[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DEC 28, 2006

THOMAS K. KAHN

N o . 06-10938

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket No. 03-00747-CR-3-ODE-1

U N IT E D STATES OF AMERICA,

Plaintiff-Appellee,

versus

PHIL CARON GIVENS,

Defendant-Appellant.

A p p e al from the United States District Court

fo r the Northern District of Georgia

(D ecem b er 28, 2006)

B efo re DUBINA, CARNES and WILSON, Circuit Judges.

P E R CURIAM:

P h il Caron Givens ("Givens") appeals his convictions and sentence for

co n sp iracy to possess with intent to distribute at least 1,000 kilograms of m a riju a n a , in violation of 21U.S.C. §§ 846 and 841(b)(1)(A)(vii), and attempted p o ssessio n with intent to distribute at least 1,000 kilograms of marijuana, in v io latio n of 21U.S.C. §§ 846 and 841(b)(1)(A)(vii) and 18U.S.C. § 2. Givens arg u es that there was insufficient evidence at trial to convict him of either count.

Givens also argues that at sentencing the district court erred in determining the d ru g quantity attributable to him. Givens further argues that his sentence is u n reaso n ab le because it is "substantially disparate" from the sentences that his cod efen d an ts received. Upon review of the record and upon consideration of the p a r tie s' briefs, we discern no reversible error.

BA CK GRO UN D O n July 28, 2004, a federal grand jury returned a second superceding in d ictm en t charging Givens and four co-defendants with conspiracy to possess w ith the intent to distribute at least 1,000 kilograms of marijuana, in violation of 21 U .S .C . §§ 846 and 841(b)(1)(A)(vii), and attempted possession with intent to d istrib u te at least 1,000 kilograms of marijuana, in violation of 21U.S.C. §§ 846 a n d 841(b)(1)(A)(vii) and 18U.S.C. § 2. Prior to trial, three co-defendants pled g u ilty. Givens was tried together with co-defendant Raul Moreno Zunigo.

At trial, the evidence established the following. In late October 2003, a c o n f id e n tia l informant ("CI") working with Special Agent Alfredo Ibanez, United S ta te s Bureau of Immigration and Customs Enforcement ("ICE"), was contacted b y co-defendant Jose Burnias ("Jose"). Jose asked the CI if he knew anyone who co u ld transport a large amount of marijuana from Texas to North Carolina. The CI said that he would look into it and immediately contacted Agent Ibanez. Agent I b a n e z , through the CI, planned a controlled delivery, wherein a tractor trailer o w n ed by ICE would transport the marijuana to North Carolina. Once there, ICE ag en ts would arrest or identify other individuals involved in the drug trafficking o p eratio n . Agent Ibanez then arranged to pick up the marijuana. After Agent I b a n e z successfully coordinated the pick up of the van containing the marijuana, A g en t Ibanez took the van to a secure government facility. The estimated weight o f the marijuana was 2,650 pounds.

In November 2003, co-defendant Michael Burnias ("Michael"), Jose's b ro th er, contacted Givens about purchasing some of the marijuana that was going to be delivered to North Carolina. Givens agreed to purchase one hundred pounds f o r $50,000. Since there was such a large quantity of marijuana being transported to North Carolina, Michael testified that he discussed with Givens the possibility of G iv en s purchasing another five to six hundred pounds.

O n December 3, 2003, the tractor trailer, driven by a special crimes in v e stig a to r , departed Texas for North Carolina. Michael kept Givens informed a b o u t status of the marijuana transport. Michael told Givens that he needed $ 3 5 ,0 0 0 in payment up front for the one hundred pounds that Givens had agreed to p u rch ase. Michael intended to use the money to pay the person transporting the m ariju an a upon the driver's arrival in North Carolina.

While in route to North Carolina, Jose told the special agent transporting the m ariju an a that he was now to deliver the marijuana to Atlanta, Georgia instead of N o rth Carolina. Michael notified Givens of the change in plans. Michael told G iv e n s that he did not have a place to off load the marijuana once it reached A tlan ta. Givens informed Michael "that he had the perfect spot" to unload the tru ck . (R-9 at 456). Givens assured Michael that he was on his way to Atlanta w ith the money.

