                         NOT RECOMMENDED FOR PUBLICATION
                                 File Name: 12a1181n.06

                                             No. 11-1195


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                                                                    FILED
                                                                                         Nov 15, 2012
        Plaintiff-Appellee,                                                        DEBORAH S. HUNT, Clerk

v.
                                                        ON APPEAL FROM THE UNITED
JAMEIL BAKRI,                                           STATES DISTRICT COURT FOR THE
                                                        WESTERN DISTRICT OF MICHIGAN
        Defendant-Appellant.

                                                 /




BEFORE:         BOGGS and CLAY, Circuit Judges; STAFFORD, District Judge*

        CLAY, Circuit Judge. Defendant Jameil Bakri appeals both his conviction for conspiracy

to distribute and possession with intent to distribute cocaine on June 29, 2010, in violation of 21

U.S.C. § 846, and his sentence of 108 months imprisonment. He argues that there was insufficient

evidence of guilt and that there was a fatal variance between the charge for which he was indicted

and the proof offered at trial. He also argues that the district court erred in calculating his sentence.

        For the reasons that follow, we AFFIRM Defendant’s conviction, but VACATE his sentence

and REMAND for re-sentencing.




        *
         The Honorable William H. Stafford, Jr., United States District Judge for the Northern
District of Florida, sitting by designation.
                                           No. 11-1195


                                         BACKGROUND

       Jameil Bakri dealt cocaine from “sometime in 2008 until September 2009.” (Gov't Br. at 3.)

He obtained the cocaine from Donald Hollin, who was the co-owner of a car dealership, and from

Hollin's associate, Carlos “Scooby” Johnson. Hollin and Johnson would buy cocaine in Grand

Rapids, Michigan, and re-sell it to dealers, including Defendant. (Id.) Johnson testified at

Defendant's trial that he had seen Defendant purchase cocaine from Hollin on several occasions,

including at least one transaction involving nine ounces. (R. 157, Johnson, Trial Tr. v. 1 at 90–91.)

       Defendant sometimes sold cocaine to Sumer Brenner, who also sometimes bought cocaine

for Matthew MacNaughton. Brenner and MacNaughton would each use some of the cocaine, and

sell the rest to others. (R. 157, Brenner, Trial Tr. v. 1 at 144–48; R. 158, MacNaughton, Trial Tr.

v.2 at 295–97.) In 2009, Defendant allegedly agreed to a scheme with Brenner and MacNaughton

to acquire three kilograms of cocaine in Florida and bring it to Michigan. (R. 158, MacNaughton,

Trial Tr. v.2 at 299-307.) Pursuant to their agreement, Defendant would help pay for Brenner and

MacNaughton to go to Florida to meet with “Sergio,” Brenner's contact there. (Id.) During the

planning stages for the transaction, Defendant spoke with Sergio on the phone several times.

       In May 2009, Brenner and MacNaughton flew to Florida and met with Sergio, who showed

them a kilogram of cocaine. MacNaughton tested the cocaine by tasting it. Brenner then called

Defendant to tell him that they could go ahead with the deal. Soon after this, MacNaughton advised

Defendant by phone to call off the deal, because MacNaughton was worried that Sergio was an

undercover law enforcement officer. (Id. at 306–12.) MacNaughton's fears were justified, as



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Brenner soon learned from the father of her child that Sergio was a police officer. (R. 157, Brenner,

Trial Tr. v. 1 at 172-74.) Defendant then sent MacNaughton money for return airfare to Michigan.

       Once he was back in Michigan, MacNaughton continued to deal drugs, purchasing at least

some of them from Defendant. (R. 158, MacNaughton, Trial Tr. v.2 at 312.) MacNaughton was

eventually arrested by the Kent Area Narcotics Enforcement Team, (id. at 315–19,) and agreed to

help the authorities. With MacNaughton's cooperation, officers recorded phone conversations

between him and Defendant, and, while wearing a wire, MacNaughton conducted a drug deal with

Defendant, who was arrested soon thereafter. (Id. at 219–24.) Officers searched Defendant's home,

where they found ten grams of cocaine, $7,600 in cash, and three flat-screen televisions. In

interviews with the officers, Defendant admitted that “his main source” of cocaine was Hollin,

(R.158, Trial Tr. v. 2 at 368,) and that his monthly expenses were nearly $2300.00, despite having

not had a legitimate income since 2007. (Id. at 375.)

