved in the sales by Roy Alred to
the Wombles.
37
argues that he should not be held accountable for 2,800 pounds
of Colombian marijuana that he obtained from sources outside of
the conspirators' Mexico/Texas connections and brought to
Holmes County for distribution and sale. The clarifying
commentary to section 1B1.3 explains:
With respect to offenses involving contraband (including
controlled substances), 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) (emphasis added); see Stinson
v. United States, 508 U.S. 36, 46, 113 S.Ct. 1913, 1919 (1993)
(holding that "[a]mended [Sentencing Guidelines] commentary is
binding on the federal courts").
Charles Douglas Mixon, who pled guilty to being a marijuana
trafficker, testified at trial that Roy Alred stored the 2,850-pound,
Colombian marijuana load in Mixon's barn because Mixon
marked it on his barn wall as he and Roy weighed "[e]very bale,"
38
and "it stayed marked on [Mixon's] barn wall for years." R6-50.
At Roy Alred's sentencing, the district judge stated that he found
"the Mixon testimony to be credible." R25-15. Accordingly, he
held Roy Alred accountable for the 2,800 pounds of marijuana
stated in his PSR.15
We conclude that the district judge properly included the
2,800 pounds of Colombian marijuana in the cumulative
marijuana weight for which Roy was held accountable at
sentencing because it constituted relevant conduct. In addition to
his concurrent accountability with his coconspirators for other
marijuana amounts, Roy Alred 's direct involvement with the 2,800
pounds of Colombian marijuana within the time period of the
distribution conspiracy for which he was convicted in this case is
15
The district judge correctly rejected Roy Alred's counsel's
alternative recommendation at sentencing that, as to this load of
Colombian marijuana, Roy be held accountable for the 700 pounds
that he took away in his car because Roy was involved with the
handling and weighing of the entire marijuana load. We further note
that the difference in 2,850 pounds of marijuana that Mixon
testified was the weight of this load of Colombian marijuana and
the 2,800 pounds for which Roy Alred was held accountable at
sentencing would not have been sufficient to increase his base
offense level beyond 32.
39
attributable to him as relevant conduct. See U.S.S.G. § 1B1.3,
comment. (n.2). Having determined that Irma Alred and Roy
Alred properly were held accountable for the 1,200 pounds of
marijuana that Roy sold to the Wombles and that Roy was
accountable for the 2,800 pounds of Colombian marijuana, we
uphold their respective base offense levels of 32 as calculated by
the district judge.
2. Enhancement for Possession of Firearms
Roy Alred contests his enhancement for possession of
firearms and argues that the trial evidence does not support a
finding that he possessed or reasonably could have foreseen
possession of firearms by others in furtherance of the marijuana
distribution conspiracy. The Sentencing Guidelines require that
a two-level enhancement be applied to the base offense level for
a convicted defendant for a drug crime "[i]f a dangerous weapon
(including a firearm) was possessed." U.S.S.G. § 2D1.1(b)(1).
The weapon possession enhancement reflects the increased
40
likelihood of violence associated with the possession of firearms
by drug traffickers. Id. comment. (n.3). A sentence enhancement
based on a coconspirator's firearm possession is permitted if "(1)
the firearm possessor was charged as a coconspirator; (2) the
coconspirator possessed the firearm in furtherance of the
conspiracy; and (3) the coconspirator who is to receive the
sentence enhancement was a member of the conspiracy at the
time that his conconspirator possessed the firearm." United
States v. Gates, 967 F.2d 497, 500 (11th Cir. 1992) (per curiam).
The government has the burden of establishing the
appropriateness of the enhancement by a preponderance of the
evidence. Id. at 500-01. Actual knowledge of the coconspirator's
firearm possession by the convicted defendant is not required for
the enhancement to apply, but possession must be reasonably
foreseeable. See United States v. Martinez, 924 F.2d 209, 210-
11 & n.1 (11th Cir. 1991) (per curiam). Additionally, we have held
that "the enhancement is to be applied whenever a firearm is
41
possessed during conduct relevant to the offense of conviction."
United States v. Smith, 127 F.3d 1388, 1390 (11th Cir. 1997) (per
curiam). We review a district judge's factual findings used to
determine the applicability of a section 2D1.1(b)(1) enhancement
for clear error. See United States v. Pessefal, 27 F.3d 511, 515
(11th Cir. 1994).
At trial, Charles Douglas Mixon, who pled guilty to being a
marijuana trafficker, testified that guns were prevalent during a
600 to 700-pound marijuana transaction:
Roy had a -- if we had went off, it would've blew up
half of that field. Like I say, it wasn't only Roy. I had
guns, you know, laying everywhere. And Alan, he had
an automatic weapon. It was more or less just all in our
head 'cause we was doing cocaine and everything else,
and we just thought everybody was after us. And Roy
stood in the pouring rain and watched the road like the
National Guard was going to come in there on us. But,
like I say, there was guns everywhere, everywhere.
