           Case: 12-16571   Date Filed: 03/21/2014   Page: 1 of 15


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-16571
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:12-cr-00069-JDW-AEP-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

ERIC LEE SPOONER,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (March 21, 2014)

Before TJOFLAT, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:
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         Eric Lee Spooner, a federal prisoner serving a 132-month sentence for

conspiracy to manufacture and distribute methamphetamine on a premises in

which minor children were present and resided, appeals both his conviction and his

sentence. According to the evidence presented at trial, Spooner and a former

housemate produced several grams of methamphetamine at Spooner’s residence

for both personal use and distribution. On appeal, Spooner raises three arguments:

(1) there was insufficient evidence to convict him of conspiracy; (2) the sentence

was procedurally unreasonable because the evidence did not support the district

court’s finding regarding the amount of methamphetamine involved; and (3) the

sentence was substantively unreasonable because the district court failed to

adequately consider the sentencing factors. After careful review, we affirm the

conviction and sentence, but vacate and remand the judgment to correct a clerical

error.

                                            I.

         Spooner first argues that there was insufficient evidence to support his

conspiracy conviction because (1) there was no evidence that he entered into an

illegal agreement with another person and (2) there was no evidence that he

produced “actual” methamphetamine as charged in the indictment. Both

arguments are without merit.




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      When the challenge is preserved, this Court reviews de novo the sufficiency

of the evidence, “viewing the evidence and making all reasonable inferences in

favor of the verdict.” United States v. Greer, 440 F.3d 1267, 1271 (11th Cir.

2006). This Court will find the evidence sufficient if a reasonable trier of fact

could find that it established guilt beyond a reasonable doubt. United States v.

Beckles, 565 F.3d 832, 840 (11th Cir. 2009).

      But where the defendant moves for acquittal at the close of the government’s

case and does not renew the motion at the close of all of the evidence, this Court

will reverse the conviction only where doing so is necessary to prevent a manifest

miscarriage of justice. United States v. Schier, 438 F.3d 1104, 1107 (11th Cir.

2006). Under this standard, we will affirm the conviction unless “the evidence on

a key element of the offense is so tenuous that a conviction would be shocking.”

Id. (quotation mark omitted). In this case, Spooner did not move for a judgment of

acquittal at the close of all the evidence and so is entitled to reversal only under the

manifest miscarriage of justice standard, but we nevertheless review his conviction

de novo because the result would be the same. See Greer, 440 F.3d at 1271.

      To support a conspiracy conviction under 21 U.S.C. § 846, the government

must prove that (1) there was an agreement between the defendant and one or more

persons and (2) the object of the agreement was to commit an offense under Title

21 of the United States Code. United States v. Baker, 432 F.3d 1189, 1232 (11th


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Cir. 2005).1 Here, there was sufficient evidence from which a reasonable jury

could find both elements beyond a reasonable doubt.

                                              A.

       Regarding the first element, Drug Enforcement Agency (DEA) Agent

Tucker Cowles testified at trial to several admissions Spooner made when he was

interviewed at his home. 2 During the interview, Spooner said he produced

methamphetamine in his house with the help of his former housemate, Christopher

Spencer, for several months. According to Spooner, the pair typically produced

one-quarter to one-half ounce of methamphetamine three times per week. They

traded this methamphetamine to around fifty customers per week, sometimes for

cash and sometimes for pseudoephedrine pills so they could produce more

methamphetamine. These admissions that Spooner cooperated with Spencer to

produce and distribute methamphetamine supplied the jury with strong evidence of

an illegal agreement.

       Spencer also testified against Spooner pursuant to a plea agreement,

corroborating Spooner’s admissions to Agent Cowles. According to Spencer, he

1
  We have previously recognized that the three-prong test Spooner urges us to apply is redundant
for simple conspiracies like the one alleged here. United States v. Toler, 144 F.3d 1423, 1425
(11th Cir. 1998). In such cases, the two-prong test we apply here is a “more accurate”
description of the government’s burden. See Baker, 432 F.3d at 1232 n.50. But even if we were
to apply the ill-suited three-prong test Spooner urges, his argument would fail.
2
  The interview took place after Spooner had been given a warning pursuant to Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), and agreed to answer questions without an
attorney. Although Spooner moved to suppress the statements before the district court, he does
not challenge the denial of that motion in this appeal.
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began giving Spooner pseudoephedrine in exchange for methamphetamine in June

