FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 FEBRUARY 3, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-11226

________________________

D.C. Docket No. 05-00311-CR-12-ODE-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RICARDO WILSON,

a.k.a. Reek,

a.k.a. Rico Wilson,

GEORGE RICHARDSON,

a.k.a. Easy,

PROSPER SENYO KUDZO COKER-OFORI,

a.k.a. Senyo,

ANDREW E. JONAH,

a.k.a. Rain,

a.k.a. Busy,

Defendants-Appellants.

________________________

Appeals from the United States District Court

for the Northern District of Georgia

_________________________

(February 3, 2009)
Before TJOFLAT and CARNES, Circuit Judges, and HOOD, District Judge.

*

PER CURIAM:

Andrew Jonah, Prosper Coker-Ofori, George Richardson, and Ricardo

Wilson (collectively, “Defendants”) were convicted of various drug, firearm, and

money laundering offenses. Each defendant appealed his conviction on several

grounds. Defendant Prosper Coker-Ofori also appeals his sentence. After a

thorough review of the record and having had the benefit of oral argument, we

AFFIRM.

I. BACKGROUND

On October 3, 2006, a grand jury in the Northern District of Georgia

returned a 16-count superceding indictment against eight defendants, including the

four Defendants involved in this appeal. Count One charged all eight defendants

with conspiring to possess with the intent to distribute heroin, cocaine, and ecstasy,

in violation of 21 U.S.C. § 846. The remaining counts charged individual

defendants with possessing and distributing narcotics, possessing firearms during

and in relation to the drug offenses, and money laundering in relation to the drug

offenses.

Following a 12-day jury trial, the district court granted Jonah’s motion for

 Honorable Joseph M. Hood, United States District Judge for the Eastern District of *

Kentucky, sitting by designation.

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judgment of acquittal on the money laundering charged in Counts Fifteen and

Sixteen. All defendants were found guilty of the conspiracy charged in Count One.

Additionally, the jury found Jonah guilty of distributing and possessing with the

intent to distribute heroin, attempting to possess with the intent to distribute

cocaine, conspiring to import heroin, wiring money in furtherance of drug

trafficking, and possessing ecstasy with the intent to distribute. Jonah was

acquitted of possessing ecstasy with the intent to distribute and possession of a

firearm in furtherance of same. Richardson was acquitted of possessing ecstasy

with the intent to distribute and possession of a firearm. In addition to Count One,

Wilson was found guilty of attempting to possess with the intent to distribute at

least five kilograms of cocaine and being an unlawful user of a controlled

substance in possession of a firearm. Defendants filed timely notices of appeal.

Defendants appeal their convictions on numerous grounds. Only Coker-Ofori

appeals his sentence. Due to the lengthy nature of the facts surrounding this case,

the facts pertinent to this appeal are discussed below as they relate to the various

issues on appeal.

II. DISCUSSION

A. Wiretap orders

Jonah complains that the fruits of the wiretap orders granted in this case

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should have been suppressed because the affidavits in support of the wiretap orders

did not demonstrate the necessity of the wiretaps. In the course of its investigation

from September 2004, until the arrests in August 2005, the Government applied for

and was granted thirteen wiretap orders. Claiming that the case agent’s affidavit in

support of the wiretap warrant contained a material misstatement, Jonah moved for

an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978). No

evidentiary hearing was held. After reviewing the magistrate judge’s report and

recommendation to deny the motions to suppress the wiretap evidence and Jonah’s

objections to same, the district court denied the motions to suppress the wiretap

evidence.

Pursuant to 18 U.S.C. § 2518, court-ordered electronic surveillance is

prohibited unless the government demonstrates the necessity of such techniques.

See United States v. Carrazana, 921 F.2d 1557 (11th Cir. 1991). A judge may

authorize a wiretap based upon facts submitted by the applicant that ordinary

“investigative procedures have been tried and have failed or reasonably appear to

be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(1)(c).

Citing information learned through other investigative techniques, Jonah argues

that the Government failed to prove the necessity of the wiretaps. The Government

is not required to show that all other investigative methods have been wholly

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unsuccessful. United States v. Alonso, 740 F.2d 862, 868 (11th Cir. 1984).

