FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 28, 2011

JOHN LEY

CLERK

[DO NOT PUBLISH]

 IN THE UNITED STATES COURT OF APPEALS

 FOR THE ELEVENTH CIRCUIT

 ________________________

 No. 10-12720 

Non-Argument Calendar

 ________________________

 D.C. Docket No. 2:09-cr-14007-KMM-7

UNITED STATES OF AMERICA,

lllllllllllllllllllll Plaintiff-Appellee,

 versus

FRANK PIERRE,

lllllllllllllllllllll Defendant-Appellant.

________________________

 Appeal from the United States District Court

 for the Southern District of Florida

 ________________________

(July 28, 2011)

Before HULL, PRYOR and BLACK, Circuit Judges.

PER CURIAM:
Frank Pierre appeals his convictions and his total sentence of life

imprisonment after being found guilty of conspiring to possess with intent to

distribute 5 kilograms or more of cocaine (Count 1), and possessing with intent to

distribute 500 grams or more of cocaine (Count 5), in violation of 21 U.S.C.

§§ 841(a)(1) and 846. Pierre was indicted along with several other coconspirators, including Quentin Dixon and Jean Claudy Polanco. Pierre raises

several issues on appeal which we address in turn. After reviewing the record and

briefs, we affirm Pierre’s conviction and sentence.

I.

Pierre first asserts the Florida state court judge who issued the order to

wiretap Pierre’s cell phone lacked authority to do so because Pierre resided

outside the judge’s territorial jurisdiction. Pierre further contends the issuance of

1

the state and federal wiretap orders were improper because the police had other

methods of investigation available to them. Consequently, Pierre claims all

evidence gathered as a result of the wiretaps should have been suppressed.2

The issuing judge sat in St. Lucie County, which is part of the Nineteenth Judicial Circuit. 1

Pierre (and the phone) resided in Broward County, which is part of the Seventeenth Judicial Circuit. 

In reviewing a denial of a motion to suppress evidence, we review the district court’s 2

“findings of fact for clear error and its application of law to those facts de novo.” United States v.

Ramirez, 476 F.3d 1231, 1235 (11th Cir. 2007). We construe all factual findings in the light most

favorable to the prevailing party—in this case, the Government. Id. at 1236.

2
A. Jurisdiction of Issuing Judge

Under Florida law, upon a proper warrant application, a judge may enter an

order authorizing the “interception of wire, oral, or electronic communications

within the territorial jurisdiction of the court in which the judge is sitting, and

outside such jurisdiction but within the State of Florida in the case of a mobile

interception device authorized by the judge within such jurisdiction.” Fla. Stat.

§ 934.09(3). The Florida Fifth DCA has previously held that “the ‘interception’ of

a cellular call occurs both at the location of the tapped telephone and at the site

where law enforcement authorities hear and record the call.” See State v.

McCormick, 719 So. 2d 1220, 1222 (Fla. 5th DCA 1998). In McCormick, the

3

court concluded that a law enforcement officer had authority to seek and execute a

wiretap order where the listening post was located within the officer’s jurisdiction

despite the fact the telephone’s subscriber resided outside the officer’s

jurisdiction. Id. at 1221, 1223. 

Here, despite the fact that Pierre and the phone resided in Broward County,

outside the issuing judge’s jurisdiction, the listening post was located at all times

Pierre argues McCormick conflicts with a Florida Supreme Court case, State v. Mozo, 655 3

So. 2d 1115 (Fla. 1995), which held that an actual interception of a communication occurs where

the communication originates. McCormick distinguished Mozo, specifically noting privacy rights

(and not jurisdiction) were at issue in that case. See McCormick, 719 So. 2d at 1222 (“Mozo should

be limited to its facts; the court was discussing the right to privacy, rather than the issue of

jurisdiction.”).

3
within St. Lucie County. Accordingly, under McCormick, the state judge had

jurisdiction to issue the wiretap warrant for Pierre’s cell phone. See Fla. Stat.

§ 934.09(3); McCormick, 719 So. 2d at 1222.

B. Wiretap Warrant Application

Under the federal and Florida wiretap statutes, an application for a wiretap

warrant must contain, among other things, a “full and complete statement as to

whether or not other investigative procedures have been tried and failed or why

they reasonably appear to be unlikely to succeed if tried or to be too dangerous.” 

