                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 07-4074


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

CALVIN IGNATIOUS SAVOY,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (1:05-
cr-00415-AMD-4)


Argued:   January 30, 2009                 Decided:    March 6, 2009


Before SHEDD and AGEE, Circuit Judges, and Arthur L. ALARCÓN,
Senior Circuit Judge of the United States Court of Appeals for
the Ninth Circuit, sitting by designation.


Affirmed in part and vacated         and   dismissed   in   part   by
unpublished per curiam opinion.


ARGUED: Ansley Claire Tillman, KING & SPALDING, L.L.P.,
Washington, D.C., for Appellant. Andrea L. Smith, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.     ON
BRIEF: Bradley H. Cohen, Gary G. Grindler, KING & SPALDING,
L.L.P., Washington, D.C., for Appellant.      Rod J. Rosenstein,
United States Attorney, Matthew Jeweler, Law Clerk, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Calvin    Savoy   was     arrested,     indicted,      and     convicted      on

charges of conspiring to distribute 50 grams or more of cocaine

base, in violation of 21 U.S.C. § 846, and using a firearm

during and in relation to a drug-trafficking crime, in violation

of 18 U.S.C. § 924(c).             Savoy was sentenced on the conspiracy

charge to a mandatory minimum life sentence under 21 U.S.C. §

841(b)(1)(A) and sentenced on the firearm charge to a mandatory

minimum,    consecutive   sentence      of   10   years     under    18   U.S.C.    §

924(c)(1)(A)(iii).        Savoy      appeals,     arguing    the     Government’s

evidence at trial was insufficient as a matter of law to prove

that he knowingly joined a conspiracy or that his firearm use

occurred during and in relation to a drug-trafficking crime.

Savoy also contends the district court erred in instructing the

jury,   improperly     admitted       evidence     of     another     crime,     and

incorrectly    imposed       the     statutory     mandatory        minimum     life

sentence.

     For the reasons set forth below, we affirm the conspiracy

conviction and sentence on that charge.                   However, because we

hold that the Government failed to prove that Savoy’s firearm

use occurred during and in relation to a drug-trafficking crime,

we vacate his conviction and sentence on that charge.




                                        3
                                       I.

        In September 2005, Savoy was indicted with 6 co-defendants

on a charge of conspiring to distribute and possess with intent

to distribute 50 grams or more of cocaine base (i.e., crack

cocaine), in violation of 21 U.S.C. § 846 (“Count One”).                             In

addition,       Savoy    was   indicted       individually        on    a    count   of

possessing and discharging a firearm during and in relation to a

drug-trafficking offense, in violation of 18 U.S.C. § 924(c)

(“Count     Four”).        Savoy    pled       not    guilty      and       was   tried

individually.

        To establish the existence of the conspiracy alleged in

Count    One,    three   indicted   co-conspirators         testified        at   trial

that Pioneer City, a housing complex in Anne Arundel County,

Maryland, was an open-air drug market in which the members of

the conspiracy cooperated to sell crack cocaine and prevent non-

members from selling it.            These witnesses testified that the

members of the conspiracy had a code of silence against speaking

to the police and drove out drug dealers from other areas who

attempted to enter the Pioneer City drug market.                        In addition,

when one co-conspirator ran out of crack cocaine, he would refer

customers       to   another   co-conspirator        or   other    co-conspirators

would share their supply with him.

        To establish that Savoy was a member of the conspiracy, an

unindicted co-conspirator, Fabian Gray, testified that Savoy had

                                          4
been present when Gray sold crack cocaine.              Gray also gave Savoy

sufficient crack cocaine to restart his drug dealing business

after Savoy was released from prison in 2004.                  Evidence also

indicated that Savoy participated in the November 2004 beating

of   Kevin   Johnson   in   Pioneer    City.       Johnson    was    unable    to

identify his assailants but Savoy’s fingerprints were recovered

from his Cadillac, which was stolen during the attack.                        The

Government argued that Johnson’s beating was an example of the

conspiracy’s efforts to exclude outsiders from Pioneer City.