       Defendant was convicted by a jury on September 29, 2010. Prior to sentencing, a

pre-sentence report (“PSR”) was prepared and submitted to the district court. That report found that

Defendant's guidelines range was 135–168 months, based on an offense level of 32 and a criminal

history category of II. The criminal history category was calculated on the basis of what the

government concedes was an erroneous inclusion of certain prior offenses. The offense level was

calculated on the basis of Defendant's responsiblity for seven kilograms of cocaine; three from the

Florida transaction, and four to six kilograms from various transactions with Donald Hollin.

Defendant objected, arguing that he was only responsible for an amount between 500 grams and 2

kilograms of cocaine. The district court ruled that there was sufficient evidence of Defendant's


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                                            No. 11-1195

involvement in the Florida transaction, and that while there was probably sufficient evidence of his

involvement in the Hollin transactions, it would exercise “caution” and only attribute the cocaine

from the Florida transaction to Defendant. (Gov't Br. at 14.) Accordingly, the district court used a

base offense level of 28 and a criminal history category of II, yielding an advisory sentencing range

of 87–108 months. The court sentenced defendant to 108 months in prison, to be served

concurrently with his state term of imprisonment.

                                           DISCUSSION

I.     Sufficiency of the Evidence at Trial

       Because Defendant moved for a judgment of acquittal pursuant to Federal Rule of Criminal

Procedure 29 on the basis of insufficient evidence both at the completion of the government's case

and at the conclusion of the trial, we review the legal sufficiency of the evidence against defendant

de novo. United States v. Carson, 560 F.3d 566, 579 (6th Cir. 2009). “[T]he relevant question is

whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson

v. Virginia, 443 U.S. 307, 319 (1979); accord United States v. Allen, 619 F.3d 518, 522 (6th Cir.

2010). The reviewing court must draw “all available inferences and resolve all issues of credibility

in favor of the [jury's] verdict.” United States v. Wade, 318 F.3d 698, 701 (6th Cir. 2003) (internal

quotation marks omitted).      “Accordingly, defendants bear a heavy burden when asserting

insufficiency of the evidence arguments.” United States v. Wettstain, 618 F.3d 577, 583 (6th Cir.

2010) (citing United States v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999)).                 Further,

“[c]ircumstantial evidence alone, if substantial and competent, may sustain a conviction under this


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deferential standard of review.” United States v. Beverly, 369 F.3d 516, 531 (6th Cir. 2004) (internal

quotation marks omitted).

        There was sufficient evidence of Defendant's guilt for a jury to return its verdict, and we

affirm the verdict. The elements of a conspiracy under 21 U.S.C. § 846 are: “(1) an agreement to

violate the drug laws, (2) knowledge and intent to join the conspiracy, and (3) participation in the

conspiracy.” Allen, 619 F.3d at 522 (quoting United States v. Welch, 97 F.3d 142, 148–49 (6th Cir.

1996) (internal quotation marks omitted)). Further, the government does not have to prove either

the commission of a substantive crime, United States v. Rabinowich, 238 U.S. 78, 87–89 (1915);

United States v. Mayes, 512 F.2d 637, 652 (6th Cir. 1975); or that the conspiracy was successful.

Rabinowich, 238 U.S. at 87–89.

        The government presented significant evidence of Defendant's agreement to the conspiracy.

He admitted to purchasing cocaine from Hollin and re-selling it on multiple occasions. See United

States v. Sills, 662 F.3d 415 (6th Cir. 2011) (“[C]ase law from this circuit holds that a conspiracy can

be inferred from repeated purchases of large quantities of drugs . . . .”) Bakri was also aware of

Hollin’s and Johnson's involvement in the drug trade; by his own admission, Hollin offered him

significant quantities of cocaine on more than one occasion. (See, e.g., R. 159, Bakri, Trial Tr. v.3,

at 486.) These facts indicate that Bakri had sufficient knowledge of the conspiracy such that a

rational jury could have found him to be a part of that conspiracy. See United States v. Hitow, 889

F.2d 1573, 1577 (6th Cir. 1989) (“The key element of a chain conspiracy is knowledge of a large

operation.”) Viewed in the light most favorable to the prosecution, this would permit a reasonable

jury to find that Bakri was a participant in a drug conspiracy.


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                                            No. 11-1195

         In the context of criminal conspiracy, an agreement does not need to be formal or express.

