PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 94-3560

 

D. C. Docket No. 94-05014-2 LAC

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

IRMA ESTELLA CALDERON ALRED,

ROY JAVON ALRED,

Defendants-Appellants.

 

Appeals from the United States District Court

for the Northern District of Florida

 (June 30, 1998)

Before HATCHETT, Chief Judge, BIRCH, Circuit Judge, and CLARK,

Senior Circuit Judge.

BIRCH, Circuit Judge:

This consolidated appeal by Irma Estella Calderon Alred and

Roy Javon Alred from convictions for their participation in a
2

marijuana distribution conspiracy presents trial and sentencing

issues. The appeal raises challenges to the government's single

conspiracy theory, its alleged misuse of the grand jury, the district

court's disqualification of preferred counsel, determination of the

accountable marijuana amounts, and enhancements for

possession of firearms and a leadership role in the marijuana

distribution operation. We affirm the convictions and Irma Alred's

sentence. Because the district court erred by according a

leadership role to Roy Alred for being a buyer/seller of marijuana,

we vacate his sentence and remand for resentencing consistent

with this opinion. 

I. BACKGROUND

From 1984 until 1994, a group of individuals, known as the

"Alred Organization," in Holmes County, Florida, engaged in an

extensive marijuana distribution conspiracy involving thousands

of pounds of marijuana. They primarily purchased the marijuana

in the Texas/Mexico area and transported it by vehicles to
3

Holmes County, where it was sold. The principal source for

obtaining Mexican marijuana was defendant-appellant Irma Alred,

who was Irma Calderon in the mid 1980's when the conspiracy

began. After delivering approximately 300 pounds of marijuana

to coconspirator Charles Douglas Mixon in Holmes County and

remaining there until it was sold, she became an active

participant in the organization. Defendant-appellant Roy Alred

became acquainted with Irma Calderon when he flew to Houston,

Texas, to obtain from her 200 pounds of marijuana, which he

transported in a rental car to Holmes County for sale there.

Subsequently, Irma Calderon moved to Holmes County and later

married coconspirator Charlie Alred, Roy Alred's cousin. 

Irma Alred continued to be integrally involved in obtaining

marijuana from Texas/Mexico. Numerous shipments intercepted

through traffic stops by law enforcement agents were destined for

her. On occasion, the marijuana was concealed in an extra

propane gas tank on trucks traveling from Texas to Holmes
1

 In addition to Irma Alred and Roy Alred, the other seven

defendants named in the superseding indictment were: Charlie Junior

Alred, Virginia Lee Blackmon, Clayton Michael Blackmon, Ardis James

("Junior") Hightower, Thomas Robert White, Adrian Dickey Gonzalez,

and O'Don Newell. 

2

 The other three defendants who went to trial with Irma Alred

and Roy Alred were Virginia Lee Blackmon, Michael Clayton Blackmon,

and O'Don Newell.

4

County. Eventually, Irma and Charlie Alred separated and

divorced. Thereafter, competition between Irma, Charlie and Roy

Alred became not only a price war but also an aggressive

recruitment of each other's customers as the wire intercept

evidence at trial demonstrated.

On June 15, 1994, a federal grand jury for the Northern

District of Florida returned a one-count, superseding indictment

charging Irma Alred, Roy Alred, and seven codefendants with

conspiracy to possess with intent to distribute marijuana in

violation of 21 U.S.C. §§ 841(a)(1) and 846.1

 Because some of

the original codefendants pled guilty, only Irma Alred, Roy Alred,

and three codefendants went to trial.2

 At least twenty-one

smuggling ventures were documented by law enforcement
3

 Former codefendants testified at trial against Irma Alred

and Roy Alred. Junior Hightower sold marijuana for Irma

Alred from December, 1992, until shortly before

his arrest in 1994. Thomas White assisted Irma

Alred by allowing her to park vehicles used to

transport marijuana on his property. White became

involved during Irma Alred's divorce proceedings

when she needed a place to conduct business

without her estranged husband and coconspirator,

Charlie Alred's, knowledge. Adrian Gonzalez made

deliveries of several hundred pounds of marijuana

to Irma Alred in March and April, 1994. The

marijuana was hidden in an extra propane gas tank

concealed on trucks during the trip from Texas to

North Florida. Following delivery of 200 pounds

of marijuana in Holmes County, Gonzalez was

stopped by the Florida Highway Patrol after

leaving the North Florida area on April 22, 1994.

Agents seized approximately $160,000 in cash from

the extra propane tank on the truck that Gonzalez

was driving.

4

 Hobby and Willard and Shirley Womble testified that, between

1986 and 1989, Roy Alred was a buyer/seller of marijuana in various

transactions with them. On one occasion, the Wombles accompanied

Roy Alred to Texas to obtain marijuana. Cuellar and Galaviz were

stopped by law enforcement agents in the course of delivering

marijuana to Roy Alred. 

5

seizures, wire intercepts, testimony from cooperating, former

codefendants,3

 and other witnesses, such as Collis Hobby, Willard

and Shirley Womble, Jose Cuellar, and Jesus Galaviz.4

Irma Alred, Roy Alred and the three remaining codefendants
6

were convicted. Both Irma Alred and Roy Alred received

sentence enhancements for being leaders or managers in the

marijuana distribution conspiracy. Irma Alred was sentenced to

364 months of imprisonment, ten years of supervised release, and

a fine of $25,000. Roy Alred was sentenced to 293 months of

imprisonment and five years of supervised release.

On appeal, Irma Alred contests the district judge's

disqualification of her counsel of choice. Roy Alred contends that

the government misused the grand jury to investigate further his

involvement in the marijuana distribution conspiracy after the case

was scheduled for trial and that the district court erred in

enhancing his sentence for possession of firearms and for being

a leader in the marijuana distribution conspiracy. Both Irma Alred

and Roy Alred challenge the single conspiracy theory under which

the government prosecuted this case, which they argue involved

multiple conspiracies, and the amounts of marijuana for which

they were held accountable at sentencing. We address these
7

contentions as trial and sentencing issues and include the

pertinent facts relating to each issue.

II. ANALYSIS

A. Trial Issues

1. Choice of Counsel

Irma Alred argues that she was deprived of her Sixth

Amendment right to counsel when the district court disqualified

her original attorney and counsel of choice, John F. Daniel.

Because Daniel represented both Irma Alred and her ex-husband

and coconspirator, Charlie Alred, and the government had

suggested that one of Daniel's former clients might testify against

Charlie Alred, the district judge conducted a hearing

approximately six weeks prior to trial to determine whether there

was a conflict of interests. Although Irma Alred purported to

waive any conflicts that might result from Daniel's representing

Charlie Alred and her, the district judge, after questioning her,
5

 The district judge's questioning of Irma Alred and her

responses establish his concern that her waiver of Daniel's dual

representation of her codefendant and ex-husband, Charlie Alred,

and her was not knowing and intelligent:

THE COURT: How would you like to think that your attorney

told him [Charlie Alred] to cop the plea and come into

court and testify against you? How would you like for

your attorney to do that?