On December 7, 2003, Givens met Michael in Atlanta and lead him to the p lace that Givens had selected to off load the marijuana. After scouting the d esig n ated site, Michael gave the directions to Jose and told him to give the d irectio n s to the driver who was transporting the marijuana. Later that day, all the d e f en d a n ts arrived at the designated site. Givens arrived in a white van. The truck c ar ry in g the marijuana arrived and Givens and the other defendants began to off lo ad the marijuana, which was wrapped in plastic and grey duck tape. At one p o in t, Givens became concerned about a white truck that was parked nearby.

Givens thought that it might be the police and went to check out the truck. Givens retu rn ed satisfied that it was not the police. Givens continued to off load the m a r iju a n a .

When the police moved in to arrest the defendants, Givens ran to his van in an attempt to flee. Givens was unable to start the van and then ran towards a w o o d ed area. Given was apprehend by an ICE agent soon after he entered the w o o d s.

After Givens was arrested, he was taken to the Atlanta Pretrial Detention C e n te r. Keith Jones shared the same housing unit with Givens and testified at trial th a t Givens told him the details about why he was incarcerated. Jones testified that G iv en s told him about the truck carrying approximately three thousand pounds of m ariju an a. Jones testified that Givens claimed responsibility for one thousand six h u n d r ed pounds of marijuana and also told Jones that Givens had planned to steal th e entire load of marijuana from his co-defendants. The net weight of the m ariju an a that was seized at the scene was later determined to be 1,314.45 k ilo g ram s. The jury convicted Givens and his co-defendant on both counts.

P r io r to sentencing, the probation officer prepared a presentence in v estig atio n report ("PSI"), which calculated Givens's base offense level as 32, p u rsu an t to U.S.S.G. § 2D1.1(c)(4). The probation officer determined that Givens w a s responsible for 1,314.45 kilograms of marijuana. The probation officer d e te rm in e d that Givens had 11 criminal history points, resulting in a criminal h isto ry category of V and an advisory sentencing range of 188 to 235 months.

At sentencing, Givens argued that because he was not involved at the outset o f the conspiracy, and because his name was not mentioned by any of the cod efen d an ts until the offense conduct took place in Georgia, the scope of his in v o lv e m e n t was limited to the one hundred pounds of marijuana that he had in ten d ed to purchase. Givens asserted that one hundred pounds was equivalent to ap p ro x im ately forty-five kilograms, and thus, Givens's base offense level should b e 20.

The government responded that Givens should be held responsible for the en tire 1,314.45 kilograms seized as a result of the controlled delivery. The g o v ern m en t argued that the jury had found Givens responsible for at least one th o u san d kilograms of marijuana. The government further argued that Givens co n sp ired with the other co-defendants to execute the delivery and assisted with the d eliv ery up until the arrests had occurred.

Based on the evidence presented at trial, the district court found that Givens w as responsible for 1,314.45 kilograms of marijuana. Specifically, the court found th at there was evidence that Givens had arranged to purchase one hundred pounds o f marijuana. The court also found that the evidence clearly showed that Givens w a s aware that the amount of the marijuana being transported was much larger th an one hundred pounds. The court determined that the advisory Guideline range w as 188 to 235 months. The court sentenced Givens to 188 months' imprisonment an d five years' supervised release for each count, to be served concurrently. The c o u r t noted that the sentence was reasonable in light of the Guidelines and after co n sid erin g the level of Givens's participation in the offense and his extensive crim in al history.

STANDARD OF REVIEW W e review de novo "whether there is sufficient evidence to support the ju r y 's verdict." United States v. Ortiz, 318 F.3d 1030, 1036 (11th Cir. 2003) (per cu riam ). On review, the evidence is viewed "in the light most favorable to the g o v ern m en t, with all reasonable inferences and credibility choices made in the g o v e r n m e n t's favor." Id. (quotation omitted). "[W]e are bound by the jury's cred ib ility determinations, and by its rejection of the inferences raised by the d efen d an t." United States v. Peters, 403 F.3d 1263, 1268 (11th Cir. 2005).

A district court's determination of drug quantity used to establish a d e f en d a n t's base offense level is reviewed for clear error. United States v. S im p so n , 228 F.3d 1294, 1298 (11th Cir. 2000). We review a defendant's ultimate sen ten ce, in its entirety, for unreasonableness in light of the factors in 18U.S.C. § 3 5 5 3 (a). See United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005) (p er curiam).

