United States v. Westry

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
__________________________ April 16, 2008
THOMAS K. KAHN
No. 06-13847 CLERK
__________________________

D.C. Docket No. 05-00206–CR-006-WHS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CALVIN WESTRY,
a.k.a. Snap,
MACK DAVID WOODYARD,
WILLIE MERER HINTON,
a.k.a. Chill,
a.k.a. Chill Will,
WILLIE EARL CARTER JR.,
a.k.a. Bip,

Defendants-Appellants.

___________________________

Appeals from the United States District Court
for the Southern District of Alabama
____________________________

(April 16, 2008)
Before EDMONDSON, Chief Judge, WILSON, Circuit Judge, and ALTONAGA,*
District Judge.

PER CURIAM:

On February 24, 2006, a federal grand jury in the Southern District of

Alabama returned a Second Superseding Indictment charging Defendants, Calvin

Westry (“Westry”), Mack David Woodyard (“Woodyard”), Willie Merer Hinton

(“Hinton”), and Willie Earl Carter, Jr. (“Carter”), in Count One, with conspiring

with each other and other named Defendants1 from March 1998 to June 30, 2005,

to possess with intent to distribute Schedule I, II and III controlled substances, to-

wit: morphine; Oxycodone, commonly known as oxycontin; Hydrocodone,

commonly known as lortab; Hydromorphine, commonly known as dilaudid;

Methadone; and more than 50 grams of a mixture and substance containing a

detectable amount of cocaine base, commonly known as crack cocaine, in

violation of 21 U.S.C. §§ 841 and 846. The amount of crack cocaine was alleged

to exceed 50 grams, thereby subjecting Defendants to the penalty provision of 21

*
Honorable Cecilia M. Altonaga, United States District Judge for the Southern District of
Florida, sitting by designation.
1
The other Defendants were Rose Mary Westry, Leonard Edward Westry, Jr., Ashir
Abdullah Ibin Zuniga, Cynthia Denice Young, Christina Marie Hogue, Kingston Bodacious
Osborne, and Edward Kenneth Riley. With the exception of Osborne, all other Defendants pled
guilty before trial, and several testified for the government at the trial pursuant to written plea
agreements.

2
U.S.C. § 841(b)(1)(A). Count One also alleged the offense occurred within 1,000

feet of a school, subjecting Defendants to the penalty provisions of 21 U.S.C. §§

841(b)(1)(A) and 860(a) and (b). Furthermore, the enhanced penalty provision of

21 U.S.C. § 841(b)(1)(A) was alleged to apply, because the November 27, 2001

death of Jasen Johns (“Johns”) resulted from the use of controlled substances

distributed during the conspiracy.

Defendants were also charged with substantive offenses of possession with

the intent to distribute in violation of 21 U.S.C. §§ 860 and 841(a)(1), and 18

U.S.C. § 2. Westry was charged in Counts Eleven (Oxycodone) and Twelve

(Hydrocodone) with offenses committed on November 18, 2002; and in Counts

Thirty-One (Oxycodone) and Thirty-Two (Hydrocodone) with offenses committed

on June 30, 2005. Woodyard was charged in Counts Four (Oxycodone) and Five

(Oxycodone) with offenses committed on October 11, 2002 and October 12, 2002,

respectively. Hinton was charged in Count Ten (Oxycodone) with an offense

committed on November 16, 2002. Carter was charged in Count Fifteen

(Morphine) with an offense committed on February 18, 2003, and Count Twenty-

Four (crack cocaine) with an offense committed on January 6, 2005. All counts,

except Counts Ten, Eleven and Twelve, were alleged to have occurred within

1,000 feet of a school, subjecting those Defendants to the penalty provisions of 21

3
U.S.C. §§ 841(b)(1)(A), (B), (C) and (D), and 860(a) and (b). Counts Ten through

Twelve were alleged to have occurred within 1,000 feet of a public housing

facility, subjecting those Defendants to the penalty provisions of 21 U.S.C. §§

841(b)(1)(A), (B), (C), and (D), and 860(a) and (b).

Defendants appeal their convictions and sentences on Count One, following

a jury trial that commenced on March 6, 2006 and concluded on March 16, 2006.

As to Count One, the jury found that the amount of crack cocaine involved in the

conspiracy exceeded 50 grams, as charged; the Defendants were all members of

the conspiracy the day Jasen Johns died; and Johns’ death resulted from the use of

the controlled substances Defendants conspired to possess with the intent to

distribute. Westry also appeals his convictions and sentences on Counts Eleven

and Twelve, within 1,000 feet of a public housing facility; Woodyard appeals his

convictions and sentences on Counts Four and Five within 1,000 feet of a school;

Hinton appeals his conviction and sentence on Count Ten within 1,000 feet of a

public housing facility; and Carter appeals his convictions and sentences on Count

Fifteen (within 1,000 feet of a school) and Count Twenty-Four.2 The appeal raises

issues concerning the sufficiency of the evidence, error in evidentiary rulings,

2
Westry was found not guilty of the offenses charged in Counts Thirty-One and Thirty-
Two. The only other Defendant to proceed to trial with Appellants was Kingston Bodacious
Osborne, who was found not guilty of all offenses for which he was charged.

4
error in the refusal to give requested jury instructions, and several sentencing

errors, some of which the government concedes, as is further explained below.

After careful review, we affirm in part and vacate in part, and remand this case to

the district court for further proceedings consistent with this opinion.

I. BACKGROUND

Most of the events in question occurred in and around 406 Clay Street (the

“Clay Street home”), the home of Lucious “Mama” Westry (“Lucious”),3 two

nearby homes at 456 and 459 Maple Street, and an apartment at the Boykin

Towers public housing project. Between March 18, 1998 and June 30, 2005,

seven search warrants were executed at the Clay Street home, and several search

warrants were also executed at the nearby residences, from which controlled

substances, drug paraphernalia, and firearms were recovered. The story that

emerges from the testimony and evidence is that of a matriarch, with several

younger generations, occupying a home at which vehicles would approach, one

after another; a home from which females would walk out to waiting cars, spend

ten to fifteen seconds, and walk back into the yard. The story, in other words,

consists of activities which viewed together are indicative of repeated drug

3
After being named in the first Indictment filed on June 24, 2005, and while detained in a
Bureau of Prisons medical facility awaiting trial, Lucious Westry died at the age of 91.

5
transactions. Following the execution of federal search warrants on June 30, 2005,

the drug dealing activities at the Clay Street home, the related nearby homes on

Maple Street, and the Boykin Towers apartment came to an end.

406 Clay Street

Local law enforcement made several attempts over the years to stop the

activities observed in and around the Clay Street home. On March 18, 1998, the

Mobile Police Department (“MPD”) executed a search warrant at the Clay Street

home, and recovered crack cocaine, nine prescription pill bottles, assorted pills

including valium and morphine, and drug paraphernalia. Several months later,

following a controlled buy of morphine by a confidential informant at the Clay

Street home, an MPD Officer executed a search warrant on October 1, 1998, and

found a “plethora of pills” in a zippered bag in Lucious’ bosom. Morphine pills,

assorted paraphernalia, a pistol and crack cocaine were also found inside the

home. Present during the second search were several Co-Defendants, but not

Appellants.

The MPD returned to the Clay Street home on December 29, 1999, to

execute yet another warrant in search of prescription drugs. This time Westry was

present. The officers found four unknown pills and several bottles of lortab and

valium prescribed for Westry and Lucious.

6
 On May 22, 2001, the Mobile County Sheriff’s Office (“MCSO”) returned

to the Clay Street home to execute a search warrant following a controlled buy.

Officers found two small baggies (one containing miscellaneous pills, one

containing two small rocks), a glass pipe thrown out beside a bathroom window, a

bag containing a pill bottle, U.S. currency, prescription bottles, glass smoking

devices, and other miscellaneous pill bottles with assorted pills. The MCSO

participated in another search at the Clay Street home on August 5, 2002. Money

and pills were recovered, and Lucious was arrested.

