                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              DEC 28, 2006
                               No. 06-10938                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                   D. C. Docket No. 03-00747-CR-3-ODE-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

PHIL CARON GIVENS,

                                                           Defendant-Appellant.


                         ________________________

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

                             (December 28, 2006)

Before DUBINA, CARNES and WILSON, Circuit Judges.

PER CURIAM:

     Phil Caron Givens (“Givens”) appeals his convictions and sentence for
conspiracy to possess with intent to distribute at least 1,000 kilograms of

marijuana, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(vii), and attempted

possession with intent to distribute at least 1,000 kilograms of marijuana, in

violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(vii) and 18 U.S.C. § 2. Givens

argues that there was insufficient evidence at trial to convict him of either count.

Givens also argues that at sentencing the district court erred in determining the

drug quantity attributable to him. Givens further argues that his sentence is

unreasonable because it is “substantially disparate” from the sentences that his co-

defendants received. Upon review of the record and upon consideration of the

parties’ briefs, we discern no reversible error.

                                   BACKGROUND

      On July 28, 2004, a federal grand jury returned a second superceding

indictment charging Givens and four co-defendants with conspiracy to possess

with the intent to distribute at least 1,000 kilograms of marijuana, in violation of 21

U.S.C. §§ 846 and 841(b)(1)(A)(vii), and attempted possession with intent to

distribute at least 1,000 kilograms of marijuana, in violation of 21 U.S.C. §§ 846

and 841(b)(1)(A)(vii) and 18 U.S.C. § 2. Prior to trial, three co-defendants pled

guilty. Givens was tried together with co-defendant Raul Moreno Zunigo.

      At trial, the evidence established the following. In late October 2003, a



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confidential informant (“CI”) working with Special Agent Alfredo Ibanez, United

States Bureau of Immigration and Customs Enforcement (“ICE”), was contacted

by co-defendant Jose Burnias (“Jose”). Jose asked the CI if he knew anyone who

could transport a large amount of marijuana from Texas to North Carolina. The CI

said that he would look into it and immediately contacted Agent Ibanez. Agent

Ibanez, through the CI, planned a controlled delivery, wherein a tractor trailer

owned by ICE would transport the marijuana to North Carolina. Once there, ICE

agents would arrest or identify other individuals involved in the drug trafficking

operation. Agent Ibanez then arranged to pick up the marijuana. After Agent

Ibanez successfully coordinated the pick up of the van containing the marijuana,

Agent Ibanez took the van to a secure government facility. The estimated weight

of the marijuana was 2,650 pounds.

      In November 2003, co-defendant Michael Burnias (“Michael”), Jose’s

brother, contacted Givens about purchasing some of the marijuana that was going

to be delivered to North Carolina. Givens agreed to purchase one hundred pounds

for $50,000. Since there was such a large quantity of marijuana being transported

to North Carolina, Michael testified that he discussed with Givens the possibility of

Givens purchasing another five to six hundred pounds.

      On December 3, 2003, the tractor trailer, driven by a special crimes



                                          3
investigator, departed Texas for North Carolina. Michael kept Givens informed

about status of the marijuana transport. Michael told Givens that he needed

$35,000 in payment up front for the one hundred pounds that Givens had agreed to

purchase. Michael intended to use the money to pay the person transporting the

marijuana upon the driver’s arrival in North Carolina.

      While in route to North Carolina, Jose told the special agent transporting the

marijuana that he was now to deliver the marijuana to Atlanta, Georgia instead of

North Carolina. Michael notified Givens of the change in plans. Michael told

Givens that he did not have a place to off load the marijuana once it reached

Atlanta. Givens informed Michael “that he had the perfect spot” to unload the

truck. (R-9 at 456). Givens assured Michael that he was on his way to Atlanta

with the money.