United States v. Pearce, 912 F.2d 159, 161 (6th Cir. 1990). In fact, “[t]he evidence that the

defendant agreed to join a conspiracy to violate the drug laws ‘need only be slight.'” Allen, 619 F.3d

at 522 (quoting United States v. Hodges, 935 F.2d 766, 773 (6th Cir. 1991)). “Once the existence

of the conspiracy is proven, only slight evidence is necessary to connect a defendant with the

conspiracy.” Hitow, 889 F.2d at 1577. While “a ‘buyer-seller relationship' is not enough to make

someone a participant in a drug conspiracy, ‘further evidence indicating knowledge of and

participation in the conspiracy can be enough to link a defendant to the conspiracy.'” United States

v. Henley, 360 F.3d 509, 514 (6th Cir. 2004) (quoting United States v. Gibbs, 182 F.3d 408, 421 (6th

Cir. 1999)). In addition, “[d]rug distribution conspiracies are often ‘chain' conspiracies such that

agreement can be inferred from the interdependence of the enterprise.” United States v. Boujaily,

781 F.2d 539, 544 (6th Cir. 1986); accord United States v. Spearman, 186 F.3d 743, 746 (6th Cir.

1999).

         On the knowledge and participation elements, there was testimony from witnesses who had

purchased cocaine from Defendant and witnesses who had sold cocaine to Defendant. See United

States v. Graham, 622 F.3d 445, 450–51 (6th Cir. 2010) (testimony from repeat purchasers of drugs

from a defendant is sufficient proof of a defendant's participation in a conspiracy). There was

evidence that at one point, Hollin “fronted” cocaine to Bakri, (R.157, Johnson, Trial Tr. v.1, at 92,)

which is considered strong evidence of a relationship that goes beyond the ordinary buyer-seller

relationship. Wettstain, 618 F.3d at 585. Bakri also negotiated terms and fees with Brenner and

MacNaughton with regard to the proposed transaction in Florida, including the fee that


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MacNaughton would receive for driving the drugs back to Michigan. (Gov't Br. at 5). See United

States v. Deitz, 577 F.3d 672 (6th Cir. 2009). Finally, the government also produced evidence of

Bakri's initial agreement and planning with Sergio Lopez, through the tapes of conversations

between the two of them. It is clear that a rational jury could have found this to be sufficient

evidence of Bakri's agreement, knowledge, and participation in a conspiracy to purchase cocaine.

See United States v. Gardner, 488 F.3d 700, 707–08 (6th Cir. 2007).

       Accordingly, we find that there was sufficient evidence for a rational jury to find that Bakri

conspired to violate the drug laws, and we affirm his conviction.

II.    Fatal Variance

       Because Defendant raises the issue of prejudicial variance for the first time on appeal, our

review is limited to plain error. United States v. Caver, 470 F.3d 220, 235 (6th Cir. 2006).

Defendant must therefore show a clear and obvious error that affected his substantial rights. Finally,

if Defendant can make such a showing, “the court of appeals has the discretion to remedy the

error—discretion which ought to be exercised only if the error seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.” Puckett v. United States, 556 U.S. 129, 135,

129 S.Ct. 1423, 1429 (2009) (internal quotation marks omitted; alteration in original); accord United

States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc).

       “A variance occurs when the charging terms [of the indictment] are unchanged, but the

evidence at trial proves facts materially different from those alleged in the indictment.” United

States v. Hughes, 505 F.3d 578, 587 (6th Cir. 2007) (internal quotation marks omitted; alteration in

original). “[I]f an indictment alleges one conspiracy, but the evidence can reasonably be construed


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                                              No. 11-1195

only as supporting a finding of multiple conspiracies, the resulting variance between the indictment

and the proof is reversible error if the appellant can show that he was prejudiced thereby.” Id.

(quoting United States v. Warner, 690 F.2d 545, 548 (6th Cir. 1982) (internal quotation marks

omitted; alteration in original)). “Within the context of a conspiracy, a variance constitutes

reversible error only if a defendant demonstrates that he was prejudiced by the variance and that the

indictment allege[d] one conspiracy, but the evidence can reasonably be construed only as supporting

a finding of multiple conspiracies.” Caver, 470 F.3d at 235–36 (internal quotation marks and

citations omitted) (emphasis added).

        Defendant can show neither variance nor prejudice. The indictment alleges that he was

involved in a conspiracy with Hollin and Johnson. (R. 98, Third Superceding Indictment.)

Defendant claims that the evidence at trial demonstrated a “very different and unrelated conspiracy,”

(Def. Br. at 32,) involving the transaction in Florida. First, construing “the evidence . . . in the light

most favorable to the government,” Caver, 470 F.3d at 236, the evidence would permit the inference

that the Florida transaction was part of the conspiracy with Hollin and Johnson. See id. If Defendant

were part of a chain conspiracy with Hollin and Johnson on one side, and Brenner and MacNaughton

on the other, then acts committed by Defendant with Brenner and MacNaughton are attributable to

the conspiracy between Defendant, Hollin, and Johnson. See id. But even if Defendant could show

that it was clear error to find that the Florida transaction was connected to the Michigan conspiracy,

there was still ample evidence, including the testimony of two co-conspirators, of a conspiracy

involving Hollin, Johnson, and Defendant to violate the drug laws, which was precisely what was

alleged in the charging document.


