                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT
                          ____________________

                               No. 99-60269
                           ____________________

                        UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                  versus

                ANTWON GARDNER; JOHN BRADLEY WARREN,
                         also known as Brad,

                                           Defendants-Appellants.
_________________________________________________________________

           Appeal from the United States District Court
             for the Northern District of Mississippi
                         (1:98-CR-59-4-B-D)
_________________________________________________________________
               ___________________________
                            June 1, 2000

Before POLITZ, JOLLY, and BARKSDALE, Circuit Judges.

PER CURIAM:1

      Primarily at issue is the sufficiency of the evidence for the

drug conspiracy convictions of Antwon Gardner and John Bradley

Warren.    We AFFIRM.

                                    I.

      In September 1998, a superseding indictment charged Appellants

and   12   others   with   24   counts   of   federal     drug   trafficking

violations. Count One charged conspiracy to possess with intent to

distribute crack cocaine, from January 1994 through June 1998, in


      1
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
violation of 21 U.S.C. § 846.           The remaining counts charged varying

defendants with distribution of crack cocaine during the same

period, in violation of 21 U.S.C. § 841.                  In addition to the

conspiracy charge, Gardner and Warren were charged with one and

three counts, respectively, of aiding and abetting the distribution

of crack cocaine.

      The other defendants pleaded guilty, including the kingpin,

Dorsey, who agreed to testify for the Government. (Dorsey received

a    20-year    sentence,    subject       to    a   possible     reduction   for

“substantial assistance”, pursuant to United States Sentencing

Guidelines § 5K1.1.)

      In January 1999, a jury found Appellants guilty on all counts.

Gardner, classified as a career offender, was sentenced to 360

months     imprisonment;     Warren,      with   a   lower   criminal      history

category, to 262 months.

                                         II.

      Appellants contest the sufficiency of the evidence for their

convictions, the district court’s ruling the Government did not

violate Brady v. Maryland, 373 U.S. 83 (1963), and the amount of

drugs attributed to them for sentencing purposes.

                                         A.

      For their conspiracy convictions, pursuant to FED. R. CRIM. P.

29   and   as   required    for   our    usual   standard    of   review    for   a

sufficiency challenge, Gardner and Warren moved for judgment of


                                          2
acquittal at the close of the Government’s evidence, and renewed

the motions post-trial.        Accordingly, the evidence is sufficient

if, examined in the light most favorable to the jury verdict, “a

rational   trier   of   fact   could   have   found   ...   guilt   beyond   a

reasonable doubt”. United States v. Martinez, 190 F.3d 673, 676

(5th Cir. 1999) (citation omitted).

     For his distribution conviction, Gardner’s post-trial Rule 29

motion is minimal, to say the least.          However, we will, dubitante,

review it under our usual standard.           But, because Warren did not

make the requisite Rule 29 motion for his distribution convictions,

our review is confined to whether “the record is devoid of evidence

pointing to guilt, or ... the evidence on a key element of the

offense [is] so tenuous that a conviction would be shocking”.

United States v. Pierre, 958 F.2d 1304, 1310 (5th Cir. 1992) (en

banc)(internal quotation marks and citation omitted).2




     2
      Of course, we, not the parties, determine our standard of
review.   Nevertheless, we expect the parties, especially the
Government, to state the correct standard. They did not do so for
the distribution convictions.

                                       3
                                            1.

      Appellants insist the Government offered no evidence they and

any alleged co-conspirator pooled resources, shared profits, or

engaged in joint activity indicating their participation in the

conspiracy.        At most, according to Appellants, they merely had a

buyer-seller relationship with Dorsey, the kingpin.

      For a drug trafficking conspiracy, the Government must prove,

beyond a reasonable doubt, an agreement between two or more persons

to   violate   the        narcotics    laws;      knowledge      of   the    agreement;

intention to participate in it; and actual participation.                           See,

e.g., United States v. Maseratti, 1 F.3d 330, 337 (5th Cir. 1993).

“The jury may infer any element ... from circumstantial evidence”,

United States v. Lechuga, 888 F.2d 1472, 1476 (5th Cir. 1989), such

as “a combination of close relationships or knowing presence”.

United   States      v.    Brito,     136   F.3d    397,   409    (5th      Cir.   1998).