      To establish the firearm offense alleged in Count Four,

witnesses testified that members of the conspiracy were present

at a September 2004 birthday party held at a nightclub near

Pioneer City.       Savoy was seen and photographed brandishing a

handgun during the party.        Individuals from Annapolis, where a

rival drug gang operated, were also present at the party.                      A

fight broke out and spread outside, where Officer William Hicks

observed “pockets of people fighting” in the parking lot.                   While

attempting to break up the various fistfights, Hicks heard and

saw an unidentified black male firing shots into the air.                   While

pursuing     that   suspect,   Hicks       was   shot   in   the    right   arm.

Witnesses identified Savoy as the shooter.              Though there was no

evidence that drugs were distributed or even present during the

party, the Government argued that Savoy shot Hicks to impress



                                       5
the   conspiracy’s       rivals   from    Annapolis        and    deter   them,       and

police, from interfering with the Pioneer City drug market.

      At the conclusion of the evidence, Savoy entered a motion

for   judgment      of    acquittal      under      Rule    29     challenging        the

sufficiency of the evidence on both counts.                      The district court

denied the motion and the case was submitted to the jury.                        On

the final day of its deliberations, the jury sent a question to

the court:    “Clarify how the drugs charges should relate to the

defendant’s association with the conspiracy?                      During the trial

there was a statement by the judge about this.                       This would be

the charges which occurred during the timeframe of 2002-2005.”

(J.A. 300.)      The court, without consulting counsel, responded

with its own note:            “Dear Jury:           Your question is unclear.

Please attempt to clarify your question.”                  (J.A. 301.)     The jury

did not reply but found Savoy guilty on both counts and entered

special verdicts that the amount of crack cocaine involved in

the conspiracy relating to Count One was 50 grams or more and

that the firearm relating to Count Four had been discharged.

      The   court   informed      counsel      of   the    jury’s    question     when

counsel were recalled to receive the jury’s verdict.                      The court

summarized    the    event,    offered        to   show    the   notes,   and    asked

counsel, “[A]nybody have any concerns or questions?”                        Neither

party objected.      (J.A. 301-02.)



                                          6
       The    Probation       Office       subsequently               prepared       Savoy’s       pre-

sentencing         report,       which         included         5     prior     state          criminal

convictions.             Savoy    objected           to    the       inclusion       of    two     drug

convictions:         one from 1994 (K950039), because he was under 18

at    the    time    of    the      offense,         and       one    from    1997     (K9700895),

because it was classified a misdemeanor under state law.                                         Savoy

did    not    challenge       the     inclusion           of    a    third     drug    conviction.

Finding       that       Savoy      had    at        least          two     prior     felony       drug

convictions and relying on the jury’s special verdict that the

conspiracy         involved      50   grams          or    more       of    cocaine        base,    the

district       court      imposed      the       mandatory           minimum        life       sentence

required by 21 U.S.C. § 841(b)(1)(A) on Count One.                                        Relying on

the    jury’s       special      verdict        that       Savoy          discharged       a    firearm

during       and    in    relation        to     a       drug-trafficking            offense,       the

district court also imposed the mandatory minimum, consecutive

sentence of 10 years required by 18 U.S.C. § 924(c)(1)(A)(iii)

on Count Four.             Savoy filed a timely notice of appeal and we

have    jurisdiction          under       28    U.S.C.         §     1291     and    18    U.S.C.     §

3742(a).



                                                 II.