2011, although Spencer claimed that he was not initially aware that Spooner

produced methamphetamine. When Spencer moved in with Spooner in July 2011,

his involvement in Spooner’s scheme moved beyond merely providing

pseudoephedrine. Spencer testified that at that time, Spooner suggested to him that

the two begin producing their own methamphetamine. Spencer agreed. Pursuant

to the agreement, Spencer testified that they began making eight to fourteen grams

of methamphetamine once or twice a week, which they then used personally, sold,

and traded for more pseudoephedrine. This is yet more evidence from which a

reasonable jury could readily conclude that Spooner and Spencer agreed to violate

Title 21. See 21 U.S.C. § 841(a)(1) (making it unlawful to “manufacture,

distribute, or dispense, or possess with intent to manufacture, distribute, or

dispense, a controlled substance”); Baker, 432 F.3d at 1232.

      Spooner argues that Spencer’s testimony is incredible on its face because

Spencer was not able during his testimony to identify Spooner by his location in

the courtroom and an article of clothing. Ordinarily, whether or not to credit a

witness’s testimony is the exclusive province of the jury. United States v.

Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997). So long as the testimony is not

unbelievable on its face and thus incredible as a matter of law, this Court defers to




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the jury’s credibility determination. Id.; see also United States v. Rivera, 775 F.2d

1559, 1561 (11th Cir. 1985).

      We conclude that Spencer’s testimony was not unbelievable on its face.

Spencer explained that his vision is quite poor and that he was wearing the wrong

corrective lenses, and so a jury could readily find Spencer’s testimony regarding

his former relationship with Spooner credible even though Spencer could not

identify him at that moment. On the whole, Spencer’s testimony was quite

specific, which apparently assuaged any potential concern the jury may have

otherwise had regarding the veracity of his testimony. It assuages this Court’s

concerns as well, and so we decline to invade the traditional province of the jury

by declaring Spencer’s testimony incredible as a matter of law. Accepting

Spencer’s credibility, and in light of Spooner’s admissions to Agent Cowles, a

reasonable jury could find an agreement to violate Title 21.

                                         B.

      Regarding the second element, there was also sufficient evidence from

which a reasonable jury could conclude that the object of Spooner and Spencer’s

agreement was to produce actual methamphetamine, as the indictment charged, as

opposed to a mixture containing the drug. DEA Agent Scott Oliver testified that

the production method Spooner and Spencer used—often called the one pot

method—yields a white powder that is “very pure methamphetamine,” as opposed


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to a mixture containing some methamphetamine. Beyond that, Spencer testified

that their aim was to produce methamphetamine, and gave no indication during his

testimony that the product of their production process was anything but actual

methamphetamine.

      In an effort to counter this conclusion, Spooner relies on the testimony of Dr.

Daniel Buffington, the defense expert, that one could expect the “yield” of an

attempt to produce methamphetamine in a clandestine lab to be less than 20% to

upwards of 80% or 90%. Spooner’s argument misses the mark for two reasons.

First, it evidences a misunderstanding of the term “yield.” Dr. Buffington defined

“yield” as the total output of a chemical process as a percentage of the input

ingredients. Put differently, the yield describes the weight in grams of the white

powdery substance produced at the end of the one pot method that one can expect

from every gram of pseudoephedrine put into the process. Spooner’s argument

assumes that the yield is the percentage of the white powdery substance produced

at the end of the one pot method that is methamphetamine. But this understanding

of the end product finds no support in the record, which clearly establishes that the

white powdery output of Spooner and Spencer’s production method was—or, at

least, was supposed to be—pure methamphetamine.

      To be sure, Dr. Buffington testified that in some cases the production

process would be unsuccessful and yield no methamphetamine. This leads to the


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second reason Spooner’s arguments are unavailing: all the government must prove

to meet the second element of conspiracy is that the purpose of the agreement was

to produce actual methamphetamine. See Baker, 432 F.3d at 1232. That it may

have been difficult to produce a lot of methamphetamine or even impossible to

succeed is of no moment. See United States v. Jones, 765 F.2d 996, 1002 (11th

Cir. 1985). Given the evidence that Spooner and Spencer agreed to undertake a

production process designed, according to both Agent Oliver and Spencer, to yield

pure methamphetamine, a reasonable jury could easily find that the purpose of the

agreement was to succeed in the production process. Because there is sufficient

evidence from which a reasonable jury could conclude that the government

established both elements of conspiracy, Spooner’s sufficiency of the evidence

challenge fails.

