                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 13-2637
                                    ____________

                          UNITED STATES OF AMERICA

                                           v.

 JERROD O. DOZIER, a/k/a Michael Rodriguez, a/k/a Jarrod Dozier, a/k/a Rod Dozier
  a/k/a Oneil Dozier, a/k/a Jerrod Dozier, a/k/a Jerrod O. O'neil, a/k/a Jermaine Lamar
                a/k/a Jerrod Oneal Dozier, a/k/a Michael A. Rodriguez

                                JERROD O. DOZIER,
                                     Appellant
                                   ____________

                     On Appeal from United States District Court
                       for the Middle District of Pennsylvania
                        (M.D. of Pa. No. 4-09-cr-00346-003)
                       District Judge: Christopher C. Conner
                                   ____________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   June 12, 2014

          Before: FISHER, VAN ANTWERPEN and TASHIMA, * Circuit Judges.

                                 (Filed: July 10, 2014)
                                     ____________

                             OPINION OF THE COURT
                                  ____________



      *
       The Honorable A. Wallace Tashima, Senior Circuit Judge for the Ninth Circuit
Court of Appeals, sitting by designation.
FISHER, Circuit Judge

       Appellant Jerrod Dozier (“Dozier”) appeals from his conviction and sentence in

the United States District Court for the Middle District of Pennsylvania. He argues that

his conviction should be vacated because: (1) the evidence presented by the government

was insufficient for a rational jury to convict him; (2) the jury instructions were

prejudicial; and (3) the District Court procedurally and substantively erred at sentencing.

We will affirm.

                                              I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       On February 1, 2007, Paul Surine and several of his family members and

associates were arrested as part of a Pennsylvania State Police investigation into a large

crack cocaine distribution operation run out of Surine’s trailer in Tioga County,

Pennsylvania. In the course of their investigation, the State Police learned the identities of

several of Surine’s alleged suppliers in the Rochester, New York area. On October 22,

2009, a grand jury in the Middle District of Pennsylvania returned indictments charging

Dozier, Jermaine Williams, and Gregory O’Neal with one count of conspiracy to

distribute fifty grams or more of crack cocaine and one count of distributing fifty grams

or more of crack cocaine. On July 28, 2011, a second indictment was issued naming only


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Dozier and Williams – O’Neal having decided to plead guilty – and raising the amounts

for each count to 280 grams or more.

       Dozier’s trial commenced on October 2, 2012. The government called numerous

witnesses who testified to the Surines’ distribution operation, the methods by which they

obtained their cocaine, and Dozier’s involvement in the distribution. After the parties

rested, the District Court supplied jury instructions with no objections from either party.

The jury returned a guilty verdict on both counts. On May 21, 2013, the District Court

held a sentencing hearing. After analyzing Dozier’s background and criminal history, the

District Court adopted the Guideline range of 168 to 210 months’ imprisonment

calculated in the Presentence Investigation Report. At the conclusion of the sentencing

hearing, the District Court sentenced Dozier to 168 months’ imprisonment and five years’

supervised release on each count, to run concurrently, and imposed a total fine of $1,000

and a $200 special assessment. This timely appeal follows.

                                            II.

       The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       When evaluating a sufficiency-of-the-evidence claim, we review the record in the

light most favorable to the prosecution, and determine whether any rational trier of fact

could have found proof of guilt beyond a reasonable doubt. United States v. Caraballo-

Rodriguez, 726 F.3d 418, 430 (3d Cir. 2013) (en banc). “[W]e review the evidence as a


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whole, not in isolation.” Id. (internal quotation marks omitted) (quoting United States v.

Boria, 592 F.3d 476, 480 (3d Cir. 2010)). We must accept the jury’s verdict “if there is

substantial evidence, viewed in the light most favorable to the government, to uphold the

jury’s decision.” Id. (internal quotation marks omitted) (quoting United States v.

Gambone, 314 F.3d 163, 170 (3d Cir. 2003)).

       When evaluating a challenge to jury instructions that was not preserved below, we

review for plain error. United States v. Dobson, 419 F.3d 231, 236 (3d Cir. 2005). We

also review unpreserved challenges to a sentence for plain error. United States v. Berger,

689 F.3d 297, 299 (3d Cir. 2012). Under plain error review, this Court must determine:

(1) if there is an error; (2) if the error is plain; and (3) if the error affected substantial

rights. Dobson, 419 F.3d at 236. If all three elements are met, we may exercise our

discretion to grant relief if the error seriously affected the fairness, integrity or public

reputation of judicial proceedings. Id.

                                             III.

                                             A.

