FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 5, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-13186

Non-Argument Calendar

________________________

D. C. Docket No. 02-00021-CR-FTM-29-DNF

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

DAWN ANN CURRY, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

(July 5, 2006)

Before TJOFLAT, ANDERSON and FAY, Circuit Judges.

PER CURIAM:
2

Dawn Ann Curry is appealing her convictions and her total 70-month

sentence for conspiring to possess with intent to distribute a quantity of marijuana,

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) and 846, and possession with

intent to distribute a quantity of marijuana, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(C). Curry argues on appeal that: (1) a material variance occurred between

her indictment and the proof at trial relating to her conspiracy charge; (2) the

district court erred in denying her motion for a judgment of acquittal on her

conspiracy charge; (3) the court erred in admitting evidence of prior shipments

addressed to Curry’s residence; and (4) the court, in calculating Curry’s offense

level, clearly erred in finding her accountable for an amount of marijuana based on

estimates relating to the prior shipments addressed to her residence. For the

reasons set forth more fully below, we affirm Curry’s convictions and sentences.

A federal grand jury returned a two-count superseding indictment, charging

Curry with the above referenced offenses, including that she conspired “with other

persons” to possess with intent to distribute an unidentified quantity of marijuana. 

Prior to trial, Curry moved in limine to exclude the admission of, among other

things, evidence showing prior shipments of crates to her residence. Curry argued

in these motions that the evidence either was not relevant, pursuant to
 Rule 404(b) provides in relevant part that: 1

Evidence of other crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show action in conformity therewith. It may, however, be

admissible for other purposes, such as proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident . . ..

See Fed.R.Evid. 404(b). 

 Rule 403 provides that, “[a]lthough relevant, evidence may be excluded if its probative 2

value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless presentation

of cumulative evidence.” See Fed.R.Evid. 403.

 We had jurisdiction to consider the government’s appeal under 18 U.S.C. § 3731, 3

which permits the government to take interlocutory appeals from orders “suppressing or

excluding evidence,” up until the time the jury is sworn. See 18 U.S.C. § 3731. Although the

court advised the parties that it was amenable to reconsidering its grant of Curry’s motions in

limine, the practical effect of the court’s ruling was to exclude the evidence at issue. See United

States v. Drogoul, 1 F.3d 1546, 1551 n.13 (11th Cir. 1993) (holding that “district court orders are

deemed to exclude evidence for the purposes of [§ 3731] whenever they have the practical effect

of excluding evidence at trial”).

3

Fed.R.Evid. 404(b), or its probative value was substantially outweighed by its 1

prejudicial effect, pursuant to Fed.R.Evid. 403. After conducting a hearing, the 2

district court ruled that the government could not admit this challenged evidence,

subject to the court’s reconsideration during trial. The court also denied the

government’s pre-trial motion for reconsideration. The government then filed an

interlocutory appeal of the court’s order granting Curry’s motions in limine.3

In United States v. Curry, No. 03-12364 (11th Cir. Feb. 27, 2004) (unpub.),

we affirmed in part and remanded in part, explaining that, although most of the

challenged evidence should be excluded, evidence of the prior shipments that were
4

addressed to Curry’s residence, which we noted was from a “fictitious company,”

should not be excluded because it was relevant to show that Curry was part of a

larger conspiracy. We further discussed that (1) we “[could not] imagine more

appropriate evidence to tie Curry into the larger conspiracy,” and (2) the probative

value of this evidence was not substantially outweighed by any prejudice. 

During a three-day jury trial in which Curry was the sole defendant,

Dominic Dilenge, a truck driver for Old Dominion Freight Lines (“Old

Dominion”), testified that, he delivered crates from “Classic Collectibles” to the

Fort Myers, Florida area, through City Business Services (“CBS”), a packaging

and shipping company in Los Angeles. Dilenge stated that he became suspicious

of these crates because: (1) the crates were too well constructed to be carrying their

listed freight, that is, either statues or plumbing supplies; (2) the delivery locations

involved odd locations, including the parking lot of a baseball field and various

homes; and (3) he often had to call someone on a cellular telephone to arrange

deliveries. Although Dilenge initially could not recall whether he made shipments

to Curry’s residence, after the government refreshed his memory with documentary

evidence, he stated that he made deliveries of crates on May 30, and July 3, 2001.

