* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 4 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. ANTHONY DARNETT OSBORNE, Defendant - Appellant. No. 99-2299 (D.C. No. CR-98-989-LH) (D.N.M.)

UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. KOREY WILLIAMS SANDUSKY, Defendant - Appellant. No. 99-2300 (D.C. No. CR-98-989-2-LH)

(D.N.M.)

ORDER AND JUDGMENT *

Before SEYMOUR , PORFILIO , and KELLY , Circuit Judges.

Defendants-Appellants Anthony Osborne and Korey San dusky were- 2 -

convicted of conspiracy to possess, with intent to distribute, more than 100 kilograms of marijuana. 21 U.S.C. §§ 841(a)(1), 84 1(b)(1)(B), 846. Mr. Sandusky was sentenced to 110 months imprisonment and 4 years supervised release. Mr. Osborne was sentenced to 97 months imprisonment and 4 years of supervised release. They now appeal their convicti ons and sentences. Since the cases were tried together and the operative facts are the same, we have treated both cases together for purposes of appeal. Our ju risdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and we affirm

.

I. Background On December 3, 1998, Karen Wills was driving a whit e Toyota pickup truck eastbound on Interstate 40 in Quay County, Ne w Mexico when she was pulled over by a county sheriff. II R. at 7-10. M s. Wills was en route to Detroit, Michigan, to deliver the truck for Mr. Osborne and Mr. Sandusky, id. at 131; V R. at 78, who were following Ms. Wills in a Ford Mu stang rental car driven by Mr. Sandusky. II R. at 16, 63; V R. at 13. The sh eriff noticed that the truck bed was unusually shallow and suspected that the bed ha d been altered to transport drugs. II R. at 14. He asked Ms. Wills if she wa s transporting drugs and she stated that she was not. Id. at 16. Ms. Wills then consented to a search of th e truck. Id. at 16-17. Approximately 298 pounds of packaged marijuana was- 3 -

found in a hidden compartment underneath the truck bed. Id. at 20. The packages were examined for fingerprints. V R. at 1 15. Neither Ms. Wills, Mr. Osborne, nor Mr. Sandusky’s fingerprints were found on any of the packages. Id. In the course of the search, the sheriff radioed ah ead to a local village police chief and asked him to stop the Mustang. II R. at 19. A consent search of the vehicle revealed no evidence of drug trafficking. Id. at 63-65, 69. Ms. Wills was charged with possession and conspirac y to possess, with intent to distribute, more than 100 kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 846, 18 U.S.C. § 2. Based on Ms. Wills’ statement to a Drug Enforcement Agency Officer, Mr. Osborne and Mr. Sandusky were also charged with conspiracy. I R. doc. 8. Ms. Wills pled guilty, id. doc. 66, and testified at Mr. Osborne’s and Mr. Sandusky ’s trial. II R. at 85-134; V R. at 4-81. We further develop the record below as is necessary for our disposition.

II. Discussion Mr. Osborne asserts that the district court erred i n instructing the jury on “deliberate ignorance.” Mr. Sandusky argues that t he evidence was insufficient to support his conviction. Both Mr. Osborne and Mr . Sandusky contend that they were denied due process under Apprendi v. New Jersey , 530 U.S. 466 (2000), and that the district court erred in enhancing thei r sentences under U.S.S.G. §1 In its entirety, the instruction read: The word “knowingly,” as that term has been used fr om time to time in these instructions, means that the act w as done voluntarily and intentionally, not because of mistake or accide nt. You may find that a defendant deliberately closed h is eyes to what would otherwise have been obvious to him. Whi le knowledge on the part of the defendant cannot be established merely by demonstrating that the defendant was negligent, car eless, or foolish, knowledge can be inferred if the defendant deliberately blinded himself to the existence of a fact. I R. doc. 51 (jury instruction no. 10). - 4 - 3B1.1 for their role as organizers.
A. “Deliberate Ignorance” Instruction The jury was instructed that “knowingly,” as the te rm was used in the jury instructions, meant that “the act was done voluntar ily and intentionally” or that Mr. Osborne was deliberately ignorant by “blind[ing ] himself to the existence of a fact.” 1 I R. doc. 51 (jury instruction no. 10). Mr. Osbo rne argues that this instruction constitutes reversible error because th ere was no evidence that he deliberately avoided knowledge of the conspiracy. Because Mr. Osborne did not object to this instruct ion at trial, we review for plain error. United States v. Concha , 233 F.3d 1249, 1251 (10th Cir. 2000) . “To notice plain error under Fed. R. Crim. P. 52(b) , the error must (1) be an actual error that was forfeited; (2) be plain or ob vious; and (3) affect substantial rights, in other words, in most cases the error must be prejudicial, i.e. , it must- 5 -