Knowledge and participation can be inferred from “a single act”.

Maseratti,     1    F.3d     at     338.         And,   although      a   buyer-seller

relationship, by itself, is not sufficient proof of a conspiracy,

“evidence of such activity goes to whether the defendant intended

to join” it.       Id. at 336.




                                            4
                                  a.

                                 (1)

     While the evidence established that Gardner’s brother, Zeb

Gardner, was Dorsey’s “partner”, Barbara Cowan testified that,

when, to procure crack, Dorsey’s girlfriend contacted Zeb Gardner

on Cowan’s behalf, Zeb Gardner “sent” Appellant Gardner, who sold

Cowan 1/16th of an ounce.        And, Dorsey testified that:       he

regularly sold cocaine to Gardner; he sold it to him at a cheaper

price; he and Zeb Gardner “fronted” Gardner (usually this means

supplied drugs on consignment, see United States v. Alfaro, 919

F.2d 962, 963 n.1 (5th Cir. 1990); but, Dorsey testified he did not

expect to be repaid); and, around Christmas 1996 or 1997, they

“gave” Gardner two ounces of crack cocaine, worth about $4,000, so

he could sell it and buy Christmas gifts for his children.

      This evidence was sufficient for the jury to conclude that

Gardner’s relationship with Dorsey was not simply one of buyer-

seller, but that, instead, he “knew of and agreed to the overall

objective of the conspiracy”.     United States v. Posado-Rios, 158

F.3d 832, 860 (5th Cir. 1998).         See, e.g., United States v.

Freeman,   164   F.3d   243,    247    (5th   Cir.   1999)   (mother’s

unquestioningly accepting package (containing crack) for her son

from stranger, presence of crack in clear plastic bag in dining

room hutch, and crack, money, weapons and scales in garage, was

sufficient evidence to support her conspiracy conviction).


                                  5
                                    (2)

     Concerning Warren, Cowan testified she saw Dorsey and Warren

cutting up crack cocaine, packaging it, and counting money. Dorsey

testified Warren went with him to Memphis to secure 18 ounces of

cocaine from Dorsey’s supplier, and then to Zeb Gardner’s Memphis

apartment, where Dorsey “cooked” it into crack, and Warren helped

package it.   In addition, Dorsey testified he made no profit from

his sales to Warren, charging him only the wholesale price; and he

and Warren, along with other co-conspirators, pooled money to

obtain a better deal.       This evidence is more than sufficient to

show Warren knowingly and actively participated in the conspiracy.

                                    b.

     Regarding the conspiracy evidence, Appellants assert, for the

first time in their reply brief, that:       the district court erred in

refusing to instruct the jury on the “buyer-seller defense”; and

there was an unconstitutional variance between the charged 14-

member conspiracy and the proof at trial.

     Generally,   we   do    not   review    issues   not   raised   in   an

appellant’s opening brief.     See, e.g., Dufrene v. Browning-Ferris,

Inc., 207 F.3d 264, 268 (5th Cir. 2000).         If we choose to review

the issues, our review, at most, would be limited to that for plain

error.    In short, while not required to even review this issue,

we will examine it for plain error.         Under that limited standard,

we will not exercise our discretion to correct an error unless it


                                     6
is   “clear”   or   “obvious”,    “affect[s]   substantial      rights”,   and

“seriously affect[s] the fairness, integrity, or public reputation

of judicial proceedings”.        See   United States v. Calverley, 37 F.3d

160, 162 (5th Cir. 1994) (en banc).

                                       (1)

      Appellants maintain the district court should have granted

their   requested     instruction      explaining    that   a   buyer-seller

relationship alone is insufficient for conspiracy.               The court’s

conclusion that its conspiracy instruction covered the buyer-seller

defense was not plain error.

                                       (2)

      Likewise, Appellants have not shown plain error regarding the

claimed variance.     See United States v. Morgan, 117 F.3d 849, 858-

59 (5th Cir. 1997) (where indictment alleges single conspiracy, but

evidence shows multiple conspiracies and defendant’s involvement in

at least one of them, there is no variance affecting defendant’s

substantial rights).

                                       2.