       Savoy contends the Government’s evidence is insufficient to

prove that he knowingly and voluntarily joined any conspiracy to

distribute crack cocaine or to prove that he shot Officer Hicks

                                                     7
during and in relation to a drug-trafficking offense.                                          Savoy

also argues that the district court should not have admitted

evidence of Kevin Johnson’s beating under Rule 404(b) of the

Federal     Rules     of      Evidence          and    that       it   erred    in     failing      to

clarify its jury instructions in response to the jury’s note on

the last day of deliberations.                         Finally, Savoy argues that the

district    court        improperly         imposed          the   mandatory         minimum      life

sentence required by 21 U.S.C. § 841(b)(1)(A) because the 50

grams of crack cocaine found by the jury to be involved in the

conspiracy should not have been attributed to Savoy and because

the district court improperly considered his 1994 and 1997 state

drug convictions.



                                                  A.

       We first consider Savoy’s argument that the evidence was

insufficient        to     support         his    convictions.                When    a    criminal

conviction      is       appealed          on    the     ground        that    the        underlying

evidence is insufficient, we review the evidence in the light

most   favorable         to     the       Government         to    determine         whether      “any

rational trier of fact could have found the essential elements

of   the   crime      beyond         a    reasonable         doubt.”       United         States    v.

Abuelhawa,      523      F.3d    415,       422       (4th    Cir.     2008)    (citing      United

States     v.   Burgos,         94       F.3d    849,    862-63        (4th    Cir.       1996)    (en

banc)).

                                                   8
                                             1.

            In order to prove conspiracy to distribute and
       possess cocaine base with intent to distribute, the
       government [must] establish beyond a reasonable doubt
       that: “(1) an agreement” to distribute and “possess .
       . . with intent to distribute existed between two or
       more   persons;  (2)   the   defendant   knew  of the
       conspiracy; and (3) the defendant knowingly and
       voluntarily became a part of this conspiracy.”

United States v. Yearwood, 518 F.3d 220, 225-26 (4th Cir. 2008)

(quoting     Burgos,    94     F.3d    at        857).      Savoy    argues      that     the

evidence does not establish that he knew of any conspiracy or

knowingly     entered     into        any    agreement        to     distribute        crack

cocaine.     We disagree.

       Because    “a   conspiracy           is     clandestine       and   covert,”       it

“generally is proved by circumstantial evidence and the context

in which the circumstantial evidence is adduced.”                              Burgos, 94

F.3d at 857.       “A conspiracy, therefore, may be inferred from a

development      and   collocation          of    circumstances.”          Id.       at   858

(internal quotation marks omitted).                      Once a conspiracy has been

shown   to   exist,     “the    evidence          need    only     establish     a   slight

connection between the defendant and the conspiracy to support

conviction.”       Id. at 861 (internal quotation marks omitted).

       “[F]requently . . . contemporary drug conspiracies . . .

result[] in only a loosely-knit association of members linked

only    by   their     mutual     interest          in     sustaining      the       overall

enterprise of catering to the ultimate demands of a particular


                                             9
drug consumption market . . . .”               United States v. Banks, 10

F.3d 1044, 1054 (4th Cir. 1993).               Witnesses, including several

of the alleged co-conspirators, testified at Savoy’s trial that

at the time of his arrest the Pioneer City housing complex was

an open-air drug market in which drug dealers conspired to sell

crack    cocaine,    protect    each   other    from    police   investigation,

maintain the market for crack cocaine sales by sharing supplies

or referring customers, and excluding non-members.                   While Savoy

argues that he had no knowledge of the conspiracy and never

agreed to join it, Gray testified that Savoy knew he sold drugs

and that Savoy later accepted drugs from Gray given for the

express    purpose    of   re-establishing      Savoy    in    the   business    of

selling crack cocaine in Pioneer City following his release from

prison.

