11-5467(L)
United States v. Hoggard

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY THIS COURT’S LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE
PROCEDURE 32.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



       At a stated Term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,
in the City of New York, on the 30th day of April, two thousand thirteen.

Present:    BARRINGTON D. PARKER,
            SUSAN L. CARNEY,
                  Circuit Judges,
            JED S. RAKOFF,
                  District Judge.*
______________________________________________________
                                              |
UNITED STATES OF AMERICA                      |
                                              |
                     Appellee,                |
                                              |
                  v.                          |                              Nos. 11-5467(L)
                                              |                              10-2554 (Con)
ROBERT RAWLS, CHARLES BUNCH, aka June,        |
CHRISTOPHER LAMONT SHERMAN, aka C-L,          |
TORRANCE MCCOWN, aka Terrance McCown, aka     |
Jake, WILLIAM BALDWIN, WILLIAM HOLLY, aka     |
L-O, JASON MARCEL DOCKERY, KENNETH            |
THAMES, aka K-T, JOHN HOBSON, aka Uncle John, |
aka Big John, KENNETH WHITE, aka Do Wop,      |
GLORIA WILLIAMS, aka Glo, DANTE COBB, CARNEL |
SYLVESTER EDWARDS, TERRANCE JOWERS, aka       |
T-Nice, MAURIEL GLOVER, aka Feet,             |
                                              |
                     Defendants,              |

        *
          The Honorable Jed S. Rakoff, United States District Judge for the Southern District of New
York, sitting by designation.
                                                      |
GENERO MARTE, G, ROSHAUN HOGGARD,                     |
aka Foot,                                             |
                                                      |
                        Defendants-Appellants.        |
______________________________________________________|

FOR APPELLANTS:                  David Segal, New York, NY (for Defendant-
                                 Appellant Genero Marte).

                                 DAVID S. HAMMER, New York, NY (for Defendant-
                                 Appellant Roshaun Hoggard).

FOR APPELLEE:                    H. GORDON HALL (Sandra S. Glover, on the brief),
                                 Assistant United States Attorneys, for David B.
                                 Fein, United States Attorney for the District of
                                 Connecticut, New Haven, CT.

      Appeal from the United States District Court for the District of Connecticut

(Janet C. Hall, Judge).

      UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgments of the District Court are AFFIRMED.

      Defendants-Appellants Genero Marte and Roshaun Hoggard appeal from

judgments of conviction entered November 30, 2009, and June 22, 2010,

respectively. Both men were convicted after a jury trial for their role in a crack

cocaine distribution ring based in the Bronx, New York, and New Haven,

Connecticut. Marte was convicted of one count of conspiracy to possess with intent

to distribute fifty grams or more of cocaine base, and sentenced principally to 204

months’ imprisonment. Hoggard was convicted of one count of conspiracy to possess

with intent to distribute fifty grams or more of cocaine base, and one count of

possession with intent to distribute five grams or more of cocaine base. He was

sentenced principally to 288 months’ imprisonment on each count, with the


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sentences to run concurrently. We assume the parties’ familiarity with the facts

and record of the prior proceedings, to which we refer only as necessary to explain

our decision to affirm.

      On appeal, both defendants argue that the evidence was insufficient to

sustain their convictions. Hoggard also claims that the evidence presented at trial

varied from the indictment, and that he suffered prejudice as a result. Finally, both

defendants challenge their sentences on two grounds. First, they assert that the

District Court erred in its calculation of attributable drug quantities. Second, they

argue that the District Court should not have increased their Guideline offense

levels under U.S.S.G. § 3B1.1(a), the sentencing enhancement for individuals who

organize or lead criminal activity involving five or more participants.

1.    Sufficiency of the Evidence

      The defendants attack different aspects of the evidence supporting their

convictions. Marte challenges the government’s identification of him as the

individual known as “G,” who was recorded on wiretapped phone calls discussing

drug transactions. Hoggard argues that the evidence adduced at trial did not

establish that he conspired with others to distribute drugs; at most, he contends,

the evidence showed that he was a mere buyer and seller of narcotics.