Steven Launikitis, a lieutenant with the Hillsborough County Sheriff’s

Office in Tampa, Florida, testified that, on February 28, 2002, after being
 The government introduced during trial telephone records reflecting that Dixon was 4

talking to Curry. 

5

contacted about these suspicious shipments, he and other detectives went to Old

Dominion’s distribution facility with a drug-detection canine. After the dog

alerted to a crate scheduled for delivery to Curry’s residence, which weighed 150

pounds, the detectives obtained a search warrant for the crate and recovered from

the bottom of it 115 pounds of marijuana, which was separated into four bales. 

Law enforcement officers, thereafter, put a tracking device inside the crate and

conducted a controlled delivery of the crate to Curry’s residence. 

John Felts, a former special agent with the Drug Enforcement Agency

(“DEA”), testified that, during this controlled delivery, he, while acting as an

undercover delivery person, asked Curry’s half-sister, Wilma Dixon, and Dixon’s

daughter, Christine Dixon, who were in the driveway area of the residence when he

arrived, where they wanted him to place the crate. On Wilma Dixon’s direction,

Special Agent Felts and the delivery driver put the crate in the garage, and Dixon

signed the bill of lading. Also during this delivery, Special Agent Felts heard

Dixon state over the telephone: “It just arrived. It’s in the corner of the garage.” 

4

Michael Masiero, an officer with the Fort Myers Police Department who was

assigned to the DEA task force, testified that, shortly after this controlled delivery,

he observed Curry arrive at her residence in a minivan owned by Marlon Campbell
 On the other hand, Special Agent Strang testified that, while he was placing Curry into

5

the patrol vehicle, he noticed that she had fragments of wood on her clothing, especially on the

front of her pants. 

6

(“Mr. Campbell”), drive into the garage, and then drive out of the garage in the

minivan with the crate inside of it. Moreover, Mark Strang, another DEA special

agent, testified that, after law enforcement officers stopped this minivan, Curry told

an officer that (1) she had cleaning supplies in the minivan, (2) the crate was in the

minivan “when he gave it to her,” and (3) she did not know of the crate’s contents.5

Special Agent Strang also stated that, after DEA agents transported Curry back to

her residence and obtained a warrant to search it, they recovered paperwork

relating to the delivery, as well as wood fragments on the floor of the garage that

were consistent with the crate. Cary Oien, a trace-evidence examiner with the

Federal Bureau of Investigations (“FBI”), also testified that the type of wood that

was observed on Curry’s clothing matched the wood found in the garage and the

wood used to manufacture the crate. 

Thomas Mosley, the manager of Old Dominion’s Tampa facility, testified

that, prior to February 22, 2002, Old Dominion had delivered similar crates from

Classic Collectibles to Curry’s address, including the following deliveries: (1) a

75-pound crate of “decorations or notations” to “Mitchell Roofing, Inc.” at Curry’s

address on May 30, 2001; (2) a 110-pound crate containing a “statue” to “Mitchell
 Special Agent Steven Duquette of the DEA testified that, when law enforcement agents 6

searched Curry’s residence, they did not discover evidence of business activity. Moreover, the

State of Florida had no record of any business registered in Southwest Florida that was doing

business as “Mitchell Roofing, Inc.” or “Jones Plumbing, Inc.” 

7

Roofing, Inc.” at Curry’s address on July 3, 2001; (3) a 160-pound crate containing

another “statue” to “Mitchell Roofing, Inc.” at Curry’s address on July 31, 2001;

and (4) a 140-pound crate of “ornaments” to “Mitchell Roofing, Inc.” at Curry’s

address on December 4, 2001. The government also showed that Curry’s cellular

telephone number was listed as the consignee’s telephone number for the May and

December deliveries, and that the telephone number for Marilyn Campbell (“Mrs.

Campbell”), Marlon Campbell’s wife, was listed for the July deliveries. 

6

Additional trial evidence included testimony by Special Agent Duquette

that, during the hours after Curry’s arrest, Mrs. Campbell repeatedly attempted to

contact Curry on Curry’s cellular telephone. Special Agent Duquette also stated

that phone records revealed that Curry and Mrs. Campbell had been in contact with

each other throughout the day prior to the delivery of the crate. 