The district court’s determination that the Government’s application

established the requisite necessity is subject to review for clear error. United States

v. Weber, 808 F.2d 1422, 1424 (11th Cir. 1987). The Government admits that as

of July 2004, prior to its application for the wiretap order, the confidential

informant (“CI”) had enabled the Government to “build a solid case against Jonah

and [co-defendant] Amoo-Adare.” The DEA’s use of traditional investigative

techniques had not, however, enabled it to obtain information regarding Jonah’s

drug suppliers, transportation methods, down-line distributors, and financial

resources. The Government sought the wiretap orders in an attempt to obtain such

information. While Jonah argues that such information could have been obtained

using traditional surveillance techniques or the CI, the Government found these

methods unsuccessful due to Jonah’s use of counter-surveillance and the CI’s

inability to continue in the investigation.

1

The judge to whom the wiretap application is made is clothed with broad

discretion in considering the application, Alonso, 740 F.2d at 868-69. In the instant

case, the district court did not clearly err in granting the wiretap application.

 At the time of his cooperation with the Government, the CI was on parole in the State 1

of Georgia. Upon learning of the CI’s continued cocaine use, the parole board revoked its

permission for the CI to participate in the DEA’s investigation.

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B. Franks hearing

Jonah argues that the district court erred in denying his request for an

evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978),

regarding the affidavits submitted in support of the wiretap orders. While this

Court has not articulated the precise standard of review of a district court’s denial

of a Franks hearing, normally a district court’s decision regarding the need for an

evidentiary hearing is reviewed for abuse of discretion. United States v. Arbolaez,

450 F.3d 1283, 1293 (11th Cir. 2006). We shall apply that standard here.

“[W]here the defendant makes a substantial preliminary showing that a false

statement knowingly and intentionally, or with reckless disregard for the truth, was

included by the affiant in the warrant affidavit, and if the allegedly false statement

is necessary to the finding of probable cause, the Fourth Amendment requires that

a hearing be held at the defendant's request.” Franks v. Delaware, 438 U.S. 154,

155-56, (1978). The Eleventh Circuit applies the Franks analysis in evaluating an

affidavit offered in support of a wiretap order. See United States v. Novaton, 271

F.3d 968, 986 (11th Cir. 2001).

The allegedly false statement relied upon by Jonah is DEA Special Agent

Julio Alba’s failure to include in his affidavit the fact that “a very significant

contact between Jonah and [the CI] . . . occurred on September 8, 2004.” Offering

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no support for his contention, Jonah argues that “[t]his information would have

been crucial to a judge’s determination as to whether the investigation could

proceed with [the CI] and without wiretap surveillance.” Id. The omission of this

allegedly material fact is insufficient to conclude that the district court abused its

discretion in determining that Jonah had not made a substantial preliminary

showing that a false statement was contained in the affidavit and declining to

conduct a Franks hearing.

C. Batson challenge

For the first time on appeal, Jonah argues that the district court erred in

rejecting co-defendant Richardson’s Batson challenge to the Government’s use of

its peremptory strikes. Richardson challenged the Government’s use of

peremptory challenges to eliminate three African-American women from the jury

venire, and to eliminate another African-American woman as an alternate juror.

This Court “consider[s] objections raised for the first time on appeal under the

plain error standard.” United States v. Mangaroo, 504 F.3d 1350, 1353 (11th Cir.

2007) (citing United States v. Neely, 979 F.2d 1522, 1523 (11th Cir. 1992)).

In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court outlined a

three-part test to evaluate the validity of challenges to peremptory strikes. First, a

moving party must make a prima facie showing that a peremptory challenge has

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been exercised on the basis of race or gender. To do so, the defendant must show

that he is as member of a cognizable racial group, and that the prosecutor exercised

peremptory challenges in such a way so as to remove from the venire members of

the defendant’s race. Once the defendant makes a prima facie showing, the burden

shifts to the prosecutor to offer a race-neutral basis for striking the juror in

question. Finally, in light of both parties’ submissions, the trial court must

determine whether the moving party has shown purposeful discrimination. The

trial court’s determination is pure fact-finding and will be reversed only if it is

clearly erroneous. Id. at 98.