MRS. ALRED: I wouldn't like it.

 . . . .

THE COURT: But it doesn't concern you that maybe he

would, because he's Charlie's attorney, too, he's got to

get the best deal he can get for him, right?

MRS. ALRED: Yes, sir. Sir, I don't know what to tell

you.

THE COURT: Well, you're the only one that can do that.

So just have a seat there a minute and let me speak to

Mr. Charlie Alred . . . .

 . . . .

THE COURT: All right, Ms. Alred, if you would come back,

please. You have heard us discuss it a little further

with Charlie Alred. Have you had any opportunity or any

thoughts on this question?

MRS. ALRED: Sounds like everybody wants to convict me,

that's all I know.

THE COURT: That's not the issue here.

MRS. ALRED: Well, sir, I don't know how to answer. Like

I said before, this has just been sprung on me. I would

like to keep Mr. Daniel.

THE COURT: Well, I know that, but . . . in spite of the

conflict, in spite of the fact that he might convict you

and get off Charlie?

MRS. ALRED: Well, sir, I would like to discuss it with

them, too, if you would permit me.

THE COURT: Well, you are the one that you can discuss it

with really anybody that you want. But I suggest to you

that it's a little silly to ask Charlie Alred whether--

MRS. ALRED: Basically I would be asking Mr. Daniel.

THE COURT: But he represents Charlie.

MRS. ALRED: He represents me.

THE COURT: Well, that's the point. If he wasn't your

attorney, would you ask Charlie Alred's attorney what's

best for you?

MRS. ALRED: Do what now?

THE COURT: Would you ask Charlie Alred's attorney what's

best for you?

MRS. ALRED: No, sir.

8

was not convinced that her waiver was knowing and intelligent.5
THE COURT: Well, that's what you would be doing when you

ask Mr. Daniel, because he's Charlie Alred's attorney?

MRS. ALRED: I would ask him on my behalf.

THE COURT: All right, I don't know if I can simplify it

any further. I truly am just mystified. . . . I gather

. . . that neither of these two have indicated that they

have any understanding or feelings in this, the ability

to intelligently waive the potential conflict. I think

that's the finding that I must make first as to whether

to even accept that waiver or not. I think that's the

obligation on the Court. And so I don't see how it's

possible that I can accept your representation of both of

these defendants.

R5-23, 24, 28-30 (emphasis added).

9

Accordingly, the district judge entered a order stating that Daniel

could represent either Irma Alred or Charlie Alred but not both.

As a result, Irma Alred and Charlie Alred each engaged different

counsel; neither retained Daniel. Charlie Alred subsequently pled

guilty and, consequently, was not Irma Alred's codefendant at

trial. In retrospect after trial and her conviction, Irma Alred now

contends that the perceived conflict at the time of the hearing was

potential, not actual, and, therefore, that Daniel should have been

permitted to represent her.

"[W]hile the right to select and be represented by one's

preferred attorney is comprehended by the Sixth Amendment, the
10

essential aim of the Amendment is to guarantee an effective

advocate for each criminal defendant rather than to ensure that a

defendant will inexorably be represented by the lawyer whom he

prefers." Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct.

1692, 1697 (1988). In cases of joint representation, the Federal

Rules of Criminal Procedure direct that a trial judge "promptly

inquire with respect to such joint representation" and "personally

advise each defendant of the right to the effective assistance of

counsel, including separate representation." Fed. R. Crim. P.

44(c); see Wood v. Georgia, 450 U.S. 261, 272, 101 S.Ct. 1097,

1104 (1981) (reversing a conviction because the trial court failed

to inquire into defense counsel's potential conflict of interest even

though the court "should have been aware of the problem") . The

danger in representing conflicting interests is not only in what an

advocate does but also in what the attorney must refrain from

doing at possible pretrial plea negotiations, trial, and sentencing.

See Burden v. Zant, 24 F.3d 1298, 1305-06 (11th Cir. 1994).
11

Absent apparent good cause to believe that there is no potential

conflict of interest, the trial court must take appropriate measures

to protect each defendant's right to counsel. See Fed. R. Crim.

P. 44(c). Although "a defendant may waive his right to the

assistance of an attorney unhindered by a conflict of interests,"

Holloway v. Arkansas, 435 U.S. 475, 483 n.5, 98 S.Ct. 1173,

1178 n.5 (1978), "such waivers are not to be lightly or casually

inferred and must be knowingly and intelligently made," United

States v. Alvarez, 580 F.2d 1251, 1259 (5th Cir. 1978). Our

circuit recognizes that a defendant's waiver of conflict-free

counsel is constitutional when "a defendant after thorough

consultation with the trial judge knowingly, intelligently and

voluntarily . . . waive[s] this protection." United States v. Garcia,

517 F.2d 272, 278 (5th Cir. 1975); see United States v. Zajac, 677

F.2d 61, 63 (11th Cir. 1982) (per curiam) (recognizing that Garcia

established a procedure for determining a valid waiver of conflictfree counsel). The record must show "that the defendant was
12

aware of the conflict of interest; realized the conflict could affect

the defense; and knew of the right to obtain other counsel."

United States v. Rodriguez, 982 F.2d 474, 477 (11th Cir. 1993)

(per curiam). 

Furthermore, "a district court must pass on the issue whether

or not to allow a waiver of a conflict of interest by a criminal

defendant not with the wisdom of hindsight after the trial has

taken place, but in the murkier pre-trial context when relationships

between parties are seen through a glass, darkly." Wheat, 486

U.S. at 162, 108 S.Ct. at 1699. Therefore, district judges are

"allowed substantial latitude in refusing waivers of conflicts of

interest not only in those rare cases where an actual conflict may

be demonstrated before trial, but in the more common cases

where a potential for conflict exists which may or may not burgeon

into an actual conflict as the trial progresses." Id. at 163, 108

S.Ct. at 1699. At the pretrial hearing devoted to determining

whether Daniel could represent both Irma Alred and Charlie
6

 In her appellate brief, Irma Alred states that she

"acknowledged [to the trial judge] that she would not like it if

her attorney allowed the interest of her co-defendant to override

her interests." Appellant Irma Alred's Brief at 39. 

13

Alred, the district judge was confronted with Irma Alred's desire to

retain her counsel, who not only had represented a potential

government witness but also who represented two codefendants

with apparent conflicting interests. It is inconsequential to our

review that Charlie Alred pled guilty and did not go to trial. We

view the testimony and evidence presented to the district judge at

the time of the hearing concerning the conflict of interests in

Daniel's representing both Irma Alred and Charlie Alred.