Furthermore, Larry Thomas testified for the government that he began

dealing marijuana in Ohio in 1999, originally sending money through Western

Union to a person named “Will” in California in exchange for Will sending him

marijuana in cardboard boxes via the United Postal Service (“UPS”). Beginning in

January 2001, after UPS discovered these deliveries, Will started sending the
 Peter Adeli, the owner of CBS, testified that CBS, which was a legitimate business, 7

was merely the shipper, and that “Classic Collectibles” was listed as the vendor for each of the

prior deliveries at issue in this case. 

8

marijuana through Old Dominion in hand-fashioned wooden crates secured with

screws and nails. In these crates, which were wooden, filled with styrofoam

peanuts, and nailed shut, the marijuana was separated into bundles and covered

with plastic, with something thrown on top to mask either the scent or the

appearance of the marijuana. Because Old Dominion only would make deliveries

to businesses, Thomas arranged for acquaintances to accept deliveries at their

business addresses, explaining that the crates contained statues. From March 2001

through March 2002, Thomas received from Will hundreds of pounds of

marijuana, with deliveries sent in 11 crates. On cross-examination, Thomas agreed

that the crates were not unusual. Thomas also conceded that he did not know 7

Curry and that his supplier had not mentioned her name or the fact that he made

shipments to Florida. 

At the conclusion of the government’s case, Curry moved to strike all of the

evidence relating to the Ohio transactions, arguing that the government had failed

to establish a connection between those transactions and Curry’s charges. The

district court denied this motion, explaining that, although the connection was not

“overwhelming,” it was consistent with the government’s proffer, the evidence was
9

sufficient for admissibility, and admissibility was in accordance with this Court’s

decision on the government’s interlocutory appeal.

Additionally, Curry moved for judgments of acquittal at the close of the

government’s case and at the close of all of the evidence, arguing that the

government had failed to prove a connection between the February 2002 delivery

and the Ohio transactions, or between herself and the Campbells. The district court

also denied these motions, again explaining that, although the evidence of the

conspiracy was not “overwhelming,” a reasonable jury could find Curry guilty of

the offense. 

During the charge conference, Curry moved the court to instruct the jury on

multiple conspiracies. After the government raised no objections to this

instruction, the court instructed the jury as follows:

[P]roof of several separate conspiracies is not proof of a single overall

conspiracy charged in the superseding indictment unless one of the

several conspiracies which is proved is the single conspiracy which

the superseding indictment charges. What you must do is determine

whether the single conspiracy charged in the superseding indictment

existed between two or more conspirators.

If you find that no such conspiracy existed, then you must acquit the

defendant on that charge. However, if you decide that such a

conspiracy did exist, you must then determine who the members were. 

And, if you should find that a particular defendant was a member of

some other conspiracy, not the one charged in the superseding

indictment, then you must acquit the defendant. In other words, to

find a defendant guilty, you must find, unanimously, that such
10

defendant was a member of the conspiracy charged in the superseding

indictment, and not a member of some other, separate conspiracy.

The jury convicted Curry as charged in her superseding indictment. 

Curry’s presentence investigation report (“PSI”) recommended that she be

held accountable for a total of 230.3 kilograms of marijuana, based on the 54.4

kilograms of marijuana that was shipped to her residence on February 28, 2002,

and an estimated 175.9 kilograms that was shipped to her residence during the four

prior shipments in 2001. With a resulting offense level of 26, pursuant to U.S.S.G.

§ 2D1.1(c)(7), and a recommended criminal history category of III, Curry had an

advisory guideline range of 78 to 97 months’ imprisonment. 

Curry objected to this drug amount, arguing that the government had not

shown during her trial either that she possessed other crates of marijuana, or the

contents of these crates. Thus, Curry asserted that she only should be held

accountable for the marijuana that was shipped to her residence in February 2002. 

The probation officer responded that (1) shipping records showed that at least five

crates were shipped to Curry’s residence, (2) all of these crates came from the same

sender through the same shipper, (3) the 175.90 kilograms of marijuana attributed

to Curry based on these prior shipments properly was estimated using the weights

of the February 2002 delivery, that is, 54.4 kilograms of marijuana comprised 80-

percent of the weight of the crate.
11

At sentencing, Curry renewed her objection to the recommended drug

amount. Curry again argued that this amount was improperly speculative because

(1) the procedure used by the probation officer to calculate an estimate of the

amount of marijuana involved in the prior deliveries was improper, (2) the

government failed to show that these prior deliveries even contained marijuana,

and (3) the government failed to show who accepted these deliveries. The

government responded that this drug calculation, which included relevant conduct,

was correct because (1) the crates used in the previous deliveries were the same

types of crate that had been used to transport the marijuana in February 2002, and

(2) regardless of whether Curry personally had accepted delivery of all of these

crates, someone had accepted delivery of them during the course of the conspiracy

of which Curry had been convicted. 