       We first consider Dozier’s contention that the government presented insufficient

evidence to convict him.       The existence of a conspiracy can be proven through

“reasonable and logical inference” and circumstantial evidence presented by the

government. United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir. 1986) (internal

quotation marks omitted) (quoting United States v. Ellis, 595 F.2d 154, 160 (3d Cir.


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1979)). The government must prove that the activities could not occur unless a

“preconceived scheme or common understanding” existed between the parties. Id.

       Here, Dozier presents a number of arguments supporting his contention that the

jury could not find him guilty of conspiracy beyond a reasonable doubt. His principal

argument is that the relationship between Dozier and Surine never advanced beyond a

“buyer-seller relationship” and, as such, he could not be convicted of conspiracy under

United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999), and United States v. Pressler,

256 F.3d 144, 151-57 (3d Cir. 2001). Dozier points to several facts existing in Gibbs and

Pressler that he contends distinguish the conspiracy in those cases from Dozier’s alleged

conspiracy with Surine. Dozier observes the large amount of crack sold, the level and

style of communication, the existence of credit, the reliance on one party to process

powder cocaine into crack for the other party, and the solicitation of advice that existed in

those cases, but not here. While Dozier is correct that his case differs from Gibbs and

Pressler, we conclude that the facts here did establish something more than a mere buyer-

seller relationship.

       Dozier traveled with other individuals on numerous occasions to sell crack cocaine

to the Surine family at their property. At trial, witnesses testified that Dozier, both

individually and alongside his co-travelers, sold large amounts of crack cocaine to Surine,

and “most of the time” the sales were for amounts exceeding one ounce. App. at 139.

Even after Dozier was no longer permitted to enter the Surine trailer due to an argument


                                             5
with one member of the family, he still traveled to the trailer with Williams and O’Neal

on at least twenty occasions. A reasonable jury could determine that this arrangement

indicates that Dozier’s drugs were being sold by Williams or O’Neal, implying both

collaboration and the existence of a rudimentary credit system.

       Dozier also points to United States v. Colon, 549 F.3d 565 (7th Cir. 2008), where

the Seventh Circuit held that evidence of as many as six or seven drug transactions,

totaling thirty to thirty-five ounces of cocaine, was insufficient to prove a conspiracy, and

instead only proved a regular pattern of purchase and sale. Id. at 567. However, this case

is distinguishable from Colon due to the number of transactions involved and the

additional facts present. In Colon, the court found no evidence that there were any more

than seven total transactions. Here, Paul Surine testified that O’Neal and Williams would

routinely travel to the Surine trailer two or more times per week for a period of up to

eighteen months, and that Dozier would accompany the pair on more than fifty percent of

those trips – resulting in evidence of a total number of visits far greater than in Colon.

Further, testimony was presented indicating that Dozier was present for and may have

been a participant in a conversation with Williams and Surine about distribution

operations.

       A rational jury could conclude that Dozier participated in a drug conspiracy after

considering evidence of Dozier’s repeated trips to the Surine residence, his continued

trips to the residence even after being banned from entering the trailer, his presence for


                                             6
conversations regarding Surine’s distribution network, and his presence with Williams

and O’Neal for every one of his transactions with the Surines. As such, Dozier has not

overcome the significant hurdle for a successful sufficiency-of-the-evidence challenge.

      Dozier also contends that the evidence was insufficient because it indicated that

he, O’Neal, and Williams were in competition with one another. In support of this

contention, Dozier leans heavily on a portion of the testimony of Lisa Lehman, Surine’s

live-in girlfriend, stating that O’Neal, Williams, and Dozier were in competition with

each other rather than in collaboration. However, Lehman also testified that Dozier never

came to the Surine residence without O’Neal and Williams, she “assumed they knew

what they were doing,” “they had to know each other and had to know what was going

on,” and stated that only one of the three would undergo a transaction with the Surines on

a particular visit. App. at 186-87. Lehman’s testimony that only one of the three would

actually come with drugs and leave with the Surines’ money indicates that the three were

not in competition with one another. There is no evidence that one of the three ever tried

to offer a more competitive price than the others or otherwise engaged in any other

pattern of behavior one would expect from business competitors. In fact, Lehman

testified that O’Neal and Williams did, for a period of time, pool their resources to

purchase drugs. Id. We conclude that a rational jury could reasonably view Lehman’s

testimony as supporting a conspiracy, particularly in light of the lack of any other




                                            7
evidence suggesting that the three were in competition with one another. As such,

Dozier’s sufficiency claim fails on this theory as well.

                                             B.

       Dozier’s second contention is ohhhthat the District Court’s jury instructions were

flawed because they failed to include the necessary elements of co-conspirator liability.

