UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4006
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DOROTHY MARIE JACKSON, a/k/a Dorothy Winston,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CR-
02-478-PJM)
Submitted: February 8, 2006 Decided: February 22, 2006
Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Fred Warren Bennett, Gary E. Bair, BENNETT & BAIR, L.L.P.,
Greenbelt, Maryland, for Appellant. Allen F. Loucks, United States
Attorney, Deborah A. Johnston, Assistant United States Attorney,
Bryan E. Foreman, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
A jury convicted Dorothy Marie Jackson on all counts of
an indictment charging her with (among other things) participating
in a conspiracy to distribute prescription painkillers. The
district court sentenced her to a 200-month prison term. Jackson
appeals, challenging the conspiracy conviction and her sentence.
We affirm the conviction, but vacate the sentence and remand for
resentencing consistent with United States v. Booker, 543 U.S. 220
(2005).
I.
A.
In June 2004 a grand jury in the District of Maryland
handed down a third superseding indictment against Jackson. Count
One of the 15-count indictment charged that Jackson, "together
with" her brother (Rodney), Emmanuel Thad Ereme, and others, "did
knowingly, intentionally and unlawfully combine, conspire,
confederate and agree together to distribute and possess with
intent to distribute" oxycodone and Oxycontin, two Schedule II
controlled substances. J.A. 18; 21 U.S.C. § 846. The indictment’s
other counts charged instances of possession with intent to
distribute controlled substances and acquisition of controlled
substances by fraud. Jackson pleaded not guilty and went to trial.
2
The jury returned a guilty verdict on all counts, and we
therefore state the evidence in the light most favorable to the
government. Jackson and her brother Rodney worked for a doctor in
an office building in Temple Hills, Maryland. Located in the same
building was the office of Dr. Cyrus Nemati. Sometime in 1998 or
1999 Rodney approached Cora Moran, who was employed as Dr. Nemati's
office manager, seeking Moran's cooperation in a scheme to obtain
access to prescription drugs. Eventually Moran agreed to sell Dr.
Nemati's blank prescription forms to Jackson and Rodney for $30 per
form.
Moran sometimes gave Jackson and Rodney the forms when
they visited the office; at other times, she delivered them to
Jackson's home. Moran learned from Jackson and Rodney that they
usually wrote prescriptions for the painkiller Percocet on the
forms and that they then sold the prescriptions to buyers for about
$300 per prescription. (Percocet is the brand name of a chemical
combination of oxycodone (a Schedule II controlled substance
available only by prescription, see 21 U.S.C. § 829(a)) and
acetaminophen. The generic name of Percocet is Roxicet. The brand
name of oxycodone in time-release form is Oxycontin.
Jackson sold the Percocet to buyers such as David Zubres
who came to her home. Zubres testified that when he did not have
money to pay, Jackson let him earn some of the drug by carrying
multiple Percocet prescriptions into a pharmacy to be filled. For
3
this purpose Jackson sent Zubres to one pharmacy only: the Hremt
Pharmacy, owned and operated by Ereme, a licensed pharmacist.
Zubres expressed worries to Jackson about presenting numerous
prescriptions to be filled at a single time. But Jackson assured
him that service at the Hremt Pharmacy "won't be any problem,
shouldn't be any problem," and that the pharmacy would likely
assume Zubres was merely a courier delivering the filled
prescriptions to bed-ridden people who could not go to the pharmacy
themselves.
A woman who at the time worked as a pharmacy technician
at Hremt Pharmacy, Roselyn Odom-Fauntleroy, noticed that patients
were bringing in prescriptions from Dr. Nemati for Percocet and
Oxycontin "in groups," which was unusual. Ereme told her not to
worry about these prescriptions, assured her that their
authenticity had already been verified, and instructed her to fill
them.
In 1999 the U.S. Drug Enforcement Agency began
investigating the Hremt Pharmacy. Drug enforcement agents
executing a search warrant at the pharmacy in November 2000 and in
March 2002 retrieved 687 prescriptions on forms from Dr. Nemati.
A document examiner from the U.S. Secret Service concluded that
Jackson probably filled out the patient information for 651 of the
forms in the name of 66 different patients. A drug enforcement
4
agent testified that the prescriptions were for a total of 48,035
pills of drugs, including Oxycontin, that contained oxycodone.
B.
At the close of the government's case-in-chief, Jackson
moved for judgment of acquittal. She contended that no direct
evidence connected Jackson to Ereme, contrary to the allegation in
the conspiracy count. The district court denied the motion. After
instructing the jury on the law to be applied (including the law
concerning a single conspiracy), the district court asked whether
the parties had any suggested corrections or identified any
omissions. The government and Jackson said they had neither. At
the conclusion of closing arguments, however, defense counsel
sought an instruction on multiple conspiracies on the asserted
ground that the government had "charged a different conspiracy in
the indictment." J.A. 540. The district court denied the request.