Upon considering Richardson’s Batson challenge, the trial court found that

the Government offered valid, race-neutral reasons for using its peremptory

challenges on four African-American women and overruled Richardson’s Batson

challenge. Specifically, the trial court stated: “I do not believe that any of the

reasons are pretextual. In other words, that any of the reasons are a pretext for

race.”

The Government’s stated reasons for striking the various jurors are as

follows:

Juror No. 8 - She was very assertive in responding to questions from

the Government, and it felt she could hang a jury if she

disagreed with the decision-making of other jurors; both

she and the cooperating defendant in this case, who

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supplied phones to Jonah’s drug organization, had

worked for Nextel, and the Government feared she would

be biased against the cooperating defendant

Juror No. 18 - She had been involved in prison ministry work and the

Government believed she may be sympathetic to the

defendants

Juror No. 23 - She stated she would have a difficult time passing

judgment on another person

Juror No. 31 - Her history of holding jobs for only short periods of time

indicated that she may have trouble working with a group

or dealing with conflict; and she was very vague about

her reasons for leaving her employment as a corrections

officer

The record does not indicate, and in fact Jonah conceded during oral argument, that

there is no evidence in the record of any white or male jurors with similar

characteristics who were not stricken from the jury panel.

“Under Batson, almost any plausible reason can satisfy the striking party’s

burden, as long as the reason is race or gender neutral.” United States v. Walker,

490 F.3d 1282, 1293 (11th Cir. 2007). As the fact-finder for the purposes of a

Batson challenge, “the trial judge is in the best position to evaluate an attorney’s

candor and ferret out purposeful discrimination.” Id. at 1294. Given the deference

afforded to the trial judge’s determination regarding the legitimacy of the

Government’s race-neutral explanations for its strikes, and the lack of any record

evidence demonstrating that similarly situated white male jurors were not stricken,

Jonah has failed to show that the denial of co-defendant Richardson’s Batson

9
challenge rises to the level of plain error.

D. Sufficiency of the evidence

Defendants Coker-Ofori, Richardson, and Wilson argue that the evidence

was insufficient for the jury to find them guilty of the conspiracy charged in Count

One. When reviewing the sufficiency of the evidence, this Court’s review is de

2

novo, but “all reasonable inferences and credibility evaluations” must be resolved

in favor of the jury’s verdict. United States v. Medina, 485 F.3d 1291, 1296 (11th

Cir. 2007). This Court “will reverse a conviction based on insufficient evidence

only if no reasonable trier of fact could have found guilt beyond a reasonable

doubt.” Walker, 490 F.3d at 1296.

To support a conviction for conspiracy, the evidence must show, beyond a

reasonable doubt, that: 1) a conspiracy existed; 2) each defendant knew of the

essential objectives of the conspiracy; and 3) each defendant knowingly and

voluntarily participated in the conspiracy. United States v. Thompson, 422 F.3d

1285, 1290 (11th Cir. 2005). The following is simply a portion of the evidence

which was adduced at trial.

 Although Jonah attempted to assert an insufficiency of the evidence argument by 2

simply adopting the arguments of his co-defendants in his brief, this Court does not consider

insufficiency arguments raised only by adoption. See United States v. Khoury, 901 F.2d 948,

963 n.13 (11th Cir. 1990) (noting that “the fact-specific nature of an insufficiency claim requires

independent briefing if we are to reach the merits”). 

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Coker-Ofori

1) Relayed messages and transported heroin to and from the New Yorkbased heroin supplier known as Solo

2) Laryea directed Solo to pay Coker-Ofori for connecting them

3) Numerous references to “we” and “our” in phone calls between Solo and

Coker-Ofori, indicating a shared objective or activity

4) Solo instructed Laryea to contact Coker-Ofori when he needed heroin

from Solo

5) On March 6, 2005, Laryea and Coker-Ofori spoke seven times regarding

the need to replace heroin that was seized at the airport

6) In a March 25, 2006 phone call, Laryea told Coker-Ofori that “your share

of the money is huge,” and that “you are the only one, the only one who is

controlling our affairs.”