The district court overruled Curry’s objection to drug amount, finding it

“more likely than not that those crates contained marijuana.” The court also

discussed as follows:

The issue with regard to how much marijuana, the Court doesn’t have

any precise figures, and there’s no way of knowing that. The Court is

allowed to make a reasonable estimate with regard to the guideline

calculation. It’s only material if there’s more than 45.6 grams–or

kilograms, rather, of marijuana, that gets it over the [100] kilogram

threshold, because you had 54.4 kilograms of marijuana that was

actually seized in the case.
12

The methodology used by probation, in my view, is reasonable. 

Probation comes up with 175 kilograms, which is far more than you

need to satisfy the guideline threshold that’s applicable in this case.

So the Court finds that there was at least 50 additional kilograms of

marijuana in those other crates, and that that marijuana is attributable

to the defendant. And the Court will overrule the objection.

After granting Curry’s motion for a downward departure to criminal history

category II, pursuant to U.S.S.G. § 4A1.3, thereby reducing her advisory guideline

range to 70 to 87 months’ imprisonment, the court sentenced Curry to 70 months’

imprisonment, 3 years’ supervised release, and $200 in special assessment fees.

Issue 1: Whether a material and prejudicial variance occurred

Curry argues on appeal that no reasonable jury could have determined

beyond a reasonable doubt that a single conspiracy existed because the government

failed to introduce evidence connecting the crate Curry received in February 2002,

to the drug-distributing operation Thomas was conducting in Ohio, other than the

fact that CBS, a legitimate packaging and shipping company, was used in both

cases. Curry alternatively contends that, even if the government established that

she and Thomas received drugs from the same supplier, this fact, alone, did not

establish a single conspiracy. Additionally, Curry argues that the government

failed to establish that a conspiracy existed between herself and the Campbells by
13

showing only that (1) the minivan used was registered to Mr. Campbell, and

(2) Mrs. Campbell attempted to contact Curry after Curry’s arrest. 

Reversal is warranted if (1) a single conspiracy is charged in the indictment

but multiple conspiracies are proven at trial, and (2) the variance was material and

substantially prejudiced the defendant. United States v. Suarez, 313 F.3d 1287,

1289 (11th Cir. 2002) (citation omitted). “The arguable existence of multiple

conspiracies, however, does not constitute a material variance from the indictment

if, viewing the evidence in the light most favorable to the government, a rational

trier of fact could have found that a single conspiracy existed beyond a reasonable

doubt.” Id. To determine whether a jury could have found that a single conspiracy

existed, we review “(1) whether a common goal existed, (2) the nature of the

underlying scheme, and (3) whether the participants of the alleged multiple

schemes overlapped.” Id.

We also have explained that, “to prove a single, unified conspiracy as

opposed to a series of smaller, uncoordinated conspiracies, the government must

show an interdependence among the alleged co-conspirators.” United States v.

Chandler, 388 F.3d 796, 811 (11th Cir. 2004). Separate transactions, however, are

not necessarily separate conspiracies, “so long as the conspirators act in concert to

further a common goal.” Id. “If a defendant’s actions facilitated the endeavors of
14

other co[-]conspirators or facilitated the venture as a whole, then a single

conspiracy is shown.” Id. (internal quotation and marks omitted). Indeed,

although we concluded in Chandler that no interdependence of the conspirators

existed, we noted that, unlike the charged conspiracy to commit mail fraud in

connection with a scheme to defraud promoters of promotional games by stealing

game stamps and redeeming them for money, “[i]n a drug conspiracy, in which the

object of the conspiracy is clearly illegal and there are various clandestine

functions to perform, the conspirators can be charged with knowledge that others

are performing these different functions.” Id. at 811-12 n.21. 

Viewing the evidence in the light most favorable to the government,

although the government arguably relied on alternative conspiracy arguments

relating to evidence of drug activities conducted by Thomas and the Campbells, the

evidence reflected that Curry and Thomas both were engaged in the distribution of

marijuana. See United States v. Calderon, 127 F.3d 1314, 1327 (11th Cir. 1997)

(emphasizing that “common” for purposes of this test means “similar” or

“substantially the same,” rather than “shared” or “coordinate[d]”); United States v.