On September 27, 2002, MPD Narcotics Officer Patrick McKean made his

first of several undercover drug purchases at the Clay Street home, wearing a

concealed microphone and street clothes. Many of the ensuing drug transactions

were captured on audiotape and were played to the jury.4 He purchased two

oxycontin pills from Defendant, Rose Westry (“Rose”), and returned

approximately four hours later to purchase two more oxycontin pills from her.

The following night, on September 28, 2002, Officer McKean returned to the Clay

Street home and bought four oxycontin pills from Shannon Jones (“Jones”),

Lucious’ granddaughter, and a key witness for the government at trial. During

4
Some of the undercover buys were recorded by use of a pole camera installed to record
the activities at the Clay Street home. The pole camera was in operation from September 27,
2002 to February 13, 2003.

7
that drug transaction, Leonard Westry (“Leonard”) was present. Two days later,

on September 30, 2002, Officer McKean returned, buying two oxycontin pills

from Rose. Again, on October 7, 2002, Officer McKean returned, buying three

morphine tablets from Rose.

On October 8, 2002, Officer McKean bought drugs from Jones, first at the

Clay Street home and, after taking her in his car “around the block” to the 456

Maple Street home, he obtained more pills retrieved from that house.

On the night of October 11, 2002, Officer McKean made an undercover buy

from Woodyard, who flagged down the officer as he cruised through the

neighborhood in his vehicle, after the officer had not found anyone at the Clay

Street home. Woodyard offered to sell, and later Officer McKean purchased two

oxycontin pills from Woodyard. During the transaction Woodyard yelled back at

the Clay Street home to see if they had anything and was observed by McKean

walking toward that house.

Woodyard again flagged down Officer McKean on October 12, 2002,

asking the officer if he had “been served.” When Officer McKean responded that

no one was down there, Woodyard told the officer to “hit the block” and “come

back in a minute.” When the officer returned, he saw Woodyard coming out of the

8
front yard of the Clay Street home, and Woodyard told the officer he had two

oxycontin pills.

Officer McKean purchased three dilaudid pills from Rose on October 16,

2002 at the Clay Street home after she informed him she was out of oxycontin. He

bought four methadone pills and one morphine pill from Jones after picking her up

at the Clay Street home on October 22, 2002. After the sale, Woodyard stopped

the officer and asked him “if they took care of [him] or if [he] got served.” The

officer responded that Shannon had taken care of him. Woodyard told the officer

to return before nine, that Woodyard would be standing right there, and that the

cost would be $30 apiece.

On November 13, 2002, Officer McKean made contact with Rose outside

the Clay Street home, was told to “make the block,” and upon his subsequent

return, purchased two oxycontin tablets and crack cocaine. He observed her

coming and going from the yard at the Clay Street home. The next day, November

14, Officer McKean purchased an oxycontin pill from Jones and two oxycontin

pills from Rose. Rose was also able to obtain crack cocaine from Defendant,

Ashir Zuniga (“Zuniga”), who was also in the yard. Zuniga was married to

Defendant, Christina Marie Hogue (“Hogue”), and the latter also testified for the

government at trial, following a written plea agreement with the government.

9
 Officer McKean returned on November18, 2002, purchasing one oxycontin

pill from Rose. Rose refused to discount the purchase price, as suggested by the

officer, to cover reimbursement for a prior deal where the officer had overpaid her,

indicating the drugs were not hers to discount. Rose, as well as Jones, would

obtain drugs from others to sell to Officer McKean whenever the women did not

have them to sell. Officer McKean also bought oxycontin tablets from Rose on

November 22 at the Clay Street home.

MCSO Deputy Jason Powers went to the Clay Street home, including

conducting drive-by surveillance, approximately eight to ten times. Every time he

rode by, he observed one or more persons on the porch or in front of the residence;

he would see females walking to the vehicles, spend maybe 10 to 15 seconds, turn

around and walk back into the yard. In his role assisting with the pole camera, on

November 22, 2002, Deputy Powers reported that a white male was observed

leaving the Clay Street home. When approached by Deputy Powers, the subject

threw down a matchbox containing a morphine pill.

Officer McKean made another undercover buy from Jones on December 13,

2002 at the Clay Street home. The same day, Princeton Westry and Tammy

Perryman were arrested following participation by a confidential informant, who

indicated Princeton Westry was associated with the Clay Street residence.

10
 On January 10, 2003, Officer McKean, accompanied by an informant,

planned to buy drugs from Lucious inside the Clay Street home. Before he could

enter, he was approached by Woodyard, who had two morphine tablets. Officer

McKean requested four pills, and after receiving payment, Woodyard entered the

Clay Street home and shortly thereafter returned with the other two pills.

In April 2005, an MPD officer made undercover drug buys from the Clay

Street home, capturing the transactions on video camera. The officer bought

oxycontin from Defendant, Samuel Beckham (“Beckham”), at the Clay Street

home on April 14, 20, and 25, 2005. Beckham, too, testified at the trial for the

government.

MPD Corporal Joseph Wolfe was assigned to the Street Level Interdiction

and Drug Enforcement detail in 1999 as a Task Force Officer, and went to the

Clay Street home, one of the MPD “hot spots,” nearly every day on drug-related

calls. Beginning September 2002, Wolfe became personally involved in an

investigation of the Clay Street home, “in an attempt to curtail the drug activity

that was going on there.” Using confidential informants and undercover police

officers, 23 undercover buys took place at the Clay Street home and the Boykin

Towers apartment.

11
 In October 2003, following execution of a search warrant, arrests on state

charges,5 and renewed drug activity after “the individuals hit the streets again,” the

U.S. Drug Enforcement Administration (“DEA”) was contacted and opened an

investigation. Officer Wolfe was assigned to the DEA as a Task Force Officer.

The DEA orchestrated a series of undercover buys from December 2004 to April

2005. In June 2005, following more undercover transactions, law enforcement

returned to the Clay Street home, executing search warrants and federal arrest

warrants. Drug evidence, including hydrocodone, oxycodone and drug

paraphernalia were recovered. Police also recovered a loaded Rossi .38 caliber

revolver that had been reported stolen.

456 and 459 Maple Street

In addition to the activities noted in or around the 406 Clay Street home,

transactions occurred at the nearby home located at 456 Maple Street. On August

28, 1998, the Mobile County Sheriff’s Office executed a search warrant at the

residence of Co-Defendant, Edward Kenneth Riley (“Riley”), located at 456

Maple Street (1½ blocks from the Clay Street home), where 550 pills and

numerous prescription bottles were recovered.

5
Among the people arrested were Lucious Westry, Kim Westry, Willie Carter, Rose
Westry, and Pauline Westry.

12
 In early 2002, the MPD utilized a confidential informant to buy cocaine

powder from Lucious’ brother, “Lawyer Charlie,” at 459 Maple Street. Thereafter,

on February 28, 2002, a search warrant was executed at that address and officers

recovered cocaine, morphine, oxycontin pills and, in the place where Lawyer

Charlie was sitting, crack cocaine.

On October 8, 2002, Jones took Officer McKean from the Clay Street home

to 456 Maple Street to get morphine. Officer McKean and others used an

informant to place a call to Defendant Carter on February 18, 2003. The informant

purchased morphine from Carter later in the day after they both went first to 459

Maple to obtain the pills.

Boykin Towers Apartment

Appellant, Calvin Westry’s apartment was located at 1600 Michigan

Avenue, in the public housing project known as Boykin Towers. Confidential

informant, Sunny Foxx (“Foxx”), had been arrested for buying drugs at the Clay

Street home and cooperated. Foxx set up a drug deal for Officer McKean with

Westry, known as “Snap,” in a recorded telephone conversation that occurred on

November 16, 2002. In the conversation, Westry mentioned that Appellant Hinton

would need to be paid for gas as he would be driving to get the pills. When

Officer McKean and the confidential informant arrived at the Westry apartment,

13
Hinton was introduced to them as “Chill.” The officer gave the money for the pills

to Westry, and paid Hinton $5 for the gasoline. Hinton is heard on the audiotape

asking if the officer knew of any good heroin out there.

