[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 4, 2010
No. 08-10463
JOHN LEY
________________________
CLERK
D. C. Docket No. 06-00026-CR-BAE-6
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BETTY BACON,
SHEIKEL JAMISON,
MISTRELL ALVIN,
ANDREA FRANKLIN,
JESSICA ROBERTS,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Georgia
_________________________
(March 4, 2010)
Before TJOFLAT, BARKETT and KRAVITCH, Circuit Judges.
PER CURIAM:
Mistrell Alvin, Betty Bacon, Andrea Franklin, Sheikel Jamison, and Jessica
Roberts raise various challenges to their convictions and sentences under 21 U.S.C.
§§ 841(b) and 846. Based upon a thorough review of the record and after oral
argument, we affirm with one exception: we vacate Jamison’s sentence and remand
for further proceedings consistent with this opinion.
I. Background
Defendants-appellants, together with 30 others, were charged with
conspiracy to possess and distribute cocaine as part of an organization headed by
Julius Pinkston. Pinkston initially cooperated with the government, admitting his
culpability and that of his co-conspirators in his debriefing. Soon afterward,
however, Pinkston fled. All but the five appellants in this case pleaded guilty.
At trial, the government presented the testimony of 14 co-defendants and
several police agents as well as the recordings of intercepted phone calls from three
wiretaps. The government alleged that Alvin acted as a courier for the
organization and frequently delivered drugs to Bacon, his mother, who stored them
at her home. The government also alleged that Roberts, Alvin’s girlfriend and later
wife, drove Alvin to a drug exchange. Finally, the government alleged that
Franklin, Pinkston’s girlfriend, and Jamison were involved in the distribution of
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drugs.
The jury convicted these five defendants of conspiracy to possess cocaine
with the intent to distribute and made a special finding that the conspiracy involved
50 grams or more of cocaine base, or 5 kilograms or more of cocaine
hydrochloride. Franklin, Jamison, and Roberts appeal their convictions,
challenging the sufficiency of the evidence for conviction.1 Alvin, Bacon,
Jamison, and Roberts argue that the court plainly erred in sentencing.
II. Discussion
A. Sufficiency of the Evidence Claims
Franklin, Jamison, and Roberts argue that the government did not present
sufficient evidence to support their convictions. We review challenges to
sufficiency of the evidence de novo, viewing the evidence in the light most
favorable to the government and drawing all reasonable inferences and credibility
choices in the government’s favor. United States v. Mercer, 541 F.3d 1070, 1074
(11th Cir. 2008). “[T]he question is whether reasonable minds could have found
guilt beyond a reasonable doubt, not whether reasonable minds must have found
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Alvin, Bacon, Jamison, and Roberts also challenge their convictions on numerous
evidentiary grounds. We review their challenge to the court’s limitation on cross examination
for an abuse of discretion, United States v. Burke, 738 F.2d 1225, 1227 (11th Cir. 1984), and
review the remainder of their challenges for plain error because the defendants object for the first
time on appeal. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). Our review of
the record reveals neither abuse of discretion nor plain error, and we need not discuss these
challenges in further detail.
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guilt beyond a reasonable doubt.” United States v. Ellisor, 522 F.3d 1255, 1271
(11th Cir. 2008). The jury is free to draw between reasonable interpretations of the
evidence presented at trial. United States v. Browne, 505 F.3d 1229, 1253 (11th
Cir. 2007).
To prove Franklin’s participation in the conspiracy, the government
presented evidence from 13 telephone conversations and the testimony of five
witnesses. Franklin argues that the telephone evidence was circumstantial and the
witness testimony was biased. She claims that her testimony is the only
“consistent and credible account of the events surrounding her involvement.” The
jury, however, was entitled to find the government’s case convincing and the
government witnesses credible. Finally, because Franklin testified, the jury was
free to disbelieve her and consider her statements as untruthful and as substantive
evidence of her guilt. United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995).
Construing the evidence in the light most favorable to the government, we
therefore conclude that the government presented sufficient evidence to convict
Franklin.