Irma Alred's responses to the district judge's questions

concerning the conflicting interests involved in Daniel's

representing both Charlie Alred and her demonstrate that she did

not understand the potential detriment to her case if Daniel

continued to represent these codefendants who clearly had

conflicting interests as coconspirators and former spouses.6

Because her answers do not show a knowing and intelligent
14

waiver of conflicts inherent in representing codefendants, the

district judge acted within his discretion in declining to accept Irma

Alred's waiver. See Wheat, 486 U.S. at 164, 108 S.Ct. at 1700.

Contrary to Irma Alred's contention that the district judge

disqualified Daniel from representing her, the district judge

ordered that Daniel could not represent both Irma Alred and

Charlie Alred, codefendants with conflicting interests. Either Irma

Alred or Charlie Alred was free to continue with Daniel's

representation. Instead, both chose to engage different counsel.

Significantly, because Charlie Alred obtained another attorney,

the district judge's order would not have precluded Irma Alred's

continued representation by Daniel. At the time of the hearing

concerning Daniel's joint representation of Irma Alred and Charlie

Alred, however, the district judge properly acted within his

discretion in declining to allow Daniel to continue to represent

Irma Alred and Charlie Alred because her purported waiver of

conflicting interests was not knowing and intelligent. 
15

2. Use of Grand Jury Testimony

Roy Alred argues that the district judge erred in admitting

the grand jury testimony of Dale Sconiers, who testified

concerning the Holmes County marijuana distribution conspiracy

before the grand jury the week prior to trial in this case. Because

Sconiers had refused to talk to the government about his

knowledge of the marijuana operation in Holmes County, he was

subpoenaed to testify before the grand jury. Sconiers and Gwen

Stewart appeared as witnesses before the grand jury on

September 15, 1994, three days before the commencement of the

trial involving Roy Alred. The government provided Roy Alred's

counsel with copies of the grand jury testimony of Sconiers and

Stewart the night after the second day of trial on September 20,

1994. 

At the beginning of the third day of trial, Roy Alred's attorney

objected to the use of the testimonies of Sconiers and Stewart

and unsuccessfully moved to quash, limit or exclude the
16

testimonies of these two witnesses. Roy Alred's counsel alleged

that the government improperly had used the grand jury as a

means of discovery against individuals who had been indicted and

were going to trial the next week. Following Sconiers's trial

testimony, Roy Alred's counsel moved for a mistrial on the same

grounds; the district judge denied the motion.

The grand jury investigation of the extensive marijuana

distribution operation in Holmes County was ongoing. Review of

Sconiers's grand jury testimony reveals that the government's

purpose in questioning him was to obtain information on the

participation of Jim Alred, who was unindicted at the time of the

trial involving Roy Alred. Because Sconiers knew both Jim Alred

and Roy Alred, his grand jury testimony described his knowledge

of the participation of both men in the marijuana distribution

operation. Significantly, Jim Alred and others were indicted and

prosecuted after the trial involving Roy Alred. 

To perform its public responsibility, a grand jury has broad
17

investigative authority in determining whether a crime has been

committed and in identifying the perpetrators. See United States

v. Calandra, 414 U.S. 338, 344, 94 S.Ct. 613, 618 (1974). A

grand jury investigation is not complete until all clues have been

exhausted and every witness examined. See id. "[T]he law

presumes, absent a strong showing to the contrary, that a grand

jury acts within the legitimate scope of its authority." United

States v. R. Enters., Inc., 498 U.S. 292, 300, 111 S.Ct. 722, 728

(1991). When it is shown that a subpoena might assist the grand

jury in its investigation, the subpoena should issue, even though

the prosecutor possibly will use the information procured for a

purpose other than obtaining evidence for the particular grand jury

investigation. See In re Grand Jury Proceedings No. 92-4, 42

F.3d 876, 878 (4th Cir. 1994). Although the government may not

use a grand jury for discovery concerning a pending prosecution,

it may continue an investigation from which information relevant

to a pending prosecution "may be an incidental benefit." United
18

States v. Beasley, 550 F.2d 261, 266 (5th Cir. 1977); see Beverly

v. United States, 468 F.2d 732, 743 (5th Cir. 1972).

In this case, Sconiers would not talk with the government

until he received his grand jury subpoena and an offer of

immunity. When Roy Alred's attorney moved to exclude

Sconiers's testimony, the Assistant United States Attorney

explained to the district judge that the government became aware

of Sconiers's information concerning Roy Alred during its

investigation of the activities of Jim Alred in the Holmes County

marijuana distribution operation. She explained that she did not

know what Sconiers's testimony would be and that she

expeditiously provided defense counsel a transcript of Sconiers's

testimony regarding Roy Alred. After reviewing Sconiers's grand

jury testimony, hearing his trial testimony, and considering the

relevant law, the district judge determined that Jim Alred was the

target of the grand jury investigation when Sconiers was

subpoenaed to testify and that there was no misuse of the grand
7

 After hearing Sconiers's trial testimony and reviewing the

relevant law, the district judge denied Roy Alred's motion to

exclude Sconiers's testimony based on the following reasoning:

With regard to the motion to exclude the testimony

of Mr. Sconiers . . . based on the claim that the

government had misused the grand jury process, . . . .

courts may not interfere with grand juries' investigation

so long as the sole and dominant purpose is to discover

facts relating to other matters . . . . [There is] the

presumption that the government is acting in good faith,

and . . . it's the defendant's burden to prove the reason

and abuse . . .[;] in the absence of clear evidence to

the contrary, we presume the prosecutor acted properly in

issuing the subpoena. 

 . . . .

Turning to the transcripts, I think it is clear that

the government announced before the grand jury . . . that

they were engaged in an inquiry and investigation of drug

use in Holmes County. They were also engaged,

specifically, from the questioning, in searching out any

potential charges against [J]im Alred and any others that

were involved in the conspiracy.

So, I . . . cannot . . . say that they have misused

or abused the process. So, for that reason, the motion

will be denied.

R19-636-37. 

19

jury process in this case that would preclude his trial testimony.7

We agree and conclude that the proximity in time of

Sconiers's testimony before the grand jury to the trial in this case

was coincidental. Because Sconiers had refused to cooperate

with the government investigation of the extensive marijuana

distribution operation in Holmes County until he was subpoenaed

by the grand jury and received immunity, obtaining his testimony
20

was delayed. In addition to trying the case in which Roy Alred

was convicted, the government continued to conduct its

investigation of the extensive marijuana distribution conspiracy in

Holmes County, which resulted in the indictment and prosecution

of others, including Jim Alred. Because the government did not

know what Sconiers's testimony would be, it could not have

known that he would describe involvement of Roy Alred in the

marijuana distribution conspiracy. The Assistant United States

Attorney promptly provided the transcript of Sconiers's grand jury

testimony to defense counsel prior to his testimony at trial. 

After reviewing the record in this case, we conclude that the

primary purpose of Sconiers's testimony before the grand jury was

to obtain information concerning Jim Alred's involvement in the

marijuana distribution conspiracy as part of the government's

continuing investigation of this conspiracy. Because Sconiers's

testimony regarding Roy Alred was an incidental benefit of this

ongoing investigation rather than a substitute for discovery, we
21

determine that there was no misuse of the grand jury process in

using that testimony at Roy Alred's trial. See United States v.