Officer McKean had telephone conversations with Westry several times,

trying to arrange another meeting in order to purchase more oxycontin pills. The

officer also spoke to Chill, or Hinton. The officer returned to Boykin Towers on

November 18, 2002 and purchased oxycontin and lortabs, after Westry’s daughter,

Kim Westry, arranged to meet “Fly” and returned with the pills.

Jasen Johns’ Death at the Clay Street Home

The parties stipulated that the cause of Jasen Johns’ death was a

combination of methadone and cocaine. Before his death, from on or about 1997-

98, Johns and his first cousin, Michael James Carpenter (“Carpenter”), would go

“every other day, every day” to the Westry house on Clay Street to purchase drugs,

including morphine, oxycontin, and methadone. On November 26, 2001,

Carpenter and Johns injected methadone into their arms in a back room of the Clay

Street residence. Carpenter then went to Calvin Westry’s apartment at Boykin

Towers to spend the night. Johns stayed behind, waiting on Defendant Carter,

also known as “Bip,” to come with some cocaine. When Carpenter left, Carter had

already arrived and Carter and Johns went to the back of the residence.

14
 Julius Sayers, a witness called by the defense, was present at the Clay Street

home on November 26 and found Johns’ body. Regarding the Clay Street home,

Sayers also testified he observed “white people at odd times of the night back and

forth.” He saw “other people back and forth constantly who didn’t live there.” He

did not think they were there buying lottery tickets. The people who appeared to

be selling drugs appeared to be in competition.

Donald Carpenter (“Donald”), Michael Carpenter’s brother and Johns’

cousin, also acquired his drugs (pain medication, morphine, oxycontin, lortabs,

crack cocaine) from the Clay Street home. He would go with Johns “pretty much

once a week.” They could inject the drugs at the home if they wanted, and would

also hang out there from time to time. Sometimes they would stay at the house

overnight in the back bedroom or kitchen. Carter and Calvin Westry were some of

the people Donald would get drugs from at the Clay Street home between 1988 to

2005. Although Carter stayed at his own home, he would also be at the Clay

Street home from time to time. Between his purchases of drugs at the house on

Maple Street and the Clay Street home (and whenever he went to one house he

would also go to the other), Donald estimates he made about one hundred trips in

over 20 years.

15
 Toni Johns, Jasen Johns’ widow, sometimes accompanied Johns when he

would stop by the Clay Street home to pick up drugs.

Testifying Co-Defendants and Purchasers of Narcotics (Addicts)

Four Co-Defendants who pled guilty before trial were trial witnesses for the

government. Jones remembered seeing drugs sold from the Clay Street home

when she was about five years old, and started selling drugs herself at the age of

sixteen. If someone was on the porch at the Clay Street home, they usually had

drugs to sell. She knew her uncle Calvin was involved in selling drugs from the

Boykin Towers apartment.

Leonard Westry, Rose’s son and Lucious’ grandson, testified that Rose was

involved in selling drugs, and his uncle, Calvin, who lived at the Clay Street home

from time to time, also sold drugs occasionally. Leonard also saw Woodyard

selling pills (lortabs, oxycontin, morphine) to people on various occasions near the

Clay Street home. Leonard saw Woodyard get the pills from Uncle Calvin.

Carter, Leonard’s uncle-in-law, also sold pills (lortabs and morphine) at the Clay

Street home.

Hogue and Zuniga were married. Zuniga is Lucious’ great-grandson.

Hogue entered a written plea of guilty after the trial started. Hogue observed a

variety of drug activities at the Clay Street home, including transactions by

16
Zuniga. She observed Calvin Westry and Woodyard selling drugs out of the Clay

Street home. Woodyard would come to her begging for pills. She saw Westry sell

pills from Boykin Towers. She saw Carter selling drugs. In 2003 Hogue started

supplying pills to people.

Beckham, Lucious’ nephew, pled guilty to conspiracy to distribute drugs.

He was involved in drug distribution from the Clay Street home beginning in

2001. He had seen Carter selling drugs at the Clay Street home since 2003.

According to Beckham, Woodyard was involved in selling drugs there, “but not

very often.” Beckham knew Westry was involved in drug distribution at the Clay

Street home, and saw Chill (Hinton) “shooting pills” at the Clay Street home.

In addition to the testifying Co-Defendants, several purchasers of the

narcotics supplied by the extended Westry family testified at trial. Their testimony

concerns drug purchases as early as 1992 at the Clay Street home. Stephanie

Healy, who after being arrested worked undercover for the police, testified that

when there were no drugs at the Clay Street home, somebody would drive or ride

with her to the house at 459 Maple Street. She bought morphine from Carter

“probably 25, 30 times.”

Gary Brown bought pills from the Clay Street home as often as three times a

day, and purchased oxycontin or morphine from Carter approximately 20 times

17
from 2001 to 2002. Stephen Allen bought drugs from Westry once or twice, and

obtained pills from Carter 15-20 times. He also bought drugs at 459 Maple Street.

Discovery of Firearms

Guns possessed by members of the conspiracy were found during three

searches. On October 1, 1998, a “plethora of pills” were found in Lucious’

brassiere, and crack cocaine and a pistol were discovered in Lucious’ bedroom at

the Clay Street home during a search, following a controlled buy. Several years

later, on July 27, 2004, a search warrant was executed at the residence of Co-

Defendant, Riley, who Jones identified as a supplier of drugs for herself and other

conspirators, including Carter and Woodyard. At the July 27 search, officers

found 20 pills in Riley’s shirt pocket, another estimated 5,755 pills in the

residence (of which approximately 1,500 were hydrocodone tablets), and assorted

methadone, morphine, and oxycontin pills. Two rifles and a handgun were

recovered at Riley’s house that day.

Lastly, on June 30, 2005, the day of the federal raid at the Clay Street home,

officers seized a loaded Rossi .38 caliber revolver, various drugs, and drug

paraphernalia. The revolver had been reported stolen. Among the persons present

in and around the home were Lucious, Rose, Beckham, Jones, Osborne, Tammy

Perrymand, and Westry.

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 II. DISCUSSION

As stated, Appellants raise various challenges to their convictions and

sentences. We group the issues raised on appeal where appropriate. Woodyard,

Hinton and Carter challenge the sufficiency of the evidence to support their

convictions. Carter argues that the district court abused its discretion in overruling

his hearsay objection to Carpenter’s testimony that Carter provided cocaine to

Jasen Johns shortly before Johns’ death. Westry and Carter assert the district court

abused its discretion by refusing to give requested jury instructions. All

Defendants appeal their sentences.

A. Appellants’ Sufficiency of the Evidence Claims

We review the district court’s denial of Defendants’ motions for judgment

of acquittal based on sufficiency of the evidence under Rule 29, Federal Rules of

Criminal Procedure, de novo. United States v. Evans, 473 F.3d 1115, 1118 (11th

Cir. 2006). “In determining whether the government produced sufficient evidence,

we must review the evidence in the light most favorable to the government and

draw all reasonable factual inferences in favor of the jury’s verdict.” United States

v. Dulcio, 441 F.3d 1269, 1276 (11th Cir. 2006) (citation omitted). All that must

be found is that a “reasonable fact-finder could have determined that the evidence

19
proved” Defendants’ guilt beyond a reasonable doubt. United States v. Smith, 459

F.3d 1276, 1286 (11th Cir. 2006) (citation omitted).

All Defendants, with the exception of Westry, challenge the sufficiency of

the evidence to support their convictions. All Defendants also challenge the

sufficiency of the evidence supporting several sentencing enhancements imposed,

following interrogatories answered by the jury, and these are addressed in Section

D of this opinion. We now briefly summarize the evidence as to each of the three

Defendants who challenge its sufficiency with respect to their convictions for

conspiracy.

