NOT RECOMMENDED F OR P UBLICATION File Na me: 12a1181n.06 No. 11-1195

UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. JAMEIL BAKRI, Defendan t-Appellant. / ON AP P EAL FR OM THE UNITE D STATE S DIST RICT COURT F OR THE WEST ERN DISTRICT OF MIC HIGAN

BEFORE: BOGG S and CLAY, Circ uit Jud ges; STAF F ORD, Distric t Judge * CLAY, Circuit Judge. Def endant J ameil Ba

kri appea ls both his conviction for conspirac y to distribute and possession with intent to distr i b u t e coca ine on J une 29, 2010, in violation of 21 U.S.C. § 846, and his sentenc e of 108 months imprisonment. He argues that there was insufficient evidenc e of guilt and that there w as a f atal var iance betwee n the cha rg e for which he w as indicted and the proof offe red at trial. He also argues that the district court err ed in calc ulating his sentenc e. For the rea sons that follow, we AF F IRM Def end a n t’ s c o nv ic ti o n , b ut V A C A TE h is s e n tence and REMAND for r e-se ntencing

.

The Honor ab l e W illiam H. Stafford, J r., United States District J udg e for the Norther n * District of F lorida, sitting by desig nation.No. 11-1195

BACK GR OUND J ameil Ba kri dealt coca ine from “sometime in 2008 until September 2009.” (Gov' t Br

. at 3.) He obtaine d the coc aine f rom Donald Hollin, who was the co-ow ner of a ca r dea lership, and f

rom Hollin's associate , Carlos “Scooby ” J ohnson. Hollin and J ohnson wo uld buy coca ine in Gra nd Rapids, Michig an, and re- sell it to d ea l er s , i n cludi ng Def endant. (

Id. ) J ohnson testified at Def endant' s trial that he had seen Def endant purcha se coc ai n e from Hollin on sever al occa sions, including at least one transac tion involving nine ounces. (R. 157, J ohnson, Trial Tr. v. 1 at 90–91.) Def endant sometimes sold coca ine to Sumer Br enner , who also sometimes boug ht c ocaine for Ma tthew Mac Naug hton. Bre nner and MacN aug hton w ould e ach use some of the c ocaine , and sell the rest to others. (R. 157, Br enner , Trial Tr. v. 1 at 144–48; R. 158, MacN aug hton, Trial Tr. v.2 at 295–97.) I n 2009, Def endant alleg edly ag ree d to a scheme with Bre nner a

nd MacN aug hton to acquire three kilogr ams of coca ine in F lorida and bring it to Michig an. (R. 158, MacN aug hton, Trial Tr. v.2 at 299-307.) Pursuant to their ag ree ment, Def endant would he lp pay

for Br enner and MacN aug hton to g o to Florida to meet with “S ergio,” Br enner ' s contac t there

. ( Id. ) During the planning stag es for

the transa ction, Def

endant spoke with Serg io on the phone seve ral times. I n May 2009, Br enner and MacN aug hton flew to Florida and met with Serg io, who showed them a kilogr am of coca ine. MacN aug hton tested the coca ine by tasting it. Br enner then called Def endant to tell him that they could g o ahea d with the deal. Soon afte r this, MacN aug hton advised Def endant by phone to call off the deal, beca use MacN augh t on was worrie d that Serg io was an underc over law enfor ceme nt office r. ( Id. at 306–12.) MacN aug hton's fe ar s were justified, as

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Br enner soon lear

ned from the fathe r of her child that Serg io was a police office r. (R. 157, Br enner , Trial Tr. v. 1 at 172-74.) Def endant then sent MacN aug hton money for return airfa re to Michig an. Once he wa s back in Michig an, Mac Naug hton continued to deal drug s, purcha sing at least

some of them from Def

endant. (R. 158 , MacN aug hton, Trial Tr. v.2 at 312.) MacN aug hton was eventua lly arr ested by the Kent Are a Narcotics Enforce ment Tea m, ( id. at 315–19,) and agr eed to help the authorities. Wi th MacN aug hton's cooper ation, office rs rec orded phone conver sations betwee n him and Def