Jenkins, 904 F.2d 549, 559 (10th Cir. 1990) (concluding that the

government had not used the grand jury process as a substitute

for discovery in a pending prosecution). Roy Alred has presented

no strong evidence to the contrary to cause us to deviate from our

presumption that the government acted within the scope of its

authority. See R. Enters., 498 U.S. at 300, 111 S.Ct. at 728;

Jenkins, 904 F.2d at 559-60. Accordingly, the district judge did

not err in refusing to exclude Sconiers's trial testimony concerning

Roy Alred.

3. Single Conspiracy

Both Irma Alred and Roy Alred argue that the proof at trial

showed the existence of multiple conspiracies and, therefore, was

inconsistent with the single marijuana distribution conspiracy

charged in the indictment. Both allege that they were involved in

marijuana distributions with some coconspirators but not others.
22

To demonstrate the multiple conspiracies, they contend that the

evidence at trial revealed competition among the conspirators,

particularly following the divorce of Irma and Charlie Alred, after

which different allegiances among the coconspirators developed.

Irma Alred and Roy Alred represent that the possibility that the jury

may have attributed to each of them marijuana distribution

conspiracies in which they were not involved resulted in

substantial prejudice to them and, consequently, deprived them of

a fair trial.

We do not reverse convictions because a single conspiracy

is charged in the indictment while multiple conspiracies may have

been revealed at trial unless the variance is material and

substantially prejudiced the defendants. See United States v.

Coy, 19 F.3d 629, 633 (11th Cir. 1994) (per curiam). "A material

variance between an indictment and the government's proof at

trial occurs if the government proves multiple conspiracies under

an indictment alleging only a single conspiracy." United States v.
23

Castro, 89 F.3d 1443, 1450 (11th Cir. 1996), cert. denied, ___

U.S. ___, 117 S.Ct. 965 (1997). Because the jury determines the

question of fact as to whether the evidence establishes a single

conspiracy, however, the arguable existence of multiple

conspiracies does not constitute a material variance from the

indictment if, viewing the evidence in the light most favorable to

the government, a reasonable trier of fact could have found that

a single conspiracy existed beyond a reasonable doubt. See

United States v. Adams, 1 F.3d 1566, 1584 (11th Cir. 1993);

United States v. Reed, 980 F.2d 1568, 1581 (11th Cir. 1993). 

Accordingly, we will not disturb the determination of the jury that

a single conspiracy exists if supported by substantial evidence.

See United States v. Calderon, 127 F.3d 1314, 1327 (11th Cir.

1997). To decide whether the jury could have found a single

conspiracy, we review "(1) whether a common goal existed; (2)

the nature of the underlying scheme; and (3) the overlap of

participants." Id. 
24

The evidence in this case showed that the coconspirators

purchased marijuana during the time that the marijuana

distribution conspiracy existed from deliveries that were arranged

principally by Irma Alred, who had connections for obtaining the

marijuana. The record further reveals various marijuana

distribution transactions in which both Irma Alred and Roy Alred

participated. These transactions were substantiated by

eyewitnesses, cooperating coconspirators, and tape recorded

conversations. All of the participants in the conspiracy shared a

common goal of distributing marijuana, which, for some, included

its transportation. It is irrelevant that particular conspirators may

not have known other conspirators or participated in every stage

of the conspiracy; all that the government must prove to establish

conspiracy liability is an agreement or common purpose to violate

the law and intentional joining in this goal by the coconspirators.

See United States v. Cole, 755 F.2d 748, 764 (11th Cir. 1985).

"If there is one overall agreement among the various parties to
25

perform different functions in order to carry out the objectives of

the conspiracy, then it is one conspiracy." United States v. Perez,

489 F.2d 51, 62 (5th Cir. 1973).

Similarly, the various marijuana distribution transactions were

virtually the same. Both Irma Alred and Roy Alred consistently

participated in a distribution chain where marijuana was obtained

in Texas, transported to Florida, and sold in Holmes County.

Throughout the conspiracy, there was an overlap of many of the

participants, particularly, Irma Alred, Roy Alred, and Charlie Alred.

These facts demonstrate substantial evidence from which a

reasonable jury could have concluded that a single, ongoing

conspiracy existed for a period of ten years as charged in the

indictment. See Calderon, 127 F.3d at 1327-28.

Our test of material variance and substantial prejudice to the

defendant is stated in the conjunctive. Consequently,

determining that there was no material variance because

substantial evidence was presented for the jury to have found a
26

single conspiracy necessarily ends our inquiry into the alleged

variance between the indictment and the evidence at trial. See id.

at 1328. Nevertheless, we emphasize that "[v]ariance from an

indictment is not always prejudicial, nor is prejudice assumed."

United States v. Ard, 731 F.2d 718, 725 (11th Cir. 1984). To

demonstrate substantial prejudice, Irma Alred and Roy Alred

respectively would have to show that "1) that the proof at trial

differed so greatly from the charges that [each] appellant 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." Calderon, 127 F.3d at 1328 (emphasis

added). Neither Irma Alred nor Roy Alred has represented that

she or he was surprised by the evidence at trial. Both were well

aware of most of the evidence before trial. For example, they

used the tape-recorded conversations to argue that they were
27

competitors during the later stages of the conspiracy.

Furthermore, only five defendants went to trial in this case.

Irma Alred consistently was portrayed as the original distributor

with Mexico/Texas connections. She arranged to transport

marijuana to the Holmes County area. Nothing in the record

suggests that the jury would have been confused or misled by the

evidence at trial. Additionally, we note that neither Irma Alred nor

Roy Alred moved to sever her or his trial because of concern that

the jury would interrelate their criminal acts.

In its case-in-chief, the government presented evidence that,

while the divorce of Irma and Charlie Alred resulted in competition

among some of the coconspirators during the later stages of the

conspiracy, the goal of obtaining and distributing marijuana

through known sources remained the same. Disagreements

among participants in a conspiracy does not mean that they have

not been and continued to be involved in the overall conspiracy.

The conspirators in this marijuana distribution were a relatively
8

 "A conspiracy is an ongoing criminal activity for which a

participant remains culpable until the conspiracy ends or the

participant withdraws." United States v. Davis, 117 F.3d 459, 462

(11th Cir.), cert. denied, ___ U.S. ___, 118 S.Ct. 355, and cert.

denied, ___ U.S. ___, 118 S.Ct. 395 (1997). The burden of proving

withdrawal from a conspiracy is upon the defendant, who must show

affirmative acts "'to defeat or disavow the purpose of the

conspiracy.'" United States v. Phillips, 664 F.2d 971, 1018 (5th

Cir. Unit B Dec. 1981) (quoting United States v. Wentland, 582 F.2d

1022, 1025-26 (5th Cir. 1978)). Such affirmative acts, inconsistent

with the object of the conspiracy, must be communicated to the

other members of the conspiracy by a means reasonably calculated to

reach them. Id. 