Willie Carter

Carter lived at the Clay Street home with his wife, Cynthia Young, Lucious’

daughter, who also sold drugs. Co-Defendant Jones testified that Carter (her

uncle) had been selling drugs, including pills and cocaine, for as long as she could

remember. Leonard testified he had seen Carter (his uncle-in-law) sell pills at the

Clay Street home. Leonard accompanied Carter on trips to buy crack cocaine.

Hogue testified that Carter was involved in the distribution of drugs, and she had

seen Carter sell crack, oxycontin, morphine and other pills. According to Hogue,

she saw Carter involved in the distribution of drugs “Every day, all day.”

20
 Beckham, Young’s cousin, knew Carter was involved in the drug business

and had seen him sell oxycontin and morphine pills since 2003. According to

Beckham, Carter used and sold crack. Beckham obtained oxycontin and morphine

from Carter and sold the pills at the Clay Street home.

Under the direction of Officer McKean, confidential informant, Elrod

Miller, made a controlled buy of morphine from Carter at 459 Maple Street.

Confidential informant, Eric Beverly, also purchased a $20.00 piece of crack

cocaine from Carter.

Drug addict, Stephanie Healy, testified she obtained drugs at the Clay Street

home from Carter from 25 to 30 times. Addict, Cynthia Sowell, identified Carter

as one of her regular suppliers at Clay Street. Addict, Gary Brown, testified he

bought drugs (oxycontin and morphine) from Carter approximately 20 times at

Clay Street. Addict, Stephen Doyle Allen, testified he bought pills from Carter

from 15 to 20 times.

Mack Woodyard

Co-Defendant Jones testified Woodyard sold drugs at the Clay Street home,

obtaining the drugs, including crack, from other conspirators and “whoever had

it.” Leonard testified he saw Woodyard sell oxycontin and morphine on the corner

at 406 Clay Street. Leonard knew Woodyard acquired his pills from Calvin

21
Westry. Hogue testified she saw Woodyard selling oxycontin, morphine, lortab,

methadone, and “whatever kind of pills he could get his hands on” at Clay Street.

Hogue stated Woodyard obtained his pills from Hogue and others, including

Jones, Lucious, and Zuniga. Beckham testified Woodyard sold drugs (morphine,

oxycontin) at the Clay Street home, “but not very often.”

The undercover activities of Officer McKean also corroborated the

foregoing testimony as to Woodyard. Officer McKean bought drugs from

Woodyard on October 11, 2002 (Count Four) and on October 12, 2002 (Count

Five). Recordings of several of the drug deals were admitted in evidence. On at

least two occasions when Officer McKean went by the area, Woodyard asked the

officer if he had “been served.”

Willie Hinton

Jones testified that Hinton lived with her uncle, Calvin Westry, at the

Boykin Towers apartment and drove Westry’s vehicles on occasion. Before she

saw Hinton associated with her uncle, Jones would see Hinton on Clay Street

“coming to buy pills,” specifically, morphine. She, too, supplied Hinton with

morphine pills if she had them. While at the beginning the pills were for Hinton’s

personal use, the amount he acquired increased, and she had the understanding the

pills were for Hinton and someone else.

22
 According to Hogue, Calvin Westry was involved in the distribution of

drugs from the Boykin Towers apartment, as she accompanied Kimberly Westry,

Calvin’s daughter, for the pick up of pills (oxycontin). Calvin would give

Kimberly instructions as to where to go with the pills. And Hinton “used to be

there.”

Beckham observed Hinton at the Clay Street home “[s]hooting up pills,” or

using a needle, in the kitchen. Beckham described Hinton as a “junkie.” Leonard

also testified to having seen Hinton at the Clay Street home and knowing him to

be a friend of his uncle Calvin. Confidential informant Foxx testified she

sometimes gave Hinton a ride to a house on Maple Street. Hinton would exit the

vehicle and enter the house while Foxx drove around the block. When she

returned, Hinton would get in the car, and the two would travel back to the Boykin

Towers apartment.

Officer McKean’s undercover buy from Westry on November 16, 2002

involved Hinton. Hinton appears in the telephone calls setting up the undercover

drug deal as well as the tape recording of the drug deal itself. During the course of

that drug purchase (three oxycontin tablets), Hinton asks the officer for gas

money, and the officer paid Hinton five dollars. Officer McKean also spoke with

23
Hinton over the telephone on November 18, 2002 when the officer was arranging

a drug buy at the Boykin Towers apartment that was consummated later that day.

Sufficient evidence supports Defendants’ convictions.

A conviction for conspiracy to distribute drugs in violation of 21 U.S.C. §

846 requires evidence that persuades the trier of fact beyond a reasonable doubt,

that (1) a conspiracy (or agreement) existed between Defendants or between

Defendants and others; (2) Defendants knew the essential objects of the

conspiracy, which are to do either an unlawful act or a lawful act by unlawful

means; and (3) Defendants knowingly and voluntarily participated in the

conspiracy. See United States v. Calderon, 127 F.3d 1314, 1326 (11th Cir. 1997);

see also United States v. Toler, 144 F.3d 1423, 1426 n.3 (11th Cir. 1998); United

States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005); United States v.

Thompson, 422 F.3d 1285, 1290 (11th Cir. 2005). We have previously

acknowledged that because a conspiracy is “predominantly mental in

composition,” circumstantial evidence is frequently resorted to in order to prove

its elements. Toler, 144 F.3d at 1426 (internal quotation marks omitted). A

conspiracy may be inferred from a “concert of action.” United States v. Guerra,

293 F.3d 1279, 1285 (11th Cir. 2002). See also Glasser v. United States, 315 U.S.

60, 80 (1942) (“Participation in a criminal conspiracy need not be proved by direct

24
evidence; a common purpose and plan may be inferred from a ‘development and

collocation of circumstances.’”); United States v. Figueroa, 720 F.2d 1239, 1246

(11th Cir. 1983) (“A conspiracy conviction will be upheld . . . when the

circumstances surrounding a person’s presence at the scene of conspiratorial

activity are so obvious that knowledge of its character can fairly be attributed to

him.”).

The government asserts that the evidence presented at trial was sufficient to

establish beyond a reasonable doubt that Defendants were engaged in a conspiracy

to distribute controlled substances between March 1998 and June 30, 2005. We

agree. The trial testimony of several Co-Defendants, drug purchasers, and law

enforcement (39 witnesses in over five days of trial), and the audio recordings,

audio and video CDs, and audio and video DVDs of drug transactions, show a

long-standing conspiracy involving the distribution of drugs (morphine,

oxycodone, hydrocodone, hydromorphine, methadone, and 50 grams or more of

cocaine), among an assortment of family members and associates of Lucious in and

around the Clay Street home, 456 and 459 Maple Street, and at the Boykin Towers

apartment. This conspiracy, the various acts of distribution at these several

locations performed by numerous interrelated individuals, survived several

attempts by local law enforcement, several state arrests and sentences served by its

25
members, several search warrants that uncovered the presence of drugs and guns,

all over a period of years, until the June 30, 2005 arrests on federal charges

precipitated the charging documents filed in this case. The testimony and evidence

squarely place Defendants as knowing members of the conspiracy.

Carter and Woodyard, in particular, challenge the sufficiency of evidence

supporting the existence of a conspiracy, pointing to testimony and evidence

suggesting a high degree of competitiveness among members to effectuate the sale

of drugs. Consistent with the notion of competition, and hence, the lack of an

agreement, Woodyard asserts that the evidence, at best, shows him to have been a

street dealer who took the opportunity to make sales to individuals who were

destined to make their purchases at the Clay Street home, but who were intercepted

by Woodyard before reaching their destination.