      We review de novo a defendant’s challenge to the sufficiency of the evidence

supporting a jury’s verdict, “viewing the evidence presented in the light most

favorable to the government, and drawing all reasonable inferences in its favor.”

United States v. Davis, 690 F.3d 127, 130 (2d Cir. 2012) (internal quotation marks

and alterations omitted). A defendant bears a heavy burden in a sufficiency


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challenge, because we “uphold the jury’s verdict as long as ‘any rational trier of fact

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

United States v. Rojas, 617 F.3d 669, 674 (2d Cir. 2010) (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)).

      The evidence was overwhelming that Marte was the individual identified as

“G” in the recorded phone calls. When Marte was arrested, he was in possession of

the cellular phone assigned the same telephone number as used by “G.” Mauriel

Glover, a New Haven drug dealer called as a witness by the government, identified

Marte at trial and testified that he knew Marte as “G.” And a DEA agent testified

that, after speaking with Marte, he and his partner compared Marte’s voice to the

voice of “G” in the recorded phone calls, and determined that the voices “were an

exact match.” Gov’t App. 1167.

      We find Hoggard’s sufficiency challenge similarly unavailing. To establish a

conspiracy, the government needed to prove that Hoggard and at least one other

person “agreed to participate in a joint venture intended to commit an unlawful

act.” United States v. Parker, 554 F.3d 230, 234 (2d Cir. 2009) (internal quotation

marks omitted). The government did not need to prove that “the defendant knew

all of the details of the conspiracy,” or that the defendant knew the other

conspirators’ identities. United States v. Chavez, 549 F.3d 119, 125 (2d Cir. 2008)

(internal quotation marks omitted). Nevertheless, in the context of narcotics

conspiracies, “the existence of a buyer-seller relationship does not itself establish a

conspiracy.” United States v. Hawkins, 547 F.3d 66, 72 (2d Cir. 2008). Rather, the

government must show “an agreement to join together to accomplish an objective


                                           4
beyond the sale transaction,” id., such as a shared intent “to advance other

transfers,” Parker, 554 F.3d at 235.

       Here, the government presented sufficient evidence for the jury to conclude

beyond a reasonable doubt that Hoggard participated in a conspiracy with Marte

and others to distribute cocaine. Jurors heard a recorded call between Hoggard and

Christopher Sherman, another New Haven-area drug dealer, in which Hoggard

discussed his plan to return defective crack cocaine to Marte in the Bronx.

Sherman offered to “make a couple calls” to see if he could “off it first.” Gov’t App.

1600-01. When police later arrested Sherman and seized 272 grams of cocaine from

him, Hoggard called another alleged co-conspirator and discussed whether to pay

Sherman’s bond, whether to hire a lawyer for his defense, and how to obtain drugs

on credit to make up for the drugs lost in the seizure. In addition, the jury heard

testimony from Kenneth Thames, a low-level drug dealer who purchased his crack

from Hoggard. Thames explained that he and Hoggard employed certain code

words to signal different drug quantities, and the jury heard a number of recorded

telephone calls between Hoggard and Thames corroborating this testimony.

Thames also testified that Hoggard was the only person he knew who had access to

“eight-ball” quantities of crack cocaine (3.5 grams). This evidence contradicts

Hoggard’s assertion that he engaged in a series of isolated drug purchases and

sales. Instead, the calls permit a rational juror to conclude that Hoggard, Marte,

Sherman, and others were working together in an organized conspiracy to

distribute cocaine.




                                           5
2.    Variance

      Hoggard asserts that although the indictment charged a single conspiracy,

the evidence at trial actually showed two independent cocaine distribution rings in

New Haven: one involving him, and the other involving Sherman. Hoggard argues

that this variance caused him prejudice, because by charging only a single

conspiracy, the government was permitted to introduce damaging and dramatic

evidence about the cocaine police seized from Sherman shortly after Sherman left

Hoggard’s presence.