Pinkerton v. United States, 328 U.S. 640 (1946), sets forth the elements required for a

defendant’s conviction of a substantive offense where a co-conspirator personally

committed the offense. Pinkerton requires: (1) the existence of a criminal conspiracy of

which the defendant is a part; (2) that one or more members of the conspiracy committed

the substantive offense; and (3) the substantive offense was committed in furtherance of

the criminal conspiracy. United States v. Lopez, 271 F.3d 472, 480 (3d Cir. 2001). “[A]

jury must find that a party to the conspiracy committed a crime both ‘in furtherance of’

and ‘as a foreseeable consequence of’ the conspiracy to find a co-conspirator guilty of a

substantive offense committed by a co-conspirator.” United States v. Turcks, 41 F.3d 893,

897 (3d Cir. 1994) (emphasis omitted) (quoting Pinkerton, 328 U.S. at 646).

       Because Dozier did not first raise objections to the jury instructions before the

District Court, we review for plain error. Dobson, 419 F.3d at 236. We struggle to

conclude, as Dozier urges, that the District Court’s issuance of jury instructions that

differ somewhat from this Circuit’s model instructions is a plain error. Although the

District Court did not state each element in the fashion set forth in the model instructions,


                                             8
its instructions did specify the necessary elements. We offer trial courts the flexibility to

set forth jury instructions as they see fit, provided that they do not misstate the law and

adequately submit the issues to the jury. United States v. Maury, 695 F.3d 227, 261 (3d

Cir. 2012). Because we conclude that the District Court’s jury instructions did not

misstate the law and adequately submitted the elements of the offense to the jury, we do

not find plain error. While the District Court’s instructions could have been clearer (as

they are in the model instructions), potential errors of clarity are, by their nature, not

“plain.”

       Additionally, Dozier raises a second challenge to the jury instructions, arguing that

the District Court should have specifically instructed the jury that they must find Dozier

guilty beyond a reasonable doubt for the conspiracy charge. We review the adequacy of

the trial court’s jury instructions as a whole. Dobson, 419 F.3d at 239. The record reflects

that the standard of reasonable doubt to render a guilty verdict was stated elsewhere in

the jury instructions. In addition, the instructions stated that the jury was to consider the

instructions as a whole. The failure to reiterate the reasonable-doubt requirement for each

individual count does not constitute plain error. See, e.g., United States v. De Lazo, 497

F.2d 1168, 1171 n.6 (3d Cir. 1974) (holding that no plain error existed when the entirety

of the trial court’s jury instructions properly instructed the jury as to each individual

charge). We therefore conclude that the District Court did not plainly err in failing to

provide a reasonable doubt instruction specifically for the conspiracy charge.


                                             9
                                           C.

      Dozier argues finally that the District Court procedurally erred in its sentencing

decision and that his sentence was substantively unreasonable. We review these

contentions for plain error, because Dozier failed to object to the alleged errors at the

sentencing hearing. Berger, 689 F.3d at 299. Dozier’s procedural error contention rests

solely on the District Court’s comments regarding Dozier’s criminal record that “Dozier

was not affected by his prior contacts with law enforcement.” App. at 418. Dozier

contends that this statement constitutes a factual error, alleging that his other criminal

convictions occurred after the timeframe covered in this offense. Dozier’s contention that

his sentence was substantively unreasonable stems from the same alleged mistake.

      Our appellate review of a sentence consists of “ensur[ing] that the district court

committed no significant procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to

consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or

failing to adequately explain the chosen sentence.” United States v. Tomko, 562 F.3d 558,

567 (3d Cir. 2009) (en banc) (alteration in original) (internal quotation marks omitted)

(quoting Gall v. United States, 552 U.S. 38, 51 (2007)). Here, Dozier argues that the

District Court selected a sentence based upon clearly erroneous facts. But even if the

court was mistaken – and the government provides evidence that the District Court was

correct in stating that Dozier’s extensive history of criminal activity overlaps with or


                                           10
predates his drug trafficking activities with the Surine family – the statements are not

factual findings that contributed to the sentence. Rather, they were mere remarks as a

part of a lengthier statement.

       The second prong of our test under Tomko and Gall is a determination of

substantive reasonableness, in which we consider the totality of the circumstances and the

sentence. Id. We will affirm a procedurally sound sentence “unless no reasonable

sentencing court would have imposed the same sentence on that particular defendant for

the reasons the district court provided.” Id. Here again, not only did the sentence fall

within the Guidelines range – which Dozier does not contend was improperly calculated

– but it was the lowest recommended sentence. Given the two crimes for which Dozier

was convicted and the amount of crack cocaine involved, we cannot say that no

reasonable sentencing court would impose a 168-month sentence upon Dozier. We

therefore do not conclude that the sentence is substantively unreasonable.

                                           IV.

       For the reasons set forth above, we affirm Dozier’s conviction and sentence.




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