Other courts have considered and rejected this defense of “we were not in a

conspiracy, because the evidence showed we were competitors for drugs or

customers.” In United States v. Johnson, the court made an observation that

applies equally in the present case: “While the record demonstrates that the

principals, including Appellants, shared many sources, distributors, and customers,

the fact that drug dealers ‘may sometimes, or even always, compete for supplies or

customers in serving that market does not on that account alone disprove . . . the

26
existence of a single conspiracy to achieve the overall results of their several

efforts.’” 54 F.3d 1150, 1154-55 (4th Cir. 1995) (quoting United States v. Banks,

10 F.3d 1044, 1054 (4th Cir. 1993)). In Banks the court identified a more

significant consideration than competition in determining the membership of actors

in a drug conspiracy to be “whether the actor ‘demonstrated a substantial level of

commitment to the conspiracy, [for example] by engaging in a consistent series of

smaller transactions’ that furthered its ultimate object of supplying the consumer

demand of the market.” Banks, 10 F.3d at 1054 (quoting United States v. Edwards,

945 F.2d 1387, 1393 (7th Cir. 1991).

We agree with the reasoning of Johnson and Banks. While admittedly

several of the conspirators were shown, through testimony and the audio and video

surveillance, to have competed with each other in the sale of drugs and the

procurement of customers, their combined efforts produced a haven for the illegal

distribution of drugs at the Clay Street home, 456 and 459 Maple Street, and the

Boykin Towers Apartment, among an assortment of Lucious’ family members and

associates. The evidence showed their interrelatedness; how one member would

retrieve drugs for the sale by another. The existence of healthy competition, as

evidenced by Woodyard achieving sales in the vicinity of the Clay Street home and

waylaying purchasers destined for the home, does not negate the ultimate object of

27
all the participants: supplying the consumers’ demands in and around the property.

Indeed, the more sellers of drugs there were, the more activity in and around the

locations.

Hinton argues the evidence against him only showed him to be a bystander at

an apartment where drug activities occurred, not a member of the charged

conspiracy. As to Hinton’s argument, we are similarly not persuaded. First, mere

presence “‘is material, highly probative, and not to be discounted.’” United States

v. Gamboa, 166 F.3d 1327, 1332 (11th Cir. 1999) (quoting United States v.

Freeman, 660 F.2d 1030, 1035 n.1 (5th Cir. Unit B Nov. 1981)). Second, here the

evidence showed more than Hinton’s mere presence. It showed him to be an active

participant in Officer McKean’s undercover buy on November 16, 2002, accepting

a cash payment from the officer to cover the expense of having traveled to obtain

the oxycontin Westry sold to the officer, in Hinton’s presence. This evidence,

coupled with Hinton’s association with Westry and residence at the Boykin Towers

apartment, where drug transactions were shown to have taken place, and the

testimony of other co-conspirators placing Hinton at the Clay Street home and

related locations, could give “‘rise to a permissible inference’” by the jury of

Hinton’s participation in the conspiracy. Id. (quoting Calderon, 127 F.3d at 1326).

The jury plainly credited the testimony and evidence presented, and it is not

28
for us to re-weigh the factfinder’s credibility choices. United States v. Simpson,

228 F.3d 1294, 1299 (11th Cir. 2000) (citation omitted). When measured against

the governing standards, we are persuaded that sufficient evidence was presented to

sustain the conspiracy convictions, and accordingly affirm the district court’s

denial of the motions for judgment of acquittal.

B. Carter’s Hearsay Objection

Carter timely objected when the prosecutor asked Michael Carpenter about

the events surrounding Johns’ death. The following exchange took place:

Q. And when you left, what was going on there at the house?
A. He was waiting, he said he was waiting on somebody to come
with some cocaine, that he had – waiting on some cocaine to
come in.

Q. And do you know who?

* * *

Q. Do you know who he was waiting on?
A. Bip, he said.

* * *

Q. And when you left, had Bip arrived?
A. Yeah. He was just coming in, and they went to the back.

Carter maintains the district court erred in allowing the government to elicit

information about the source of the cocaine Johns used, and without the

29
objectionable answers containing the words Johns spoke to Carpenter, there would

have been no other evidence presented concerning the source of the controlled

substances that caused or contributed to Johns’ death.

We review the district court’s evidentiary rulings for “clear abuse of

discretion.” United States v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir. 2007)

(citation omitted). Appellant must demonstrate that “‘the district court’s decision

rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an

improper application of law to fact.’” United States v. Smith, 459 F.3d 1276, 1295

(11th Cir. 2006) (quoting United States v. Baker, 432 F.3d 1189, 1202 (11th Cir.

2005)).

The government agrees that Carpenter’s statements concerning what Johns

told him are hearsay statements admitted for the truth of the matter asserted,

presumptively inadmissible under Rule 802 of the Federal Rules of Evidence. See

Fed. R. Evid. 802. Nonetheless, the government suggests several hearsay

exceptions apply, most notably the Rule 804(b)(3) exception. Rule 804(b)(3)

permits admission of a hearsay statement “which [] at the time of its making . . . so

far tended to subject the declarant to civil or criminal liability . . . that a reasonable

person in the declarant’s position would not have made the statement unless

believing it to be true.” Fed. R. Evid. 804(b)(3). “To be admissible under Rule

30
804(b)(3), a statement must satisfy three elements: “(1) the declarant [must be]

unavailable; (2) the statement so far tends to subject the declarant to criminal

liability that a reasonable person in his position would not have made the statement

unless he believed it to be true; and (3) the statement is corroborated by

circumstances clearly indicating its trustworthiness.” United States v. Costa, 31

F.3d 1073, 1077 (11th Cir. 1994) (citations omitted); see also United States v.

Harrell, 788 F.2d 1524, 1526 (11th Cir. 1986) (citations omitted).

While a determination of whether a statement is against the declarant’s penal

interest is purely a question of law subject to de novo review, see Costa, 31 F.3d at

1077, consideration of a statement’s trustworthiness requires a review of findings

of fact and a review of the trial court’s application of a legal standard to the facts.

See United States v. Bagley, 537 F.2d 162, 166 (5th Cir. 1976). Because the trial

court made no finding regarding the applicability of the statement against penal

interest exception, or any other hearsay exception, we “‘determine whether any

reasonable view of the evidence,’” United States v. Gossett, 877 F.2d 901, 907

(11th Cir. 1989) (quoting Bagley, 537 F.2d at 167), supports the trustworthiness of

Johns’ statements.

The first element is easily satisfied, as Johns was unavailable to testify at

trial. The second element, whether the statements were against Johns’ penal

31
interest, we also resolve in the affirmative, although not without some explanation.

For a statement to be “against penal interest,” it must “so far tend to subject the

declarant to criminal liability that a reasonable man in his position would not have

made the statement unless he believed it to be true.” Harrell, 788 F.2d at 1527.

Initially, given Johns’ close relationship to Carpenter, it would appear that Johns

would not have believed his statements would subject him to criminal liability.

However, it is unnecessary that the declarant know he was speaking to a

person who could cause his prosecution. Id. Thus, for example, courts have held

that the mere fact that the recipient of the information was a confidante of the

declarant does not rule out admissibility of a statement as against interest. See

Bagley, 537 F.2d at 165 (“The fact that the statement was made to a friend and

cellmate has no relevance to the determination whether the statement was against

the declarant’s penal interest.”); United States v. Mock, 640 F.2d 629, 631 (5th Cir.

1981) (“fact that the statement was made to his former wife does not destroy its

credibility”); Harrell, 788 F.2d at 1527 (refusing to “engraft” onto the second

element of the Rule a “requirement that appellants must know that they were being

recorded and that they must know that they were speaking with persons who could

have caused their prosecution”); Costa, 31 F.3d at 1078-79 (distinguishing

custodial statements implicating self and others from “spontaneous declarations”

32
made to acquaintances, friends and confederates; the latter being more trustworthy)

(citations omitted). Under the circumstances presented here, we do not think a

reasonable man would falsely admit to waiting for cocaine at the Clay Street home,

a serious crime, knowing there was a chance, albeit slight, that the admission could

be used to subject him to severe penalties. See Harrell, 788 F.2d at 1527; United

States v. Lang, 589 F.2d 92, 97 (2d Cir. 1978) (fact that statement was made to

friend and cellmate not relevant to whether statement was against declarant’s penal

interest).