7) In an April 2, 2005 phone call, Solo and Coker-Ofori discussed meeting

to exchange heroin

8) Solo asked Coker-Ofori to drive to Atlanta to deliver heroin to Jonah

9) After their arrests, Laryea and Coker-Ofori agreed that their cover story

would be that the transactions concerned Coker-Ofori’s business, not heroin

Richardson

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1) Incorporated the business, Panther, to act as a front for drug trafficking

2) Laryea testified that on July 12, 2004, he met Jonah, Amoo-Adare, and

Richardson in New York City where Jonah introduced Richardson as “part of his

crew”

3) Before the September 21, 2004 sale of heroin to undercover agents,

Amoo-Adare told the CI that Jonah didn’t have an entire kilogram to sell because

Richardson, a..k.a. “EZ”, had gotten 100 grams

4) Jonah’s girlfriend, Angela Glass, testified that Jonah told her that

Richardson was in her basement, a place where Jonah’s “crew” would package

drugs

5) On September 30, 2004, $1,500 was wired from Panther’s bank account

to Laryea’s account to pay the plane fare for a heroin courier to travel from Ghana

to the United States

6) Jonah financed a vacation weekend in Miami for members of his

“crew,”including Richardson

7) Drug ledgers seized from Jonah’s residence reflected that ecstasy pills had

been distributed to “EZ” and that money had been received from “EZ”

8) Shortly after Jonah’s arrest, Richardson arrived at Jonah’s residence

Wilson

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1) Telephone conversations with Jonah in September 2004 reference a trip to

California to recover six kilograms of cocaine

2) Wilson’s name appears numerous times in the drug ledgers seized from

Jonah’s residence

While not an exhaustive recitation of the evidence presented at trial,

resolving all reasonable inferences and credibility evaluations in favor of the jury’s

verdict, Medina, 485 F.3d at 1296, the above-listed evidence is more than

sufficient to prove beyond a reasonable doubt that a conspiracy existed, that each

defendant knew of the essential objectives of the conspiracy, and that each

defendant knowingly and voluntarily participated in the conspiracy, Thompson,

422 F.3d at 1290. Defendants’ arguments that the evidence was insufficient to

support their convictions fail.

E. Single conspiracy

Defendants Richardson, Wilson, and Coker-Ofori argue that because the

indictment charged only a single conspiracy but the evidence presented at trial

established multiple conspiracies, their convictions on the conspiracy charged in

Count One of the indictment must be overturned. This Court does not “reverse

3

 While only defendant Richardson presented legal and factual analysis of this issue in 3

his brief, in their briefs, defendants Wilson and Coker-Ofori adopted Richardson’s argument as

their own, pursuant to FRAP 28(i).

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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.” United States v. Alred, 144 F.3d 1405,

1414 (11th Cir. 1998).

Because the jury determines the question of fact as to whether the

evidence establishes a single conspiracy, 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. Accordingly, we will

not disturb the determination of the jury that a single conspiracy exists

if supported by substantial evidence. 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. (internal citations omitted).

In determining whether one or multiple conspiracies exist, “there is no

requirement that each conspirator participated in every transaction, knew the other

conspirators, or knew the details of each venture making up the conspiracy.”

United States v. Taylor, 17 F.3d 333, 337 (11th Cir. 1994). Importantly, for the

purposes of this action, “a single conspiracy may be found where there is a ‘key

man’ who directs the illegal activities, while various combinations of other people

exert individual efforts towards the common goal.” Id.

Viewing the evidence in a light most favorable to the Government, a

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reasonable jury could have found, and in fact did find, that a single conspiracy

existed. The evidence presented at trial showed that Jonah acted as the hub of this

drug conspiracy, directing and financing various endeavors to obtain and distribute

heroin, cocaine, and ecstasy. While every co-defendant was not involved in every

transaction, they would, on occasion, work in concert with one another, and their

actions furthered the conspiracy headed by Jonah. Richardson, Wilson, and CokerOfori argue, unsuccessfully, that differing methods of obtaining and distributing

the heroin, cocaine, and ecstasy lead to the conclusion that there was not a single

conspiracy. Defendants’ variance argument is without merit.

F. Richardson’s conviction on the conspiracy charge

The jury found Richardson not guilty of possessing ecstasy with the intent to

distribute, but found him guilty of conspiring to distribute. Citing United States v.

