[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
AUGUST 14, 2007
No. 06-16113 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00045-CR-5-RS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODDERICK TRINARD DAVIS,
a.k.a. Rod,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(August 14, 2007)
Before TJOFLAT, CARNES and HULL, Circuit Judges.
PER CURIAM:
Rodderick Davis appeals his conviction and 266-month sentence for
conspiracy to distribute 50 grams or more of cocaine base and 5 kilograms or more
of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A)(ii)–(iii), and 846. We affirm.
Davis first contends that the district court’s failure to enter judgment for him
based on a material variance between the single conspiracy charged in the
indictment and the proof at trial of multiple conspiracies was plain error. “An
appellate court may not correct an error the defendant failed to raise in the district
court unless there is: (1) error, (2) that is plain, and (3) that affects substantial
rights. If all three conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (citations and quotations
omitted). Here, we find no error at all in the court’s decision not to enter judgment
for Davis.
“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. Alred, 144 F.3d 1405, 1414
(11th Cir. 1998) (citations and quotations omitted). “[T]he arguable existence of
multiple conspiracies does not constitute a material variance from the indictment if,
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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.” Id.
There are three relevant factors for determining whether a single conspiracy
existed: (1) whether there was a common goal; (2) the nature of the scheme; and
(3) the overlap of participants. Id. “In finding a single conspiracy, 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). “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. (citations omitted).
We also have explained that, “to prove a single, unified conspiracy as
opposed to a series of smaller, uncoordinated conspiracies, the government must
show an interdependence among the alleged co-conspirators.” United States v.
Chandler, 388 F.3d 796, 811 (11th Cir. 2004). Separate transactions do not
constitute separate conspiracies “so long as the conspirators act in concert to
further a common goal.” Id. (emphasis omitted).
“It is often possible, especially with drug conspiracies, to divide a single
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conspiracy into sub-agreements . . . . This does not, however, mean that more than
one conspiracy exists. The key is to determine whether the different sub-groups
are acting in furtherance of one overarching plan.” United States v. Calderon, 127
F.3d 1314, 1329 (11th Cir. 1997) (quotation omitted). Moreover, “[t]he fact that
various defendants entered the conspiracy at different times . . . performed
different functions [and] . . . participated in numerous separate transactions does
not convert a single conspiracy to multiple conspiracies.” Id. (citation omitted,
alteration in original).
In this case, the evidence at trial proved the sole charge of the
indictment—that Davis was involved in a conspiracy with Bruce Falson, Trevin
Nunnally, and “other people” to distribute cocaine from 2000 to 2005. The
government presented testimony that a core group of “other” co-
conspirators—Donta Spurlin, Corey Smith, and Marvin Newsome, and, to a lesser
extent, Saderrick Noird and Perry Wilson—participated in a common plan from
2000 to 2005 to purchase powder cocaine, convert it into crack cocaine, and sell
the crack cocaine to willing purchasers. The evidence also established that Davis
supplied his co-conspirators with the powder cocaine from 2003 to 2005, within
the time frame alleged in the indictment.
Davis argues that he, Falson, and Nunnally didn’t participate in the
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conspiracy at the same time because some of them were arrested and in jail during
the alleged span of the conspiracy. However, the fact that all co-conspirators did
not participate in the conspiracy at the same time does not mean that there was no
single conspiracy to sell crack cocaine. As we said in Calderon, “[t]o find that the
evidence established a single conspiracy it is not necessary for each conspirator to
participate in every phase of the criminal venture, provided there is assent to
contribute to a common enterprise.” Calderon, 127 F.3d at 1329 (quotation
omitted); see also Taylor, 17 F.3d at 337 (“In finding a single conspiracy, 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.”).
Here, the government presented evidence establishing that the co-
conspirators had agreed on the common goal to purchase powder cocaine, turn it
into crack cocaine, and sell the crack cocaine to third parties. The evidence also
established that Davis provided the powder cocaine to further the conspiracy from
2003 to 2005, when he was indicted. Even if Davis entered the conspiracy after
others had exited, the government’s evidence established that he participated in the
conspiracy with the core group of Spurlin, Smith, and Newsome. Accordingly,
there was not a material variance between the single conspiracy alleged in the
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indictment and the government’s evidence at trial.
Davis next contends that the district court erred in allowing the government
to admit evidence of his prior marijuana distribution conviction. We review this
preserved challenge to the court’s decision to admit prior conviction evidence for
abuse of discretion. Calderon, 127 F.3d at 1331.
Under Fed. R. Evid. 404(b), prior conviction evidence is not admissible to
establish a “defendant’s character in order to show action in conformity therewith.
Such evidence is, however, admissible if it is relevant to other material issues in
that case.” Id. at 1330. We use a three part test to determine if evidence of a prior
conviction is admissible: (1) the conviction must be relevant to an issue other than
a defendant’s character; (2) the evidence must be sufficient to support a finding
that the defendant actually committed the extrinsic act; and (3) the probative value
of the evidence must not be substantially outweighed by unfair prejudice. Id.