9

 This court has recognized and upheld a series of various

criminal acts as comprising a single, ongoing conspiracy as charged

in the indictment when the jury has so found. See Cole, 755 F.2d

at 753-65 (four defendants were convicted for a single marijuana

importation conspiracy involving numerous airplane deliveries from

Colombia, South America, and off-loads from various vessels);

28

small and closed group, essentially Alred family members. The

defense presented no evidence that either Irma Alred or Roy

Alred legally withdrew from the conspiracy.8

 To the contrary, both

continued to distribute marijuana from Texas until they were

indicted. Even if there had been a variance between the single

marijuana distribution conspiracy charged in the indictment and

the evidence at trial, neither Irma Alred nor Roy Alred has

demonstrated substantial prejudice to her or his case that resulted

in the respective convictions; thus, any purported variance is

immaterial.9

 See Calderon, 127 F.3d at 1328; United States v.
United States v. Brito, 721 F.2d 743, 746-48 (11th Cir.1983) (three

defendants were convicted under a single conspiracy charged in the

indictment for a marijuana importation conspiracy involving five

smuggling ventures and nine coconspirators); United States v.

Solomon, 686 F.2d 863, 868-71 (11th Cir. 1982) (three defendants

were convicted for six thefts under a one-count indictment). 

29

Champion, 813 F.2d 1154, 1168 (11th Cir. 1987). Accordingly,

Irma Alred and Roy Alred's challenge to their convictions based

on the alleged variance between the single conspiracy charged in

the indictment and the evidence at trial is meritless. 

B. Sentencing Issues

1. Accountable Amounts of Marijuana

Irma Alred and Roy Alred argue that the district court erred

in calculating the amounts of marijuana for which they were held

accountable at sentencing. Both fault the district judge for

miscalculating her and his base offense level by including 1,200

pounds of marijuana that Shirley Womble testified that she and

her husband, Willard, purchased from Roy Alred, who argues that

this amount is inconsistent with Shirley Womble's trial testimony.

Irma Alred contends that she should not be held accountable for
10 Under U.S.S.G. § 2D1.1 (1994), offenses involving at least

1,000 kilograms but less than 3,000 kilograms of marijuana have a

base offense level of 32. Irma Alred's PSR states that her base

offense level is 32 because her crime involved 2,899 pounds or

1,315 kilograms of marijuana. Roy Alred's PSR states that his base

offense level is 32 because his crime involved 5,662 pounds or

2,568 kilograms of marijuana. 

30

Roy Alred's marijuana transactions with the Wombles. Roy Alred

additionally argues that 2,800 pounds of marijuana that he

obtained from sources outside of the conspiracy in this case

should not have been attributable to him.

Following separate sentencing hearings wherein these

arguments were raised, the district judge determined that Irma

Alred and Roy Alred each had a base offense level of 32.10 In

making this determination, the judge adopted the accountable

amounts in both presentence reports ("PSRs") based on his

credibility evaluation of the witnesses' testimonies used to

establish the respective marijuana amounts as well as his

consideration of conspiracy liability and relevant conduct. On

appeal, Irma Alred and Roy Alred argue that the elimination of

these disputed amounts would result in reduced base offense
31

levels and, consequently, less incarceration time.

 A district judge's attribution of drugs to a particular

defendant under the Sentencing Guidelines is subject to clearly

erroneous review. See United States v. Reese, 67 F.3d 902, 908

(11th Cir. 1995), cert. denied, 517 U.S. 1228, 116 S.Ct. 1866

(1996). Facts considered at sentencing need to be proved by

only a preponderance of the evidence. See United States v.

Bennett, 928 F.2d 1548, 1556 (11th Cir. 1991). In reviewing a

sentence under the Sentencing Guidelines, we "give due regard

to the opportunity of the district court to judge the credibility of the

witnesses." 18 U.S.C. § 3742(e).

The prosecutor stated at Roy Alred's sentencing that the

source of the 1,200 pounds of marijuana attributed to both Irma

Alred and Roy Alred was Shirley Womble's grand jury testimony:

"In her grand jury transcript, which defense counsel had at

hearing and at trial, she [Shirley Womble] very clearly stated that

based on her recollection it was 1200 pounds." R25-10. In filing
11 As opposed to the 1,200 cumulative pounds of marijuana that

Shirley Womble testified that the Wombles purchased from Roy Alred

in her grand jury testimony, she testified about individual

purchases from 1986 to 1989 at trial. See, e.g., R13-7 (stating

that the Wombles obtained 10 to 80 pounds of marijuana "at

different times" from Roy Alred); id. (20 pounds); id. at 10 (10

pounds); id. at 11 (200 pounds). While Willard Womble also

testified about individual purchases of marijuana from Roy Alred,

see, e.g., R18-169 (10 to 100 pounds at a time); id. (100 pounds on

a few occasions); id. at 170 (40 pounds); id. at 174 (100 pounds);

id. at 187 (10 pounds), he also responded to questions concerning

32

objections to his PSR, Roy Alred's counsel objected to other

testimony attributing certain amounts of marijuana to Roy Alred,

but he agreed that "as to paragraph 7 of the PSR, the Defendant

respectfully submits he should be held accountable for 1,200 per

the Womble testimony." R4-207-1 (emphasis added). On appeal,

Roy Alred argues that he should not be held accountable for this

1,200 pounds of marijuana because Shirley Womble did not state

that amount in her trial testimony. He does not represent that

she did not testify as to this amount in her grand jury testimony.

Shirley Womble was questioned about individual marijuana

purchases at trial, while Willard Womble was asked at trial about

the Wombles' cumulative marijuana purchases from Roy Alred

during the conspiracy in this case.11 From his perspective of
the cumulative pounds of marijuana that the Wombles purchased from

Roy Alred, which he estimated to be between 400 and 500 pounds, see

id. at 169, 189-90, based on his memory because he kept no records,

see id. at 190.

12 The prosecutor observed to the district judge at Roy Alred's

sentencing that comparison of the trial testimonies of Shirley and

Willard Womble revealed that "Shirley Womble is obviously a little

better educated and had a better recollection of the events." R25-

10. The district judge explained his decision to credit Shirley

Womble's estimate of the amount of marijuana that the Wombles

obtained from Roy Alred stated in her grand jury testimony as

opposed to that of her husband given at trial: 

[T]he 1200 pounds having to do with the Womble matter, I

do accept the testimony of Ms. Womble, having sat through

trials that she was involved with, as well as having been

involved in her own sentence and the determination of who

did what, who was responsible, she or her husband. Do

find that she's the more credible witness and has a

better ability to make those estimates.

R25-15-16.