have affected the outcome of the trial.” United States v. Keeling , 235 F.3d 533, 538 (10th Cir. 2000). Plain error is exceedingly d ifficult to assert in this context. In United States v. Hanzlicek , 187 F.3d 1228 (10th Cir. 1999), where the defendant had objected to the deliberate ignorance instruction, we held that a properly-defined deliberate ignorance instruction, even when there is insufficient evidence of deliberate ignorance, is harmless errorwhere the jury also is instructed on a theory of actual knowledge and ther e is sufficient evidence of actual knowledge. Id. at 1234-36. While we have cautioned the district courts that a deliberate ignorance instruction is rarely appropriate and that it should not be given indiscriminately, id. at 1233, the instruction does not constitute reversible error when there is evidence of actual k nowledge. Here, the jury was instructed on a theory of actual knowledge and there is sufficient evidence to support Mr. Osborne’s actual knowledge of the conspiracy. Where possible, Mr. Osborne and Mr. Sandusky consis tently avoided any direct connection to the truck, supporting the reasonable inference that they were aware that the truck contained or would contain marijuana . Mr. Osborne and Mr. Sandusky paid cash for the truck. V R. at 100-01. They also negotiated the purchase, id. at 85-97, but the purchase was executed in Ms. Wil ls’ name. II R. at 98-109; V R. at 31-32, 97. Moreover, Mr. Osborn e and Mr. Sandusky refused to disclose their identity until it became necessary to take possession of the truck.- 6 -

II R. at 105; V R. at 86, 99. Similarly, when the truck was repaired, either Mr. Osborne or Mr. Sandusky paid for the repair, but Ms . Wills signed the service order and receipt. II R. at 122-23. On the day of purchase, Mr. Osborne took possession of the truck and Ms. Wills did not see the truck for approximately 30 days thereafter. II R. at 110. The truck did not have a tailgate. V R. at 97. So me time between the purchase of the truck and December 2, Mr. Osborne spoke to someone at a body shop. Id. at 51. At the time of Ms. Wills’ arrest, the truckwas equipped with a tailgate as well as the hidden compartment in which the marijuana was found. II R. at 18. Just days before the trip to Detroit, Mr. Osborne and Mr. Sandusky were anxious to have the truck repaired immediately, andrefused to leave the truck overnight at the repair shop to be repaired the following day. Id. at 114-16. In fact, when one particular shop told Mr. Osborne and Mr. Sandusky that the truck could not be repaired that same day, they attemptedto pay a mechanic $200 in cash. Id. at 116. When the mechanic refused, the offer “kept going up.” Id. Also significant is the fact that the truck was parked some distance from, but within sight of, Mr. Osborne and Mr. Sandusky’s apartment. Id. at 118. Mr. Osborne and Mr. Sandusky looked out the window at t he truck every one to two hours. Id. Immediately before leaving for Detroit, Ms. Wills n oticed that Mr. Osborne- 7 -

and Mr. Sandusky “weren’t acting normal,” and that Mr. Sandusky was “acting funny.” V R. at 75. Furthermore, immediately befo re and during the trip to Detroit, neither Mr. Sandusky nor Mr. Osborne drove or rode in the truck. II R. at 119, 131. Throughout the trip to Detroit until M s. Wills’ arrest, either Mr. Osborne or Mr. Sandusky paid for all of Ms. Wills’ expenses; id. at 133; V R. at 5, 9; however, the motel room in which they stayed wa s placed in Ms. Wills’ name, and she signed the receipt. V R. at 7-9. Mr . Osborne and Mr. Sandusky routinely followed Ms. Wills in the Mustang. Id. at 76. After the sheriff stopped Ms. Wills, Mr. Osborne an d Mr. Sandusky passed the sheriff in the Mustang and “were looking at [hi m] pretty hard” and “continued looking at [him] . . . .” II R. at 13. When stopped by a police officer several miles down the highway, Mr. Osborne and Mr. Sandusky disavowed any knowledge of the very truck they had purchased just one month prior. Id. at 64. The evidence is plainly sufficient to establish actual knowledge by Mr. Osborne. A conviction may be based solely upon cir cumstantial evidence and reasonable inferences drawn therefrom. United States v. Sanders , 240 F.3d 1279, 1281 (10th Cir. 2001). Moreover, the mere fact that the circumstantial evidence consisted primarily of Ms. Wills’ testimony does no t render that evidence insufficient; the jury was properly instructed to w eigh her testimony as an accomplice with great caution and care. Cf. United States v. Gardner , 244 F.3d- 8 -