                                         II.

      Spooner next challenges the legality of his sentence on two grounds. First,

he argues that the district court committed procedural error when it calculated his

base offense level as though his conduct involved at least four grams of

methamphetamine. Second, he argues that the district court committed substantive

error when it failed to adequately consider the 18 U.S.C. § 3553(a) sentencing

factors.




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      This Court reviews the reasonableness of a sentence under a deferential

abuse of discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct.

586, 591 (2007). The party challenging the sentence has the burden of establishing

that the sentence was unreasonable. United States v. Talley, 431 F.3d 784, 788

(11th Cir. 2005) (per curiam).

      We assess the reasonableness of a sentence in two steps. First, we ask

whether the district court committed a procedural error, such as failing to calculate

or improperly calculating the guideline range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) sentencing factors, selecting a

sentence based on clearly erroneous facts, or failing to adequately explain the

chosen sentence. Gall, 552 U.S. at 51, 128 S. Ct. at 597.

      Assuming the sentence is procedurally sound, we will then consider the

substantive reasonableness of the sentence, again under an abuse of discretion

standard. Id. This Court will vacate a sentence for substantive unreasonableness

“if, but only if, we are left with the definite and firm conviction that the district

court committed a clear error of judgment in weighing the § 3553(a) factors by

arriving at a sentence that lies outside the range of reasonable sentences dictated by

the facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010)

(en banc) (quotation marks omitted).




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                                              A.

       Spooner first argues that the district court committed procedural error when

it applied the base offense level for an offense involving at least four, but less than

five, grams of actual methamphetamine. 3 Spooner notes that the jury found that

the evidence established beyond a reasonable doubt only that Spooner’s offense

involved less than five grams of actual methamphetamine. This jury finding at the

trial stage, Spooner argues, evidences a lack of support in the record for the district

court’s quantity determination at the sentencing stage.

       We review the district court’s determination of the drug quantity involved to

establish a base offense level for clear error. United States v. Singleton, 545 F.3d

932, 934 n.2 (11th Cir. 2008) (per curiam). Where, as here, the defendant

challenges the drug quantity upon which the guideline range is based, the

government bears the burden of establishing the disputed quantity by the

preponderance of the evidence. See United States v. Almedina, 686 F.3d 1312,

1315 (11th Cir. 2012).

       Cases like this one in which no drugs are actually seized by law enforcement

present challenges in resolving the disputed quantity. In these cases, the district


3
  The base offense levels for convictions involving methamphetamine range from 12 for crimes
involving less than 250 milligrams of actual methamphetamine to 38 for 1.5 kilograms or more.
United States Sentencing Guidelines (USSG) § 2D1.1(c). The base offense level for convictions
involving at least four grams but less than five grams of actual methamphetamine is 24. Id.
§ 2D1.1(c)(8). Spooner argued to the district court that a base offense level of 12 should be
applied because there was a lack of evidence from which the court could infer a higher amount.
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court must approximate the drug quantity. Id. at 1315–16. Although the district

court’s approximation may not be “merely speculative,” it may properly be a “fair,

accurate, and conservative estimate[]” of the quantity based on evidence presented

at trial or at the sentencing hearing, or included as undisputed facts in the

presentence investigation report. See United States v. Zapata, 139 F.3d 1355, 1359

(11th Cir. 1998) (per curiam); see also United States v. Polar, 369 F.3d 1248, 1255

(11th Cir. 2004). We will only find clear error and disturb the district court’s

quantity approximation if we are left with a “definite and firm conviction that a

mistake has been committed.” Almedina, 686 F.3d at 1315 (quotation mark

omitted).

      Here, the government proved by a preponderance of the evidence that

Spooner’s conspiracy involved at least four but less than five grams of actual

methamphetamine. Spooner’s admissions to Agent Cowles indicated that he had

produced seven to fourteen grams of methamphetamine approximately three times

per week—amounting to 21.45 to 42.9 grams per week—for several months. Even

accepting Spooner’s arguments that his statements exaggerated the results of his

production efforts, it is hard to imagine that his exaggerations deviated so far from

the truth that they do not support the conclusion that at least four grams were

produced over the duration of the conspiracy.




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      Spencer’s testimony also indicated that the pair produced well in excess of

four grams of actual methamphetamine. Spencer testified that he personally

assisted Spooner in cooking methamphetamine approximately twenty times. On

each occasion, Spencer estimated that their production efforts yielded between

eight and fourteen grams of methamphetamine, suggesting that the conspiracy

involved at least 160 grams.