The jury found Jackson guilty on all counts. The jury
specifically found that the conspiracy involved 135 grams of
Oxycontin pills and 25,527.6 grams of pills containing oxycodone.
The district court then convened the jury to make special findings
for sentencing. The jury found that Jackson had not been "a leader
or organizer in criminal activity which involved five or more
participants or was otherwise extensive," USSG § 3B1.1(a), but that
5
she had been a "manager or supervisor" in such activity, USSG
§ 3B1.1(b). J.A. 578.
At sentencing the government agreed that the Guidelines
required focusing not on the total weight of the pills but on the
weight of the active ingredient oxycodone in those pills,
generating a base offense level of 32. Notwithstanding the jury's
determination, the government sought a judicial finding that
Jackson had been a USSG § 3B1.1(a) "leader or organizer," requiring
a four-level increase in Jackson's offense level to 36, and the
district court agreed. The district court then declined Jackson's
request for a downward departure based on her medical condition and
responsibility for the care of a disabled son.
With a criminal history category of I and offense level
of 36, the Guidelines sentence range for Jackson was 188 to 235
months. (Had Jackson's base offense level been increased by only
three levels under the jury's "manager or supervisor" finding, the
range would have been 168 to 210 months.). The district court
sentenced Jackson to 188 months on the conspiracy count and an
additional 12 months on Count Two (acquisition of a controlled
substance by fraud, 21 U.S.C. § 843(a)(3)), with sentences on all
other counts to run concurrently.
6
II.
On appeal Jackson challenges her conviction on the
conspiracy count. She argues that the government failed to present
evidence at trial connecting Jackson to Ereme, even though the
indictment alleged a conspiracy between Ereme, Jackson, and Rodney.
Jackson contends that this is a contradiction presenting grounds
for either (a) reversing her conviction because the evidence
presented at trial constructively amended the indictment, or (b)
ordering a new trial because the district court did not give the
multiple conspiracy instruction Jackson sought.
A.
Jackson first alleges that the evidence at trial
constructively amended the indictment. The Fifth Amendment
provides: "No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of
a Grand Jury . . . ." U.S. Const. amend. V. "When the government,
through its presentation of evidence and/or its argument, or the
district court, through its instructions to the jury, or both,
broadens the bases for conviction beyond those charged in the
indictment, a constructive amendment . . . occurs." United States
v. Randall, 171 F.3d 195, 203 (4th Cir. 1999). "[A] constructive
amendment violates the Fifth Amendment right to be indicted by a
grand jury, is error per se, and must be corrected on appeal even
7
when the defendant did not preserve the issue by objection." Id.
In contrast, "[w]hen different evidence is presented at trial but
the evidence does not alter the crime charged in the indictment, a
mere variance occurs. A mere variance does not violate a
defendant's constitutional rights unless it prejudices the
defendant either by surprising him at trial and hindering the
preparation of his defense, or by exposing him to the danger of a
second prosecution for the same offense." Id. (citations omitted).
We must ascertain whether Jackson faced a constructive
amendment or a mere variance, of course, only if there was a
divergence between the evidence presented at trial and the grand
jury's indictment. Jackson presupposes that when an indictment
alleges the existence of a single conspiracy between multiple
defendants, if direct trial evidence does not show express
agreement between all of the defendants, then there must be
multiple conspiracies at work and hence a constructive amendment.
This presupposition is mistaken. To prove a single
conspiracy under 21 U.S.C. § 846, the government must prove an
agreement to violate a federal drug law, the defendant's knowledge
of the conspiracy, and the defendant's willing participation.
United States v. Strickland, 245 F.3d 368, 384-85 (4th Cir. 2001).
"By its very nature, a conspiracy is clandestine and covert,
thereby frequently resulting in little direct evidence of such an
agreement." United States v. Burgos, 94 F.3d 849, 857 (4th Cir.
8
1996) (en banc). "Participation in a criminal conspiracy need not
be proved by direct evidence; a common purpose and plan may be
inferred from a development and a collocation of circumstances."
Glasser v. United States, 315 U.S. 60, 80 (1942) (punctuation
omitted).
Here, the government introduced ample evidence from which
the jury could infer that Jackson and Ereme were co-conspirators
even though there was no evidence of a meeting or communication
between them. Moran testified that Jackson used Dr. Nemati's
prescription forms; Zubres testified that Jackson repeatedly sent
him with batches of prescription forms to the Hremt Pharmacy; Odom-
Fauntleroy testified that Ereme instructed her not to worry about
verifying the unusually grouped prescriptions coming in on Dr.
Nemati's forms.