Ohayon, 483 F.3d 1281 (11th Cir. 2007), Richardson argues for the first time on

appeal that his acquittal on the charge of possessing ecstasy with the intent to

distribute is irreconcilable with the guilty verdict on the conspiracy charge and that

the guilty verdict must be set aside.

The issue in Ohayon was “whether an acquittal on a charge of an attempted

drug offense requires, under the Double Jeopardy Clause of the Fifth Amendment,

the dismissal of a charge of a drug conspiracy on which the jury was unable to

15
reach a verdict.” Id. at 1282. Ohayon was charged with attempt to possess ecstasy

with the intent to distribute and conspiracy to possess ecstasy with the intent to

distribute. Id. A jury acquitted Ohayon of the attempt charge, but could not reach a

verdict on the conspiracy charge. Id. When the United States sought to retry

Ohayon on the conspiracy charge, the district court determined that because the

same evidence was offered to support both charges, Ohayon’s acquittal on the

attempt charge collaterally estopped the United States from retrying him on the

conspiracy charge.

Ohayon is inapposite to the case at bar. In the instant case, the ecstasy

which formed the basis of the charges against Richardson was discovered during

an inventory at a storage facility several hours after Jonah was arrested and the car

he and Richardson were riding in at the time of the arrest was towed. Based upon

these facts, the jury found reasonable doubt that Richardson possessed the ecstasy

with the intent to distribute; however, the additional evidence of drug ledgers

indicated distribution of ecstasy pills to “EZ,” Richardson’s nickname, supports the

jury’s finding that Richardson conspired to distribute the drugs.

“Conspiracy and the substantive offense that is the object of the conspiracy

are separate and distinct crimes.” United States v. Hernandez, 141 F.3d 1042,

1052 (11th Cir. 1998). The jury’s determination that Richardson was not guilty of

16
possession but was in fact guilty of conspiracy to possess will not be disturbed.

G. Entrapment defense

Jonah contends that the district court erred in denying his request to instruct

the jury on an entrapment defense. It is Jonah’s position that “[t]he heroin crimes

charged in the indictment were the product of [the CI] inducing [Jonah] to become

involved in the drug trade.” “The determination of whether a sufficient evidentiary

foundation exists in the record which could support a jury’s acceptance of an

entrapment defense is properly a question for the trial judge, the standard of review

being abuse of discretion.” United States v. Alston, 895 F.2d 1362, 1369 (11th Cir.

1990) (internal citations omitted).

An affirmative defense of entrapment consists of two elements: 1)

government inducement of the crime; and 2) lack of predisposition of the part of

the defendant to commit the crime. United States v. Ryan, 289 F.3d 1339, 1343

(11th Cir. 2002). “In laying an evidentiary foundation for entrapment, the

defendant bears the initial burden of production as to government inducement;

once the defendant meets this burden, the burden shifts to the government to prove

beyond a reasonable doubt that the defendant was predisposed to commit the

crime.” Id.

“[E]vidence of the government’s mere suggestion of a crime or initiation of

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contact is not enough” to satisfy the defendant’s burden to show government

inducement of the crime. Id. at 1344. To meet his burden of showing government

inducement, Jonah must demonstrate that the government persuaded or mildly

coerced him to commit the crime. Id. “Persuasion or mild coercion may be shown

if defendant demonstrat[es] that he had not favorably received the government

plan, and the government had to ‘push it’ on him, or that several attempts at setting

up an illicit deal had failed and on at least one occasion he had directly refused to

participate.” The evidence must be viewed in the light most favorable to the

defendant. Id. (internal citations omitted). “If the defendant meets his initial

burden . . . the question of entrapment becomes a factual one for the jury to

decide.” Id.

After hearing the evidence, the trial judge denied Jonah’s request for an

entrapment instruction, stating:

The thing that bothers me the most about your request for an

entrapment instruction is what seems to me to be the absence of any

evidence in the record of inducement or persuasion.

. . .

I think there is some evidence like you say that could be construed to

say that Mr. Jonah was not real experienced in dealing with heroin,

but that’s different from persuasion. I mean you could have a person

who doesn’t have any prior dealings who wants to do the deal and

says look, just tell me what I need to do and they’re told what they

need to do and they do it and there’s no real persuasion involved.

. . .