The last element to consider, then, is whether the statements are corroborated

by circumstances clearly indicating their trustworthiness. Prior to the admission of

the statements, the government had elicited testimony from Carpenter that he and

his cousin Johns used drugs together from about 1998 until Johns’ death in 2001,

and that they usually obtained their drugs at the Clay Street home. Carpenter had

explained he and Johns were injecting methadone in a back room of the Clay Street

home before Carpenter left, before Johns stated he would wait on “somebody to

come with some cocaine,” and that the somebody was “Bip” or Carter. Sufficient

corroborating circumstances were presented to satisfy the trustworthiness element,

and thus we conclude the statements were admissible as statements against Johns’

penal interest under Rule 804(b)(3), Federal Rules of Evidence.

33
 C. Westry and Carter’s Requested Jury Instructions

Westry assigns error to the trial court’s refusal to give a requested instruction

on withdrawal from the conspiracy. Testimony was presented that after Westry

pled guilty to a state court indictment, and returned to the Clay Street home on

probation, he was no longer involved in the federal offenses charged in Counts

Thirty-One and Thirty-Two. Carter submits the trial court erred in failing to charge

the jury that it must determine the amount of controlled substances that was

foreseeable to Carter within the scope of his participation in the conspiracy, and if

the death of Johns was caused by controlled substances foreseeable to Carter within

the scope of his participation in the conspiracy.

A trial court’s refusal to give a jury instruction requested by the defense is

reviewed for abuse of discretion. See Dulcio, 441 F.3d at 1275 (citation omitted).

To constitute reversible error, a defendant must show that the requested jury

instruction “‘(1) was a correct statement of the law; (2) was not adequately covered

in the instructions given to the jury; (3) concerned an issue so substantive that its

omission impaired the accused’s ability to present a defense; and (4) dealt with an

issue properly before the jury.’” Id. (quoting United States v. Brazel, 102 F.3d

1120, 1139 (11th Cir. 1997)).

34
 Westry claims the following testimony of Shannon Jones supports his

claimed withdrawal from the conspiracy, and consequently, supports his requested

charge on withdrawal:6

Q. Do you remember about when it was that he [Westry] moved
back to Clay Street?

A. It was a little while after the State had indicted us the first time.

Q. Okay. And would that have been sometime around the end of
2003, later?

A. Perhaps, yes.

Q. After Calvin moved back to Clay Street, did you ever see
whether or not he was involved with the distribution of drugs?

A. He really didn’t – no, he wasn’t involved there, you know. He
was on probation. Basically, he just said, enough.

Under governing law, the foregoing exchange, without more, is insufficient

to support Westry’s requested instruction. We begin with the very language of the

instruction: “[I]n order for you to decide that a Defendant withdrew from a

conspiracy you must find that the Defendant took affirmative action to disavow or

defeat the purpose of the conspiracy . . . .” Offense Instruction 13.4. As the

comments to the Instruction make clear, withdrawal is an affirmative defense that

6
See Eleventh Circuit Pattern Jury Instructions, (Criminal Cases) (2003), Offense
Instruction 13.4, “Withdrawal From Conspiracy (For Use With General Conspiracy Charge),” 18
USC § 371.

35
the defendant has the burden to prove. We have held that a defendant must prove

“he undertook affirmative steps, inconsistent with the objects of the conspiracy, to

disavow or to defeat the conspiratorial objectives, and either communicated those

acts in a manner reasonably calculated to reach his co-conspirators or disclosed the

illegal scheme to law enforcement authorities.” United States v. Finestone, 816

F.2d 583, 589 (11th Cir. 1987) (emphasis in original); see also United States v.

Young, 39 F.3d 1561, 1571 (11th Cir. 1994). The defendant’s burden to establish

the defense is substantial; hence, “mere cessation of activity in the conspiracy is

not sufficient to establish withdrawal.” Finestone, 816 F.2d at 589 (citations

omitted).

Jones’ testimony is insufficient to satisfy Westry’s burden of showing

withdrawal. At best, her testimony could support a mere cessation of activity.7

Consequently, the trial court did not abuse its discretion in refusing to give

Westry’s requested instruction, as the issue was not properly before the jury on the

record developed.

7
Beckham testified the last time he had drug dealings with Westry was in mid-June of
2005, before the federal raid.

36
 Carter proposed two instructions concerning foreseeability of the drug

amounts involved in the conspiracy and the death enhancement.8 The trial court

declined to give the requested instructions, finding that the combination of the

special verdict form and the charges, including a Pinkerton9 charge, sufficiently

covered the issues sought to be addressed in Carter’s requested instructions. The

trial court instead instructed as follows on the issues of foreseeability:

If you find any defendant guilty as to Count One, you will then be
asked to specify on the verdict form your unanimous finding
concerning the weight of the mixture or substance containing cocaine
base that the Government has proved beyond a reasonable doubt. You
will not be required to determine the exact amount; rather, the verdict
form requests that you determine the drug amount by ranges.

For instance, you may indicate by range, that is, less than five grams,
five grams or more but less than 50 grams, or 50 grams or more. Such
amounts must be proven by the Government beyond a reasonable
doubt.

8
As to the drug amounts, Carter proposed that the court instruct the jury: “If you find the
Defendant guilty beyond a reasonable doubt of Count One, you must then find beyond a
reasonable doubt the amount of substances which were foreseeable to the Defendant within the
scope of his participation in the conspiracy.” As to the death enhancement, he proposed: “If you
find the Defendant guilty beyond a reasonable doubt of Count One, you must then find beyond a
reasonable doubt whether the methadone that caused the death of Jasen Johns was within the
scope of the Defendant’s participation in the conspiracy.”
9
Pinkerton v. United States, 328 U.S. 640 (1946).

37
 The Pinkerton instruction stated, in part, that if a defendant was found guilty

of the conspiracy offense, the jury could find the defendant guilty of the

substantive offense(s):

even though such Defendant did not personally participate in such
offense if you find beyond a reasonable doubt, first, that the offense
charged in such count was committed by a conspirator during the
existence of the conspiracy and in furtherance of its objects; second,
that the Defendant under consideration was a knowing and willful
member of the conspiracy at the time of the commission of such
offenses; and third, that the commission of such offense by a co-
conspirator was a reasonably foreseeable consequence of the
conspiracy.

We agree with the trial court that the foregoing combination of instructions

properly and sufficiently instructed the jury in its consideration of the foreseeability

of the drug amount and Johns’ death, two of the applicable enhancements. See

United States v. Dohan, 508 F.3d 989, 993 (11th Cir. 2007) (“[T]his court will

reverse the district court only if we are left with a substantial, ineradicable doubt as

to whether the jury was properly guided in its deliberations in this regard.”)

(citation omitted). We similarly find no abuse of discretion in the denial of the

requested instructions, which duplicated the information already provided in the

Pinkerton instruction given.

D. Sentencing Issues

38
 Appellants raise several challenges to their sentences, including

enhancements applied and the reasonableness of their sentences. The government

has conceded error in several instances. We review the district court’s application

of the Sentencing Guidelines de novo, and its factual findings for clear error. See

United States v. Watkins, 477 F.3d 1277, 1279 (11th Cir. 2007). We review de

novo the legality of a sentence. See United States v. Moriarty, 429 F.3d 1012, 1025

(11th Cir. 2005). As to a challenge for reasonableness, we review the sentences

“under a deferential abuse-of-discretion standard.” Gall v. United States, 128 S.Ct.

586, 591 (2007).