        Other evidence showed that, in a drug market where members

of the conspiracy excluded non-members, Savoy was permitted to

sell drugs and had amicable relations with co-conspirators.                     For

example, three co-conspirators testified that Savoy sold drugs

in Pioneer City and Savoy was arrested in September 2004 for an

open     alcohol    container    violation      when    officers     caught     him

drinking beer with two co-conspirators.                A search subsequent to

that arrest led to the discovery of eight bags of crack cocaine

in   Savoy’s   pocket.         Savoy   also    had     crack   cocaine   in     his

possession in Pioneer City at the time of his arrest on the

                                       10
charges in the case at bar.                     Finally, the evidence of Savoy’s

participation in the beating of Kevin Johnson indicates not only

that Savoy was accepted by the conspiracy as one of its members-

-because the conspiracy allowed him to sell crack cocaine in

Pioneer      City--but      that       Savoy     actively       furthered       its   goal       of

excluding non-members even to the point of physical violence.

       We    conclude       this       evidence        is    sufficient     to    support        a

rational      jury’s        finding           beyond        reasonable    doubt       that       a

conspiracy to distribute and possess with intent to distribute

existed among the crack cocaine dealers in Pioneer City, and

that     Savoy      was     a     knowing       and         voluntary    member       of    that

conspiracy.         Accordingly, we affirm his conviction on Count One.



                                                2.

         To establish a violation of 18 U.S.C. § 924(c)(1), “the

Government [must] prove: (1) [the defendant] used or carried a

firearm (2) during and in relation to (3) a drug trafficking

offense.” United States v. Lipford, 203 F.3d 259, 265-66 (4th

Cir. 2000).           “To meet the ‘in relation to’ requirement, the

Government         must   prove        that    the     firearm    has    some    purpose         or

effect      with    respect      to     the    drug     trafficking       crime[.]     .     .    .

[T]he gun at least must facilitate or have the potential of

facilitating,         the       drug     trafficking          offense.”         Id.    at    266

(internal quotation marks omitted) (ellipsis and alteration in

                                                11
original).     Savoy argues that there is no evidence establishing

that the shooting of Officer Hicks occurred in relation to the

drug conspiracy.    We agree.

      There is no evidence in the record that any drugs were

present at the nightclub, that any drug transactions took place

there, or that any activity relating to the conspiracy occurred.

The Government argues that Savoy shot Officer Hicks to send a

message to the police and rival drug dealers from Annapolis not

to interfere in the Pioneer City drug market.                   However, while

witnesses testified that individuals from other areas were at

the party and that the fight began with an altercation between

someone from Pioneer City and someone from Annapolis, there is

no evidence that any rival drug dealers were present.                  In short,

the record fails to establish that Savoy had the audience the

Government contends he sought to impress.               Similarly, there is

nothing but pure speculation that Savoy was in some theoretical

way   furthering   the   conspiracy    when     he   shot   a   police    officer

during a nightclub brawl.

      The Government had the burden to prove beyond reasonable

doubt   that   Savoy     used   a   firearm   in     relation    to    the     drug

conspiracy,    i.e.,     that   the   firearm    facilitated      or     had    the

potential to facilitate the conspiracy.              The Government did not

meet its burden and the district court erred in denying the

motion for judgment of acquittal on that charge.                  Accordingly,

                                      12
we   vacate   Savoy’s   conviction   and   sentence   on   Count   Four   and

dismiss that count of the indictment.



                                     B.

        We next turn to Savoy’s argument that the district court

erred when it failed to supplement the jury’s instructions in

response to its note and when it admitted the evidence of Kevin

Johnson’s beating.      Savoy did not preserve either issue with a

timely objection at trial, so we review for plain error.              E.g.,

Taylor v. Virginia Union University, 193 F.3d 219, 239 (4th Cir.

1999) (failure to object to district court’s response to jury

question);     United States v. Chin, 83 F.3d 83, 87 (4th Cir.

1996) (failure to object to admission of evidence under Rule

404).   To prevail on plain error review, the defendant

      must demonstrate (1) that an error occurred, (2) that
      the error was plain, and (3) that it affected his
      substantial rights.   If the defendant satisfies these
      threshold requirements, correction of the error is
      within   our   discretion,   which   is  appropriately
      exercised only when failure to do so would result in a
      miscarriage of justice, such as when the defendant is
      actually innocent or the error seriously affect[s] the
      fairness, integrity or public reputation of judicial
      proceedings.