18 U.S.C. § 2518(1)(c); Fla. Stat. § 934.09(1)(c). Similarly, a judge may 4

authorize the wiretap if “normal investigative procedures have been tried and have

failed or reasonably appear to be unlikely to succeed if tried or to be too

dangerous.” 18 U.S.C. § 2518(3)(c); Fla. Stat. § 934.09(3)(c). However, “the

statute does not require an initial exhaustion of all conceivable investigatory

techniques,” but was simply intended “to inform the issuing judge of the

difficulties involved in the use of conventional techniques.” United States v.

Alonso, 740 F.2d 862, 868 (11th Cir. 1984) (quotation omitted); see also Hudson

v. State, 368 So. 2d 899, 902-03 (Fla. 3d DCA1979) (stating the Florida wiretap

The relevant provisions of the federal and Florida wiretap statutes are essentially identical. 4

Compare Fla. Stat. § 934.09, with 18 U.S.C. § 2518.

4
statute does not require “a comprehensive exhaustion of all possible techniques”). 

Thus, the affidavit accompanying the application does not need to recite “every

possible line of inquiry” in the investigation, but need only explain “the

prospective or retroactive failure of several investigative techniques that

reasonably suggest themselves.” Alonso, 740 F.2d at 868 (quotation omitted). 

Here, both the state and federal wiretap warrant applications described in

detail how multiple conventional investigative techniques, including surveillance,

subpoenas, interviews, undercover police officers, and trash pulls, had either been

used or would be unhelpful in the future. Because the factual content of the

applications is not in dispute, it appears the officers sufficiently exhausted nonwiretap methods of investigation, allowing them to obtain wiretap warrants under

the state and federal wiretap statutes. See Alonso, 740 F.2d at 868; Hudson, 368

So. 2d at 902-03. Accordingly, the district court did not err in denying Pierre’s

motion to suppress evidence gathered as a result of the wiretaps. 

II.

Pierre next contends the evidence at trial was insufficient to establish his

guilt for Count I. Specifically, Pierre contends the evidence at trial did not

establish a conspiracy between him and Dixon, or between him and Polanco.

5
Rather, the evidence merely evinced a buyer-seller relationship. Pierre also argues

the evidence established multiple conspiracies rather than a single one. 

5

We review de novo the sufficiency of the evidence to support a criminal

conviction. United States v. Frazier, 605 F.3d 1271, 1278 (11th Cir. 2010). In

making this determination, “we view the evidence in the light most favorable to

the government, with all reasonable inferences and credibility choices made in the

government’s favor.” Id. (quotation omitted).

“To support a conviction of conspiracy, the government must prove [1] that

an agreement existed between two or more persons to commit a crime and [2] that

the defendants knowingly and voluntarily joined or participated in the

conspiracy.” United States v. Silvestri, 409 F.3d 1311, 1328 (11th Cir. 2005)

(quotation omitted). The existence of a conspiracy “may be proven by

circumstantial evidence, including inferences from the conduct of the alleged

Pierre also appears to challenge the sufficiencyof the evidence on Count 5. However, Pierre 5

acknowledges in his brief that he possessed (with intent to distribute) more than 500 grams of

cocaine, and trial testimony clearly established that fact. To the extent Pierre argues the jury must

have found the total amount of cocaine attributed to him at sentencing, we have held that drug

quantity need only be proven by a preponderance of the evidence at sentencing. United States v.

Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005). Pierre does not argue the Government failed to

prove the drug amounts by a preponderance of the evidence, and, thus, he has abandoned any claims

to that effect. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2004) (holding that

issues on appeal are deemed abandoned if not “fairly and plainly presented” to this Court).

6
participants or from circumstantial evidence of a scheme. ” Id. (quotation

omitted). 

