                                                                      [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                               FILED
                            FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                              ________________________ ELEVENTH CIRCUIT
                                                                       OCTOBER 26, 2005
                                    No. 04-14344                       THOMAS K. KAHN
                              ________________________                     CLERK


                       D. C. Docket No. 03-00174-CR-ODE-1-1

UNITED STATES OF AMERICA


                                                                  Plaintiff-Appellee,

                                           versus


FRANCES J. DUKES,
a.k.a. Frances Caylor Dukes,
EMMETT JIMERSON,

                                                                 Defendants-Appellants.
                              ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                           _________________________

                                     (October 26, 2005)

Before BIRCH, HULL and BOWMAN *, Circuit Judges.

PER CURIAM:

       *
         Honorable Pasco M. Bowman II, United States Circuit Judge for the Eighth Circuit,
sitting by designation.
      A grand jury returned a fifty-one-count indictment against Frances Dukes, a

former supervisor with the Fulton County Department of Family and Children

Services (DFACS); Emmett Jimerson, a day-care operator; and Patricia Merritt,

also a day-care operator. The indictment charged that the three conspired to

illegally obtain child-care benefits from DFACS by filing false claims for non-

existent children purportedly enrolled at Jimerson's and Merritt's day-care

facilities. The indictment further alleged that Dukes created false invoices,

approved fraudulent payments to Jimerson's and Merritt's day-care facilities, and

received kickbacks from Jimerson and Merritt in return.

      Merritt pleaded guilty and testified at trial; Dukes and Jimerson were

convicted after a jury trial. On appeal, both Dukes and Jimerson argue that the

evidence was insufficient to support their convictions on the conspiracy count and

that the district court erred in calculating their sentences. In addition, Jimerson

argues that the district court erred in refusing to sever his trial from Dukes's. We

affirm the convictions of both appellants but remand both cases for resentencing.

      Dukes and Jimerson first argue that the evidence presented at trial was

insufficient to support their convictions. Specifically, they contend that instead of

establishing the existence of a single conspiracy as alleged in the indictment, the

evidence at trial established the existence of two separate and distinct conspiracies,



                                           2
one involving Dukes and Jimerson and another involving Dukes and Merritt.

According to the appellants, this variance between the allegations in the indictment

and the proof at trial requires reversal of their convictions.

      Viewing the evidence in the light most favorable to the government, we

must first determine whether a reasonable jury could have found beyond a

reasonable doubt that a single conspiracy existed. United States v. Castro, 89 F.3d

1443, 1450 (11th Cir. 1996), cert. denied, 519 U.S. 1118 (1997). But we will

reverse a conviction because a single conspiracy was charged in the indictment

while multiple conspiracies were proved at trial only if this variance was both

"material" and "substantially prejudicial" to the defendants. United States v.

Calderon, 127 F.3d 1314, 1327 (11th Cir. 1997), cert. denied, 523 U.S. 1033, 1144

and 522 U.S. 1133 (1998).

      We agree with Dukes and Jimerson that no reasonable jury could have found

beyond a reasonable doubt that the government's proof established a single

conspiracy. There was insufficient evidence to establish that Jimerson was aware

of and joined Dukes's conspiracy with Merritt or that Merritt was aware of and

joined Dukes's conspiracy with Jimerson. Rather, the evidence presented at trial

proved that two similar but distinct conspiracies existed—one between Dukes and

Jimerson and another between Dukes and Merritt. Consequently, a material



                                            3
variance occurred. See Castro, 89 F.3d at 1450 ("A material variance between an

indictment and the government's proof at trial occurs if the government proves

multiple conspiracies under an indictment alleging only a single conspiracy.").

      Our inquiry does not end there, however, as the appellants also must

demonstrate that the variance was substantially prejudicial. See United States v.

Alred, 144 F.3d 1405, 1415 (11th Cir. 1998) (noting that a material variance is not

always prejudicial). To establish substantial prejudice, each appellant must show

(1) "that the proof at trial differed so greatly from the charges in the indictment that

he was unfairly surprised and unable to prepare an adequate defense" or (2) that so

many defendants and separate conspiracies were before the jury that there is a

"substantial likelihood that the jury transferred proof of one conspiracy to a

defendant involved in another." Calderon, 127 F.3d at 1328.