Adams, 1 F.3d 1566, 1584 (11th Cir. 1993) (holding that the “common goal”

inquiry was satisfied by the common crime of co-conspirators’ importation of

marijuana). Curry and Thomas also used essentially the same means of
15

transporting this marijuana, that is, placing the marijuana in the bottom of handfashioned wooden crates. See Calderon, 127 F.3d at 1327 (explaining that the drug

smuggling occurred aboard the same vessel, in the same hidden compartments, and

in essentially the same manner and over a relatively short period of time).

Additionally, although Thomas conceded that he did not know Curry, the

government established that both Thomas and Curry received deliveries from

“Classic Collectibles” through CBS and via Old Dominion. See United States v.

Anderson, 326 F.3d 1319, 1327-28 (11th Cir. 2003) (explaining that we “permit[]

the finding of a single conspiracy where a ‘key man’ directs the activities,

coordinating the individual efforts of various combinations of people”); United

States v. Stitzer, 785 F.2d 1506, 1518 (11th Cir. 1986) (holding that the overlap of

a common distributor was sufficient to support the finding that five separate

conspiracies were part of one conspiracy). Thus, viewing the evidence in the light

most favorable to the government, a rational jury could have found beyond a

reasonable doubt that a single conspiracy between Thomas and Curry existed. See

Suarez, 313 F.3d at 1289.

 Nevertheless, we need not determine whether a variance occurred because

Curry has failed to show that she was prejudiced. “[V]ariance from an indictment

is not always prejudicial, nor is prejudice assumed.” United States v. Alred, 144
16

F.3d 1405, 1415 (11th Cir. 1998) (quotation omitted). To demonstrate substantial

prejudice, the defendant must show: “(1) that the proof at trial differed so greatly

from the charges that [she] 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.” Id.

(quotation omitted) (emphasis in original).

In Chandler, we determined that the defendants were prejudiced by the

material variance when the government alleged conduct that was not a crime and

spent substantial time during the trial eliciting testimony regarding that “crime,”

before conceding at the end of trial that the law was to the contrary. See Chandler,

388 F.3d at 812. We concluded that the jury’s decision to convict the defendants

in the “utter absence of any proof,” and after the court gave a last-minute

instruction completely reversing the court’s earlier position on the charged

conspiracy, demonstrated that the jury was prejudiced by evidence of another

conspiracy. See id. at 812-13.

On the other hand, in United States v. Glinton, 154 F.3d 1245 (11th Cir.

1998), we concluded that the defendants were fairly apprised of their charged

activity and that, although they each argued from the government’s omission of
17

joint evidence that they knew nothing of the drug operation, the evidence of their

own purchases and distributions was left unimpeached. See id. at 1252 (affirming

despite that evidence in narcotics prosecution that defendants purchased large

amounts of cocaine from the same supplier, cooked it, and distributed it as cocaine

base was insufficient to establish the existence of a single conspiracy). We also

concluded that, to the extent the defendants were arguing that they were prejudiced

by the spillover of evidence as the result of being tried together, this argument was

belied, at least in part, by the court’s instruction to the jury that it had to acquit

unless one of the several conspiracies that was proved was the single charged

conspiracy. See id. (“[w]hen the proof at trial reveals the existence of more than

one conspiracy, the adequacy of the trial judge’s instructions are of critical

importance in evaluating the likelihood that confusion or prejudice resulted from

transference of guilt from one conspiracy to another”) (quotation omitted). 

Here, Curry was the only defendant at trial, and her superseding indictment

generally charged her with conspiring “with other persons” to possess with intent

to distribute an unidentified quantity of marijuana. Curry also has failed to explain

how “the proof at trial differed so greatly from the charges that [she] was unfairly

surprised and was unable to prepare an adequate defense.” See Alred, 144 F.3d at

1415. Indeed, similar to the facts in Glinton, the evidence of her role in accepting
 To the extent Curry appears to be challenging the sufficiency of her indictment for the 8

first time in reply, we conclude that she abandoned it by not arguing it in her initial brief. See

18

the February 2002 delivery was left unimpeached. Additionally, the court

instructed the jury that it had to find “unanimously, that [Curry] was a member of

the conspiracy charged in the superseding indictment, and not a member of some

other, separate conspiracy.” See United States v. Ramirez, 426 F.3d 1344, 1352

(11th Cir. 2005) (explaining that a jury is presumed to follow instructions given to

it by the court). 