A. Buyer-Seller Relationship

A sale and purchase of drugs does not establish a conspiracy “[w]here the

buyer’s purpose is merely to buy and the seller’s purpose is merely to sell, and no

prior or contemporaneous understanding exists between the two beyond the sales

agreement.” United States v. Mercer, 165 F.3d 1331, 1335 (11th Cir. 1999)

(quotation omitted). However, a conspiracy “may be inferred when the evidence

shows a continuing relationship that results in the repeated transfer of illegal drugs

to the purchaser.” Id. We have previously concluded that a conspiracy existed

between a seller and buyer where the buyer bought crack cocaine from the seller

on several occasions, where the seller sometimes fronted the cocaine to the buyer,

where both individuals arranged for a supplier to bring three kilograms of cocaine

to them, and where they divided that cocaine among themselves. United States v.

Beasley, 2 F.3d 1551, 1560-61 (11th Cir. 1993). 

Regardless of whether a conspiracy was established between Pierre, Dixon

and the other small-time dealers, the Government presented sufficient evidence of

a conspiracy between Pierre and Polanco. According to Polanco’s testimony,

Pierre bought increasingly large amounts of cocaine from Polanco, who fronted

7
the cocaine to Pierre on many, if not all, occasions. Furthermore, Polanco would

go to some lengths to obtain the cocaine for Pierre. A reasonable jury could infer

Polanco was Pierre’s sole supplier, Pierre was Polanco’s main purchaser, and they

worked together to propagate their buying and selling operation. Evidence of such

a strong relationship between the two was sufficient to establish a conspiracy to

possess with the intent to distribute drugs. See Beasley, 2 F.3d at 1560-61; see

also United States v. Brown, 587 F.3d 1082, 1089 (11th Cir. 2009) (“[A]s is

well-established in this Circuit, where there are repeated transactions buying and

selling large quantities of illegal drugs, that is sufficient evidence that the

participants were involved in a conspiracy to distribute those drugs in the

market.”).

B. Multiple Conspiracies

We will not reverse a conviction “because a single conspiracy is charged in

the indictment while multiple conspiracies may have been revealed at trial unless

the variance is [1] material and [2] substantially prejudiced the defendant[].” 

Brown, 587 F.3d at 1092 (quotation omitted). In deciding whether any variance

was material, “we view the evidence in a light most favorable to the government

and inquire whether a reasonable jury could have determined beyond a reasonable

8
doubt that a single conspiracy existed.” Id. To demonstrate substantial prejudice,

a defendant must establish one of two prongs:

1) that the proof at trial differed so greatly from the charges that [he]

was unfairly surprised and was unable to prepare an adequate

defense; or 2) that there are so many defendants and separate

conspiracies before the jury that there is a substantial likelihood that

the jury transferred proof of one conspiracy to a defendant involved

in another.

United States v. Richardson, 532 F.3d 1279, 1286-87 (11th Cir. 2008) (quotation

omitted). 

“A ‘hub-and-spoke’ conspiracy occurs where “a central core of conspirators

recruits separate groups of co-conspirators to carry out the various functions of the

illegal enterprise.” United States v. Huff, 609 F.3d 1240, 1243-44 (11th Cir. 2010)

(quotation omitted). However, “where the ‘spokes’ of a conspiracy have no

knowledge of or connection with any other, dealing independently with the hub

conspirator, there is not a single conspiracy, but rather as many conspiracies as

there are spokes.” Id. at 1244 (quotation omitted).

Here, Count 1 of the indictment charged a single conspiracy, but the

evidence at trial showed the existence of at least two conspiratorial groups: one

including Dixon and other small-time drug dealers, and one including Polanco and

the higher-level suppliers. Pierre acted as the “hub” between the two groups,

buying the drugs from the suppliers and selling them to the distributors. Because

9
in this “hub-and-spoke” conspiracy, nothing, aside from Pierre, appears to have

connected the Polanco “spoke” with the Dixon spoke, at least two conspiracies

existed rather than a single one. See Huff, 609 F.3d at 1243-44. 

This variance between the indictment and proof at trial does not warrant a

reversal because Pierre failed to show substantial prejudice. Regarding the first

prong of substantial prejudice, nothing suggests, and Pierre does not claim, that he

was surprised or unable to prepare an adequate defense. The second prong would

not apply here because Pierre was the hub of the conspiracy and the only

defendant in the trial. See Richardson, 532 F.3d at 1287 (holding that the second

prong of substantial prejudice was irrelevant because the defendant “was the hub

of the conspiracy and was tried alone”). 