DISCUSSION 1. S u f f ic ie n c y of the Evidence G iv e n s argues that there was insufficient evidence to convict him of conspiracy to possess with intent to distribute at least 1,000 kilograms of m a riju a n a , in violation of 21U.S.C. §§ 846 and 841(b)(1)(A)(vii), and attempted p o ssessio n with intent to distribute at least 1,000 kilograms of marijuana, in v io latio n of 21U.S.C. §§ 846 and 841(b)(1)(A)(vii) and 18U.S.C. § 2. Givens co n ten d s that at the time of his arrest, he was only present with the co-defendants b ecau se he had agreed to purchase one hundred pounds of marijuana. Givens fu rth er argues that the testimony of his co-defendants and the jailhouse informant w as not credible and failed to establish that he had prior knowledge of the c o n s p ir a c y .

In order to sustain a conviction for conspiracy to possess marijuana with in te n t 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 d e f en d a n t, with knowledge, voluntarily joined it." United States v. McDowell, 250 F .3 d 1354, 1365 (11th Cir. 2001). The government may establish such proof with circu m stan tial evidence, and the jury may infer a common plan or scheme from the p arties' conduct or other circumstances. United States v. Hogan, 986 F.2d 1364, 1 3 7 4 (11th Cir. 1993). It is not necessary that the government prove the defendant k n ew or participated in every essential stage of the conspiracy. United States v. B rito , 721 F.2d 743, 746 (11th Cir. 1983).

In order to sustain a conviction for attempted possession with the intent to d is tr ib u te marijuana, the government must prove beyond a reasonable doubt that G iv e n s "(1) acted with the kind of culpability required to possess [marijuana] k n o w in g ly and wilfully and with the intent to distribute it; and (2) engaged in co n d u ct which constitutes a substantial step toward the commission of the crime u n d er circumstances strongly corroborative of their criminal intent." McDowell, 2 5 0 F.3d at 1365.

The evidence supports that (1) Givens knew of a plan to transport a tru ck lo ad of marijuana from Texas to North Carolina; (2) Givens agreed to p u rch ase one hundred pounds of marijuana and promised to pay $35,000 up front, k n o w in g that the money was needed to pay for transportation of the marijuana; (3) G iv en s was in contact with a co-defendant throughout the shipment of the load and p erso n ally arranged the delivery site for the marijuana in Atlanta; (4) Givens h elp ed unload the marijuana from the truck and acted as a look-out; and (5) Givens c la im e d responsibility for over one thousand pounds of marijuana and expressed h is intent to steal the entire load from his co-defendants. Accordingly, in the light m o st favorable to the government, there was sufficient evidence to support the ju ry's determination that an agreement existed between Givens and his cod e f en d a n ts to violate the narcotics laws, that Givens knew of the conspiratorial g o al, and that Givens knowingly joined and participated in this illegal venture. See M cD o w ell, 250 F.3d at 1365. Furthermore, in the light most favorable to the g o v e r n m e n t, there was sufficient evidence to support the jury's determination that G iv en s's actions were consistent with a person who knowingly and wilfully p o ssessed marijuana and intended to distribute it, and that Givens engaged in co n d u ct that constituted a substantial step towards the commission of this crime.

See id.

A s to Givens's arguments regarding the credibility of the testimony of his co -d efen d an ts and the jailhouse informant, the jury members were instructed by the d istrict court that as the sole judges of witness credibility, they were free to believe o r disbelieve any testimony heard during the trial. In finding Givens guilty of the tw o counts, the jury found the testimony of the co-defendants and the jailhouse in fo rm an t credible and rejected Givens's assertions that he had no knowledge of th e agreement and was only present with his co-defendants because he wanted to p u rch ase a small amount of marijuana. We are bound by the jury's credibility d eterm in atio n s. Peters, 403 F.3d at 1268. Accordingly, we affirm Givens's c o n v ic tio n s .

2. C alcu latio n of the Drug Quantity G iv e n s argues that the testimony of his co-defendants establishes that he was o n ly responsible for one hundred pounds of marijuana. He asserts that only the ja ilh o u s e informant stated that he had a larger role in the conspiracy, and argues th at the informant is not a reliable witness because he was not a participant in the co n sp iracy and because had an extensive criminal record. Givens contends that the d is tr ic t court's error in calculating the drug quantity attributable to him at sen ten cin g was not harmless because it substantially increased his base offense le v e l.