The jury could reasonably have inferred from this
"collocation of circumstances" that Jackson was guilty beyond a
reasonable doubt of a single conspiracy, namely, the very
conspiracy alleged in the indictment. The trial evidence did not
differ from the indictment’s allegations. We conclude that the
district court correctly denied Jackson's motion for judgment of
acquittal and that Jackson's allegation of a constructive amendment
is not supported by the facts or the law.
9
B.
Jackson next contends that she was entitled to a jury
instruction on the law of multiple conspiracies. "The standard of
review for determining whether the district court should have given
a jury instruction is abuse of discretion." United States v. Ruhe,
191 F.3d 376, 384 (4th Cir. 1999). "A district court's refusal to
provide an instruction requested by a defendant constitutes
reversible error only if the instruction: (1) was correct; (2) was
not substantially covered by the court's charge to the jury; and
(3) dealt with some point in the trial so important, that failure
to give the requested instruction seriously impaired the
defendant's ability to conduct his defense." United States v.
Lewis, 53 F.3d 29, 32 (4th Cir. 1995) (punctuation omitted).
Our standard for measuring the need for a multiple
conspiracy instruction is well established. Such an instruction
"is not required unless the proof at trial demonstrates that
appellants were involved only in separate conspiracies unrelated to
the overall conspiracy charged in the indictment." United States
v. Squillacote, 221 F.3d 542, 574 (4th Cir. 2000). "A single
conspiracy exists where there is one overall agreement, or one
general business venture. Whether there is a single conspiracy or
multiple conspiracies depends upon the overlap of key actors,
methods, and goals." Id.
10
Here, as we have already explained, there was on the one
hand substantial evidence supporting the jury’s finding that
Jackson was culpable in the single conspiracy alleged in the grand
jury indictment. On the other hand, Jackson fails to identify any
evidence in the record that would support the existence of any
conspiracies not related to the one charged in the indictment.
Accordingly, there was no demonstrated basis for giving a multiple
conspiracy instruction, and the district court's decision not to
give the instruction was within its discretion.
III.
Finally, Jackson alleges that her sentence contravened
Booker. Under Booker there are two types of sentencing errors.
First, "a sentencing court commits Sixth Amendment error if it
enhances a sentence beyond the maximum authorized by facts found by
a jury beyond a reasonable doubt or admitted by the defendant."
United States v. Rodriguez, 433 F.3d 411 (4th Cir. 2006). This is
because the Sixth Amendment guarantees that "[i]n all criminal
prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury . . . ." U.S. Const. amend. VI.
Second, "[a] court commits statutory error if it treats the
Guidelines as mandatory, rather than as advisory." Rodriguez, 433
F.3d at 414.
11
Jackson claims that when the district court relied on its
own finding that Jackson was a USSG § 3B1.1(a) "leader or
organizer" (and not, as the jury found, a USSG § 3B1.1(b) "manager
or supervisor"), the district court committed constitutional Booker
error because it increased her base offense level by one level more
than was allowed under the jury-found facts. This argument
misconstrues Booker's constitutional analysis, which focuses on the
actual sentence imposed, not on the offense level used in computing
the Guidelines sentence. See United States v. Hughes, 401 F.3d
540, 547 (4th Cir. 2005) ("In Booker, the Court ruled that a
sentence exceeding the maximum allowed based only on the facts
found by the jury violates the Sixth Amendment.") (emphasis added).
Here, on the facts found by the jury, Jackson was eligible for a
sentence on the conspiracy count of 168 to 210 months. The actual
sentence imposed was 188 months for the conspiracy count.
Jackson's sentence, in other words, fell short of the 210-month
maximum that the district court could have imposed based solely
upon the jury's determinations. Thus, there was no constitutional
Booker error.
Jackson also contends that the district court committed
statutory Booker error by treating the Sentencing Guidelines as
mandatory, not advisory. She made her objection to the sentencing
proceedings known to the district court by citing Blakely v.
Washington, 542 U.S. 296 (2004). This objection "plainly notified
12
the court of [her] position that [she] was being sentenced
illegally, and [she] identified the line of Supreme Court precedent
upon which [she] now relies." Rodriguez, 433 F.3d at 416.
Consequently, we review the claim for harmless error, under which
the burden is on the government "to show that such an error did not
affect the defendant's substantial rights." Id. Thus, it is not
Jackson’s burden to establish that but for the district court’s
mandatory application of the Guidelines, she would have received a
more lenient sentence. The district court's silence on how it
would apply the factors in 18 U.S.C. § 3553(a) in ascertaining a
proper sentence for Jackson must be construed in Jackson's favor.
Id. Because the government has not satisfied its burden to show
that the error was harmless, Jackson is entitled to be resentenced.
IV.
For the foregoing reasons, we affirm Jackson's conviction
but vacate her sentence and remand for resentencing. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court, and
argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
13