Thus, even if a material variance between the conspiracy charged in Curry’s

indictment and the evidence at trial resulted, Curry has not demonstrated that she

was substantially prejudiced. We, therefore, conclude that any variances were

immaterial and affirm Curry’s convictions.

Issue 2: Motion for a judgment of acquittal

Curry also summarily argues that, for the same reasons why a material

variance between the indictment and the proof at trial resulted, no reasonable jury

could have found her guilty of the charged conspiracy. Curry contends that we

must reverse her conviction “unless reasonable minds could conclude that the

evidence is inconsistent with every hypothesis of innocence.” Additionally, 

Curry asserts for the first time in reply that an unsupported allegation that she “was

involved in a conspiracy with some unknown party” was insufficient.8
United States v. Smith, 416 F.3d 1350, 1352 n.1 (11th Cir.) (explaining that the prudential rule

of declining to consider issues not timely raised in a party’s initial brief is “well-established” in

this Circuit), cert. denied, 126 S.Ct. 784 (2005). 

19

We review de novo the denial of a motion for a judgment of acquittal. 

United States v. Hernandez, 433 F.3d 1328, 1332 (11th Cir. 2005), cert. denied,

126 S.Ct. 1635 (2006). “When the motion raises a challenge to the sufficiency of

the evidence, we review the sufficiency of the evidence de novo, drawing all

reasonable inferences in the government’s favor.” Id. (quotation omitted). “The

evidence is sufficient where a reasonable trier of fact could conclude that the

evidence established guilt beyond a reasonable doubt.” United States v. Marte,

356 F.3d 1336, 1344-45 (11th Cir. 2004). “Indeed, a verdict of guilty cannot be

disturbed if there is substantial evidence to support it, ‘unless no trier of fact could

have found guilt beyond a reasonable doubt.’” United States v. Pineiro, 389 F.3d

1359, 1367 (11th Cir. 2005) (internal quotation omitted). 

“To sustain a conviction for conspiracy to possess [marijuana] with intent to

distribute, the government must prove beyond a reasonable doubt that (1) an illegal

agreement existed; (2) the defendant knew of it; and (3) the defendant, with

knowledge, voluntarily joined it.” Hernandez, 433 F.3d at 1333 (quotation

omitted). In determining whether an illegal agreement existed, “[i]t is well settled

that the existence of an agreement in a conspiracy case is rarely proven by direct
20

evidence that the conspirators formally entered or reached an agreement . . .. The

more common method of proving an agreement is through circumstantial

evidence.” Pineiro, 389 F.3d at 1369 (internal quotation and marks omitted). 

Moreover, the government need only prove that the defendant “knew the general

nature and scope of the conspiracy.” Id. at 1368.

As discussed in Issue 1, although the government did not present direct

evidence of a conspiratorial agreement, circumstantial evidence of this agreement

included that Curry and Thomas both were engaged in the distribution of

marijuana; Curry and Thomas used essentially the same means of transporting this

marijuana, that is, in the bottom of hand-fashioned wooden crates; and both

Thomas and Curry received deliveries from “Classic Collectible” through CBS,

and via Old Dominion. Additionally, although Curry told law-enforcement

officers who stopped her in February 2002, that she did not know of the contents of

the crate inside the minivan and that the crate was in the minivan before she started

driving it, this statement was belied by evidence that wood fragments recovered

from the floor of the garage, where the crate was delivered, matched wood

(1) observed on Curry’s clothing, and (2) used to manufacture the crate. Thus,

even though, as the district court noted, evidence of a conspiracy was not
21

“overwhelming,” Curry has failed to show that “no trier of fact could have found

guilt beyond a reasonable doubt.” See id. at 1367. 

Issue 3: Evidence of prior shipments addressed to Curry’s residence

Curry argues that the district court abused its discretion in admitting

evidence of prior shipments that listed her residence as the delivery address. 

Curry concedes that this admission followed our decision vacating the district

court’s earlier order granting her motion to exclude this evidence, but she contends

that our decision was in error due to the government’s creating the misleading

inference that CBS was not a legitimate business. Curry also contends that the

prejudicial effect of this evidence outweighed any probative value because the

government failed to show either the contents of these prior shipments, or that the

shipments were actually delivered to her residence. 