endant, and, while wea

ring a wire, MacN aug hton conducte d a drug deal with Def endant, who was arr ested soon there afte r. ( Id. at 219–24.) Offic ers sear ched Def endant' s home, wher e they found ten g rams of coca ine, $7,600 in cash, an d t h re e flat-sc ree n televisions. I n interviews with the office rs, Def endant admitted that “his main s o u rc e” o f coca ine was Hollin, (R.158, Trial Tr. v. 2 at 368,) and that his monthly expenses wer e near ly $2300.00, despite having not had a leg itimate income since 2007. ( Id. at 375.) Def endant was convicted b y a j u ry on September 29, 2010. Prior to sentenc ing, a pre- sentenc e repor

t (“PSR”) was prepa

red and submitt ed to the district court. That repor t found that Def endant' s g uidelines rang e was 135–168 months, ba sed on an offe nse level of 32 and a cr iminal history cate g ory of I I

. The criminal history cate g ory was calc ulated o n t h e b as is of what the g overnme nt conce des wa s an er roneous inclusion of c erta in prior offe nses. The offe nse leve l was calc ulated on the basis of Def endant' s responsiblity for seven kilogr ams of coca ine; three from the Florida transac tion, and four to six kilogr ams from various transac tions with Donald Hol l i n . Def endant objected, arg

uing that he was only responsible for an amount betwee n 500 g rams and 2 kilogr ams of coca ine. Th e d i s t ri ct court ruled that there was sufficie nt evidenc e of Def endant' s

3No. 11-1195

involvement in the Florida transac tion, and that while there was probably sufficie nt evidenc e of his involvement in the Holl in transac tions, it would exercise “caution” and onl y attrib u t e t h e co caine from the Florida transac tion to Def endant. (Gov' t Br

. at 14.) Acc ording ly , the district court used a base offe nse level of 28 and a criminal history cate g ory of I I , y ielding an advisory sentenc ing rang e of 87–108 months. The court sentenc ed defe ndant t o 1 0 8 months in prison, to be serve d

concur rently with his state term of imprisonment. DISCUSSIO N I. Suf

fi ciency of the Evidence at Trial Be cause Def

endant moved for a judgme nt of acquittal pursuant to Fe dera l Rule of Criminal Procedur e 29 on the basis of insufficient evidenc e both at the completion of the g overnme nt's case and at the conclusion of the trial, we revie w the leg al sufficie ncy of the evidenc e ag ainst defe ndant de novo . United States v. Carson , 5 6 0 F. 3 d 566, 579 (6th Cir. 2009). “[T] he rele vant question is whether , afte r viewing the evidenc e in the light most favor able to the prosec ution, any rational trier of fa ct could have found the essential elements of the crime bey ond a re asonable doubt.” Jack son

v. Virginia , 443 U.S. 307, 319 (1979); accord United States v. A l l en , 619 F.3d 518, 522 (6th Cir. 2010). The revie wing court must draw “all available infere nces and resolve all issues of cre dibilit y in favor of the [j ury ' s] verdic t.” United States v. W ade , 318 F.3d 698, 701 (6th Cir. 2003) (interna l quotation marks omitt ed ). “Ac cording ly , defe ndants bear a heavy burden when asser ting insufficienc y of t he evidence arg uments.” United St ates v. W ettstain , 618 F.3d 577, 583 (6th Cir. 2010) (citing United States v. Spearman , 186 F.3d 743, 746 (6th C i r. 1999)). Fur ther, “[c]ircumstantial evidenc e alone, if substantial and competent, may sustain a conviction under this

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defe rential standard of revie w.” United States v. Bev erly , 369 F.3d 516, 531 (6th Cir. 2004) (interna l quotation marks omitted). There was sufficie nt evidenc e of Def endant' s g uilt for a jury to return it s v erdic t, and we aff irm the verdict. The elements of a conspirac y under 21 U.S.C. § 846 are : “(1) an agree ment to violate t he drug laws, (2) knowledg e and intent to join the conspiracy , and (3) participation in the conspirac y .” Allen , 619 F.3d at 522 (quoting United States v. W elch , 97 F.3d 142, 148–49 (6th Cir. 1996) (internal quotation marks omi tted)). Fur ther, the g overnme nt does not have to prove either the commission of a substantive crime, United States v. Rabinow i ch , 2 38 U.S. 78, 87–89 (1915); United S t a t es v. Ma