To establish Jamison’s role as a distributor in Pinkston’s organization, the
government presented intercepted telephone conversations and the testimony of
two witnesses. Jamison argues that this evidence was only sufficient to establish
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that he was in a buyer-seller relationship with Pinkston and, therefore, was not
sufficient to support his conviction. See United States v. Dekle, 165 F.3d 826, 829
(11th Cir. 1999) (holding that the joint objective necessary for a conspiracy
conviction “is missing where the conspiracy is based simply on an agreement
between a buyer and a seller for the sale of drugs.”).
Wiretap evidence showed that Jamison made repeated phone calls to
Pinkston and others complaining that he could not reach Alvin when he was
returning with drugs from Atlanta. It also showed that Jamison employed the term
“four-way,” likely a code name for the conspiracy to distribute 4.5 ounces of
cocaine. Furthermore, two witnesses testified that Jamison was highly involved in
the drug operation. Finally, Jamison’s drug transactions were larger than those that
an ordinary buyer would make: he bought 125 to 250 grams of cocaine at a price
that was one quarter of the market price per gram. From this evidence, the jurors
could reasonably infer that Jamison was a distributor, and we conclude that the
evidence was sufficient to convict Jamison.
To prove Roberts’s role in aiding and abetting the conspiracy by driving
Alvin to a drug exchange, the government presented both wiretap evidence and the
testimony of Stephanie Collins, Pinkston’s daughter. Roberts argues that she was
merely present at the drug exchange and that “there simply was not evidence to
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show that [she], with knowledge of the criminal purpose of her husband’s alleged
role in the conspiracy, wilfully joined it.”
Collins testified that Roberts drove Alvin and her baby more than 180 miles,
stopped on the side of the road, spoke normally with Collins while Collins and
Alvin transferred drugs wrapped in black electrical tape from underneath Roberts’
baby’s seat and behind the back seat, and then drove home. Wiretap evidence
revealed telephone calls describing frequent attempts to contact both Roberts and
Alvin to find out whether they were on the way to make the drug exchange. In one
of those calls, Collins asked Pinkston, “who[’s] suppose[d] to take care of them on
the chips?” Collins later testified that this was a reference to paying both of them
for the drug transfer.
To establish Roberts’ guilt, “the evidence must show that the conspiracy
occurred, and that the defendant associated [herself] with a criminal venture,
participated in it as something [she] wished to bring about, and sought by [her]
actions to make it succeed.” United States v. High, 117 F.3d 464, 468 (11th Cir.
1997). Viewing the evidence in the light most favorable to the government, the
jury reasonably could have inferred Roberts’ participation in the conspiracy from
the phone calls trying to reach her, Pinkston’s reference to taking care of “them,”
the fact that she chatted normally with Collins while drugs were being taken out of
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the car, and that she drove more than 360 miles round trip with no other destination
than the drug exchange. Furthermore, the jury twice was instructed on mere
presence but still convicted Roberts; therefore, we can “infer that the jury
considered the defense raised by [Roberts] and found it unpersuasive.” United
States v. Walker, 720 F.2d 1527, 1538 n.6 (11th Cir. 1983). In addition, although
mere presence is insufficient to support a conviction for conspiracy, the jury is
permitted to consider presence as a probative factor in determining whether the
defendant knowingly and intentionally participated in a criminal scheme. United
States v. Hernandez, 433 F.3d 1328, 1333 (11th Cir. 2005). Thus, we conclude
that the evidence was sufficient to support Roberts’ conviction.
B. Sentencing Claims
Alvin, Bacon, Roberts, and Jamison appeal their sentences. Because the
defendants did not raise any of these arguments before the district court, we review
for plain error. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000).
To establish plain error, the defendants bear the burden of showing that there was
an “(1) error, (2) that is plain and (3) that affects substantial rights. If all three
conditions are met, [we] may then exercise . . . 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. Turner, 474 F.3d 1265, 1276
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(11th Cir. 2007) (quoting United States v. Monroe, 353 F.3d 1346, 1349 (11th Cir.