784, 789-90 (10th Cir. 2001).
B. Sufficiency of the Evidence Mr. Sandusky argues that there was insufficient evi dence to support his conspiracy conviction. We review the evidence de n ovo to determine whether, after viewing both direct and circumstantial eviden ce and the reasonable inferences drawn therefrom in a light most favorabl e to the government, any rational trier of fact could have found Mr. Sandusky guilty beyond a reasonable doubt. Sanders , 240 F.3d at 1281. In making this determination, we do not weigh conflicting evidence or examine the credibility of the witnesses. Id. “While the jury may draw reasonable inferences from direct or circumstantial evidence, an inference must be more than speculatio n and conjecture to be reasonable, and caution must be taken that the conv iction not be obtained by piling inference on inference.” United States v. J ones, 44 F.3d 860, 865 (10th Cir. 1995) (citations and internal quotations). A reasonable inference is one that “flows from logical and probabilistic reasoning . . . .” Id. There must be a “reasonable probability that the conclusion flows from the proven facts.” Id. (citation and internal quotations omitted). “To prove a conspiracy in violation of 21 U.S.C. § 846, the evidence must establish: (1) an agreement with another person to violate the law, (2) knowledge of the essential objectives of the conspiracy, (3) knowing and voluntary- 9 -

involvement, and (4) interdependence among the alleged conspirators.” United States v. Heckard , 238 F.3d 1222, 1229 (10th Cir. 2001) (citation an d internal quotations omitted). “An agreement constituting a conspiracy may be inf erred from the acts of the parties and other circumstanti al evidence indicating concert of action for the accomplishment of a common purpose.” United States v. Johnson , 42 F.3d 1312, 1319 (10th Cir. 1994) (citation omi tted). As we explained in Jones , “[t]he government must prove guilty knowledge: an implicit or explicit agreement to enter into a known conspir acy with a known objective.” 44 F.3d at 865. Mr. Sandusky secured the vehicle in which the drugs were found. With Mr. Osborne, Mr. Sandusky negotiated the purchase o f the truck and was in possession of over $11,000 cash tendered for the purchase. Cf. Jones , 44 F.3d at 870. He then disavowed any knowledge of the truck that he had in fact purchased one month prior, strongly suggestive of guilty knowledge. Cf. id. at 870. A rational trier of fact could easily conclud e that Mr. Sandusky agreed with Ms. Wills and Mr. Osborne to transport drugs and th at he knowingly and voluntarily participated in the conspiracy, the obj ect of which he had knowledge. Mr. Sandusky was not only aware that the truck cont ained marijuana, but was also an active participant in the scheme to transpo rt it to Detroit. The steps taken in this marijuana transport operation illustrate th e interdependence among the- 10 -

conspirators. Other evidence supports this conclusion that Mr. Sandusky was involved in a conspiracy. We have already recounted much of th e evidence in our analysis of the “deliberate ignorance” instruction. Additional ly, Mr. Sandusky appeared to take evasive action designed to deflect attention away from Ms. Wills when she was pulled over. As the sheriff attempted to catch up with Ms. Wills in the truck, Mr. Sandusky abruptly changed lanes in front of the sheriff, forcing him to brake to avoid a collision with the Mustang. II R. at 8. Mr. Sandusky, now directly in front of the officer, “was driving fast and then sl owing down, driving fast and then slowing down.” Id. at 9. The left side of the Mustang was traveling on the inside shoulder of the interstate. Id. at 10. This evidence also supports the jury’s implicit finding of actual knowledge. Contrary to Mr. Sandusky’s suggestion, the government was not required to present evidence that he modified the truck bed, purchased the marijuana, placed it in the truck, an d negotiated the marijuana purchase. Aplt. Br. (Sandusky) at 13-15.
C. Apprendi
1. Drug Quantity Mr. Osborne and Mr. Sandusky were each charged with conspiring to possess, with the intent to distribute, “more [than ] 100 kilograms of Marijuana,” in violation of 21 U.S.C. § 841(b)(1)(B). I R. doc . 8, at 1. The quantity of the- 11 -

marijuana found in the truck was not disputed at tr ial. However, the quantity was not submitted to the jury as an element of the offe nse which the jury was required to find beyond a reasonable doubt. Id. doc. 50 (jury instruction no. 9). Neither Mr. Osborne nor Mr. Sandusky objected to this instruction. V R. at 113. At sentencing, the district court found that the amoun t of marijuana found in the truck was 135.68 kilograms. III R. at 20 (Osborne sentencing); IV R. at 23 (Sandusky sentencing). Mr. Osborne and Mr. Sandusky argue that they were sentenced in violation of Apprendi . We disagree. Since neither Mr. Osborne nor Mr. Sandusky objectedto the jury instructions, we review their Apprendi challenges for plain error. Keeling , 235 F.3d at 538. In Apprendi , the Supreme Court “established the rule that ‘[o] ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be sub mitted to a jury, and proved beyond a reasonable doubt.’” Heckard , 238 F.3d at 1234 (quoting Apprendi , 530 U.S. at 490). Apprendi “presents a new rule of constitutional criminal procedure, and thus should be applied retr oactively to cases pending on direct review.” Id. Apprendi applies to § 841(b). Keeling , 235 F.3d at 538.