 The doctrine of the law of the case “bars relitigation of issues that were

decided, either explicitly or by necessary implication, in an earlier appeal of the

same case.” United States v. Jordan, 429 F.3d 1032, 1035 (11th Cir. 2005). Thus,

under this doctrine, “an issue decided at one stage of the case is binding at later

stages of the same case.” United States v. Escobar-Urrego, 110 F.3d 1556, 1560

(11th Cir. 1997). This doctrine has “developed to maintain consistency and avoid

reconsideration of matters once decided during the course of a single continuing
22

lawsuit.” Id. (quotation omitted). It, however, has exceptions, including when “the

evidence on a subsequent trial was substantially different, controlling authority has

since made a contrary decision of the law applicable to such issues, or the decision

was clearly erroneous and would work a manifest injustice.” Id. at 1561 (quotation

omitted). 

In vacating the district court’s order granting Curry’s motion to exclude

evidence of four prior shipments that listed Curry’s residence as the delivery

address, we explained that this evidence should not be excluded because (1) it was

relevant to show that Curry was part of a larger conspiracy, and (2) the probative

value of this evidence was not substantially outweighed by any prejudice. As

discussed above, Curry is contending that the district court was not barred by this

prior decision from excluding this evidence because the evidence at trial revealed

that, contrary to the government’s arguments relating to the original motion to

exclude, CBS was merely the shipper and, thus, not criminally connected with

“Classic Collectibles.” Despite this evidence, however, the government still

established that “Classic Collectibles,” through CBS, previously shipped four other

crates to Curry’s residence via Old Dominion, and that at least two of the crates

actually were delivered to her residence. Thus, the evidence at trial was not

“substantially different,” and our earlier decision that this evidence was admissible
23

was controlling. See id. The district court, therefore, did not err in admitting 

evidence of prior crate shipments. 

Issue 4: Calculation of Curry’s offense level

Curry last challenges her 70-month sentence, arguing that the district court,

in calculating her base offense level, clearly erred in determining drug amount. 

Curry contends that the court should not have included in this calculation evidence

of the prior shipments that were purportedly made to her residence because: (1) the

contents of these prior shipments was purely speculative; and (2) the government

presented no evidence showing that Curry received any of these prior shipments. 

Curry also asserts that this calculation was arbitrary and speculative because the

actual amount of marijuana was based solely on the drug and packing weights of

the crate in the instant case. Additionally, Curry argues that, although her

guideline range was only advisory under United States v. Booker, 543 U.S. 220,

125 S.Ct. 738, 160 L.Ed.2d 621 (2005), she was prejudiced by this error because

the court clearly intended to sentence her at the bottom of her guideline range. 

In Booker, the Supreme Court concluded that a defendant’s guideline range

is now advisory and no longer dictates his final sentence, but, instead, is an

important sentencing factor that the sentencing court is to consider, along with the

factors contained in 18 U.S.C. § 3553(a). Booker, 543 U.S. at 259-60, 125 S.Ct. at
24

764-65. Post-Booker, “the district court remains obliged to ‘consult’ and ‘take into

account’ the [g]uidelines in sentencing.” United States v. Crawford, 407 F.3d

1174, 1178 (11th Cir. 2005). “This consultation requirement, at a minimum,

obliges the district court to calculate correctly the sentencing range prescribed by

the [g]uidelines[.]” Id. (emphasis in original). We also continue to review a

district court’s factual determinations, such as the drug amount at issue on appeal,

for clear error. See id. at 1178-79 (11th Cir. 2005) (explaining that Booker did not

alter either our review of the application of the guidelines, or our standards of

review). We cannot find clear error unless it is “left with a definite and firm

conviction that a mistake has been committed.” Id. at 1177 (quotation omitted). 

Section 2D1.1 of the federal guidelines provides that the base offense level

for a possession or a conspiracy drug offense ordinarily is calculated by

determining the quantity of drugs attributable to a defendant. See generally

U.S.S.G. § 2D1.1(a). To sentence Curry based on an offense level of 26, the

district court had to find her responsible for at least 100 kilograms of marijuana. 

See U.S.S.G. § 2D1.1(c)(7). The federal guidelines also provide that court must

attribute to a defendant “all the drugs foreseeably distributed pursuant to a

common scheme of which the defendant’s offense of conviction is a part.” United

States v. Agis-Meza, 99 F.3d 1052, 1054 (11th Cir. 1996). 
25

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

his guideline sentence, such as drug amount, the government bears the burden of

establishing the disputed fact by a preponderance of the evidence.” United States

v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir), cert. denied, 125 S.Ct. 2935 (2005). 