      We conclude that the appellants were not substantially prejudiced by the

variance in this case. The evidence presented at trial—that Dukes, Jimerson, and

Merritt conspired to submit fraudulent claims to DFACS to obtain child-care

benefits for fictitious children and to profit therefrom—is the same evidence that

would have been presented had the indictment charged two separate conspiracies

rather than one. Dukes and Jimerson were not unfairly surprised by the

government's proof at trial, nor were they prevented from preparing an adequate



                                           4
defense. See United States v. Jones, 913 F.2d 1552, 1562 (11th Cir. 1990)

(concluding that appellants demonstrated no unfair surprise because the variance

"did not alter the crime charged, the requisite elements of proof or the appropriate

defenses in any significant manner"). Had the government charged separate

conspiracies in the indictment rather than a single conspiracy, it is unlikely that the

government's proof or the appellants' defenses would have differed in any

significant fashion.

      Moreover, nothing in the record suggests that the jury was confused by the

evidence presented at trial or that it was unable to compartmentalize the evidence

and separately assign liability to each of the conspirators. This was not an overly

complicated factual situation where the risk of jury confusion was high. Neither

appellant has established a substantial likelihood that the jury transferred evidence

of one appellant's guilt as to one of the conspiracies to the other appellant not

involved in that conspiracy. The district court cautioned the jury repeatedly during

the trial when evidence relevant to only one conspirator was introduced, and the

court reiterated these warnings in its instructions to the jury. The fact that the jury

failed to reach a verdict on one of the counts against Jimerson demonstrates that

the jury was able to segregate the evidence as instructed by the court. Because

Dukes and Jimerson have not established that the variance between the indictment



                                            5
and the proof at trial was substantially prejudicial, we affirm their conspiracy

convictions.

       Jimerson argues that the district court erred by denying his motion made

pursuant to Rule 14 of the Federal Rules of Criminal Procedure to sever his trial

from Dukes's trial. We review the denial of a motion to sever for abuse of

discretion. United States v. Liss, 265 F.3d 1220, 1227 (11th Cir. 2001). A

defendant is entitled to severance only if he "demonstrates that a joint trial will

result in 'specific and compelling prejudice' to his defense." Id. at 1228 (quoting

United States v. Walker, 720 F.2d 1527, 1533 (11th Cir. 1983), cert. denied, 465

U.S. 1108 (1984)). "Compelling prejudice occurs when the jury is unable 'to

separately appraise the evidence as to each defendant and render a fair and

impartial verdict.'" Id. (quoting United States v. Meester, 762 F.2d 867, 883 (11th

Cir.), cert. denied, 474 U.S. 1024 (1985)).

       Jimerson contends that the jury improperly used evidence regarding the

conspiracy between Merritt and Dukes to convict him of an unrelated conspiracy

with Dukes. As noted above, however, the district court cautioned the jury during

trial that evidence admitted against Dukes could not be used against Jimerson, and

the court reiterated these admonitions in its instructions to the jury.1 The fact that


       1
        For example, the district court instructed the jury, "You may consider [Merritt's
testimonial] evidence only insofar as it pertains to the charges against Ms. Dukes and may not

                                                6
much of the evidence at trial applied only to Dukes is not sufficient to demonstrate

that the joint trial resulted in compelling prejudice to Jimerson's defense. United

States v. Blankenship, 382 F.3d 1110, 1123 (11th Cir. 2004), cert. denied, No. 04-

9437, 2005 WL 753910 (2005). There is no indication in this case that the jury

was unable to segregate the evidence as to each appellant and render a fair and

impartial verdict. See id. (noting there is a "strong presumption . . . that jurors are

able to compartmentalize evidence by respecting limiting instructions specifying

the defendants against whom the evidence may be considered"). Because Jimerson

has failed to show that he suffered specific and compelling prejudice, we affirm the

district court's denial of his motion to sever.