      “A variance occurs when the charging terms of the indictment are left

unaltered, but the evidence offered at trial proves facts materially different from

those alleged in the indictment.” United States v. Banki, 685 F.3d 99, 119 (2d Cir.

2012) (internal quotation marks omitted). Even if a defendant shows a divergence

between the indictment and proof at trial, however, we will not reverse the

conviction unless the variance caused the defendant “substantial prejudice.” United

States v. Geibel, 369 F.3d 682, 693 (2d Cir. 2004) (internal quotation marks

omitted). To determine whether the defendant suffered substantial prejudice, “the

essential question is whether the jury convicted the defendant on evidence

unrelated to his own alleged activity.” Id. (internal quotation marks omitted).

      We find no variance here because the evidence at trial was consistent with

the allegation in the indictment that Hoggard and Sherman were members of the

same conspiracy. In addition to the phone call described above, in which Sherman

offered to help Hoggard sell defective cocaine, the jury heard evidence about

Hoggard and Sherman’s interactions on the night of Sherman’s arrest. On that


                                          6
evening, Hoggard, Sherman, and another individual drove together from New

Haven to the Bronx to purchase cocaine from Marte. When they returned to New

Haven, Sherman and the other individual dropped Hoggard off at his house and

pulled away. Several blocks from Hoggard’s home, officers stopped the car in which

Sherman was a passenger and, after a brief chase through the backyards of

neighboring homes, arrested Sherman and recovered cocaine that he had discarded.

      Although we conclude that the evidence at trial was consistent with the

indictment, even if we assume a variance occurred, Hoggard was not prejudiced.

Because the jury could have concluded that Hoggard and Sherman worked in

concert on the night of Sherman’s arrest, we cannot say that the cocaine that police

seized from Sherman was “unrelated to [Hoggard’s] own alleged activity.” Geibel,

369 F.3d at 693.

3.    Drug Quantity Calculation

      The Sentencing Guidelines provide that a defendant is responsible for “all

reasonably foreseeable acts and omissions of others in furtherance of the jointly

undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). In the case of a narcotics

conviction, “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.” Id. § 1B1.3 cmt. n.2. “Where there

is no drug seizure or the amount seized does not reflect the scale of the offense, the

court shall approximate the quantity of the controlled substance.” Id. § 2D1.1 cmt.

n.12. In such a case, the court must make a quantity determination based on the


                                           7
preponderance of the evidence, and we review its finding for clear error. United

States v. Batista, 684 F.3d 333, 344 (2d Cir. 2012).

      A.     Marte

      The District Court determined that Marte was responsible for 5.6 kilograms

of cocaine, based on his sales to three individuals: Hoggard, Sherman, and Glover

(the New Haven-area drug dealer who testified on behalf of the government). To

determine the quantities that Sherman and Glover purchased from Marte, the court

relied in part on statements these two individuals made to authorities after their

arrests. Marte argues that these statements were presumptively unreliable, and

that the District Court erred by relying on them.

      We see no clear error in the District Court’s decision to credit these

statements. We have held that district courts may rely on hearsay statements at

sentencing without violating the Confrontation Clause, as long as the statements

bear at least some indicia of reliability. See United States v. Martinez, 413 F.3d

239, 244 (2d Cir. 2005). Here, Sherman’s and Glover’s statements were adequately

corroborated by phone calls in which Hoggard and Glover discussed purchasing

drugs from Marte; calls in which Sherman and Hoggard discussed purchases of over

100 grams from Marte; and the 272 grams of cocaine police recovered from Sherman

the night of his arrest.

      B.     Hoggard

      The court concluded that Hoggard was responsible for 3.5 kilograms of crack

cocaine. In reaching this figure, the court first determined that Sherman purchased

1.4 kilograms from Marte, and attributed this amount to Hoggard as “relevant


                                          8
conduct” under the Guidelines. See U.S.S.G. § 1B1.3. The court then added to this

sum 2.1 kilograms that it determined Hoggard purchased from Marte. Hoggard

challenges both components of this quantity finding.