R17-29. In addition to Roy Alred's possessing firearms when he
participated in the marijuana distribution conspiracy during the
42
relevant time period,16 the district judge correctly determined that
possession of firearms by Roy Alred's coconspirators also made
this enhancement applicable to him.17 We conclude that the facts
that the district judge used as the basis for the section 2D1.1(b)(1)
enhancement were not clearly erroneous. Thus, Roy Alred's
enhancement for possession of firearms was appropriate.
3. Enhancement for Leadership Role
16
On appeal, Roy Alred complains that he has been held
accountable for two pistols that he had in his possession at the
time of his arrest on the indictment as opposed to the time during
his active involvement in the marijuana distribution conspiracy
crime. His attorney explained at sentencing that Roy Alred
lawfully owned these guns and that they were returned to him by
United States Customs. He further explained that Roy Alred had the
guns in connection with his road travel as a contractor and that
these guns had not been related to any drug offense. Disregarding
these two firearms, we find that there is sufficient evidence of
Roy Alred's personal possession of firearms in connection with his
active participation during the marijuana distribution conspiracy
for which he was convicted to warrant the § 2D1.1(b)(1)enhancement.
17
At Roy Alred's sentencing, the district judge explained that
he based the § 2D1.1(b)(1) enhancement not only on Roy Alred's
personal possession of firearms during the conspiracy but also on
the reasonable foreseeability of coconspirators' possessing weapons
in connection with their marijuana distribution conspiracy:
Well, I do find that based upon the testimony of the
defendant having used guns in the drug arena would
demonstrate that he had reasonable foreseeability of
others who are engaged in that activity to possess guns.
And I do find the time frame, as my notes would reveal,
that he was involved in the drug conspiracy. And,
therefore, it is attributable to him regardless.
R25-24.
43
Roy Alred argues that the district judge should not have
enhanced his base offense level by four levels under U.S.S.G. §
3B1.1(a) for a leadership role in the marijuana distribution
conspiracy in Holmes County. He contends that he had only a
buyer/seller relationship with his coconspirators in marijuana
transactions for which a section 3B1.1(a) enhancement is
inapplicable. We agree.
A sentencing judge is authorized to apply a four-level
enhancement to the base offense level of a convicted defendant
who "was an organizer or leader of a criminal activity that involved
five or more participants or was otherwise extensive." U.S.S.G.
§ 3B1.1(a). We have determined that the plain language of
section 3B1.1(a) "requires both a leadership role and an extensive
operation. Without proof of the defendant's leadership role,
evidence of the operation's extensiveness is insufficient as a
matter of law to warrant the adjustment." United States v. Yates,
990 F.2d 1179, 1181-82 (11th Cir. 1993) (per curiam). The
44
factors that the district judge should consider "[i]n distinguishing
a leadership and organizational role from one of mere
management or supervision" are
the exercise of decision making authority, the nature of
participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of
participation in planning or organizing the offense, the
nature and scope of the illegal activity, and the degree
of control and authority exercised over others. . . . This
adjustment does not apply to a defendant who merely
suggests committing the offense.
U.S.S.G. § 3B1.1, comment. (n.4). The government must prove
the existence of an aggravating role by a preponderance of the
evidence. See Yates, 990 F.2d at 1182. The district judge's
determination of a convicted defendant's role in the offense is a
factual finding subject to clearly erroneous review, but the
application of a guideline to a particular factual situation is a
question of law that we review de novo. See id.Although the government presented evidence at trial that
Roy Alred sold marijuana to a number of individuals, there was
45
little indication that he actively recruited buyers or directed their
activities. For example, Collis Hobby and Dale Sconiers testified
that they initiated contact with Roy Alred. Hobby testified that a
relatively small portion of his marijuana transactions were with
Roy Alred, whom he considered to be an individual buyer/seller.
Similarly, Shirley and Willard Womble as well as Robert Earl
Tucker testified that they purchased marijuana from Roy Alred
only after he had purchased marijuana from them. Like Hobby,
the Wombles bought most of their marijuana from another source
and were in business for themselves. Tucker also had other
sources of supply and was in a partnership with a third individual,
both of whom operated independently of Roy Alred, who did not
know Tucker's partner and generally did not know to whom
Tucker resold marijuana that he had purchased.
The trial evidence further showed that Jesus Galaviz and
Antonio Martinez delivered and/or attempted to deliver large loads
of marijuana to Roy Alred in 1993. They were hired and paid,
46
however, by the seller, an individual from Houston, Texas.
Likewise, Jose Cuellar delivered marijuana to Roy Alred but
worked under the direction of others.
