[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 2, 2008
No. 07-13048 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00010-CR-5-RS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGELA CRISHAWNA WRIGHT,
a.k.a. Shay,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 2, 2008)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Angela Crishawna Wright appeals her conviction and sentence for
conspiracy to distribute and to possess with intent to distribute cocaine, in violation
of 21 U.S.C. §§ 841(b)(1)(A)(ii), 841(b)(1)(A)(iii), 846. Wright argues that there
was a prejudicial variance between the indictment and the evidence at trial because
the indictment alleged only one conspiracy, but the evidence demonstrated many
individual conspiracies. She contends that no reasonable jury could have found a
unitary conspiracy on the facts presented.
“The standard of review for whether there is a material variance between the
allegations in the indictment and the facts established at trial is twofold: First,
whether a material variance did occur, and, second, whether the defendant suffered
substantial prejudice as a result.” United States v. Chastain, 198 F.3d 1338, 1349
(11th Cir. 1999). However, Wright did not present this multi-conspiracy argument
below and, therefore, it is reviewed only for plain error. United States v. Hall, 314
F.3d 565, 566 (11th Cir. 2002). “Plain error occurs where (1) there is an error;
(2) that is plain or obvious; (3) affecting the defendant's substantial rights in that it
was prejudicial and not harmless; and (4) that seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.” Id.
Having reviewed the record, we find that there was sufficient evidence for
the jury to conclude that there was a single conspiracy. Accordingly, we find no
error, much less plain error.
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With reference to her sentence, Wright argues that the district court clearly
erred in assessing a three-level aggravating-role enhancement because she did not
manage or supervise anyone or any part of the criminal activity involved. She
argues that her role in the offense was only that of a broker.
A defendant’s role in the offense is a factual determination that we review
for clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en
banc). Testimony at trial demonstrated that Wright’s actions could be construed as
directing the division of cocaine among various dealers, recruiting accomplices,
participating in planning and organizing and directing the actions of Randall
Randolph’s involvement in the conspiracy. An aggravating role enhancement does
not require that a defendant act as a manager or supervisor of the entire conspiracy,
or even large portions of it, only that she act as the manager or supervisor of at
least one person. U.S.S.G. § 4B1.1, comment. (n.2). Based on the testimony
before the court, we cannot say that the district court erred in applying this
aggravating role enhancement.
Wright also argues that the district court clearly erred in determining the
drug quantity for which she was responsible. Wright lodges various challenges to
four different quantities of cocaine for which she was held accountable, arguing
that she was only responsible for 47 kilograms of cocaine, rather than 76 kilograms
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which the district court attributed to her. Six of the kilograms attributed to her
were based on the testimony of Nakeesha Lawton. Wright concedes that she was
responsible 3 of these 6 kilograms, contesting the attribution of the other 3
kilograms because Lawton only testified about the delivery of three kilograms.
We cannot say that the district clearly erred in holding Wright responsible for six
kilograms based on Lawton's testimony. As Wright concedes, the first three of
these kilograms are based on a kilogram of cocaine that Lawton observed Lee
delivering to Wright and two kilograms that Lawton personally delivered to
Wright, on behalf of Lee. In addition, Lawton testified that she was supposed to
deliver two kilograms of cocaine to Wright on the day that Lawton and Lee were
arrested and that on several prior occasions, Lee indicated that he was on his way
to take kilogram quantities of cocaine to Wright. As the government observes, a
defendant can be held responsible for drugs that she had agreed to purchase, even
if the purchase was not completed. See U.S.S.G. section 2D1.1, comment. (n.12).
Therefore, the district court did not clearly err in finding Wright responsible for the
6 kilograms of cocaine based on Lawton’s testimony.
These additional 3 kilograms, when combined with the 47 conceded by
Wright, are sufficient to support the sentence imposed because they place Wright
at the offense level and guidelines range used by the district court. A defendant is
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assigned a base offense level of 36 where she was responsible for at least 50, but
less than 150, kilograms of cocaine. U.S.S.G. section 2D1.1(c)(2). The district
court applied this base offense level to Wright, holding her responsible for 76
kilograms of cocaine. The additional 3 kilograms, when combined with the 47
Wright concedes, would place Wright in the offense level where the district court
sentenced her, regardless of the other 26 contested kilograms.
AFFIRMED.
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