United States v. Farrior, 535 F.3d 210, 222 n.4 (4th Cir. 2008)

(internal quotation marks omitted) (alteration in original).




                                     13
                                        1.

     Savoy does not argue that the district court’s response to

the jury’s note was an improper ex parte communication with the

jury.   Rather, he argues only that the response was insufficient

to answer the question the jury’s note posed.                     Any response, or

lack of response, to a question from a deliberating jury is

within the sound discretion of the trial court.                      United States

v. Ellis, 121 F.3d 908, 925 (4th Cir. 1997).

     The district court responded to the jury’s note by asking

for clarification of its question.                Savoy concedes that “[i]t is

difficult even now to unpack what the jury’s particular question

was.”      (Reply    Br.    14.)      Savoy       argues   that   the     note    could

indicate    that    the    jury    wanted    to    know    more   about    his    state

convictions, about his prior arrests, or whether the Government

had to prove he sold drugs.                 Therefore, by all accounts, the

jury’s note was unclear and we cannot fault the district court’s

exercise of its discretion to attempt to ascertain the precise

issue on which the jury sought clarification before issuing any

supplemental instructions.           Savoy therefore fails to satisfy the

first   prong       of    plain    error      review       because   he     has     not

demonstrated that an error occurred.                Moreover, because the jury

continued    its     deliberations      and       returned    a   verdict    without

further instruction, Savoy has not demonstrated how the district



                                        14
court’s response affected his substantial rights.                          Savoy simply

has not shown plain error on this issue.



                                             2.

       Savoy argues that the district court erred in admitting

evidence of the assault on Kevin Johnson because “[t]he only

purpose of this testimony was to portray Mr. Savoy’s character

in a negative light,” in violation of Federal Rule of Evidence

404(b). 1       (Br. Appellant 37.)          Admission or exclusion of evidence

under Rule 404(b) is within the discretion of the trial court.

United States v. Jackson, 327 F.3d 273, 298 (4th Cir. 2003).

       The      Government     contends      “the   beating   .   .    .    was   an   act

committed in furtherance of the Pioneer City drug conspiracy”

because “[t]he intimidation and physical assault of outsiders

was,       as   alleged   in     the    indictment,     a     specific       method    of

operation         utilized      by     the    conspirators        to       protect     the

conspiracy. . . .         [T]he Pioneer City conspiracy depended on its

ability to exclude others--if necessary through physical force.”

(Br. Appellee 38.)


       1
       Savoy also argues for the first time in his reply brief
that the evidence should not have been admitted because its
prejudicial effect outweighed its probative value in violation
of Rule 403. We do not consider arguments raised for the first
time in a reply brief.    See United States v. Brooks, 524 F.3d
549, 556 n.11 (4th Cir. 2008).



                                             15
      The Government established through the testimony of Savoy’s

co-conspirators    that     the   conspiracy     did    in   fact   endeavor      to

exclude outsiders from the Pioneer City area.                   The Government

then introduced the evidence of Kevin Johnson’s beating, and

Savoy’s role in the beating, to link Savoy to the conspiracy and

its effort to protect its turf.             We see no abuse of discretion

in the district court’s decision to admit the evidence for that

purpose and Savoy has failed to meet his burden of proving an

error occurred.    We find no reversible error on this issue.



                                      C.

      Finally, Savoy argues the district court erred by imposing

the   mandatory   minimum    life   sentence     required     by    21   U.S.C.   §

841(b)(1)(A).     The district court imposed the sentence based on

Savoy’s   three   prior     state    drug     convictions     and    the   jury’s

special verdict that 50 grams or more of crack cocaine were

involved in the conspiracy.         At sentencing, Savoy challenged the

inclusion of a 1994 conviction (K950039) on the ground that he

was a minor at the time of the offense and a 1997 conviction

(K9700895) on the ground that it was classified as a misdemeanor

under state law.       On appeal, Savoy concedes that the Supreme

Court’s decision in Burgess v. United States, 128 S. Ct. 1572

(2008),   forecloses      his     challenge     to     the   1997    conviction.