      The District Court properly attributed to Hoggard its estimate of the

quantity of drugs Sherman purchased, because the evidence was sufficient to

conclude that Sherman and Hoggard were co-conspirators, and that Hoggard “could

reasonably have foreseen the quantity” of Sherman’s purchases. United States v.

Snow, 462 F.3d 55, 72 (2d Cir. 2006). As described above, phone calls between

Hoggard and Sherman showed that the two communicated about their drug venture

and made at least one resupply trip together. In a phone call made after Sherman’s

arrest, Hoggard told another co-conspirator that Sherman had “two seventy two . . .

on him” at the time of his arrest. Gov’t App. 1662. This statement is consistent

with the 272 grams of cocaine police seized from Sherman. From this evidence, the

District Court could conclude that Hoggard was well aware of the quantities of

drugs that Sherman purchased and sold.

      We find unavailing Hoggard’s contention that the District Court improperly

failed to make particularized findings about the scope of the conspiracy. See United

States v. Studley, 47 F.3d 569, 574 (2d Cir. 1995). Had the District Court done so,

Hoggard argues, it would not have attributed Sherman’s purchases to Hoggard.

But Hoggard’s counsel did not ask the court to make a Studley finding at the time of

sentencing. Perhaps more significantly, his counsel did not challenge the District

Court’s decision to attribute Sherman’s purchases to Hoggard. Although Hoggard’s

counsel suggested at the sentencing hearing that a quantity of 3.4 kilograms (which


                                         9
would have reduced Hoggard’s base offense by two levels) might be more

appropriate, this position was based on a challenge to the start dates the District

Court ascribed to Hoggard’s and Sherman’s purchases — not on an argument that

Sherman’s purchases should be excluded entirely from the quantity of cocaine

attributable to Hoggard. Hoggard therefore cannot show plain error.

      We also find no clear error in the District Court’s calculation of the quantity

of drugs Hoggard purchased from Marte. The court determined that Hoggard

purchased on average 100 grams of crack cocaine each week, beginning on or about

July 15, 2007, until his arrest in December of that year. Although the District

Court acknowledged that the length of Hoggard’s relationship with Marte and the

frequency and magnitude of his purchases were estimates, its conclusions find

adequate support in the record.

      A sample of the wiretaps showed that between November 18 and December 4,

2007 — a period of approximately two-and-a-half weeks — Hoggard made at least

three trips to the Bronx to purchase drugs from Marte, and on two of these

occasions he purchased at least 150 grams of cocaine. To determine the date that

Hoggard began purchasing cocaine from Marte, the District Court used as a

starting point the dates that Glover and Sherman admitted to having begun

purchasing cocaine from Marte, and inferred that Hoggard began dealing with

Marte no later than several weeks after Glover and Sherman did. We think this

inference was reasonable, because the record showed that Hoggard was in close

contact with Glover and Sherman, and often acted in concert with them. Glover

testified that between 2003 and 2007, he frequently spoke to Hoggard about various


                                         10
topics related to the sale of cocaine, including where to obtain cocaine, the price of

powder cocaine, and how to convert powder cocaine into crack cocaine. Sherman,

meanwhile, had offered to help Hoggard sell defective cocaine, and traveled with

Hoggard to the Bronx to purchase drugs from Marte. Sherman told law

enforcement that he began purchasing wholesale quantities of cocaine from Marte

in the spring of 2007, and Glover told authorities that he began using Marte as a

source in the middle of 2007. The court’s conclusion that Hoggard began

purchasing from Marte on about July 15, 2007, was consistent with this evidence.1

       Finally, we note that although the District Court found that both Marte and

Hoggard either dealt in crack cocaine or reasonably could have foreseen that the

cocaine they bought and sold would be converted to crack cocaine, the court decided

to use the quantity thresholds associated with powder cocaine, not crack cocaine.

Had the District Court not employed a one-to-one ratio for crack and powder

cocaine, Marte’s and Hoggard’s Guidelines range would have increased

significantly. See U.S.S.G. § 2D1.1(c).