yes , 512 F.2d 637, 652 (6th Cir. 1975); or t hat t he conspiracy was successful. Rabinowich , 238 U.S. at 87–89. The g overnme nt prese nted signific ant evidenc e of Def endant' s ag ree ment to the conspirac y . He admitted to purcha sing coca ine from Hollin and re- selling it on multipl e occa sions. See United States v. Sills , 662 F.3d 415 (6th Cir. 2011) (“[C] ase law from this circ uit holds that a conspirac y can be inferr ed from repe ated p u rc h as es of larg e quantities of drug s . . . .”) Ba kri was also awa

re of Hollin’s and J ohnson' s i n v o l v em en t in the drug trade ; by his own admission, Hollin offe red him signific ant quantities of coca ine on more than one occa sion. ( See, e.g. , R. 159, Ba kri, Trial Tr. v.3, at 486.) T h es e fa cts indicate that Ba kri had sufficie nt knowledg e of the conspirac y such that a rational jury could have found him to be a part of that conspirac y . See United States v. Hitow , 889 F.2d 1573, 1577 (6th Cir. 1989) (“The key element of a chain co n s p i ra cy i s k nowledg e of a larg e operation.”) Viewe d in the light most favor able to the prosec ution, this would permit a rea sonable jury to find that Ba

kri was a participa nt in a drug conspirac y .

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I n the context of criminal conspira cy , an ag ree ment does not nee d to be formal or ex press. United States v. Pearce , 912 F.2d 159, 161 (6th Cir. 1990 ). I n fac t, “[t] he evidenc e that the defe ndant ag ree d to join a conspirac y to violate the drug laws ‘nee d only be slight.' ” Allen , 619 F.3d at 522 (quoting United States v. Hodge s , 935 F.2d 766, 773 (6th Cir. 1991) ). “O nce the exis tence of the conspirac y is proven, only slight evidenc e is nece ssary to connec t a defe ndant with the conspirac y .” Hitow , 889 F.2d at 1577. Whil e “a ‘ buy er- seller r elationship' is not enoug h to make

someone a participa

nt in a drug conspirac y , ‘fur ther evidenc e indicating knowledge o f and participa tion in the conspirac y can be enoug h to link a defe ndant to the conspirac y .' ” United States

v. Henley , 360 F.3d 509, 514 (6th Cir. 2004) (quoting United States v. Gibbs , 182 F.3d 408, 421 (6th C i r. 1999)). I n addition, “[d] rug distribution conspirac ies are often ‘cha in' conspirac ies such that ag ree ment can be i nfer

red f rom the interde pendenc e of the enter prise.” United St ates v. Boujai ly , 781 F.2d 539, 544 (6th Cir. 1986); accord U nited States v. Spearman , 186 F.3d 743, 746 (6th Cir. 1999). On the knowledg e and participa tion elements, there was testimony from witnesses who had purcha sed coca ine from Def endant and witnesses who had sold c ocaine to Defe ndant. See U nited States v. Graham , 622 F.3d 445, 450–51 (6th Cir. 2010) (testimony from repe at purcha sers of drug s from a def

en d an t is sufficie nt proof of a defe ndant' s participa tion in a conspirac y ). There was evidenc e that at one point, Hollin “fr onted” coca ine to Ba kri, (R.157, J ohnson, Trial Tr. v.1, at 92,) wh i ch i s co n sidered strong evidenc e of a rela tionship that g oes beyond the ordinary buy er- seller relationship. W

ettstain , 618 F.3d at 585. Ba kri also neg otiated terms and fee s wi t h Br en n er and MacN aug hton with reg ard to the proposed t ransaction in Florida , including the fee that

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MacN aug hton w ould r ece ive for driving the drug s back to Mic higa n. (Gov' t B r. at 5). See United States v. Deitz , 577 F.3d 672 (6th Cir. 2009). Finally , the g overnme nt also produce d evidenc e of Ba kri' s initial ag ree ment and planning with Serg io L o p ez , t h ro ug h the tapes of conver sations betwee n the two of them. I t is clea r that a rational jury could have found this to be s u ff i ci en t evidenc e of B akri' s ag ree ment, knowledg e, and pa rticipation in a conspira cy to purcha se coc aine. See U nited States v. Gardner , 488 F.3d 700, 707–08 ( 6th Cir. 2007). Acc ording ly , we find that there was sufficie nt evidenc e for a rational jury to find that Ba kri conspired to violate the drug laws, and w e af firm his conviction. II. F atal Variance Be cause Def