Only slight evidence indicates that Roy Alred may have
recruited or directed the actions of his coconspirators. In 1990, a
Louisiana State Trooper stopped Roy Alred as he and his nephew
traveled to Houston with $21,000 in cash. Additionally, Sconiers
testified that Roy Alred and his cousin Jim Alred used Sconiers's
property to off-load four or five truck loads of marijuana in the
early 1990's. Although Willard Womble initially recruited Roy
Alred to purchase marijuana from him, Womble testified that, nine
to twelve months after that transaction, Roy Alred came to his
home and "[w]e got to talking. The next thing, I agreed to buy
marijuana." R18-169.
Three witnesses to whom Roy Alred sold marijuana testified
that he "fronted" the marijuana to them. Hobby testified that at
least one of his purchases from Roy Alred was fronted. On that
47
occasion, he received the marijuana on credit and paid for it a few
days later after he resold it. Shirley Womble also testified that
once she delivered money to Roy Alred with the implication that
it was in payment for marijuana previously received. Like Hobby,
Sconiers testified that his purchases were fronted or made on
credit.
Over objection from Roy Alred's counsel, the district judge
determined that "the four level increase is appropriate under the
evidence presented in this case." R25-27. We have held that a
convicted defendant's status as a middleman or distributor is
insufficient for a section 3B1.1 enhancement, which requires
authority in the organization that perpetrates the criminal conduct,
the exertion of control, or leadership. See Yates, 990 F.2d at
1182; accord Maxwell, 34 F.3d at 1012 (determining that a
seller/buyer relationship is inappropriate for a section 3B1.1(a)
enhancement). We further have concluded that arrangements
between buyers and sellers, such as negotiating deliveries, are
48
"simply incidental to the buyer-seller relationship." United States
v. Witek, 61 F.3d 819, 823 (11th Cir. 1995), cert. denied, ___ U.S.
___, 116 S.Ct. 738 (1996). In a continuing criminal enterprise,
we have held that "evidence of fronting, without more, is
insufficient to satisfy the management requirement."18 Id. at 824.
18
Similar to U.S.S.G. § 3B1.1(a), participation in a
continuing criminal enterprise requires the government to show that
the defendant "occupies a position of organizer, a supervisory
position, or any other position of management" with respect to five
other persons involved in unlawful drug trade. 21 U.S.C. §
848(c)(2)(A). Additionally, we recognize that Witek and our
decision in this case may appear to be inconsistent with United
States v. Howard, 923 F.2d 1500 (11th Cir. 1991), which we
distinguish factually. In Howard, the fronting or credit purchase
of cocaine involved direct control by the convicted defendant.
That is, the defendant-appellant, Ed Howard, provided cocaine to a
purchaser, Eric Hall,"without requiring immediate payment upon
delivery. Howard then accompanied Hall to the location where Hall
sold the cocaine to a third party, and upon completion of the sale,
Hall then turned the money over to Howard in payment for the
cocaine." Howard, 923 F.2d at 1502. This court found that Howard
"exercised a managerial role" in fronting the purchase of the
cocaine to Hall and affirmed the district judge's according Howard
a three-level enhancement under § 3B1.1(b) for acting as a manager
or supervisor in the criminal conduct because the factual findings
upon which the enhancement was based were not clearly erroneous.
Id. at 1503.
In this case, however, the fronting participation by Roy Alred
was more removed and attenuated. For example, Mixon testified
that he did not pay Irma Alred for 200 pounds of marijuana driven
in a rental car by Roy Alred from Texas and delivered by him until
one to two weeks after delivery. R17-26. Given Roy Alred's
delegated role as a transporter and deliverer of marijuana rather
than as a collector of payment, it was clearly erroneous for the
district judge to enhance Roy Alred's base offense level by the
greatest enhancement of four levels for having a leadership role
under § 3B1.1(a) for fronting on the facts of this case. Roy
Alred's participation in the Holmes County marijuana distribution
conspiracy was the antithesis of a leadership role; rather, he was
directed and instructed by those who did have controlling roles.
49
We conclude that the evidence presented by the government
in this case of Roy Alred's buyer/seller and fronting relationships
is insufficient to support his four-level enhancement under section
3B1.1(a) for having a leadership role in the marijuana distribution
conspiracy in Holmes County. The district judge improperly
applied this four-level adjustment to Roy Alred's base offense
level. On remand, the district judge will resentence him without
the section 3B1.1(a) enhancement.
III. CONCLUSION
In this appeal, Irma Alred and Roy Alred challenge their
convictions and sentences for conspiracy to distribute marijuana
in Holmes County. As we have explained, we AFFIRM their
convictions and Irma Alred's sentence. We VACATE Roy Alred's
sentence because the district judge improperly gave him a four-
level enhancement in his base offense level for having a
leadership role in the marijuana distribution conspiracy.
Accordingly, we REMAND to the district court to resentence Roy
50
Alred without the four-level enhancement under section 3B1.1(a).
51