      On December 7, 2003, Givens met Michael in Atlanta and lead him to the

place that Givens had selected to off load the marijuana. After scouting the

designated site, Michael gave the directions to Jose and told him to give the

directions to the driver who was transporting the marijuana. Later that day, all the

defendants arrived at the designated site. Givens arrived in a white van. The truck

carrying the marijuana arrived and Givens and the other defendants began to off

load the marijuana, which was wrapped in plastic and grey duck tape. At one



                                          4
point, Givens became concerned about a white truck that was parked nearby.

Givens thought that it might be the police and went to check out the truck. Givens

returned satisfied that it was not the police. Givens continued to off load the

marijuana.

      When the police moved in to arrest the defendants, Givens ran to his van in

an attempt to flee. Givens was unable to start the van and then ran towards a

wooded area. Given was apprehend by an ICE agent soon after he entered the

woods.

      After Givens was arrested, he was taken to the Atlanta Pretrial Detention

Center. Keith Jones shared the same housing unit with Givens and testified at trial

that Givens told him the details about why he was incarcerated. Jones testified that

Givens told him about the truck carrying approximately three thousand pounds of

marijuana. Jones testified that Givens claimed responsibility for one thousand six

hundred pounds of marijuana and also told Jones that Givens had planned to steal

the entire load of marijuana from his co-defendants. The net weight of the

marijuana that was seized at the scene was later determined to be 1,314.45

kilograms. The jury convicted Givens and his co-defendant on both counts.

      Prior to sentencing, the probation officer prepared a presentence

investigation report (“PSI”), which calculated Givens’s base offense level as 32,



                                          5
pursuant to U.S.S.G. § 2D1.1(c)(4). The probation officer determined that Givens

was responsible for 1,314.45 kilograms of marijuana. The probation officer

determined that Givens had 11 criminal history points, resulting in a criminal

history category of V and an advisory sentencing range of 188 to 235 months.

         At sentencing, Givens argued that because he was not involved at the outset

of the conspiracy, and because his name was not mentioned by any of the co-

defendants until the offense conduct took place in Georgia, the scope of his

involvement was limited to the one hundred pounds of marijuana that he had

intended to purchase. Givens asserted that one hundred pounds was equivalent to

approximately forty-five kilograms, and thus, Givens’s base offense level should

be 20.

         The government responded that Givens should be held responsible for the

entire 1,314.45 kilograms seized as a result of the controlled delivery. The

government argued that the jury had found Givens responsible for at least one

thousand kilograms of marijuana. The government further argued that Givens

conspired with the other co-defendants to execute the delivery and assisted with the

delivery up until the arrests had occurred.

         Based on the evidence presented at trial, the district court found that Givens

was responsible for 1,314.45 kilograms of marijuana. Specifically, the court found



                                              6
that there was evidence that Givens had arranged to purchase one hundred pounds

of marijuana. The court also found that the evidence clearly showed that Givens

was aware that the amount of the marijuana being transported was much larger

than one hundred pounds. The court determined that the advisory Guideline range

was 188 to 235 months. The court sentenced Givens to 188 months’ imprisonment

and five years’ supervised release for each count, to be served concurrently. The

court noted that the sentence was reasonable in light of the Guidelines and after

considering the level of Givens’s participation in the offense and his extensive

criminal history.

                             STANDARD OF REVIEW

      We review de novo “whether there is sufficient evidence to support the

jury’s verdict.” United States v. Ortiz, 318 F.3d 1030, 1036 (11th Cir. 2003) (per

curiam). On review, the evidence is viewed “in the light most favorable to the

government, with all reasonable inferences and credibility choices made in the

government’s favor.” Id. (quotation omitted). “[W]e are bound by the jury’s

credibility determinations, and by its rejection of the inferences raised by the

defendant.” United States v. Peters, 403 F.3d 1263, 1268 (11th Cir. 2005).

      A district court’s determination of drug quantity used to establish a

defendant’s base offense level is reviewed for clear error. United States v.