endant raises the issue of pre judicial varia

nce for the first time on appea l, our revie w is limit ed t o p lain err or. United States v. Caver , 470 F.3d 220, 235 (6th Cir. 2006). Def endant must there fore show a clea r and obvious err or that aff ecte d his substantial rig hts. Finally , if Def endant can make such a showing , “the court of appea ls has the discretion to reme dy the

err or—discre tion which oug ht to be exercised only if the err or seriously aff ect[s] the fairne ss, integ rity or public reputation of judicial proce eding s.” Puck ett v. United States , 556 U.S. 129, 135, 129 S. Ct

. 1423, 1429 (2009) (interna l quotation marks omitted; alteration in orig inal); accord United States v. Vonner , 516 F.3d 382, 386 ( 6th Cir. 2008) (en ba nc). “A v ar i an ce occur s when the char g ing terms [of the indictment] are unchang ed, but the evidenc e at trial proves fac ts materia lly differ ent from those alleg ed in the i n d ictment.” United States v. Hughes , 505 F.3d 578, 587 (6th Cir. 2007) (interna l quotation marks omitted; alteration in orig inal). “[I ]f an indictment alleg es one conspirac y , but the evidenc e can rea sonably be construed

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only as supporting a finding of multipl e conspirac ies, the resulting varia nce betwee n the indictment and t h e p ro o f i s reve rsible err or if the appellant can show that he was prejudice d there by .” Id. (quoting United States v. W arner , 690 F.2d 545, 548 (6th Cir. 1982) (interna l quotation marks omitted; alteration in orig inal)). “W i t h i n the context of a conspirac y , a varia nce constitutes

reve rsible err or only if a defe ndant demonstrates that he was prejudice d by the varia nce and that the in d ic tment alleg e[d] one conspirac y , but the evidenc e can rea sonably be construed only as sup p o r ti n g

a finding of multipl e conspirac ies.” Caver , 4 7 0 F. 3 d at 235–36 (interna l quotation marks and citations omitt ed) ( emphasis adde d). Def endant can show neither varia nce nor prejudic e. The indictment alleg es that he was involved in a conspirac y with Hollin and J ohnson. (R. 98, Third Superce ding I n d i ct m en t .) Def endant claims that the evidenc e at trial demonstrated a “ver y differ ent and unrela ted conspirac y ,” (De f. Br

. at 32,) involving the transac tion in Florida

. First, construing “the evidenc e . . . in the light most favor able to the g overnme nt,” Caver , 470 F.3d at 236, the evidenc e would permit the infere nce that the Florida transac tion was part of the conspirac y with Hollin and J ohnson. See id. I f Def endant

wer e part of a chain conspirac y with Hollin and J ohnson on one side, and Br enner and MacN aug hton

on the other, then acts committed by Def endant with Br enner and MacN aug hton are attributable to the conspirac y betwee n Def endant, Hollin, and J ohnson. See id. But even if Def endant could show that it was clea

r err or to find that the Florida transac tion was connec ted to the Michig an conspirac y , there was still ample evidenc e, including the testimony of tw o co -c o n s pirators, of a conspirac y involving Hollin, J ohnson, and De fenda nt to violate t he drug laws, which wa s prec isely what wa s alleg ed in the cha

rg ing doc ument.

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I n any event, the question of varia nce is aca demic, beca

use Def endant cannot show prejudice

as a result of any varia

nce. See, e.g., United States v. Swafford , 512 F.3d 833, 842 ( 6th Cir. 2008) (“F inding a

varia nce doe s not ma

ndate a re versa l; in order for the var iance to constitute rever sible

err or, a defe ndant must at the very least show that this varia nce prejudice d him.”) (citing Caver , 470 F.3d at 2 3 7 ). P re

j u d i ce exis ts “whe re the defe ndant is unable to prese nt his case and is taken by surprise by the evidenc e offe red at trial”; “whe re the defe ndant is convicted for substantive offe nses committed by another ”; or “whe re spillover [occurs] beca use of a larg e number of improperly joined def e ndants.” Swafford , 512 F.3d at 842–43 (interna l quotation marks omitted; alteration in orig inal). None of these condit ions have been met here