[T]here is no evidence from anyone suggesting that there was any

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pressure put on Mr. Jonah to make those [drug] sales. Obviously, Mr.

Jonah did not get the heroin from [the CI]. He got it from Mr. Laryea

and [the CI], insofar as the record reflects, had nothing to do with that

. . .

There is a wealth of evidence which contradicts Jonah’s assertion that the

Government induced Jonah to commit the crimes. Jonah began talking with his

heroin supplier in the Summer of 2003, prior the CI’s agreement to assist the DEA

in the Spring of 2004. Jonah was able to procure heroin without any direction

from the CI and in fact bought heroin from individuals who were not cooperating

with the DEA. Jonah supervised and financed underlings Wilson and AmooAdare, who flew to California to obtain six kilograms of cocaine and $1,000,000,

without any Government involvement. Angela Glass testified that Jonah was

involved in drug trafficking prior to the CI cooperating with the DEA.

Ample evidence refuted Jonah’s contention that the Government persuaded

or coerced him into drug trafficking. The trial judge did not abuse his discretion in

refusing to give an entrapment instruction.

H. Coker-Ofori’s sentence

Coker-Ofori appeals his 120-month sentence, imposed after a jury found him

guilty of conspiring to possess with the intent to distribute at least one gram of

heroin and at least five kilograms of cocaine, in violation of 21 U.S.C. § 846.

Because Coker-Ofori’s guideline range was less than the mandatory minimum term

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of ten years of imprisonment, Coker-Ofori was sentenced to the mandatory

minimum term of 120 months. See 21 U.S.C. § 841(b)(1)(A)(i). On appeal,

Coker-Ofori argues that the district court clearly erred in holding him accountable

for two kilograms of heroin.

A district court’s determination of the amount of drugs for which a

defendant can be held accountable at sentencing is reviewed for clear error. United

States v. Lee, 68 F.3d 1267, 1274 (11th Cir. 1995). “When a 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. 2005).

“For sentencing purposes a member of a drug conspiracy is liable for his

own acts and the acts of others in furtherance of the activity that the defendant

agreed to undertake and that are reasonably foreseeable in connection with that

activity.” United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993).

[T]o determine a defendant's liability for the acts of others, the district

court must first make individualized findings concerning the scope of

criminal activity undertaken by a particular defendant. Once the

extent of a defendant's participation in the conspiracy is established,

the court can determine the drug quantities reasonably foreseeable in

connection with that level of participation. If the court does not make

individualized findings, the sentence may nevertheless be upheld if

the record supports the amount of drugs attributed to a defendant.

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Id. (internal citations omitted).

The district court must take into account all “relevant conduct” when

determining the quantity of drugs attributable to the defendant, including “all acts

and omissions committed, aided, abetted, counseled, commanded, induced,

procured, or willfully caused by the defendant[.]” U.S.S.G. § 1B1.3(a)(1)(A). If

the case involves drugs, “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); see also U.S.S.G. § 1B1.3(a)(1)(B). “In an

offense involving an agreement to sell a controlled substance, the agreed-upon

quantity of the controlled substance shall be used to determine the offense level

. . .” U.S.S.G. § 2D1.1, comment. (n.12).

The record supports the district court’s finding that Coker-Ofori could have

reasonably foreseen that the drug transaction would involve two kilograms of

heroin. In March 2005, Laryea contacted Coker-Ofori, Solo’s intermediary, in

order to purchase heroin from Solo. In recorded telephone conversations, Laryea

told Coker-Ofori that his share of the money would be “huge,” and that “a big load

is coming.” The telephone conversations eventually led to a three-way agreement

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by which Solo would provide two kilograms of heroin to Laryea for Jonah. The

evidence of record establishes, by a preponderance of the evidence, that CokerOfori facilitated the two-kilogram heroin deal by connecting Laryea and Solo and

that Coker-Ofori knew that the “big load” would provide him a “huge” share of the

money.

Because of Coker-Ofori’s role in facilitating an agreement to purchase two

kilograms of heroin, his relationship with the heroin dealer, and the evidence

showing that he was aware the deal was to involve a large amount of heroin, the

district court did not clearly err at sentencing in finding that he was responsible for

two kilograms of heroin. Accordingly, we affirm as to this issue.

AFFIRMED.

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