“Where there is no drug seizure or the amount seized does not reflect the scale of

the offense, the court shall approximate the quantity of the controlled substance.” 

Id. (quotation and internal quotation omitted). “[I]n estimating the quantity of

drugs attributable to a defendant, a court may base its computation on evidence

showing the average frequency and amount of a defendant’s drug sales over a

given period of time.” Id. Although sentencing cannot be based on calculations of

drug quantities that are merely speculative, sentencing “may be based on fair,

accurate, and conservative estimates of the quantity of drugs attributable to a

defendant.” United States v. Zapata, 139 F.3d 1355, 1359 (11th Cir. 1998). 

The crate of marijuana that was sent to Curry and was seized by lawenforcement agents on February 28, 2002, contained 115 pounds of marijuana, that

is, 54 kilograms of marijuana. Additionally, the government offered testimony at

trial that Old Dominion previously had delivered similar crates from Classic

Collectibles to Curry’s address, including: (1) a 75-pound crate of “decorations or

notations” to “Mitchell Roofing, Inc.” at Curry’s address on May 30, 2001;
26

(2) a 110-pound crate containing a “statute” to “Mitchell Roofing, Inc.” at Curry’s

address on July 3, 2001; (3) a 160-pound crate containing another “statue” to

“Mitchell Roofing, Inc.” at Curry’s address on July 31, 2001; and (4) a 140-pound

crate of “ornaments” to “Mitchell Roofing, Inc.” at Curry’s address on December

4, 2001. Using the weights of the February 2002 delivery, that is, 54.4 kilograms

of marijuana comprised 80-percent of the weight of the crate, the court, over

Curry’s objection, concluded that these prior four crate deliveries involved an

additional 175.90 kilograms of marijuana. Thus, the court concluded that the

government established “far more” than necessary to justify an offense level of 26

under § 2D1.1(c)(7). 

Curry is contending that the court clearly erred in finding that the shipments

made prior to February 2002, actually were delivered to her address, and she has

cited to Dilenge’s initial testimony that he could not remember whether he had

made any shipments to Curry’s residence before February 2002. However, the fact

that all of these shipments listed Curry’s address and at least some of them also

included her cell-phone number as the consignee’s number, as well as listing Mrs.

Campbell’s home-phone number as a consignee number, demonstrates that these

shipments were “foreseeably distributed pursuant to a common scheme of which
27

[Curry’s] offense of conviction [was] a part” and, thus, countable as relevant

conduct. See Agiz-Meza, 99 F.3d at 1054.

Additionally, to the extent Curry is challenging the court’s finding that these

prior shipments contained 175 kilograms of marijuana, and she is relying on the

fact that these shipments were not seized, these shipments, like the shipment seized

in February 2002, and the shipments sent to Thomas, (1) were sent in crates from

“Classic Collectibles” through CBS and via Old Dominion; and (2) had contents

identified as “decoration,” “ornaments,” or “statues.” Thomas also explained that

“statue” was the cover description for marijuana he received. Moreover, in the

absence of direct evidence of the amount of marijuana contained in these crates,

the court did not clearly err in estimating these amounts based on the amount and

percentage of marijuana recovered from the February 2002 shipment, and its

conservative estimate of 175 kilograms was well over the 46-kilogram amount

necessary to justify an offense level of 26. See Rodriguez, 398 F.3d at 1296; see

also Zapata, 139 F.3d at 1359. Thus, the district court did not clearly err in

determining that Curry should be held accountable for at least 100 kilograms of

marijuana and in sentencing her based on an offense level of 26.

Accordingly, we conclude that, if any material variance occurred between

Curry’s conspiracy charge in her indictment and the proof at trial, she was not
28

prejudiced by it. Because Curry failed to show that “no trier of fact could have

found guilt beyond a reasonable doubt,” the district court did not err in denying

Curry’s motion for a judgment of acquittal as to her conspiracy charge. Under the

law-of-the-case doctrine, the district court also did not err in denying Curry’s

motion to exclude evidence of other shipments addressed to her residence after we

determined that this evidence was admissible. Finally, the district court did not

clearly err in using reasonable and conservative estimates in determining the

amount of drugs attributable to Curry. We, therefore, affirm Curry’s convictions

and her total 70-month sentence.

AFFIRMED.