Defendants were sentenced as follows. On Count One, Conspiracy, all

Defendants received sentences of life imprisonment. On the substantive offenses,

Defendants were each sentenced to life sentences (Westry on Counts Eleven and

Twelve; Woodyard on Counts Four and Five; and Hinton on Count Ten), with the

exception of Carter, who was sentenced to 60 years’ imprisonment on each of

Counts Fifteen and Twenty-Four, to run concurrently. Defendants received the

maximum possible offense level under the Guidelines on the bases that they had

prior similar convictions10 and a death resulted from the conspiracy, pursuant to

10
Prior to trial, the government filed “Informations,” pursuant to 21 U.S.C. § 851,
notifying Defendants it intended to rely on their prior felony convictions for drug offenses.

39
U.S.S.G. § 2D1.1(a)(1) (the “death enhancement”). Defendants’ offense levels

were also enhanced based on possession of a firearm, under U.S.S.G. §

2D1.1(b)(1). With the exception of Carter’s convictions on the two substantive

counts, all sentences were enhanced to life on the basis that a death resulted from

the offense and Defendants each had a prior conviction for a felony drug offense

under 21 U.S.C. §§ 841(b)(1)(A) and (b)(1)(C).

Defendants challenge application of the death enhancement to the conspiracy

convictions (Count One), and Westry, Woodyard and Hinton challenge application

of the death enhancement to the substantive offenses. Carter asserts the drugs that

killed Johns did not come from the conspiracy, and that he did not have a prior

conviction for a similar offense. Hinton and Westry also maintain Johns’ death

was not reasonably foreseeable. Woodyard asserts he was not a member of the

conspiracy when Johns died, and that Johns’ death was not a reasonably

foreseeable act or omission done in furtherance of the conspiracy.

Carter and Westry assert the district court erred by applying the firearm

enhancement, under U.S.S.G. § 2D1.1(b)(1) to increase their base offense levels.

Woodyard claims his sentences are grossly disproportionate, in violation of the

Eighth Amendment. Lastly, Carter claims the relevant conduct pertaining to the

40
conspiracy count should not have been considered in calculating his guideline

range, and that his sentence, too, is unreasonable.

1. The Jasen Johns Death Enhancement as to Count One (Conspiracy) for
Westry, Carter and Hinton

As to applicability of the death enhancement to the conspiracy convictions of

Westry, Carter and Hinton, we find no error. The guidelines for offenses charged

under 21 U.S.C. § 846, the conspiracy count (Count One), are found at U.S.S.G. §§

2D1.1 and 1D1.2. If a defendant is convicted for conspiracy to violate 21 U.S.C. §

841(b)(1)(A), the offense of conviction establishes that death or serious bodily

injury resulted from use of the illegal substance, and the defendant committed the

offense after one or more prior convictions for a similar offense, section

2D1.1(a)(1) of the Sentencing Guidelines sets the base offense level at 43, or life.

See also 21 U.S.C. § 841(b)(1)(C).11

“In determining the base level of the charged offense, the district court must

consider as relevant all conduct actually undertaken by, or taken at the direction of,

the defendant, § 1B1.3(a)(1)(A), and in the case of a conspiracy, all acts by other

participants that were both reasonably foreseeable and in furtherance of the

11
Section 841(b)(1)(C) provides in part, “If any person commits such a violation after a
prior conviction for a felony drug offense has become final, such person shall be sentenced to a
term of imprisonment of not more than 30 years and if death or serious bodily injury results from
the use of such substance shall be sentenced to life imprisonment . . . .”

41
conspiracy, § 1B1.3(a)(1)(B).” United States v. Matthews, 168 F.3d 1234, 1247

(11th Cir. 1999). Conspirators are certainly “‘only accountable for [co-conspirator]

conduct that was reasonably foreseeable and within the scope of the criminal

activity that the defendant agreed to undertake.’” United States v. Chisholm, 73

F.3d 304, 308 (11th Cir. 1996) (quoting United States v. Reese, 67 F.3d 902, 906-

08 (11th Cir. 1995)). Consequently, although “a conspirator may reasonably

foresee other criminal acts, he is not accountable for those acts if they were not part

of the scope of the criminal activity he agreed to undertake.” Id. (citing Reese, 67

F.3d at 907).

The medical examiner’s report introduced in evidence showed that Johns

died at the Clay Street home on November 27, 2001 from an overdose caused by

injecting methadone, with cocaine as a contributing factor. Prior to his death,

Johns had frequently obtained drugs from the Clay Street home and from members

of the charged conspiracy. Two of the drugs distributed during the course of the

conspiracy included methadone and cocaine, and the jury specifically found these

drugs were objects of the conspiracy.

As to the cocaine, Johns’ statements to Carpenter support the conclusion that

Carter supplied Johns with the cocaine that contributed to Johns’ death. Westry,

however, supplied Carpenter with a place to stay, Westry’s apartment, so Carpenter

42
could spend the night after having injected methadone with Johns in the back room

of the Clay Street home. Hinton was present in Westry’s apartment that night.

The issue presented is whether a death of one of the several addicts who

purchased drugs at the Clay Street home was reasonably foreseeable to the

conspirators. Where a conspirator is involved in distributing drugs to addicts,

some of which are even administered intravenously, it is a reasonably foreseeable

consequence that one or more of those addicts may overdose and die. See e.g.,

Spero v. United States, 375 F.3d 1285, 1286 (11th Cir. 2004). It is of no moment

that two of these conspirators, at the time of Johns’ death, were not residents of the

Clay Street home, as the evidence showed their activities to be linked to the

activities of others at the Clay Street home, even on the night in question. Because

Johns died from a drug overdose from drugs distributed by a member of the

conspiracy (Carter), and the goal of the conspiracy was to distribute drugs, Johns’

death was reasonably foreseeable and within the scope of the conspiracy.

Therefore, we find no clear error in the jury’s or trial court’s conclusion that

the death was reasonably foreseeable, or the trial court’s application of the death

enhancement to Count One as to Westry, Carter, and Hinton.12

12
Carter also argues that he was not convicted of a prior similar offense, as required for
application of the death enhancement. Carter had a prior felony conviction in Alabama for
possession of pentazocine, which meets the requirements for the death enhancement under

43
 2. The Jasen Johns Death Enhancement as to Count One (Conspiracy) for
Woodyard

Like Westry, Carter, and Hinton, Woodyard challenges the death

enhancement on his sentence in Count One, but for a different reason. Woodyard

asserts the trial court erred in applying the death enhancement to increase his

sentence on Count One to a life sentence (challenging the sufficiency of the

evidence supporting the jury’s verdict on this enhancement as well), because no

evidence was presented establishing that Woodyard was a member of the

conspiracy prior to Johns’ death. We agree.

Regarding conspirators in existence at the time of Johns’ death, Carpenter

identified Bip (Carter) and Calvin (Westry) as people from whom Carpenter (and

Johns) would buy drugs. Shannon Jones testified she was in prison when Johns

overdosed and died, and further, that she met Woodyard after she was released

from prison. Leonard testified that Woodyard did not begin living at the Clay

Street home until sometime in 2004. Hogue testified she did not supply Woodyard

with pills for sale until sometime in 2003. Woodyard was never identified as being

present during any of the executions of the several search warrants at the Clay

Street home. A review of the evidence shows the earliest Woodyard may be placed

section 841(b)(1)(A). See 21 U.S.C. § 802(13); Ala. Code § 13A-12-212(b). Thus, Carter’s
argument is unavailing.

44
in or around the Clay Street home, and hence in the conspiracy, was March 2002,

upon Jones’ release from prison.

The government’s meager response to the paucity of evidence linking

Woodyard to the conspiracy prior to Johns’ death is to reference Jones’ testimony

in which she stated she had known Woodyard since 2000, because he would stay at

the home on 459 Maple Street. Woodyard rented a room from Jones’ uncle, Brett,

at 459 Maple Street, and Uncle Brett would sell drugs “[e]very now and then.”