2003)). An error is “plain” if “it is obvious and clear under current law.” United
States v. Eckhardt, 466 F.3d 938, 948 (11th Cir. 2006).
Alvin, Bacon, and Roberts argue that the court should have granted them
role reductions for sentencing purposes. Role adjustment determinations involve
“a determination that is heavily dependent upon the facts of a particular case.”
U.S.S.G. § 3B1.2. comment. (n.3(C)). After weighing the totality of the
circumstances, we conclude that the trial judge did not make an error that was
obvious and clear under current law and we therefore affirm their sentences.
Jamison argues that the district court plainly erred by sentencing him to the
10-year mandatory minimum based on the jury’s special verdict that the conspiracy
was responsible for more than 5 kilograms of cocaine. See 21 U.S.C. § 841(b)
(requiring a person convicted of conspiracy to distribute more than 5 kilograms of
cocaine to receive a sentence of at least 120 months). In support, Jamison points
out that the court of appeals for eight circuits have held that sentences must
correspond to the quantity of drugs attributable to each individual defendant in
drug conspiracy cases. See United States v. Colon-Solis, 354 F.3d 101 (1st Cir.
2004); United States v. Swiney, 203 F.3d 397, 405 (6th Cir. 2000); United States v.
Ruiz, 43 F.3d 985, 992 (5th Cir. 1995); United States v. Young, 997 F.2d 1204 (7th
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Cir. 1993); United States v. Becerra, 992 F.2d 960, 966 n.2 (9th Cir. 1993); United
States v. Martinez, 987 F.2d 920, 926 (2d Cir. 1993); United States v. Irvin, 2 F.3d
72, 77-78 (4th Cir. 1993); United States v. Jones, 965 F.2d 1507 (8th Cir. 1992).
The government argues that the Eleventh Circuit has not joined this approach,
however, and therefore it is not clear under current law that the district court erred
when it sentenced Jamison based on the total quantity of drugs involved in the
conspiracy rather than the amount individually attributed to him.
In United States v. Chitty, we vacated a sentence based on the mandatory
minimum for the amount of drugs attributed to the conspiracy and remanded for re-
sentencing based on the amount of drugs reasonably foreseeable to the individual
defendant. 15 F.3d 159 (11th Cir. 1994). In a decision that was vacated by the
Supreme Court but was later reinstated in an unpublished opinion on remand, we
stated “that Chitty is consistent with the decisions of our sister circuits that have
considered this issue” and concluded that “[t]he rule . . . is that, in determining a
defendant’s penalty under 21 U.S.C. § 846, the drug quantity must be reasonably
foreseeable to that defendant where the effect of the quantity is to require
imposition of a statutory mandatory minimum sentence.” United States v. O’Neal,
362 F.3d 1310, 1315-16 (11th Cir. 2004).2 We further concluded that a special
2
O’Neal was vacated by the Supreme Court in Sapp v. United States, 543 U.S. 1106
(2005) and 543 U.S. 1107 (2005) but was reinstated in an unpublished decision, 154 Fed. Appx.
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jury verdict should not be automatically applied to each defendant and that the
failure of the district court to use the reasonable foreseeability test in its sentencing
determination under § 846 was “plain error.” Id. at 1316. We reaffirm this
precedent and hold that, when a defendant is convicted of participating in a drug-
trafficking conspiracy under 21 U.S.C. § 846, the court must sentence the
defendant based on an individualized finding, supportable by a preponderance of
the evidence, as to the drug quantity foreseeable by that defendant.
Thus, the district court plainly erred in sentencing Jamison. This error both
affected Jamison’s substantial rights and threatened the integrity of the
proceedings: sentencing him based on an individualized attribution could both
reduce the length of his sentence and alleviate gross injustice in sentencing. We
therefore vacate Jamison’s sentence and remand to the district court for re-
sentencing consistent with this opinion.
III. Conclusion
Accordingly, the convictions of all the defendants and the sentences of
Alvin, Bacon, and Roberts are affirmed. Jamison’s sentence is vacated and his
case is remanded for re-sentencing.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
161 (11th Cir. 2005).
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