Together with an unchallenged 1995 conviction (K9501975), Savoy

                                      16
clearly has at least two prior qualifying convictions, and we

need       not    reach    his   challenge    to   the    inclusion    of    the   1994

conviction.

       Savoy now argues, however, that the district court erred in

attributing to him all 50 grams or more of crack cocaine found

by the jury to have been involved in the conspiracy. 2                      This issue

was not raised below and is therefore subject to plain error

review.          E.g., United States v. Pendergraph, 388 F.3d 109, 113

(4th       Cir.    2004)     (failure   to    raise      objection    at    sentencing

hearing).

       In United States v. Collins, 415 F.3d 304 (4th Cir. 2005),

we held that the Supreme Court’s decision in Apprendi v. New

Jersey, 530 U.S. 466 (2000), required a jury to find beyond

reasonable doubt the amount of crack cocaine attributable to

each specific defendant involved in a drug conspiracy.                       415 F.3d

at 314.          The jury’s finding may be based on evidence (1) that

the individual defendant himself distributed an amount of crack

cocaine or (2) that other members of the conspiracy did so, and

their       actions       were   reasonably   foreseeable      to    the    individual

       2
       Savoy does not argue that the evidence is insufficient to
establish that 50 grams or more of crack was involved in the
conspiracy. He concedes that the Government introduced evidence
that members of the conspiracy collectively possessed 97.44
grams. (Br. Appellant 43.) Rather, he argues that the district
court improperly attributed 50 grams or more of this total to
him for sentencing purposes.



                                             17
defendant.         Id. at 311.            A district court must not impose a

sentence under § 841(b) based on a jury’s finding of the amount

attributable        to    the    conspiracy       generally.       Id.   at    314.     In

United States v. Foster, 507 F.3d 233 (4th Cir. 2007), we held

that       a   district       court’s    failure    to    comply    with      Collins   by

instructing the jury to make individualized findings constitutes

reversible plain error. 3               Id. at 251-52.

       There is no evidence in the record that Savoy personally

distributed 50 grams or more of crack cocaine.                           Consequently,

“for the statutory maximums and mandatory minimums of § 841(b)

to apply . . . the jury must determine that the threshold drug

amount was reasonably foreseeable to the individual defendant.”

Brooks, 524 F.3d at 558 (quoting Foster, 507 F.3d at 250-51)

(internal quotation marks omitted).

       In Collins, the district court instructed the jury that

“[t]he         amount    of     drugs     applies    to    the     entire      group    of

conspirators.           In other words, it’s a conspiracy to distribute


       3
       Foster was tried jointly with two co-defendants and all of
them received life sentences under § 841(b).        Foster’s co-
defendants also received life sentences arising from 18 U.S.C. §
924(j).    We determined that the district court’s § 841(b)
sentencing error had no effect on the co-defendants and declined
to reverse their sentences.     However, because Foster had not
been sentenced to life imprisonment under any other charge, the
life sentence improperly imposed under § 841(b) was necessarily
prejudicial and required reversal under the plain error standard
of review. Id. at 251-52.



                                             18
50 grams or more of crack cocaine.         That's what the charge is.

So the amount applies to the conspiracy, to the group.”               415

F.3d at 311.      In Foster, “the district court instructed the jury

to determine . . . the amount of crack cocaine ‘involved in the

conspiracy.’”       507 F.3d at 249.     In Brooks, the district court

instructed the jury “that ‘the amount of controlled substances

you will need to determine . . . is not the amount a single

defendant may have been involved with, but rather the amount of

controlled substances involved in the conspiracy as a whole.’”