A district court's determination of drug quantity used to establish a d efen d an t's base offense level is reviewed for clear error. Simpson, 228 F.3d at 1 2 9 8 . Pursuant to the Supreme Court's decision in United States v. Booker, the S en ten cin g Guidelines are no longer mandatory. 543 U.S. 220, 264, 125 S. Ct.

7 3 8 , 767, 160 L. Ed. 2d 621 (2005). Although the Guidelines are advisory, a d istrict court must calculate the advisory sentencing range correctly and must co n sid er it when determining a defendant's sentence. United States v. Crawford, 4 0 7 F.3d 1174, 1178-79 (11th Cir. 2005). The amount of drugs attributable to a d efen d an t is determined by assessing the defendant's relevant conduct. "[I]n the case of a jointly undertaken criminal activity [relevant conduct includes] . . . all reaso n ab ly foreseeable acts and omissions of others in furtherance of the jointly u n d e r ta k e n criminal activity." U.S.S.G. § 1B1.3(a)(1)(B). If the case involves d ru g s, "the defendant is accountable for all quantities of contraband with which he w as directly involved and, in the case of a jointly undertaken criminal activity, all reaso n ab ly foreseeable quantities of contraband that were within the scope of the crim in al activity that he jointly undertook." U.S.S.G. § 1B1.3, cmt. n. 2.

At sentencing, the district court made an explicit finding that although G iv en s had agreed to purchase only one hundred pounds of marijuana, he was fully aw are that the entire deal was much larger, and therefore, it was reasonable to find h im responsible for the entire amount of marijuana involved. The record reflects th at Givens knew that his co-defendants planned to transport a truckload of m ariju an a from Texas to North Carolina. Givens received updates on the status of th e shipment and arranged a new delivery site in Atlanta. Givens drove a van to th e delivery location, helped to unload the drugs, and kept watch for suspicious v eh icles. Givens also expressed his intent was to take off with the entire shipment.

Based on the evidence in the record, the district court did not clearly err in attrib u tin g the entire load of 1,314.45 kilograms to Givens, and accordingly, did n o t err in calculating his base offense level.

3. R e as o n a b le n e ss of Sentence G iv en s argues that his sentence is unreasonable because it is "substantially d isp arate" from the sentences imposed upon his co-defendants. This Court reviews a defendant's ultimate sentence, in its entirety, for unreasonableness in light of the facto rs in 18U.S.C. § 3553(a). See Winingear, 422 F.3d at 1245. "[N]othing in B o o k er or elsewhere requires the district court to state on the record that it has e x p lic itly considered each of the § 3553(a) factors or to discuss each of the § 3 5 5 3 ( a) factors." United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

Instead, indications in the record that the district court considered facts and circu m stan ces falling within § 3553(a)'s factors will suffice. Id. at 1329-30. We h av e held that the "[d]isparity between the sentences imposed on codefendants is g e n e r a lly not an appropriate basis for relief on appeal." United States v. Regueiro, 2 4 0 F.3d 1321, 1325-26 (11th Cir. 2001) (per curiam).

H e re , the district court imposed a reasonable sentence because it considered th e sentencing factors in § 3553(a) along with the parties' arguments and, as shown ab o v e, it correctly applied the Guidelines. See Crawford, 407 F.3d at 1178-79.

The court specifically stated that it considered the level of Givens's participation in th e offense and his extensive criminal history in imposing a sentence of 188 m o n th s' imprisonment, which was at the low-end of the Guideline range. Givens's a rg u m e n t that his sentence is unreasonable because it is "substantially disparate" f ro m the sentences of his co-defendants is without merit. The record indicates that G iv en s had an extensive criminal record, resulting in a criminal history category of V and thus, a higher advisory sentencing range than those co-defendants with lo w er criminal history scores. Moreover, Givens did not receive an adjustment for accep tan ce of responsibility, unlike Jose and Michael, who pled guilty to their o ffen ses and cooperated with the government by testifying at Givens's trial.

Accordingly, Givens's sentence of 188 months' imprisonment is reasonable.

Accordingly, we find no reversible error and affirm.

A F F IR M E D .