      Regarding their sufficiency challenges to their distribution

convictions, Appellants claim the evidence gives equal, or nearly

equal, support to a theory of innocence.            As noted, for Gardner’s

one distribution conviction, we will apply the usual standard of

review, examining the evidence in the light most favorable to the

verdict, and “concentrate on whether the [jury] made a rational


                                        7
decision to convict or acquit”.                  United States v. Jaramillo, 42

F.3d   920,    923   (5th    Cir.    1995)       (citation    omitted).      But,   as

discussed, and because Warren failed to move for judgment of

acquittal on his three distribution convictions, the far more

narrow “no evidence” standard of review applies.

       It goes without saying that the “jury is the arbiter of” a

witness’ credibility.         United States v. Cravero, 530 F.2d 666, 670

(5th Cir. 1976). As hereinafter discussed, Appellants’ contentions

concern the jury’s credibility calls, and, therefore, fail.

                                         a.

       Gardner’s     one    distribution          charge   (aiding   and    abetting)

concerned his 11 December 1997 sale of 1/16th of an ounce of crack

cocaine to Mike Morrison, who solicited it on behalf of Mary

Stewart   (informant)        and     Emily       Vance    (undercover    Agent).    A

defendant aids and abets by “sharing the requisite criminal intent”

to distribute drugs.         Jaramillo, 42 F.3d at 923.           Morrison pleaded

guilty to aiding and abetting the sale.

       Gardner urges that:          as a “hopeless drug addict”, Morrison’s

testimony concerning the circumstances of the sale is confusing and

contradictory; the testimony by Stewart and Vance demonstrates only

that they paid for and received drugs from Morrison, not Gardner;

and    there   was   no     direct    evidence       to    corroborate     Morrison’s

testimony that Gardner stored drugs in a hiding place at his home.

As discussed, this decision was for the jury.


                                             8
                                       b.

     Warren’s distribution charges concern his three sales to

Government informants.       Barbara Cowan testified she bought $300

worth of crack from him on 15 March 1998; Stewart, $300 worth on 13

March and $400 worth on 8 April 1998.

     Warren claims the testimony by Cowan, Stewart, and two Agents

who surveilled the sales was confusing and contradictory. He notes

the court allowed the jury to view (but not take to the jury room)

the transcript of a taped conversation between Stewart and Warren

during one of the sales, that was arguably inaccurate due to the

poor quality of the tape.        Needless to say, the record is not

devoid of evidence supporting the conviction. In any event, again,

this decision was for the jury.

                                   B.

     Appellants contend the Government’s failure to notify them of

its motion to continue sentencing Morrison and Dorsey until after

trial   was   a   Brady   violation.         Gardner   maintains     also   that

Morrison’s testimony on this issue was misleading, in violation of

Napue v. Illinois, 360 U.S. 264, 269-70 (1959).                     Appellants’

motions for dismissal were denied.

     Under    Brady,   due   process    is    denied   when   the   Government

withholds requested evidence, including impeachment evidence, that

is material and favorable to the accused.              Thompson v. Cain, 161

F.3d 802, 806 (5th Cir. 1998) (citations omitted).                  See United

                                       9
States v. Bagley, 473 U.S. 667, 676 (1985). Evidence is “material”

under Brady when there is “a reasonable probability that, had the

evidence been disclosed, the result of the proceeding would have

been different”.    Allridge v. Scott, 41 F.3d 213, 217 (5th Cir.

1994).    Likewise, under Napue, due process is violated when the

Government “knowingly uses perjured testimony at trial or allows

untrue testimony to go uncorrected”.       Faulder v. Johnson, 81 F.3d

515, 519 (5th Cir. 1996).

     The district court’s Brady and Napue rulings are reviewed de

novo.    See Felder v. Johnson, 180 F.3d 206, 211 (5th Cir. 1999)

(Brady); United States v. O’Keefe, 128 F.3d 885, 893 (5th Cir.

1997) (Napue).

     The issue of Morrison’s sentencing arose during his cross-

examination by Gardner’s attorney:

           Q:   It is the Government, the United States
           Attorney that has to ask the Court for the
           downward departure, isn’t it?

           A:   [Morrison]   I   have    not   been   promised
           anything.

                                 ....