      The government also presented evidence at trial regarding the amount of

pseudoephedrine purchases Spooner and Spencer made during the conspiracy. The

evidence revealed that Spooner had purchased 57.8 grams of pseudoephedrine

from June 2011 through November 2011. Agent Oliver testified that each gram of

pseudoephedrine could theoretically yield 0.92 grams of actual methamphetamine,

and Dr. Buffington estimated that a clandestine lab could expect a yield of

anywhere from less than 0.2 grams to upwards of 0.9 grams for each gram of

pseudoephedrine. Even if the yield was only 0.1 grams, a conservative estimate

given Agent Oliver and Dr. Buffington’s testimony, Spooner’s pseudoephedrine

purchases alone would have resulted in 5.78 grams of methamphetamine. And this

does not even account for the additional pseudoephedrine Spencer provided or that

the pair got from their customers in exchange for methamphetamine. On this

record, the district court’s conclusion that the conspiracy involved at least four




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grams of methamphetamine is not clearly erroneous. We therefore find no

procedural error.

                                          B.

      Spooner’s final argument is that the district court committed substantive

error by failing to give mitigating factors due consideration and instead

unjustifiably relied on a single factor, resulting in a sentence greater than necessary

to meet the goals of punishment set forth in 18 U.S.C. § 3553(a).

      The weight given to any particular § 3553(a) factor is generally left to the

sound discretion of the district court. United States v. Amadeo, 487 F.3d 823, 832

(11th Cir. 2007). As we have explained, we will only vacate a sentence for

substantive unreasonableness if we are left with the “definite and firm conviction”

that the sentence imposed was outside the range of reasonableness. Irey, 612 F.3d

at 1190.

      At the sentence hearing, the district court noted each of the § 3553(a) factors

and discussed them at length. The court considered the “nature and circumstances”

of the offense, as § 3553(a)(1) requires, when it recognized that Spooner

contributed to a societal addiction problem by manufacturing and distributing

methamphetamine on a large scale and that the offense had put his daughters at

risk. It also considered Spooner’s personal characteristics, including his long term

struggle with drug addiction, his family history, and his mental health issues.


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Under § 3553(a)(2), the district court noted the seriousness of the offense; the

societal costs of Spooner’s conduct; the lack of respect addicts generally have for

the law (including Spooner, evidenced by his lengthy criminal history); the need

for deterrence; and the need to protect the public from Spooner. This evidences a

thoughtful and thorough consideration of Spooner’s particular circumstances.

      Spooner’s argument that the court failed to consider and give adequate

weight to the mitigating factors is belied by the record. The court recognized that

Spooner “was essentially feeding his own habit,” and as a result concluded that the

recommended minimum sentence under the guideline range was “greater than

necessary to achieve the statutory purposes of sentencing.” The court thus

deviated downwards from the bottom of the applicable guideline range by nineteen

months, an indication that the district court thoughtfully considered and weighed

all the sentencing factors and imposed a sentence the court in its sound discretion

believed was necessary to accomplish the purposes of § 3553(a). On this record,

we cannot conclude that the sentence imposed was outside the range of

reasonableness. Irey, 612 F.3d at 1190.

                                          III.

      We sua sponte address a clerical error in the judgment. See United States v.

Massey, 443 F.3d 814, 822 (11th Cir. 2006). Spooner’s indictment charged him

with violating 21 U.S.C. §§ 846, 841(b)(1)(A)(viii), and 860a, and the government


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filed an Information and Notice of Prior Convictions adding a § 851 offense. The

judgment form, however, lists only 21 U.S.C. §§ 846, 841(b)(1)(C), and 851. The

amendment to § 841(b)(1)(C) from § 841(b)(1)(A)(viii) accurately reflects the

jury’s finding that the offense involved less than five grams of actual

methamphetamine instead of fifty grams. But the judgment form should include a

numerical reference to § 860a as a statute of conviction rather than merely

incorporating the substance of the statute into the description of the “Nature of the

Offense.” This scrivener’s omission should be corrected. See Massey, 443 F.3d at

822.

                                         IV.

       For these reasons, we conclude that the evidence was sufficient to support

Spooner’s conspiracy conviction and that it was well within the district court’s

discretion to sentence Spooner as it did. However, we vacate and remand the

judgment for the limited purpose of correcting a clerical error in the omission of

§ 860a as one of the statutes of conviction.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.




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