33

having conducted the trial in which Shirley and Willard Womble

were convicted in another marijuana distribution conspiracy and

their sentencings as well as the trial concerning the marijuana

distribution conspiracy in this case involving Irma Alred and Roy

Alred, the district judge was in the best position to make a

credibility choice regarding whether Shirley or Willard Womble

gave the more accurate estimate of the total amount of marijuana

that they obtained from Roy Alred in this conspiracy.12 See United
34

States v. Agostino, 132 F.3d 1183, 1198 (7th Cir. 1997), cert.

denied, ___ U.S.___, 118 S.Ct. 1526 (1998) (recognizing that "the

district court has the best perspective to judge issues of

credibility" with respect to conflicts in grand jury and trial

testimonies). Accordingly, we conclude that the district judge did

not commit clear error by including the 1,200 pounds of marijuana

that Shirley Womble testified before the grand jury was the

cumulative amount that the Wombles purchased from Roy Alred

during the conspiracy in this case because the district judge was

in the best position to make a credibility choice between Shirley

Womble's grand jury testimony and Willard Womble's trial

testimony.

Irma Alred poses a different argument concerning the

reason that she should not be held accountable for the 1,200

pounds of marijuana that Shirley Womble testified that Roy Alred

sold to the Wombles. She contends that this amount should not

be attributed to her because she was not involved in those
13 The record shows that Roy Alred referred to Irma Alred as

his "cousin" and "a Mexican lady," and Shirley and Willard Womble

so identified her as Roy's source of supply in their testimonies at

trial. See R13-23; R18-172. Thomas White, who pled guilty to the

marijuana distribution conspiracy in this case and allowed Irma

Alred to park vehicles containing marijuana in his barn to avoid

detection, testified at trial that, during the relevant period of

the conspiracy is this case, "[i]t was common knowledge" in Holmes

County that Irma was involved in marijuana distribution. R19-583.

At Irma Alred's sentencing, the prosecutor explained that the

Wombles had two, unrelated sources of marijuana supply, Marco Polo,

the conspiracy for which they were convicted, and Roy Alred, the

conspiracy in this case: 

Marco Polo was another source of the Wombles. That has

nothing to do with Roy Alred. And we have not attributed

the Marco Polo marijuana weights that Shirley and Willard

Womble were originally convicted with, we haven't

attributed that in any way. It doesn't have anything to

do with this case. The Wombles were buying from this

individual named Marco Polo. And they were also buying

from Roy Alred. . . . [T]he evidence is during this time

frame that Irma and Roy had a conspiracy that was

ongoing, and there was this talk about a cousin. She is

a cousin or married to a cousin. 

R16-16-17. The prosecutor further clarified that Irma Alred was of

35

marijuana sales. To the contrary, trial testimony and evidence

show that Irma and Roy were doing business together as

marijuana distributors as early as 1985. Although Roy Alred had

sold marijuana to the Wombles during the time that the Wombles

were involved in another marijuana distribution conspiracy for

which they were convicted, the 1,200 pounds that Roy sold to

them that is at issue in this case was Mexican/Texas marijuana

that Irma supplied to Roy.13 We review de novo a district judge's
Hispanic descent and that Roy Alred referred to her as being

Mexican. See id. at 15. 

14 Irma Alred argues for the first time on appeal that the

district judge committed reversible error at her sentencing by

36

relevant conduct determination under U.S.S.G. § 1B1.3 (1994).

See Reese, 67 F.3d at 908. Under the amendment of section

1B1.3, which became effective on November 1, 1992, see id. at

906, and was applicable to Irma Alred and Roy Alred's sentencing

proceedings on November 29, 1994, see id. at 909, Irma was

"accountable for other conduct that was reasonably foreseeable

and within the scope of the criminal activity that [she] agreed to

undertake," id. at 907. The government proved that a small and

relatively closed group of individuals known as the Alred

Organization operated a marijuana distribution conspiracy from

1984 until 1994, the object of which was to bring large quantities

of marijuana into Holmes County for distribution and sale.

Therefore, Irma Alred was accountable for marijuana that she

acquired for Roy Alred for distribution in Holmes County, as the

district judge found.14 See United States v. Edwards, 115 F.3d
placing the burden on her to prove that marijuana transactions

between Roy Alred and Shirley and Willard Womble were not in

furtherance of the conspiracy for which she and Roy Alred were

convicted. Absent plain error causing manifest injustice, we will

not review a sentencing argument made for the first time on appeal.

See United States v. Newsome, 998 F.2d 1571, 1579 (11th Cir. 1993).

Finding plain error is a three-step process: (1) error must exist,

(2) the error must be obvious, and (3) it must affect substantial

rights. See United States v. Chandler, 996 F.2d 1073, 1086 (11th

Cir. 1993).

Irma Alred's burden-of-proof argument derives from a

discussion concerning conspiracy liability between her counsel and

the district judge at her sentencing. In context, the judge stated

that the government had established a marijuana distribution

conspiracy, "which in this case was to bring marijuana into their

county and distribute it . . . . And either one [Irma Alred or Roy

Alred] acting in that capacity to carry out that intent of bringing

marijuana into that county to distribute it, each one is

responsible for the other." R16-13. The district judge's

questioning Irma Alred's counsel as to whether Irma had to

demonstrate that Roy Alred's marijuana sales to the Wombles were

separate from the overall conspiracy is inconsequential. Roy

Alred's marijuana sales to the Wombles during the existence of this

marijuana distribution conspiracy were attributable to other

members of the conspiracy, including Irma Alred. While the

district judge may have considered temporarily the possibility,

suggested by Irma Alred's counsel, that she was not responsible for

the marijuana transactions between Roy Alred and the Wombles, this

theory contravenes conspiracy liability law and relevant conduct

considerations required under the Sentencing Guidelines.

Therefore, the district judge correctly rejected this argument and

did not commit plain error in sentencing Irma Alred by holding her

accountable for the marijuana involved in the sales by Roy Alred to

the Wombles.

37

1322, 1329-30 (7th Cir. 1997) (holding that a sentencing judge's

determination that a defendant was part of a larger conspiracy

with concomitant liability deserves great deference and will be

upheld unless it is without foundation). 

With respect to relevant conduct, Roy Alred additionally
38

argues that he should not be held accountable for 2,800 pounds

of Colombian marijuana that he obtained from sources outside of

the conspirators' Mexico/Texas connections and brought to

Holmes County for distribution and sale. The clarifying

commentary to section 1B1.3 explains:

With respect to offenses involving contraband (including

controlled substances), the defendant is accountable

for all quantities of contraband with which he was

directly involved and, in the case of a jointly undertaken

criminal activity, all reasonably foreseeable quantities of

contraband that were within the scope of the criminal

activity that he jointly undertook.

U.S.S.G. § 1B1.3, comment. (n.2) (emphasis added); see Stinson

v. United States, 508 U.S. 36, 46, 113 S.Ct. 1913, 1919 (1993)

(holding that "[a]mended [Sentencing Guidelines] commentary is

binding on the federal courts").