           Q:   ... My question is that they told you,
           you have to provide information to them that
           they deem to be substantial assistance before
           they will ask the Court to cut your sentence;
           isn’t that correct?

           A:    To my knowledge.

           Q:   And you have not been sentenced in this
           case yet, have you?

                                    10
              A:    No.

              Q:   Has ... the government agreed to delay
              your sentencing until after you testify in
              this case?

              A:   I don’t know. I cannot really say what –
              [Government   Prosecutor]:  Objection,   Your
              Honor, I know [Gardner’s attorney] knows that
              the timing of the sentence is entirely within
              the discretion of the Court and we have
              nothing to do with it.

              THE COURT:     Objection    sustained.     Of
              course, the witness does not know about those
              things anyway.

(Emphasis added.)

      Gardner contends that, because the Government represented it

had “nothing to do with” the timing of Morrison’s sentencing (when,

in fact, it had filed a motion to delay), Gardner did not learn of

it until after the close of the evidence, and the jury was misled.

Warren asserts that, because the court sustained the Government’s

objection to Gardner’s questioning of Morrison on this issue, law

of the case prevented him from similarly questioning Dorsey.

      The Government responds that: the prosecutor did not know the

continuance motion had been filed, having joined the prosecution

immediately before trial; if he had known about the motion, he

would   not    have     objected;      Appellants’     counsel    recognized      the

prosecutor made an honest mistake; and the prosecutor acknowledged

his   mistake      to   the   court,    as     well   as   to   the   jury   in   the

Government’s closing argument.



                                          11
     The Government maintains also that there was no suppression

because its motion was in the public record prior to trial, and

Appellants became aware of it before the trial ended; and its

motion was not material, but cumulative, because Morrison and

Dorsey each testified that they had not yet been sentenced, and

that they were aware of the possibility of the Government filing a

§ 5K1.1 motion on their behalf.   It asserts that:   because Morrison

testified he did not know the motion had been filed, its filing had

no effect on his credibility because his testimony was truthful;

both Morrison and Dorsey were thoroughly questioned by Appellants’

counsel; and the court allowed Appellants to include the § 5K1.1

issue in their closing arguments.       It additionally notes that

Appellants could have asked to recall Morrison and Dorsey for

further cross-examination, but failed to do so.

     Obviously,   the   Government’s   mistaken   objection   is   most

regrettable, if not intolerable. Such lapses must not be repeated.

Nevertheless, Appellants have not demonstrated a Brady or Napue

violation, especially in the light of the Government’s explaining

its mistake to the jury, the court’s allowing Appellants to address

the issue in their respective closing arguments, and Appellants’

not attempting to recall Morrison and Dorsey.

                                  C.

     Finally, concerning the drug amounts used for base offense

level calculations, Appellants claim the district court erred in

                                  12
adopting the fact-findings and sentencing recommendations in their

Pre-Sentence      Investigation       Reports   (PSR),    which     they    contend

improperly included drugs sold by other co-conspirators.                    Gardner

objected to the amount attributed to him by the PSR; Warren failed

to do so.    Accordingly, our review differs for each Appellant.

                                        1.

       Notwithstanding     his   PSR-objection,       Gardner     did    not     offer

evidence in support at sentencing.               His objection to the PSR

calculation was overruled.

       To warrant vacating his sentence, Gardner must show the

district court violated a law, incorrectly applied the Sentencing

Guidelines,       or   imposed   an    unreasonable      sentence       beyond    the

applicable Guidelines range.           Maseratti, 1 F.3d at 339 (citing 18

U.S.C. § 3742(e)).        The court’s application of the Guidelines is

reviewed de novo; its fact-finding, for clear error.                    See, e.g.,

United States v. Hull, 160 F.3d 265, 268 (5th Cir. 1998).                  The drug

quantity attributed to a defendant at sentencing is a fact-finding.

Maseratti, 1 F.3d at 340 (citing United States v. Ponce, 917 F.2d

841, 842 (5th Cir. 1990), cert. denied, 499 U.S. 940 (1991)).

       The scope of a defendant’s relevant conduct for sentencing is

addressed in U.S.S.G. § 1B1.3(a)(1).             See Hull, 160 F.3d at 268.