       Dukes and Jimerson both challenge the validity of their sentences. Each

appellant objected at sentencing to the district court's application of sentencing

enhancements based upon facts that were not admitted by them or found by a jury

beyond a reasonable doubt. Because the appellants have preserved this argument

for appeal, we review their sentences de novo but reverse only if the district court

committed an error that was not harmless. United States v. Paz, 405 F.3d 946, 948

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

       In United States v. Booker, 543 U.S. ___, ___, 125 S. Ct. 738, 746 (2005),



consider this evidence in any way against Mr. Jimerson." Trial Tr. at 794.

                                                7
the Supreme Court held that a district court violates a defendant's Sixth

Amendment right to a jury trial when, under a mandatory sentencing guidelines

regime, the court uses facts not admitted by the defendant or found by the jury in

order to apply a sentencing enhancement. See also United States v. Rodriguez, 398

F.3d 1291, 1297–98 (11th Cir.), cert. denied, 125 S. Ct. 2935 (2005). Booker error

may be constitutional—enhancing a sentence under a mandatory sentencing

guidelines regime based on facts neither admitted by the defendant nor found by a

jury—or statutory—imposing a sentence under a mandatory, rather than advisory,

sentencing guidelines regime, even if the sentence is not enhanced, where the

entire sentencing guidelines regime has been held advisory only, as the federal

sentencing guidelines were in Booker. United States v. Mathenia, 409 F.3d 1289,

1291 (11th Cir. 2005). Constitutional Booker error is harmless "where the

government can show, beyond a reasonable doubt, that the error did not contribute

to the defendant's ultimate sentence." Id. at 1291–92. On the other hand, statutory

Booker error is harmless if, after viewing the proceedings in their entirety, we are

convinced the error had no—or only very slight—effect on a defendant's sentence.

Id. at 1292.

      With respect to Dukes's claim, the district court committed constitutional

Booker error when it made several factual findings that it used to enhance Dukes's



                                          8
sentence under the then-mandatory sentencing guidelines regime. See Rodriguez,

398 F.3d at 1300 (“The error is that there were extra-verdict enhancements used in

a mandatory guidelines system.”). Because the government has not met its burden

to show beyond a reasonable doubt that this error did not contribute to Dukes's

ultimate sentence, we vacate Dukes's sentence and remand her case for

resentencing done in a manner consistent with Booker.

      Because we are remanding to the district court for resentencing and Dukes’s

appeal raised several guidelines issues, we also note that the district court correctly

calculated Dukes’s guidelines range as 37 to 46 months. See United States v.

Crawford, 407 F.3d 1174, 1178 (11th Cir. 2005) (stating that after Booker, district

courts must consult the guidelines and “[t]his consultation requirement, at a

minimum, obliges the district court to calculate correctly the sentencing range

prescribed by the Guidelines”). The district court properly applied the following

enhancements in calculating Dukes’s guidelines range: seven-level enhancement

for the loss amount of $173,825; two levels for being a leader/organizer; two levels

for abuse of position of trust; and two levels for obstruction of justice. Thus, we

affirm the district court’s guidelines calculations.

      In particular, we note that the government has presented sufficient evidence

in this case to warrant application of an enhancement for obstruction of justice



                                            9
under § 3C1.1 of the sentencing guidelines, despite Dukes's arguments to the

contrary. Section 3C1.1 provides for a two-level enhancement to a defendant's

base offense level if, during the investigation of her offense, she willfully impedes

or obstructs, or attempts to impede or obstruct, the administration of justice. The

application notes set forth a non-exhaustive list of conduct to which the

enhancement may apply, including "threatening, intimidating, or otherwise

unlawfully influencing a co-defendant [or] witness, . . . directly or indirectly, or

attempting to do so." United States Sentencing Guidelines Manual § 3C1.1, cmt.

n.4(a) (1998). Encouraging a witness not to cooperate with an investigation may

justify application of an obstruction enhancement. See United States v. Rudisill,