                                           7
Simpson, 228 F.3d 1294, 1298 (11th Cir. 2000). We review a defendant’s ultimate

sentence, in its entirety, for unreasonableness in light of the factors in 18 U.S.C. §

3553(a). See United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005)

(per curiam).

                                    DISCUSSION

      1.      Sufficiency of the Evidence

      Givens argues that there was insufficient evidence to convict him of

conspiracy to possess with intent to distribute at least 1,000 kilograms of

marijuana, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(vii), and attempted

possession with intent to distribute at least 1,000 kilograms of marijuana, in

violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(vii) and 18 U.S.C. § 2. Givens

contends that at the time of his arrest, he was only present with the co-defendants

because he had agreed to purchase one hundred pounds of marijuana. Givens

further argues that the testimony of his co-defendants and the jailhouse informant

was not credible and failed to establish that he had prior knowledge of the

conspiracy.

      In order to sustain a conviction for conspiracy to possess marijuana with

intent to distribute, the government must prove beyond a reasonable doubt that

“(1) an illegal agreement existed; (2) the defendant knew of it; and (3) the



                                            8
defendant, with knowledge, voluntarily joined it.” United States v. McDowell, 250

F.3d 1354, 1365 (11th Cir. 2001). The government may establish such proof with

circumstantial evidence, and the jury may infer a common plan or scheme from the

parties’ conduct or other circumstances. United States v. Hogan, 986 F.2d 1364,

1374 (11th Cir. 1993). It is not necessary that the government prove the defendant

knew or participated in every essential stage of the conspiracy. United States v.

Brito, 721 F.2d 743, 746 (11th Cir. 1983).

      In order to sustain a conviction for attempted possession with the intent to

distribute marijuana, the government must prove beyond a reasonable doubt that

Givens “(1) acted with the kind of culpability required to possess [marijuana]

knowingly and wilfully and with the intent to distribute it; and (2) engaged in

conduct which constitutes a substantial step toward the commission of the crime

under circumstances strongly corroborative of their criminal intent.” McDowell,

250 F.3d at 1365.

      The evidence supports that (1) Givens knew of a plan to transport a

truckload of marijuana from Texas to North Carolina; (2) Givens agreed to

purchase one hundred pounds of marijuana and promised to pay $35,000 up front,

knowing that the money was needed to pay for transportation of the marijuana; (3)

Givens was in contact with a co-defendant throughout the shipment of the load and



                                          9
personally arranged the delivery site for the marijuana in Atlanta; (4) Givens

helped unload the marijuana from the truck and acted as a look-out; and (5) Givens

claimed responsibility for over one thousand pounds of marijuana and expressed

his intent to steal the entire load from his co-defendants. Accordingly, in the light

most favorable to the government, there was sufficient evidence to support the

jury’s determination that an agreement existed between Givens and his co-

defendants to violate the narcotics laws, that Givens knew of the conspiratorial

goal, and that Givens knowingly joined and participated in this illegal venture. See

McDowell, 250 F.3d at 1365. Furthermore, in the light most favorable to the

government, there was sufficient evidence to support the jury’s determination that

Givens’s actions were consistent with a person who knowingly and wilfully

possessed marijuana and intended to distribute it, and that Givens engaged in

conduct that constituted a substantial step towards the commission of this crime.

See id.

      As to Givens’s arguments regarding the credibility of the testimony of his

co-defendants and the jailhouse informant, the jury members were instructed by the

district court that as the sole judges of witness credibility, they were free to believe

or disbelieve any testimony heard during the trial. In finding Givens guilty of the

two counts, the jury found the testimony of the co-defendants and the jailhouse



                                           10
informant credible and rejected Givens’s assertions that he had no knowledge of

the agreement and was only present with his co-defendants because he wanted to

purchase a small amount of marijuana. We are bound by the jury’s credibility

determinations. Peters, 403 F.3d at 1268. Accordingly, we affirm Givens’s

convictions.