Under § 1B1.3(a)(1)(A), “[a] co-conspirator is accountable for his

own conduct”, as well as, under subpart (B), for “the foreseeable

acts   of   his    co-conspirators      committed   in    furtherance       of    the

                                        13
conspiracy”.       Maseratti, 1 F.3d at 340 (citation omitted; emphasis

added); see Hull, 160 F.3d at 268.

       “Participation        in    a     conspiracy,       however,        does      not

automatically       give    rise   to    co-conspirator       liability        under   §

1B1.3(a)(1)(B).”       Hull, 160 F.3d at 269.              Instead, the court is

required to “make particularized findings” regarding the scope of

agreement and foreseeability.            Id. (citations omitted).

       The PSR held Gardner accountable for over 1.5 kilograms of

crack cocaine.        The drug quantity table in U.S.S.G. § 2D1.1 is

maximized     at   that    amount.       Gardner     claims      the    bulk    of   the

Government’s evidence concerned his sale of only 1/16th of an

ounce.     He asserts that others’ distribution was not “reasonably

foreseeable”, claiming the evidence showed that, at most, he shared

a common source of supply (Dorsey) with other street level drug

dealers.

       The Government counters that the PSR properly attributed 1.5

kilograms     to   Gardner    because,      based    on    the   evidence       of   his

involvement in the conspiracy, it was reasonably foreseeable; and,

in the alternative, the evidence showed his personal involvement

with at least that amount.             It points to evidence that Dorsey and

Zeb Gardner regularly supplied Gardner with one-half ounce to one

ounce quantities of crack cocaine from at least late 1996 until

July   1998   (when       Dorsey   was    arrested    on    drug       charges);     and




                                          14
Morrison’s testimony that he saw a stash of crack cocaine at

Gardner’s home.

     The record reflects Gardner’s personal involvement with at

least 1.5 kilograms.      In addition to the district court’s fact-

findings with regard to the above-discussed evidence, which were

not clearly erroneous, Dorsey testified that, in 1994, he obtained

drugs in Memphis up to three times a week or more, and regularly

sold a half-ounce, or an ounce, of it to Gardner.

     One ounce equals 28.35 grams.         See U.S.S.G. § 2D1.1.         If

Dorsey sold Gardner a half-ounce three times a week in 1994, or 78

ounces for that year alone, the amount totals more than 2200 grams,

well over 1.5 kilograms.    Again, this amount does not even include

the additional amounts in the 1996-98 period.

     The evidence being more than adequate to support Gardner’s

personal involvement with at least 1.5 kilograms, we need not

address   whether   the   district    court’s   adoption   of   the   PSR’s

reasonable foreseeability finding was clearly erroneous.                See

United States v. McKinney, 53 F.3d 664, 677 (5th Cir. 1995)

(demonstration    of   personal   involvement   renders    foreseeability

inquiry moot).

                                     2.

     As noted, Warren did not object, either to the PSR or at

sentencing, to the drug amount attributed to him. Therefore, as he

concedes in his reply brief, our review is only for plain error, as


                                     15
described supra.   See United States v. McCaskey, 9 F.3d 368, 376

(5th Cir. 1993) (plain error review applicable when defendant fails

to object to PSR or at sentencing).     Fact issues that could have

been resolved by the district court are not plain error.    Id.

     Warren contends that:      the Government did not demonstrate

other co-conspirators’ conduct was reasonably foreseeable; and,

therefore, his sentence was plain error.      However, we need not

address this contention, because there was ample record evidence of

his personal involvement with more than 1.5 kilograms of crack

cocaine.

     For example, Dorsey testified that:      beginning in 1996 or

1997, Warren began buying an ounce, and then four and one-half,

nine, or 18 ounce quantities on a regular basis; and, after Dorsey

became Warren’s main supplier, Dorsey went to Memphis once or twice

a week to supply him with nine to 18 ounces, until Dorsey’s arrest

in July 1998.   Further, the PSR “is considered reliable”, United

States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995); and, because

Warren did not object to it or attempt to rebut its findings, the

court’s adoption of the facts contained in it, without further

inquiry, was not plain error.     United States v. Puig-Infante, 19

F.3d 929, 943 (5th Cir. 1994).

                                 III.

     For the foregoing reasons, the judgment is

                                                       AFFIRMED.

                                  16