III.

Lastly, Pierre raises various claims regarding his sentence. He first asserts

that his post-arrest incriminating statements should have been excluded from his

PSI because they were obtained in violation of Miranda and their reliability was 6

not established. Pierre further contends the district court erred in applying a twolevel firearm increase under U.S.S.G. § 2D1.1(b)(1) because the Government

presented no evidence at trial that he possessed a firearm. Pierre next claims the

Miranda v. Arizona, 384 U.S. 436 (1966). 6

10
court erred in applying a four-level role enhancement under U.S.S.G § 3B1.1(a)

because the Government never established that he was a leader or organizer as

defined by the Guidelines. Finally, Pierre contends the district court erred when it

failed to consider his motion for a variance, in which he argued that imposing a

life sentence would violate the Eighth Amendment’s prohibition on cruel and

unusual punishment.7

We review a district court’s consideration of inadmissible evidence in

sentencing de novo. U.S. v. Nichols, 438 F.3d 437, 439 (11th Cir. 2006). Further,

we review the district court’s factual findings related to the imposition of

sentencing enhancements for clear error. United States v. Robertson, 493 F.3d

1322, 1329 (11th Cir. 2007). “This standard requires us to affirm a district court’s

findings of fact unless ‘the record lacks substantial evidence’ to support that

determination.” Drew v. Dept. of Corrections, 297 F.3d 1278, 1283 (11th Cir.

2002) (citation omitted). Lastly, “[w]e review for reasonableness the ultimate

sentence a district court imposes on a defendant.” See U.S. v. Willis, 560 F.3d

Pierre also appears to challenge the district court’s consideration of paragraphs 18 and 25 7

of the PSI on the sole ground that acquitted conduct may not be considered at sentencing. We have

previously held that acquitted conduct may be considered at sentencing, provided the conduct is

proved by a preponderance of the evidence. See United States v. Faust, 456 F.3d 1342, 1348 (11th

Cir. 2006). There was adequate evidence presented at Pierre’s trial to meet this standard. 

Accordingly, the district court did not err in considering the acquitted conduct.

11
1246, 1250-51 (11th Cir. 2009) (denying a defendant’s motion for a Guideline

variance on reasonableness grounds).

A. Post-Arrest Statements

“A sentencing court may consider any information, (including hearsay),

regardless of its admissibility at trial, in determining whether factors exist that

would enhance a defendant’s sentence, provided that the evidence has sufficient

indicia of reliability, the court makes explicit findings of fact as to credibility, and

the defendant has an opportunity to rebut the evidence.” United States v. Baker,

432 F.3d 1189, 1253 (11th Cir. 2005). We have held that the exclusionary rule did

not apply to sentencing proceedings and evidence seized in violation of the Fourth

Amendment could be introduced at sentencing as long as it was reliable. United

States v. Lynch, 934 F.2d 1226, 1235-37 (11th Cir. 1991).

The district court did not err in considering Pierre’s post-arrest statements at

sentencing because there was no evidence that the statements were involuntary or

unreliable. See Lynch, 934 F.2d at 1235-37. Pierre’s statements showed only that

he bought large quantities of cocaine from Polanco and sold some cocaine to

Dixon and others. Because all of these actions were proved at trial, the inclusion

of Pierre’s own corroborating admissions did not affect the district court’s

sentence. 

12
B. The Two-Level Firearm Enhancement

“When a defendant objects to a factual finding that is used in calculating his

guideline sentence . . . the government bears the burden of establishing the

disputed fact by a preponderance of the evidence.” Id. Section 2D1.1(b)(1) of the

Guidelines provides for a two-level increase if “a dangerous weapon (including a

firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). “To justify a firearms

enhancement, the government must either establish by a preponderance of the

evidence that the firearm was present at the site of the charged conduct or prove

that the defendant possessed a firearm during conduct associated with the offense

of conviction.” United States v. Stallings, 463 F.3d 1218, 1220 (11th Cir. 2006). 

At the sentencing hearing, Agent Tammy Roane of the Florida Department

of Law Enforcement testified that Polanco told her that he saw Pierre with a gun

during two drug transactions. Because the district court had broad discretion to

believe Roane and Polanco, it did not clearly err in finding that Pierre qualified for

the two-level firearm increase. See Stallings, 463 F.3d at 1220; United States v.