i. Mr. Osborne’s Sentence The district court did not commit plain error under Apprendi . Mr. Osborne’s sentence did not exceed the statutory max imum of the most lenient- 12 -

provision applicable to marijuana possession offens es: § 841(b)(1)(D). Under § 841(b)(1)(D), which applies to offenses involving l ess than 50 kilograms of marijuana, Mr. Osborne could have received 10 years imprisonment and 4 years of supervised release because he had previously bee n convicted of a felony drug offense. III R. at 20. Therefore, the district co urt’s failure to submit the quantity of marijuana as an element of Mr. Osborne’s offense to the jury was not error because his sentence of 97 months imprisonment and 4 years of supervised release did not exceed the lowest possible statutory maximum. United States v. Wilson , 244 F.3d 1208, 1215 n.4 (10th Cir. 2001).

ii. Mr. Sandusky’s Sentence Because Mr. Sandusky had no prior drug felony convi ction, his sentence of 110 months imprisonment and 4 years of supervised r elease exceeded the statutory maximum under § 841(b)(1)(D). As in Keeling , Mr. Sandusky argues that under Apprendi he should have been sentenced under § 841(b)(1)(D) , thereby receiving only 5 years’ imprisonment and as few as 2 years of supervised release. We agree that the district court committe d plain error in failing to submit quantity to the jury. See Wilson , 244 F.3d at 1215 n.4. We do not, however, notice the error. Mr. Sandusky was not ac tually innocent; nor did the error seriously affected the “fairness, integrity o r public reputation of judicial proceedings.” Keeling , 235 F.3d at 538 (quotations and citation omitted) . At- 13 -

trial, there was uncontroverted, overwhelming testi mony that approximately 298 pounds of marijuana were found in the truck. Cf. id. at 538-40. There was no evidence adduced at trial to raise a reasonable doubt as to quantity. Cf. id.
2. Mr. Sandusky’s Leadership Role As explained in more detail in Section D infra , Mr. Sandusky’s and Mr. Osborne’s offense levels were increased 2 points fo r their leadership role in the crime. Because this sentencing factor was not subm itted to the jury, Mr. Sandusky argues that he was sentenced in violation of Apprendi . In light of our holding above that Mr. Sandusky was properly senten ced to 110 months imprisonment and could have been sentenced to 120 m onths, it follows that the 2- level enhancement did not increase his sentence bey ond the statutory maximum. Accordingly, “his sentence does not run afoul of the rule in Apprendi .” United States v. Sullivan , 242 F.3d 1248, 1257 (10th Cir. 2001).
D. Sentence Enhancements At sentencing, the district court adopted the factu al findings in the presentence reports and found that Mr. Osborne and Mr. Sandusky were organizers, managers, and supervisors in the conspi racy. III R. at 20; IV R. at 18, 23. The district court therefore increased Mr. Osborne’s and Mr. Sandusky’s offense levels by 2 points pursuant to U.S.S.G. § 3 B1.1(c). III R. at 20 (adopting guideline applications in presentence report); IV R . at 23 (adopting guideline- 14 -

applications in presentence report . Mr. Osborne and Mr. Sandusky argue that the district court erred concluding that they were organizers. We review the district court’s determination that adefendant is an organizer for clear error. United States v. Anderson , 189 F.3d 1201, 1211 (10th Cir. 1999). One may be an organizer based upon the planning of a criminal scheme or by controlling others. Id. at 1270. More than one participant in the criminal activity can qualify as an organizer. U.S .S.G. § 3B1.1, cmt. 4. The district court’s ultimate finding that Mr. Osbo rne and Mr. Sandusky were “organizers” is amply supported by the evidenc e. We reject the notion that the information upon which the court relied is not sufficiently reliable. The district court found Mr. Osborne directed the consp iracy and that Ms. Wills was Mr. Osborne’s “pawn.” III R. at 19. Mr. Osborne p urchased the truck and rented the Mustang used to transport the marijuana to Detr oit. Mr. Sandusky orchestrated the purchase of the truck and oversaw the repair of the truck. We see no clear error in the district court’s finding that Mr. Osborne and Mr. Sandusky “determined the path, the course that the vehicles would follow, who would go in the lead and who would be following. T hey determined where they would stay along the way.” IV R. at 18.- 15 -

AFFIRMED. Entered for the Court
Paul J. Kelly, Jr. Circuit Judge