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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-16762
Non-Argument Calendar
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D.C. Docket No. 2:15-cr-00335-RDP-TFM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS RENALDO WARE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Alabama
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(October 3, 2017)
Before HULL, WILSON and WILLIAM PRYOR, Circuit Judges.
PER CURIAM:
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Carlos Ware appeals his sentence of 294 months of imprisonment following
his pleas of guilty to one count of conspiring to distribute cocaine, 21 U.S.C.
§§ 841(a)(1), 846; five counts of using a communication facility unlawfully, id.
§ 843(b); 18 U.S.C. § 2; and one count each of attempting to possess with intent to
distribute five kilograms of cocaine, of possessing with intent to distribute 500
grams of cocaine, and of possessing with intent to distribute a detectable amount of
cocaine, id., 21 U.S.C. § 841(a)(1). Ware contests being held accountable for more
than 50 kilograms of cocaine, see United States Sentencing Guidelines Manual
§ 2D1.1(c) (Nov. 2015); the addition of two points to his criminal history score for
committing his offense while under a criminal justice sentence, see id. § 4A1.1(d);
and the addition of four levels for his aggravating role, see id. § 3B1.1(a). Ware
also argues that his sentence is substantively unreasonable. We affirm.
The district court did not clearly err in attributing to Ware more than 50
kilograms of cocaine. During Ware’s sentencing hearing, Carlos Bogan testified
that, from May 2014 to May 2015, he sold Ware “[t]wo to four kilo[gram]s” of
cocaine every “two or three weeks”; in May 2015, he negotiated to sell Ware an
additional nine kilograms of cocaine; and between May 2015 and August 2015, he
supplied Ware with indeterminate quantities of cocaine on more than one occasion.
Based on Bogan’s testimony, excluding the nine kilograms and indeterminate
transactions, Ware acquired an average of three kilograms of cocaine every three
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weeks, which totaled 52 kilograms of cocaine. See United States v. Almedina, 686
F.3d 1312, 1315–16 (11th Cir. 2012). The district court made a “fair, accurate, and
conservative estimate[]” of the quantity of cocaine for which Ware was
responsible. See United States v. Zapata, 139 F.3d 1355, 1359 (11th Cir. 1998).
The district court committed no error when it assigned Ware a base offense level of
34 based on his acquisition of more than 50 kilograms but less than 150 kilograms
of cocaine. See U.S.S.G. § 2D1.1(c)(3).
The district court also did not clearly err by finding that Ware engaged in
conduct relevant to his conspiracy offense while completing his sentence for
conspiring to distribute cocaine and for carrying a firearm during a drug trafficking
offense. See id. § 4A1.1(d). Under the guidelines, the district court could hold
Ware responsible for all acts that were part of a “common scheme or plan as the
offense of conviction.” See id. § 1B1.3(a)(2). Offenses are part of a common
scheme or plan when they are “substantially connected to each other by at least one
common factor, such as common victims, common accomplices, common purpose,
or similar modus operandi.” Id. § 1B1.3, cmt. n.5(B)(i). Ware purchased ecstasy
and half of a kilogram of cocaine from Bogan in 2007 and 2008, when Ware was
on supervised release. As the district court stated, Ware’s conspiracy and earlier
drug purchases involved Bogan as a “common accomplice”; they had a “common
modus operandi” in that “Ware would go to Atlanta, acquire the narcotics, [and]
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bring them back to Montgomery for distribution and resale”; and the offenses had
“a common scheme” because “the purpose of all [the] transactions” was for the
two men to “profit from drug transactions and the drugs coming in from Atlanta.”
Ware argues that the district court failed to account for the long interval between
his transactions with Bogan, but the guidelines use temporal proximity as a factor
in determining whether offenses are part of the same course of conduct, id. § 1B1.3
cmt. n.5(B)(ii), not in determining whether they constitute a common scheme or
plan, id. § 1B1.3 cmt. n.5(B)(i). Because Ware’s conduct occurred “while under a[]
criminal justice sentence” and shared a common pattern and purpose with his
“instant offense,” he was subject to a two-point increase in his criminal history
score. See id. § 4A1.1(d). Unlike in United States v. Maxwell, 34 F.3d 1006 (11th
Cir. 1004), where a defendant’s single sale of cocaine made one year before being
arrested for participating in a scheme to distribute dilaudid did not count as
relevant conduct, id. at 1011, the similarities in Ware’s offenses established that
they were substantially related.
Ample evidence supported the decision to increase Ware’s offense level for
his role as a leader of the conspiracy. See id. § 3B1.1(a). Ware did not dispute that
the conspiracy involved more than five people. He had to assert control over only
one other participant to constitute a leader, and Ware concedes that he exercised
control over his brother, Twayne Ware, and two coconspirators, Alonzo Prevo and
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Kyon Hall. See id. § 3B1.1 cmt. n.2 & 4. Ware managed the amount of drugs for
the conspiracy by purchasing kilogram quantities of cocaine from Bogan in
Atlanta, Georgia, and transporting the drugs to Montgomery, Alabama. Ware also
exercised substantial control over the conspiracy by selecting who distributed and
sold the cocaine and by arranging drug sales. Ware also directed his brother, Prevo,
Hall, Wallace McCree, Shaffer Wright, and James Hawkins how much and to
whom to sell cocaine; he monitored their transactions; he instructed Wright,
McCree, and Hawkins to cook powder cocaine into cocaine base; and he ordered
his brother to weigh, allocate, and deliver cocaine to stash houses and distributors
in Montgomery. The district court did not clearly err in finding that Ware led the
conspiracy.
The district court did not abuse its discretion by imposing a sentence within
the advisory guidelines range. Ware controlled a conspiracy involving at least ten
other participants who distributed large quantities of cocaine. Ware may have, in
his words, had a “limited criminal history,” but that was in large part due to his
lengthy incarceration as a young adult for conspiring to traffic the same illegal
substance while carrying a firearm. With an offense level of 37 and criminal
history of III, Ware faced a sentencing range of 262 to 327 months. The district
court reasonably determined that a “midrange sentence . . . of 294 months” was
required to address Ware’s “history and characteristics” and “the circumstances of
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[his] offense,” which involved leading a “very extensive drug conspiracy.” See 18
U.S.C. § 3553(a); United States v. Frazier, 823 F.3d 1329, 1333 (11th Cir. 2016)
(“The district court has discretion to determine how much weight to grant to a
specific § 3553(a) factor.”). Ware argues that the district court failed to consider
his background and family responsibilities, but the district court found that
information “cut both ways, in that [Ware] saw the strife, personal despair, and
other ails of life [involving substance abuse and those who deal drugs,] and
pursued it anyway.” Ware’s sentence, which is well below his statutory maximum
penalty of life imprisonment, is reasonable. See United States v. Gonzalez, 550
F.3d 1319, 1324 (11th Cir. 2008).
We AFFIRM Ware’s sentence.
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