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                                             No. 11-1195

        In any event, the question of variance is academic, because Defendant cannot show prejudice

as a result of any variance. See, e.g., United States v. Swafford, 512 F.3d 833, 842 (6th Cir. 2008)

(“Finding a variance does not mandate a reversal; in order for the variance to constitute reversible

error, a defendant must at the very least show that this variance prejudiced him.”) (citing Caver, 470

F.3d at 237). Prejudice exists “where the defendant is unable to present his case and is taken by

surprise by the evidence offered at trial”; “where the defendant is convicted for substantive offenses

committed by another”; or “where spillover [occurs] because of a large number of improperly joined

defendants.” Swafford, 512 F.3d at 842–43 (internal quotation marks omitted; alteration in original).

        None of these conditions have been met here. Defendant was able to present his case. In

fact, against the advice of counsel, he testified on his own behalf. Further, the allegations concerning

Brenner and MacNaughton were included in pre-trial filings, and the nature of the conspiracies were

substantially similar, so there was no danger of Bakri being surprised by the evidence presented

against him. See, e.g., United States v. Davis, 407 F. App’x 32, 40–41 (6th Cir. 2011). Nor was

there any possibility of Defendant being convicted for the substantive acts of another. Regardless

of how one describes the conspiracy or conspiracies, Defendant was an active participant. Finally,

there was minimal chance of spill-over. There were four co-defendants, two of whom testified

against Bakri, and Bakri’s trial was ultimately severed from the other defendants. (See R. 85.)

Accordingly, the risk of transference of guilt from one defendant to another was minimal. See

Caver, 470 F.3d at 237.




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                                              No. 11-1195

III.     Errors in Sentencing

         Finally, Defendant raises an unpreserved claim that the district court calculated his criminal

history category incorrectly and a preserved claim that the district court incorrectly calculated the

quantity of cocaine involved in the offense. Sentences are reviewed for procedural and substantive

reasonableness under an abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007).

The district court’s conclusions of law are reviewed de novo, while its findings of fact are reviewed

for clear error. United States v. Moon, 513 F.3d 527, 539–40 (6th Cir. 2008). Unpreserved

procedural objections are reviewed for plain error. Vonner, 516 F.3d at 386. Accordingly, we

review Defendant’s claim regarding the criminal history category for plain error and his claim

regarding quantity of cocaine for clear error. United States v. Warman, 578 F.3d 320, 350 (6th Cir.

2009).

         Defendant claims that the district court erred in calculating the quantity of cocaine that should

be attributed to him. The court found that three kilograms of cocaine could be attributed to

Defendant. Defendant argues that this was inappropriate, because the three kilograms figure could

only refer to the unconsummated Florida transaction and that, in any event, the district court did not

set forth any specific evidence as to how it reached its conclusion. However, Defendant does not

present any legal argument as to why the district court’s determination was clear error. Evidence

introduced connected Defendant with quantities greater than three kilograms of cocaine. For

example, Detective Merryweather testified that Defendant had reported seeing Hollin, a

co-conspirator, with four to five kilos of cocaine, (R. 158, Merryweather, Trial Tr. v.2 at 370,) and

Johnson testified that he and Hollin had gone to Grand Rapids at least three times, retrieving a kilo


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                                             No. 11-1195

of cocaine each time, for sale to parties including Defendant (R. 157, Johnson, Trial Tr. v.1 at

85–88.) Accordingly, there was sufficient evidence for the court to conclude that Defendant was

responsible for at least three kilograms of cocaine.

        Defendant also claims that the trial court erred in calculating his criminal history category.

He was sentenced as having a criminal history category of II, based on three prior sentences entered

in Michigan state courts. Two of those sentences were imposed more than ten years ago, and thus

should not have been counted pursuant to U.S.S.G. §§ 4A1.2(e)(2) and (3). The government

concedes that the district court calculated the criminal history category incorrectly, (Gov’t Br. at 32,)

and further acknowledges that this miscalculation constitutes plain error. See, e.g., United States v.

Goward, 315 F. App’x 544, 551–52 (6th Cir. 2009). Accordingly, remanding the case to the district

court for re-sentencing is appropriate.

                                           CONCLUSION

        For the foregoing reasons, we AFFIRM Defendant’s convictions but VACATE his sentence

and REMAND for re-sentencing.




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