187 F.3d 1260, 1264 (11th Cir. 1999). The evidence in this case demonstrated that

after Merritt was first interviewed by a Senior Investigator with the Georgia

Department of Human Resources Office of Investigative Services, Dukes

instructed Merritt to deny all knowledge of and involvement in their conspiracy to

defraud DFACS.2 In an effort to impede discovery of her conspiracy with Merritt,

Dukes succeeded in convincing Merritt to deny wrongdoing during initial

questioning by state investigators. In these circumstances, a two-level

enhancement for obstruction of justice was appropriate when the district court


       2
       Merritt testified that Dukes instructed her to "just keep denying it" when Merritt
informed Dukes that Merritt had been interviewed by a state investigator. Trial Tr. at 270.

                                               10
calculated the guidelines sentencing range, which the court must do to have

reliable guidance to assist it in pronouncing a reasonable sentence in accordance

with Booker. See Crawford, 407 F.3d at 1178. Accordingly, on remand, the

district court is required to sentence Dukes under an advisory guidelines regime

and shall consider the guidelines range of 37 to 46 months’ imprisonment and

“other statutory concerns as well, see [18 U.S.C.] § 3553(a) (Supp. 2004).”

Booker, __ U.S. at __, 125 S. Ct. at 757.

      With respect to Jimerson's claim, there was no constitutional Booker error

because the facts supporting the enhancements to his sentence were alleged in the

indictment and found by the jury. Specifically, the indictment alleged and the jury

found that as a result of Jimerson's fraudulent conduct, his day-care facility was

illegally paid $128,791. These facts are sufficient to support the application of a

§ 2F1.1(b)(1)(H) enhancement for a loss exceeding $120,000. The indictment

further charged Jimerson with more than forty counts of welfare and social security

fraud over a two-year period. These facts are sufficient to support the application

of a § 2F1.1(b)(2)(A) enhancement for more than minimal planning. Thus, the

district court properly calculated Jimerson’s guidelines range as 18 to 24 months.

Because the district court applied the sentencing guidelines in a mandatory rather

than advisory fashion, however, there was statutory Booker error.



                                            11
      Viewing the proceedings in their entirety, we are not convinced that the

district court's statutory Booker error was harmless. Where it is not clear that the

court would have imposed the same sentence whether the guidelines were

mandatory or advisory, the government cannot show that the statutory Booker

error was harmless. United States v. Davis, 407 F.3d 1269, 1271–72 (11th Cir.

2005) (per curiam). Generally, we have concluded that a statutory Booker error is

harmless when the district court has indicated that it would impose the same

sentence under either a mandatory or advisory sentencing guidelines scheme. See,

e.g., United States v. Mejia-Giovani, 416 F.3d 1323, 1327 (11th Cir. 2005) (per

curiam); Mathenia, 409 F.3d at 1292–93; United States v. Petho, 409 F.3d 1277,

1280 (11th Cir. 2005) (per curiam). Here, the court did not indicate that it would

impose the same sentence if the guidelines were advisory. Although the court

stated that the chances were "very, very low" that it would reconsider Jimerson's

sentence, this comment was made in the context of the court's ruling on Jimerson's

request for an appeal bond. Sent. Tr. at 23. This comment alone is not sufficient

to show that the statutory Booker error had no—or only slight—effect on

Jimerson's sentence. In these circumstances, the government has not carried its

burden to show that the statutory Booker error was harmless. Accordingly, we

vacate Jimerson's sentence and remand his case for resentencing. On remand, the



                                          12
district court is required to sentence Jimerson under an advisory guidelines regime

and shall consider the guidelines range of 18 to 24 months’ imprisonment and

“other statutory concerns as well, see [18 U.S.C.] § 3553(a) (Supp. 2004).”

Booker, __ U.S. at __, 125 S. Ct. at 757.

       We AFFIRM Dukes's and Jimerson's convictions and VACATE their

sentences and REMAND for resentencing to be done in a manner consistent with

Booker.3




       3
         We do not mean to suggest by our holding that the district court must impose any
particular sentence on remand or that the sentences given were unreasonable. Rather, we merely
hold that the government has not met its burden to show that the Booker errors were harmless.

                                              13