Charles Douglas Mixon, who pled guilty to being a marijuana

trafficker, testified at trial that Roy Alred stored the 2,850-pound,

Colombian marijuana load in Mixon's barn because Mixon

marked it on his barn wall as he and Roy weighed "[e]very bale,"
15 The district judge correctly rejected Roy Alred's counsel's

alternative recommendation at sentencing that, as to this load of

Colombian marijuana, Roy be held accountable for the 700 pounds

that he took away in his car because Roy was involved with the

handling and weighing of the entire marijuana load. We further note

that the difference in 2,850 pounds of marijuana that Mixon

testified was the weight of this load of Colombian marijuana and

the 2,800 pounds for which Roy Alred was held accountable at

sentencing would not have been sufficient to increase his base

offense level beyond 32. 

39

and "it stayed marked on [Mixon's] barn wall for years." R6-50.

At Roy Alred's sentencing, the district judge stated that he found

"the Mixon testimony to be credible." R25-15. Accordingly, he

held Roy Alred accountable for the 2,800 pounds of marijuana

stated in his PSR.15

We conclude that the district judge properly included the

2,800 pounds of Colombian marijuana in the cumulative

marijuana weight for which Roy was held accountable at

sentencing because it constituted relevant conduct. In addition to

his concurrent accountability with his coconspirators for other

marijuana amounts, Roy Alred 's direct involvement with the 2,800

pounds of Colombian marijuana within the time period of the

distribution conspiracy for which he was convicted in this case is
40

attributable to him as relevant conduct. See U.S.S.G. § 1B1.3,

comment. (n.2). Having determined that Irma Alred and Roy

Alred properly were held accountable for the 1,200 pounds of

marijuana that Roy sold to the Wombles and that Roy was

accountable for the 2,800 pounds of Colombian marijuana, we

uphold their respective base offense levels of 32 as calculated by

the district judge.

2. Enhancement for Possession of Firearms

Roy Alred contests his enhancement for possession of

firearms and argues that the trial evidence does not support a

finding that he possessed or reasonably could have foreseen

possession of firearms by others in furtherance of the marijuana

distribution conspiracy. The Sentencing Guidelines require that

a two-level enhancement be applied to the base offense level for

a convicted defendant for a drug crime "[i]f a dangerous weapon

(including a firearm) was possessed." U.S.S.G. § 2D1.1(b)(1).

The weapon possession enhancement reflects the increased
41

likelihood of violence associated with the possession of firearms

by drug traffickers. Id. comment. (n.3). A sentence enhancement

based on a coconspirator's firearm possession is permitted if "(1)

the firearm possessor was charged as a coconspirator; (2) the

coconspirator possessed the firearm in furtherance of the

conspiracy; and (3) the coconspirator who is to receive the

sentence enhancement was a member of the conspiracy at the

time that his conconspirator possessed the firearm." United

States v. Gates, 967 F.2d 497, 500 (11th Cir. 1992) (per curiam).

The government has the burden of establishing the

appropriateness of the enhancement by a preponderance of the

evidence. Id. at 500-01. Actual knowledge of the coconspirator's

firearm possession by the convicted defendant is not required for

the enhancement to apply, but possession must be reasonably

foreseeable. See United States v. Martinez, 924 F.2d 209, 210-

11 & n.1 (11th Cir. 1991) (per curiam). Additionally, we have held

that "the enhancement is to be applied whenever a firearm is
42

possessed during conduct relevant to the offense of conviction."

United States v. Smith, 127 F.3d 1388, 1390 (11th Cir. 1997) (per

curiam). We review a district judge's factual findings used to

determine the applicability of a section 2D1.1(b)(1) enhancement

for clear error. See United States v. Pessefal, 27 F.3d 511, 515

(11th Cir. 1994).

At trial, Charles Douglas Mixon, who pled guilty to being a

marijuana trafficker, testified that guns were prevalent during a

600 to 700-pound marijuana transaction: 

Roy had a -- if we had went off, it would've blew up

half of that field. Like I say, it wasn't only Roy. I had

guns, you know, laying everywhere. And Alan, he had

an automatic weapon. It was more or less just all in our

head 'cause we was doing cocaine and everything else,

and we just thought everybody was after us. And Roy

stood in the pouring rain and watched the road like the

National Guard was going to come in there on us. But,

like I say, there was guns everywhere, everywhere.

R17-29. In addition to Roy Alred's possessing firearms when he

participated in the marijuana distribution conspiracy during the
16 On appeal, Roy Alred complains that he has been held

accountable for two pistols that he had in his possession at the

time of his arrest on the indictment as opposed to the time during

his active involvement in the marijuana distribution conspiracy

crime. His attorney explained at sentencing that Roy Alred

lawfully owned these guns and that they were returned to him by

United States Customs. He further explained that Roy Alred had the

guns in connection with his road travel as a contractor and that

these guns had not been related to any drug offense. Disregarding

these two firearms, we find that there is sufficient evidence of

Roy Alred's personal possession of firearms in connection with his

active participation during the marijuana distribution conspiracy

for which he was convicted to warrant the § 2D1.1(b)(1)enhancement.

17 At Roy Alred's sentencing, the district judge explained that

he based the § 2D1.1(b)(1) enhancement not only on Roy Alred's

personal possession of firearms during the conspiracy but also on

the reasonable foreseeability of coconspirators' possessing weapons

in connection with their marijuana distribution conspiracy:

Well, I do find that based upon the testimony of the

defendant having used guns in the drug arena would

demonstrate that he had reasonable foreseeability of

others who are engaged in that activity to possess guns.

And I do find the time frame, as my notes would reveal,

that he was involved in the drug conspiracy. And,

therefore, it is attributable to him regardless.

R25-24. 

43

relevant time period,16 the district judge correctly determined that

possession of firearms by Roy Alred's coconspirators also made

this enhancement applicable to him.17 We conclude that the facts

that the district judge used as the basis for the section 2D1.1(b)(1)

enhancement were not clearly erroneous. Thus, Roy Alred's

enhancement for possession of firearms was appropriate. 

3. Enhancement for Leadership Role 
44

Roy Alred argues that the district judge should not have

enhanced his base offense level by four levels under U.S.S.G. §

3B1.1(a) for a leadership role in the marijuana distribution

conspiracy in Holmes County. He contends that he had only a

buyer/seller relationship with his coconspirators in marijuana

transactions for which a section 3B1.1(a) enhancement is

inapplicable. We agree.