And while, as we have stated, repeated presence at the scene of drug trafficking is a

circumstance standing alone that can give rise to a permissible inference of

participation in the conspiracy, see, e.g., Calderon, 127 F.3d at 1326, the only

evidence of Woodyard’s membership in the conspiracy prior to Johns’ death is

evidence of Woodyard’s mere presence and association with one or more of the

conspirators. See United States v. Perez-Tosta, 36 F.3d 1552, 1557 (11th Cir.

1994). On the basis of this portion of Jones’ testimony alone, we cannot conclude

that sufficient evidence was presented showing Woodyard to be a member of the

conspiracy before November 27, 2001.

A defendant cannot be held accountable for conduct that occurred prior to

his entry into the conspiracy. United States v. Hunter, 323 F.3d 1314, 1320 (11th

45
Cir. 2003). The jury’s and the trial court’s finding13 that Woodyard was a member

of the conspiracy prior to Johns’ death, as it is based on insufficient evidence, must

therefore be set aside and the sentence on Count One vacated.14

3. The Jasen Johns Death Enhancement as to the Substantive Offenses

The government has conceded it was error for the district court to apply the

death enhancement to Woodyard’s, Hinton’s and Westry’s sentences on the

substantive drug distribution counts because the criminal conduct giving rise to the

substantive counts occurred after Johns’ death. See 21 U.S.C. §§ 841(b)(1)(C) and

(b)(1)(D). We accept the concession. Accordingly, the sentences on Counts Four

and Five (Woodyard), Count Ten (Hinton), and Counts Eleven and Twelve

(Westry) are vacated.

4. The Firearm Enhancement

Carter assigns error to the firearm enhancement, under U.S.S.G. §

2D1.1(b)(1), asserting there was no evidence to prove the firearm recovered in the

Clay Street home was possessed in furtherance of the conspiracy, or that possession

13
In contrast to the jury’s decision on this issue, the trial court’s conclusion of reasonable
foreseeability is based on the lesser evidentiary burden of preponderance of the evidence. See,
e.g., United States v. Cover, 199 F.3d 1270, 1274 (11th Cir. 2000).
14
Because we conclude application of the death enhancement to Woodyard was in error,
we do not reach Woodyard’s argument that his sentence is grossly disproportionate in violation
of the Eighth Amendment.

46
of the firearm by a co-conspirator was reasonably foreseeable. Westry maintains

he should not have received the firearm enhancement because he was not a member

of the conspiracy at the time the firearm was possessed.

To apply the firearm enhancement of U.S.S.G. § 2D1.1(b)(1) based on a co-

conspirator’s gun possession, the government must show by a preponderance of the

evidence that “(1) the possessor of the firearm was a co-conspirator, (2) the

possession was in furtherance of the conspiracy, (3) the defendant was a member of

the conspiracy at the time of the possession, and (4) the co-conspirator possession

was reasonably foreseeable by the defendant.” United States v. Gallo, 195 F.3d

1278, 1284 (11th Cir. 1999) (footnote omitted) (emphasis removed). Once the

government shows that a firearm is present at the site of the charged conduct, “‘the

evidentiary burden shifts to the defendant to show that a connection between the

firearm and the offense is clearly improbable.’” United States v. Fields, 408 F.3d

1356, 1359 (11th Cir. 2005) (quoting United States v. Hall, 46 F.3d 62, 63 (11th

Cir. 1995)).

We find no error in the trial court’s conclusion that the firearm recovered at

the Clay Street home, a stolen Rossi .38 caliber revolver, was a reasonably

foreseeable circumstance arising from the long-standing operation of a drug house,

and was in the constructive possession of a conspirator. See, e.g., Fields, 408 F.3d

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at 1359 (a connection between seized firearm and drug conspiracy was not clearly

improbable where firearms were present at locations where coconspirators sold

illegal drugs). Defendants presented no evidence that a connection between the

firearm and the offense was improbable. And, we have already addressed and

rejected Westry’s claim of withdrawal from the conspiracy.

In any event, because the firearm enhancement did not affect Defendants’

overall sentences, given application of the death enhancement had already

produced the maximum possible sentences on Count One, if there was any error, it

was harmless. See, e.g., United States v. Raad, 406 F.3d 1322, 1323 n.1 (11th Cir.

2005) (where a district court correctly imposes the statutory minimum sentence,

any error in the guidelines calculations is harmless and we need not address the

guidelines calculations).

5. Carter’s Sentence

Carter challenges his life sentence on the conspiracy count and the 60-year

sentences on the substantive counts as unreasonable. Review of the reasonableness

of the length of a sentence is undertaken in light of the facts and circumstances of

the Defendant’s case, as they relate to the sentencing considerations of 18 U.S.C. §

3553(a). United States v. Williams, 456 F.3d 1353, 1363 (11th Cir. 2006). A

remand for resentencing due to the unreasonableness of a sentence occurs only “if

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we are left with the definite and firm conviction that the district court committed a

clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence

that lies outside the range of reasonable sentences dictated by the facts of the case.”

Id. (citations omitted).

Carter advances the argument that if the trial court had used the drugs

associated with each substantive offense conviction for Count Fifteen (two

morphine tablets on February 18, 2003) and Count Twenty-Four (.08 grams of

cocaine base on January 6, 2005), rather than considering drugs associated with

conduct extrinsic to the incidents (i.e., conduct associated with the conspiracy), the

base offense levels for each would have been substantially lower (excluding the

firearm enhancement). On Count Fifteen, the guideline range would have been 12

months and on Count Twenty-Four, 12 to 16 months. The trial court’s decision to

impose the maximum statutory imprisonment of 60 years on each consequently

cannot be considered as reasonable, argues Carter.

Because Carter did not raise this issue below, we review for plain error. See

United States v. Bennett, 472 F.3d 825, 831 (11th Cir. 2006) (objections to

sentencing calculation issues raised for first time on appeal are reviewed for plain

error). The standard requires that there be error, the error be plain, and the error

affect a substantial right. Id.

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 Here there is no error, as the trial court properly grouped Carter’s offenses

together under the Guidelines. The offense levels for the convictions for

possessing with intent to distribute drugs and conspiring to possess with intent to

distribute drugs are determined by looking to the quantity of the substances

involved. See U.S.S.G. § 2D1.1(c). The base offense levels for the three offenses

of conviction are determined by looking at section 2D1.1, and U.S.S.G. § 3D1.2

provides that such offenses are to be grouped together. See U.S.S.G. § 3D1.2, App.

A. Moreover, the relevant conduct for the conspiracy with intent to distribute

morphine and cocaine base was part of the same course of conduct as the

convictions for possession with intent to distribute morphine and cocaine base, as

the substantive offenses were committed during the time period covered by the

conspiracy. Thus, the district court properly grouped the offenses together and

considered the conspiracy conduct relevant to the substantive offense conduct to

determine Carter’s total offense level. See U.S.S.G. § 1B1.3(a)(2) and comment

(n.9B).

The district court stated it considered the section 3553(a) factors, and in light

of the facts and circumstances surrounding the offenses of conviction, as the trial

court articulated at sentencing, Carter has not satisfied his burden of demonstrating

that his sentences on the substantive offenses are unreasonable. Given our prior

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analysis pertaining to the life sentence mandated on Count One by 21 U.S.C. §

841(b)(1)(A), that sentence, too, is reasonable.

III. CONCLUSION

For the reasons stated above, we vacate the sentences on Counts One, Four,

and Five as to Woodyard; Count Ten as to Hinton; and Counts Eleven and Twelve

as to Westry, and remand for resentencing. In all other respects, we affirm the

denial of the motions for judgment of acquittal, the trial court’s evidentiary rulings

and rulings on proposed jury instructions, and the remaining sentencing issues

addressed. AFFIRMED in part, VACATED in part, and REMANDED.

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