Gregg, 179 F.3d 1312, 1316 (11th Cir. 1999) (“We accord great deference to the

district court’s credibility determinations.”). 

13
C. The Four-Level Role Adjustment

 Section 3B1.1 of the Guidelines provides a four-level enhancement “[i]f the

defendant was an organizer or leader of a criminal activity that involved five or

more participants or was otherwise extensive.” U.S.S.G. § 3B1.1(a). The

Guidelines provide a three-level enhancement if “the defendant was a manager or

supervisor (but not an organizer or leader).” Id. § 3B1.1(b).8

The “mere status of a middleman or a distributor does not support

enhancement under Section 3B1.1 for being a supervisor, manager, or leader. 

Section 3B1.1 requires the exercise of some authority in the organization, the

exertion of some degree of control, influence, or leadership.” United States v.

Yates, 990 F.2d 1179, 1182-83 (11th Cir. 1993) (quoting United States v. Brown,

944 F.2d 1377, 1385 (7th Cir. 1991)). We have upheld a three-level increase

under U.S.S.G. § 3B1.1(b) where a defendant “fronted” cocaine to a codefendant,

then accompanied the codefendant to a location where the codefendant sold the

cocaine to another individual, and, when the sale was completed, the codefendant

turned the money over to the defendant in payment for the cocaine. See United

States v. Howard, 923 F.2d 1500, 1502-03 (11th Cir. 1991). We have also held

Although the court applied a four-level role enhancement, we note that Pierre’s offense level 8

and Guideline range would remain the same regardless of whether the court applied a four-level or

a three-level enhancement. His base offense level of 38, coupled with a 2-level and a 3-level increase

would still yield a total offense level of 43 and a Guideline range of life. 

14
that “evidence of fronting, without more, is insufficient to satisfy the management

requirement.” United States v. Alred, 144 F.3d 1405, 1422 (11th Cir. 1998)

(quotation omitted). 

As a preliminary matter, there is no dispute the criminal activity in this case

involved five or more participants or was otherwise extensive. The evidence

presented at trial and sentencing established more than mere fronting of cocaine

between Pierre, Dixon, and the lower-level distributors. Based on the amount of

drugs Pierre purchased from Polanco, and Pierre’s communication with numerous

individuals regarding the drugs, one could infer that Pierre was a major cocaine

supplier in the area and played an influential role in the distribution of this drug. 

Accordingly, the district court did not clearly err in finding Pierre played a

leadership role and qualified for a four-level enhancement.9

D. Motion for a Sentencing Variance

Lastly, the district court did not err when it refused to hear Pierre’s untimely

motion for a sentencing variance based on Eighth Amendment grounds. As Pierre

Even if the evidence did not support Pierre having an organizational or leadership role in 9

the conspiracy, the evidence did show he played a managerial or supervisory role warranting a threelevel increase. See Howard, 923 F.2d at 1502-03. Accordingly, any error committed by the district

court in applying a four-level rather than a three-level enhancement was harmless. See United States

v. Mejia-Giovani, 416 F.3d 1323, 1327 (11th Cir. 2005) (stating that a sentencing error is harmless

where “the error did not affect the sentence, or had but very slight effect”). 

15
acknowledged in his Brief, the motion “was in essence more of an alloc[u]tion that

[he] ought not be sentenced to life.” The court did, in fact, allow Pierre and his

counsel an opportunity to allocute and argue for a variance, which the court

denied. Furthermore, Pierre’s motion lacked merit as Graham v. Florida does not

apply to adult offenders such as Pierre. See Graham v. Florida, 130 S. Ct. 2011,

2034 (2010) (holding that “[t]he Constitution prohibits the imposition of a life

without parole sentence on a juvenile offender who did not commit homicide.”);

see also Harmelin v. Michigan, 501 U.S. 957, 1002-09 (1991) (plurality opinion)

(finding no Eighth Amendment violation where the defendant was sentenced to a

mandatory term of life imprisonment without the possibility of parole for

possessing more than 650 grams of cocaine). Accordingly, we affirm Pierre’s

convictions and sentence. 

AFFIRMED.

16