A sentencing judge is authorized to apply a four-level

enhancement to the base offense level of a convicted defendant

who "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). We have determined that the plain language of

section 3B1.1(a) "requires both a leadership role and an extensive

operation. Without proof of the defendant's leadership role,

evidence of the operation's extensiveness is insufficient as a

matter of law to warrant the adjustment." United States v. Yates,

990 F.2d 1179, 1181-82 (11th Cir. 1993) (per curiam). The
45

factors that the district judge should consider "[i]n distinguishing

a leadership and organizational role from one of mere

management or supervision" are

the exercise of decision making authority, the nature of

participation in the commission of the offense, the

recruitment of accomplices, the claimed right to a larger

share of the fruits of the crime, the degree of

participation in planning or organizing the offense, the

nature and scope of the illegal activity, and the degree

of control and authority exercised over others. . . . This

adjustment does not apply to a defendant who merely

suggests committing the offense.

U.S.S.G. § 3B1.1, comment. (n.4). The government must prove

the existence of an aggravating role by a preponderance of the

evidence. See Yates, 990 F.2d at 1182. The district judge's

determination of a convicted defendant's role in the offense is a

factual finding subject to clearly erroneous review, but the

application of a guideline to a particular factual situation is a

question of law that we review de novo. See id.

Although the government presented evidence at trial that

Roy Alred sold marijuana to a number of individuals, there was
46

little indication that he actively recruited buyers or directed their

activities. For example, Collis Hobby and Dale Sconiers testified

that they initiated contact with Roy Alred. Hobby testified that a

relatively small portion of his marijuana transactions were with

Roy Alred, whom he considered to be an individual buyer/seller.

Similarly, Shirley and Willard Womble as well as Robert Earl

Tucker testified that they purchased marijuana from Roy Alred

only after he had purchased marijuana from them. Like Hobby,

the Wombles bought most of their marijuana from another source

and were in business for themselves. Tucker also had other

sources of supply and was in a partnership with a third individual,

both of whom operated independently of Roy Alred, who did not

know Tucker's partner and generally did not know to whom

Tucker resold marijuana that he had purchased.

The trial evidence further showed that Jesus Galaviz and

Antonio Martinez delivered and/or attempted to deliver large loads

of marijuana to Roy Alred in 1993. They were hired and paid,
47

however, by the seller, an individual from Houston, Texas.

Likewise, Jose Cuellar delivered marijuana to Roy Alred but

worked under the direction of others.

Only slight evidence indicates that Roy Alred may have

recruited or directed the actions of his coconspirators. In 1990, a

Louisiana State Trooper stopped Roy Alred as he and his nephew

traveled to Houston with $21,000 in cash. Additionally, Sconiers

testified that Roy Alred and his cousin Jim Alred used Sconiers's

property to off-load four or five truck loads of marijuana in the

early 1990's. Although Willard Womble initially recruited Roy

Alred to purchase marijuana from him, Womble testified that, nine

to twelve months after that transaction, Roy Alred came to his

home and "[w]e got to talking. The next thing, I agreed to buy

marijuana." R18-169.

Three witnesses to whom Roy Alred sold marijuana testified

that he "fronted" the marijuana to them. Hobby testified that at

least one of his purchases from Roy Alred was fronted. On that
48

occasion, he received the marijuana on credit and paid for it a few

days later after he resold it. Shirley Womble also testified that

once she delivered money to Roy Alred with the implication that

it was in payment for marijuana previously received. Like Hobby,

Sconiers testified that his purchases were fronted or made on

credit.

Over objection from Roy Alred's counsel, the district judge

determined that "the four level increase is appropriate under the

evidence presented in this case." R25-27. We have held that a

convicted defendant's status as a middleman or distributor is

insufficient for a section 3B1.1 enhancement, which requires

authority in the organization that perpetrates the criminal conduct,

the exertion of control, or leadership. See Yates, 990 F.2d at

1182; accord Maxwell, 34 F.3d at 1012 (determining that a

seller/buyer relationship is inappropriate for a section 3B1.1(a)

enhancement). We further have concluded that arrangements

between buyers and sellers, such as negotiating deliveries, are
18 Similar to U.S.S.G. § 3B1.1(a), participation in a

continuing criminal enterprise requires the government to show that

the defendant "occupies a position of organizer, a supervisory

position, or any other position of management" with respect to five

other persons involved in unlawful drug trade. 21 U.S.C. §

848(c)(2)(A). Additionally, we recognize that Witek and our

decision in this case may appear to be inconsistent with United

States v. Howard, 923 F.2d 1500 (11th Cir. 1991), which we

distinguish factually. In Howard, the fronting or credit purchase

of cocaine involved direct control by the convicted defendant.

That is, the defendant-appellant, Ed Howard, provided cocaine to a

purchaser, Eric Hall,"without requiring immediate payment upon

delivery. Howard then accompanied Hall to the location where Hall

sold the cocaine to a third party, and upon completion of the sale,

Hall then turned the money over to Howard in payment for the

cocaine." Howard, 923 F.2d at 1502. This court found that Howard

"exercised a managerial role" in fronting the purchase of the

cocaine to Hall and affirmed the district judge's according Howard

a three-level enhancement under § 3B1.1(b) for acting as a manager

or supervisor in the criminal conduct because the factual findings

upon which the enhancement was based were not clearly erroneous.

Id. at 1503. 

In this case, however, the fronting participation by Roy Alred

was more removed and attenuated. For example, Mixon testified

that he did not pay Irma Alred for 200 pounds of marijuana driven

in a rental car by Roy Alred from Texas and delivered by him until

one to two weeks after delivery. R17-26. Given Roy Alred's

delegated role as a transporter and deliverer of marijuana rather

than as a collector of payment, it was clearly erroneous for the

district judge to enhance Roy Alred's base offense level by the

greatest enhancement of four levels for having a leadership role

under § 3B1.1(a) for fronting on the facts of this case. Roy

Alred's participation in the Holmes County marijuana distribution

conspiracy was the antithesis of a leadership role; rather, he was

directed and instructed by those who did have controlling roles. 

 

49

"simply incidental to the buyer-seller relationship." United States

v. Witek, 61 F.3d 819, 823 (11th Cir. 1995), cert. denied, ___ U.S.

___, 116 S.Ct. 738 (1996). In a continuing criminal enterprise,

we have held that "evidence of fronting, without more, is

insufficient to satisfy the management requirement."18 Id. at 824.
50

We conclude that the evidence presented by the government

in this case of Roy Alred's buyer/seller and fronting relationships

is insufficient to support his four-level enhancement under section

3B1.1(a) for having a leadership role in the marijuana distribution

conspiracy in Holmes County. The district judge improperly

applied this four-level adjustment to Roy Alred's base offense

level. On remand, the district judge will resentence him without

the section 3B1.1(a) enhancement. 

III. CONCLUSION

In this appeal, Irma Alred and Roy Alred challenge their

convictions and sentences for conspiracy to distribute marijuana

in Holmes County. As we have explained, we AFFIRM their

convictions and Irma Alred's sentence. We VACATE Roy Alred's

sentence because the district judge improperly gave him a fourlevel enhancement in his base offense level for having a

leadership role in the marijuana distribution conspiracy.

Accordingly, we REMAND to the district court to resentence Roy
51

Alred without the four-level enhancement under section 3B1.1(a).