4.     Leadership Enhancement

       Finally, both Marte and Hoggard challenge the District Court’s decision to

enhance their Guideline offense levels under U.S.S.G. § 3B1.1(a), which provides a

four-level increase if “the defendant was an organizer or leader of a criminal activity

that involved five or more participants or was otherwise extensive.” The application



       1
          This conclusion finds further support in the testimony of Kenneth Thames, who stated that
he began purchasing re-sale quantities of cocaine from Hoggard in September 2007. The District
Court also found that telephone calls between Hoggard and Marte in late September reflected “an
ongoing, well-established relationship.” Hoggard App. 221.

                                                11
notes to this Guideline state that, to be subject to this enhancement, the defendant

must have led or supervised “one or more other participants.” Id. § 3B1.1 cmt. n.2.

The notes define a “participant” as “a person who is criminally responsible for the

commission of the offense, but need not have been convicted.” Id. § 3B1.1 cmt. n.1.

Thus, before it could apply the enhancement, the District Court needed to find that

Hoggard and Marte organized or led at least one other participant in a criminal

activity involving five or more participants. See United States v. Si Lu Tian, 339

F.3d 143, 156 (2d Cir. 2003).

      Marte argues that he did not “lead” any other participant, but we conclude

that the record supported the District Court’s finding to the contrary. For instance,

when Hoggard returned defective cocaine that he had purchased from Marte,

Hoggard argued with an unidentified individual associated with Marte over the

amount of new cocaine he would receive from Marte. The individual stated that he

had spoken with “G,” and that “G” gave instructions regarding how to proceed with

the exchange. Unsatisfied with the amount he would be receiving, Hoggard

immediately called Marte, who advised that the other individual had “fixed” the

defective cocaine. Gov’t App. 1623. That the individual referred to by Marte was

never identified has no bearing on the application of the enhancement.

      Hoggard, meanwhile, asserts that the criminal activity in which he

participated did not involve five or more participants, and that he was not a

“leader” or “organizer.” But the evidence showed that at least five others were

involved in a drug conspiracy with Hoggard: Kenneth Thames, who purchased crack

cocaine from Hoggard and re-sold it; Torrence McCown and Keisha Savain, who ran


                                         12
errands for and otherwise assisted Hoggard; Robert Rawls, another co-defendant

frequently recorded discussing drug transactions with Hoggard; and Christopher

Sherman, among others. The District Court also noted that two other individuals,

Kenneth White and Terrance Jowers, were involved in the conspiracy.

      The record also permitted the District Court to conclude that Hoggard led at

least one other participant. A wiretapped call showed that on November 21, 2007,

Thames called Hoggard to purchase drugs. Hoggard replied that he was in a

barbershop, but would make sure Thames received the drugs. Only seconds after

ending his call with Thames, Hoggard called McCown, and instructed McCown to

bring drugs to the barbershop. On another occasion, Thames ordered drugs from

Hoggard. Several minutes later, officers saw Keisha Savain drive to Thames’s

home, meet with him briefly, and drive away. This evidence was sufficient to

permit the District Court to infer that Hoggard instructed McCown and Savain in

furtherance of the drug conspiracy.

      Finally, we reject Hoggard’s argument that he was not given notice that the

District Court would rely on information adduced at proceedings involving other

defendants. Hoggard’s Presentence Report and the government’s sentencing

memorandum apprised him of all pertinent information from other proceedings,

and he had the opportunity to rebut the evidence. Because Hoggard “was on notice

of all relevant information that could be used in determining his sentence and had

an opportunity to make appropriate objections,” United States v. Romano, 825 F.2d

725, 730 (2d Cir. 1987), we find no error.




                                             13
      Accordingly, we affirm the District Court’s application of the leadership

enhancement to Hoggard.

      5.    Conclusion

      We have considered all of appellants’ remaining arguments and conclude that

they are without merit. For the foregoing reasons, the judgments of the District

Court are AFFIRMED.



                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe
                                              Clerk of Court




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