         2.    Calculation of the Drug Quantity

         Givens argues that the testimony of his co-defendants establishes that he was

only responsible for one hundred pounds of marijuana. He asserts that only the

jailhouse informant stated that he had a larger role in the conspiracy, and argues

that the informant is not a reliable witness because he was not a participant in the

conspiracy and because had an extensive criminal record. Givens contends that the

district court’s error in calculating the drug quantity attributable to him at

sentencing was not harmless because it substantially increased his base offense

level.

         A district court’s determination of drug quantity used to establish a

defendant’s base offense level is reviewed for clear error. Simpson, 228 F.3d at

1298. Pursuant to the Supreme Court’s decision in United States v. Booker, the

Sentencing Guidelines are no longer mandatory. 543 U.S. 220, 264, 125 S. Ct.

738, 767, 160 L. Ed. 2d 621 (2005). Although the Guidelines are advisory, a



                                            11
district court must calculate the advisory sentencing range correctly and must

consider it when determining a defendant’s sentence. United States v. Crawford,

407 F.3d 1174, 1178-79 (11th Cir. 2005). The amount of drugs attributable to a

defendant is determined by assessing the defendant’s relevant conduct. “[I]n the

case of a jointly undertaken criminal activity [relevant conduct includes] . . . 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). If the case involves

drugs, “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.” U.S.S.G. § 1B1.3, cmt. n. 2.

      At sentencing, the district court made an explicit finding that although

Givens had agreed to purchase only one hundred pounds of marijuana, he was fully

aware that the entire deal was much larger, and therefore, it was reasonable to find

him responsible for the entire amount of marijuana involved. The record reflects

that Givens knew that his co-defendants planned to transport a truckload of

marijuana from Texas to North Carolina. Givens received updates on the status of

the shipment and arranged a new delivery site in Atlanta. Givens drove a van to

the delivery location, helped to unload the drugs, and kept watch for suspicious



                                           12
vehicles. Givens also expressed his intent was to take off with the entire shipment.

Based on the evidence in the record, the district court did not clearly err in

attributing the entire load of 1,314.45 kilograms to Givens, and accordingly, did

not err in calculating his base offense level.

      3.     Reasonableness of Sentence

      Givens argues that his sentence is unreasonable because it is “substantially

disparate” from the sentences imposed upon his co-defendants. This Court reviews

a defendant’s ultimate sentence, in its entirety, for unreasonableness in light of the

factors in 18 U.S.C. § 3553(a). See Winingear, 422 F.3d at 1245. “[N]othing in

Booker or elsewhere requires the district court to state on the record that it has

explicitly considered each of the § 3553(a) factors or to discuss each of the §

3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

Instead, indications in the record that the district court considered facts and

circumstances falling within § 3553(a)’s factors will suffice. Id. at 1329-30. We

have held that the “[d]isparity between the sentences imposed on codefendants is

generally not an appropriate basis for relief on appeal.” United States v. Regueiro,

240 F.3d 1321, 1325-26 (11th Cir. 2001) (per curiam).

      Here, the district court imposed a reasonable sentence because it considered

the sentencing factors in § 3553(a) along with the parties’ arguments and, as shown



                                           13
above, it correctly applied the Guidelines. See Crawford, 407 F.3d at 1178-79.

The court specifically stated that it considered the level of Givens’s participation in

the offense and his extensive criminal history in imposing a sentence of 188

months’ imprisonment, which was at the low-end of the Guideline range. Givens’s

argument that his sentence is unreasonable because it is “substantially disparate”

from the sentences of his co-defendants is without merit. The record indicates that

Givens had an extensive criminal record, resulting in a criminal history category of

V and thus, a higher advisory sentencing range than those co-defendants with

lower criminal history scores. Moreover, Givens did not receive an adjustment for

acceptance of responsibility, unlike Jose and Michael, who pled guilty to their

offenses and cooperated with the government by testifying at Givens’s trial.

Accordingly, Givens’s sentence of 188 months’ imprisonment is reasonable.

Accordingly, we find no reversible error and affirm.

      AFFIRMED.




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