“In every conspiracy case, . . . a not guilty plea renders the defendant’s intent
a material issue . . . . Evidence of such extrinsic offenses as may be probative of a
defendant’s state of mind is admissible unless [the defendant] ‘affirmatively takes
the issue of intent out of the case.’” United States v. Roberts, 619 F.2d 379, 383
(5th Cir. 1980) (alteration omitted).
Although the prior conviction has less probative value the longer between
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the extrinsic conviction and the charged offense, we have found that “[e]xtrinsic
offenses more remote than fifteen months have been properly admitted.” United
States v. Terebecki, 692 F.2d 1345, 1349 (11th Cir. 1982) (citations omitted). We
also have found Rule 404(b) evidence to be probative where the prior conviction
and the charged offense are “two to three years apart.” United States v. Hernandez,
896 F.2d 513, 522 (11th Cir. 1990) (quotation omitted); see also United States v.
Pollock, 926 F.2d 1044, 1047–49 (11th Cir. 1991) (concluding that a prior
conviction that was more than five years old was not too remote to be probative).
In addition, to the extent that evidence of the prior conviction might be prejudicial
to the defendant, the district court can mitigate the prejudice by giving a cautionary
instruction to the jury on the limited use of such evidence both when the evidence
was introduced and again at the close of trial. See Hernandez, 896 F.2d at 523.
Here, the evidence of Davis’ prior marijuana distribution conviction was
relevant to prove his intent to join the conspiracy. We have held that a prior
conviction increases the likelihood that the defendant intended to conspire to
commit similar subsequent criminal conduct. See Roberts, 619 F.2d at 383–84
(“Proof that Mr. Roberts had intentionally joined in a conspiracy to operate a
gambling business four years prior to his present participation in such an operation
increases the likelihood that he had conspired with others to establish and operate
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the gambling business.”); United States v. Beechum, 582 F.2d 898, 913 (5th Cir.
1978) (en banc) (“Once it is determined that the extrinsic offense requires the same
intent as the charged offense and that the jury could find that the defendant
committed the extrinsic offense, the evidence satisfies the first step under rule
404(b). The extrinsic offense is relevant (assuming the jury finds the defendant to
have committed it) to an issue other than propensity because it lessens the
likelihood that the defendant committed the charged offense with innocent
intent.”). Davis put his intent in issue by pleading not guilty to the present cocaine
distribution charge, and he never conceded the issue or did anything to take intent
off the table at trial.
The evidence was sufficient to establish that Davis actually committed the
prior offense. The government presented the testimony of the officer who stopped
Davis and the others in the car in which the marijuana was discovered and seized.
Moreover, the government introduced into evidence a certified copy of the
judgment of Davis’ marijuana distribution conviction.
Finally, the probative value of the extrinsic evidence is not substantially
outweighed by unfair prejudice. The officer testified that he seized the marijuana
in October 2002, which is within the time frame of the conspiracy charged in the
this case and within a few months of Davis joining the cocaine distribution
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conspiracy. Thus, the prior marijuana distribution conviction was not too
temporally remote to be probative. See Pollock, 926 F.2d at 1047–49; Hernandez,
896 F.2d at 522; Terebecki, 692 F.2d at 1349. To limit any prejudice to Davis, the
district court instructed the jury, both when the extrinsic evidence was admitted
and at the close of trial, to consider the prior conviction only for the purpose of
determining whether he had the necessary intent to join the conspiracy.
Accordingly, we conclude that the district court did not abuse its discretion
in admitting evidence regarding Davis’ prior marijuana distribution conviction
pursuant to Fed. R. Evid. 404(b).
Davis’ final contention is that the district court erred in enhancing his
sentence based on its finding regarding the amount of cocaine Davis sold to his co-
conspirators. According to Davis, the court’s drug-quantity finding violated his
Sixth Amendment rights, as interpreted by the Supreme Court in United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), because it was not based on evidence
admitted by him or found by a jury beyond a reasonable doubt.
We have held that “[w]hen the district court applies the Guidelines in an
advisory manner, nothing in Booker prohibits district courts from making, under a
preponderance-of-the-evidence standard, additional factual findings that go beyond
a defendant’s admissions.” United States v. Smith, 480 F.3d 1277, 1281 (11th Cir.
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2007). Here, the district court clearly stated that it was applying the sentencing
guidelines in an advisory manner. Thus, there was no Booker violation.1
AFFIRMED.
1
Davis contends for the first time in his reply brief that the Booker decision cannot be
reconciled with Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), or Cunningham v.
California, 549 U.S.__, 127 S. Ct. 856 (2007). We decline to address this contention, however,
since Davis did not raise it in his initial brief. See United States v. Levy, 416 F.3d 1273, 1276
n.3 (11th Cir. 2005) (“[T]his Court . . . declines to consider issues raised for the first time in an
appellant’s reply brief.”).
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