. Def endant was able to prese nt his case . I n fac t, ag ainst the advice of counsel, he testified on his own behalf

. Fur ther, the alleg ations conce rning Br enner and MacN aug hton wer e included in pre- trial filings, and the nature of the conspirac ies wer e substantially simil ar, so there was no dang er of Ba kri being surprised by the evidenc e prese nted ag ainst him. See, e.g., United States v. Davis , 407 F. App’x 32, 40–41 (6th C i r. 2 0 1 1 ). Nor was there any possibili ty of De fenda

nt being convicted f

or the substantive a cts of anothe r. Reg ardle ss of how one descr ibes the conspirac y or conspirac ies, Def endant was an active participa nt. Finally , there was minimal chanc e of spi l l -over . There wer e four co-de fenda nts, two of whom testified ag ainst Ba

kri, and Ba

kri’s trial was ultimately severed from the other defe ndants. ( See R. 85.) Acc ording ly , the risk of transfe renc e of g uilt from one defe ndant to anoth er was minimal. See Caver , 470 F.3d at 237.

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III. Error s in S entencing Finally , Def

endant raises an unprese rved claim that the district court calc ulated his criminal history cate g ory incorre ctly and a prese rved claim that the di stri ct co u rt i n corr ectly calc ulated the quantity of coca ine involved in the offe nse. Sentence s are revie wed for proce dural and substantive

rea sonablene ss under an abuse of discretion standard. Gall v. United States , 552 U.S. 38, 51 (2007). The district court’s conclusions of law are revie wed de novo , while its finding s of fac t are revie wed for clea r err or. Un i t ed States v. Moon , 513 F.3d 527, 539–40 (6th Cir. 2008). Unpre serve d proce dural objections are revie wed for plain err or. Vonner , 51 6 F.3d at 386. Acc ording ly , we revie w Def

endant’s cl ai m re g arding the criminal history cate g ory for plain err or and his claim reg arding quantity of coca ine for clea r err or. United States v. W arman , 578 F.3d 320, 350 (6th Cir. 2009). Def

endant claims that the district c o u r t e r r e d in calc ulating the quantity of coca ine that should be attributed to him. The court found that three kilogr ams of cocai n e could be attributed to Def endant. Def

endant argues that this was inappropriate, beca use the three kilogr ams fig ure could only ref er to the unconsummated Florida transac tion and that, in any event, the district court did not set forth an y s pecif

ic evidence as to how i t rea ched its conclusion. Howeve r, Defenda nt does not p re s en t an y leg al arg ument as t o why the di strict court’s determination was clea r error. Eviden ce introduced connec ted Def endant with quantities g reater than three kilogr ams of coca ine. For example, Detec tive Merr y weather testified that Def endant had repor

ted seeing Hollin, a

co-c onspirator, with four to five kilos of coca ine, (R. 158, Merr y weather, Trial Tr. v.2 at 370,) and J ohnson testified that he and Hollin had g one to Gra nd Rapids at least three times, retrie ving a kilo

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of coca ine eac h time, for sale to parties including Def enda n t (R

. 1 5 7 , J ohnson, Trial Tr. v.1 at 85–88.) Acc ording ly , t h er e was sufficie nt evidenc e for the court to conclude that Def endant was responsible for

at least thre e kilog rams of c ocaine

. Def endant also claims that the trial court e rre d in calculating his criminal history cate g ory . He was sentenc ed as having a criminal history cate g ory of I I , based on three prior sentenc es enter ed in Mic higa

n state cour

ts. Two of those sentenc es wer e imposed more than ten y ear s ag o, and thus should not have been counted pursuant to U.S.S.G. §§ 4A1.2(e )(2) and (3). The g overnme nt

conce des that the district court calc ulated the criminal history cate g ory incorre ctly , (Gov’t Br

. at 32,) and further acknow ledg es that this miscalculation constitutes plain err or. See, e.g., United States v. Goward , 315 F. App’x 544, 551–52 (6th Cir. 2009). Acc ording ly , rema nding the case to the district court for re- sentenc ing is a

ppropriate

. CONCLUSION For the fore g oing rea sons, we AF F IRM Def endant’ s convictions but VA C A TE his sentenc e and REMAND for r e-se ntencing

.

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