524 F.3d at 557 (ellipsis in original).          These cases are clearly

distinguishable from the one before us.

       The district court in this case specifically instructed the

jury    to   find     an   amount   of   crack    cocaine   individually

attributable to Savoy, whether he personally distributed it or

possessed    it     with   intent   to   distribute    or   whether   the

distribution or possession with intent to distribute by his co-

conspirators was reasonably foreseeable to him:

            A special verdict form, which you will see in a
       moment, ladies and gentlemen, will be given to you on
       which if you find the government has proven the
       defendant’s membership in the charged conspiracy
       beyond a reasonable doubt you must use to determine
       the quantity of drugs attributable to Mr. Savoy.
            . . . .
            In   determining  what   quantity  of   controlled
       substance is attributable to the defendant, if any,
       you should consider the following factors:
            First, the defendant is accountable for the
       quantity of drugs which he personally distributed or
       possessed with intent to distribute[;]

                                    19
           Second, the defendant is also accountable for any
     quantity of drugs which he attempted to or planned to
     distribute or possess with intent to distribute.
     Specifically, the defendant is accountable for those
     drugs even if those drugs were never actually obtained
     or distributed, so long as an objective of the
     conspiracy was for the defendant to distribute or
     possess with intent to distribute such a quantity of
     drugs;
           Third, the defendant is also accountable for any
     quantity of drugs which another member of the
     conspiracy distributed or possessed with intent to
     distribute as part of the conspiracy, so long as it
     was reasonably foreseeable to the defendant, Mr.
     Savoy, that such a quantity of drugs would be involved
     in the conspiracy which he joined;
           Fourth    and   finally,  the   defendant   is  also
     accountable for any quantity of drugs which another
     member of the conspiracy attempted to or planned to
     distribute or possess with intent to distribute, so
     long    as   it   was   reasonably   foreseeable   to  the
     defendant, Mr. Savoy, that such a quantity of drugs
     would be involved in the conspiracy which he joined.
     The defendant is accountable for those drugs even if
     those    drugs     were   never   actually   obtained   or
     distributed by other members of the conspiracy, so
     long as an objective of the conspiracy was for the
     other members of the conspiracy to distribute or
     possess with intent to distribute such a quantity of
     drugs.
           Now, these last two rules apply even if the
     defendant did not personally participate in the acts
     or plans of his co-conspirators or even if the
     defendant did not have actual knowledge of those acts
     or plans, so long as those acts or plans were
     reasonably foreseeable to the defendant.        The reason
     for this is simply that a co-conspirator is deemed to
     be the agent of all other members of the conspiracy.
     Therefore, all of the co-conspirators bear criminal
     responsibility for acts or plans that are undertaken
     to further the goals of the conspiracy.
           As I said a moment ago, your findings about the
     quantity of controlled substances attributable to the
     defendant will be noted on the verdict form, and I
     will send you that form shortly.

(J.A. 288-90.)

                                20
      These instructions, unlike those given in Collins, Foster,

and Brooks, clearly direct the jury to make an individualized

finding   of     the       amount   of   crack        cocaine        involved     in    the

conspiracy attributable to Savoy, either because he personally

distributed     it    or    possessed    it    with    intent        to   distribute        or

because   it    was    reasonably     foreseeable       to   Savoy         that   his   co-

conspirators     distributed        it   or    possessed        it    with    intent        to

distribute.      Accordingly, there is no Collins error here.                           The

jury’s special verdict that 50 grams or more of crack cocaine

were involved in the conspiracy is an individualized finding

specific to Savoy and the district court properly relied on it

to   impose    the    mandatory     minimum     life    sentence          required     by    §

841(b)(1)(A).



                                         III.

      For the foregoing reasons, we affirm the judgment of the

district court as to Count One, and vacate the judgment as to

Count Four and dismiss that count of the indictment.



                                                         AFFIRMED IN PART AND
                                                VACATED AND DISMISSED IN PART




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