                             UNPUBLISHED ORDER
                          Not to be cited per Circuit Rule 53




            United States Court of Appeals
                              For the Seventh Circuit
                              Chicago, Illinois 60604

                             Submitted March 28, 2006*
                              Decided March 29, 2006

                                       Before

                       Hon. RICHARD A. POSNER, Circuit Judge

                       Hon. FRANK H. EASTERBROOK, Circuit Judge

                       Hon. TERENCE T. EVANS, Circuit Judge

Nos. 05-1506 & 05-1837
                                               Appeals from the United States
UNITED STATES OF AMERICA,                      District Court for the Southern
    Plaintiff-Appellee,                        District of Indiana, Indianapolis
                                               Division
       v.
                                               Nos. 1:04CR00028-005 & 006
COREY L. HOWARD and
ANTHONY THOMAS,                                David F. Hamilton,
    Defendants-Appellants.                     Judge.

                                      ORDER

       Anthony Thomas pleaded guilty to conspiracy and Corey Howard was found
guilty by a jury for participating in a conspiracy to distribute more than five
kilograms of a cocaine mixture in violation of 21 U.S.C. § 841(a)(1), 846, and 851. In
this consolidated appeal, Thomas argues that the district court improperly denied
his motion to withdraw his guilty plea because he provided fair and just reasons for
withdrawal. Howard in turn argues that the evidence did not support his conviction
for conspiracy, and that the jury instructions misleadingly allowed the jury to

       *
        On December 5, 2005, we granted the defendants’ motion to waive oral
arguments. Therefore, the appeal is submitted on the briefs and the record. See
Fed. R. App. P. 43(f).
Nos. 05-1506 & 05-1837                                                          Page 2

conclude that several distinct conspiracies were part of a single conspiracy. We
affirm as to both defendants.

                                       Thomas

        In February 2004, Thomas was indicted for conspiring with others to
distribute more than five kilograms of a substance containing cocaine. He initially
pleaded not guilty, but later changed his plea and agreed that a sentence between
168 and 210 months’ imprisonment would be appropriate. Thomas also agreed to
waive his right to appeal his conviction and sentence or to collaterally attack his
sentence. The district court conducted a plea colloquy and then accepted Thomas’s
guilty plea. Before sentencing, however, Thomas retained new counsel and moved to
withdraw his plea, arguing that his initial willingness to plead had been based on
prior counsel’s incorrect estimate of his likely sentence. Specifically, he asserted
that his original counsel told him that he would not receive a better plea agreement
if he proceeded to trial, but later he learned that several coconspirators who went to
trial received better plea offers. The court denied the motion, finding that Thomas
knowingly and voluntarily entered into the plea agreement. The court sentenced
Thomas to 180 months’ imprisonment—the middle of the range outlined in his plea
agreement.

       On appeal, Thomas reiterated that prior counsel rendered ineffective
assistance when he incorrectly predicted the sentence. Ineffective assistance of
counsel is a valid reason to withdraw a guilty plea because it renders the plea
involuntary. United States v. Carroll, 412 F.3d 787, 793 (7th Cir. 2005). To
establish ineffective assistance in a plea bargain, a defendant must establish that
counsel failed to learn facts about the case or failed to make a good-faith estimate of
the likely sentence. United States v. Cieslowski, 410 F.3d 353, 359 (7th Cir. 2005).
Although “a gross mischaracterization of the sentencing consequences of a plea” may
indicate that counsel performed deficiently, id., a counsel’s “mere inaccurate
prediction of a sentence” does not, United States v. Martinez, 169 F.3d 1049, 1053
(7th Cir. 1999).

       The prediction of Thomas’s prior counsel that the government would seek a
longer sentence if Thomas proceeded to trial was not a gross mischaracterization of
the consequences of his plea. Thomas asserts that his counsel advised him that the
government may seek a longer sentence. While counsel may have overestimated the
risk of the longer sentence, Thomas acknowledges that he was aware that it was
possible that the government would not adjust the sentence. Rather than face that
possibility, Thomas accepted counsel’s advice and chose to avoid the risk of a longer
sentence by pleading guilty. Notably, Thomas does not allege that counsel failed to
advice him in good-faith or to discover any facts that would have been relevant to his
Nos. 05-1506 & 05-1837                                                           Page 3

case. Counsel’s advice about the risks of a longer sentence, even if incorrect, was not
objectively unreasonable.

                                       Howard

       As for Howard, he was convicted by a jury of conspiring to distribute more
than 50 kilograms of cocaine. One of the issues at trial was whether Howard was
involved in a single conspiracy or multiple conspiracies. Prentice Greer, the
government’s main witness, testified that Howard was one of several distributors
who helped sell cocaine that Greer had been receiving from a single source for more
than five years. Greer said that Howard distributed cocaine for more than two years
beginning five years before the trial, but that Howard stopped distributing for him
for two years. Greer stated that Howard rejoined his operation and resumed
distributing several months before being arrested.

       Howard now challenges whether the evidence produced by the government at
trial was sufficient to establish a single conspiracy. He argues that there is a “fatal
variance” between the charge of a single conspiracy and facts that the government
established at trial of multiple independent conspiracies. Specifically, Thomas
argues that the evidence showed that he left the conspiracy and stopped selling
cocaine for two years, and when he returned another conspiracy involving different
participants was taking place.

       A fatal variance exists only if no reasonable jury could find the evidence
sufficient to establish that the defendant participated in a single, charged
conspiracy, and the defendant was prejudiced by the variance. United States v.
Stigler, 413 F.3d 588, 592 (7th Cir. 2005); United States v. Messino, 382 F.3d 704,
709 (7th Cir. 2005). A defendant is guilty of conspiracy when two or more people
agree to commit a crime, and the defendant knowingly and intentionally joins the
agreement. Stigler, 413 F.3d at 592. We review the evidence in a light most
favorable to the government. Messino, 382 F.3d at 709.

       The government’s evidence at trial demonstrated that Greer operated within a
single ongoing conspiracy for more than five years and that Howard left and rejoined
the same conspiracy. First, the government introduced Greer’s testimony that he
consistently received cocaine from the same source—a man named “Tupo” from
Mexico—and that Howard was one of the distributors of that cocaine beginning more
than five years earlier. Although Greer testified that Howard stopped distributing
for two years, Greer also stated that when Howard returned to the operation they
were still distributing the drugs obtained from Tupo. The government also produced
several transcripts of telephone conversations after Howard’s return to the operation
that established that Howard was once again distributing the cocaine that Greer
received from Tupo. A reasonable jury could determine that Greer ran a single
Nos. 05-1506 & 05-1837                                                           Page 4

conspiracy in which drugs were obtained from the same Mexican source for more
than five years, and that the conspiracy was ongoing during the time that Howard
left and later rejoined it.

       Howard also challenges the sufficiency of the evidence that he was involved in
a conspiracy to sell a quantity more than 50 kilograms of cocaine. He argues that
the evidence showed only that he was involved in several conspiracies to distribute
smaller amounts—the sum of which did not amount to more than 50 kilograms.

       A conspirator is responsible not only for the drug amounts in which he was
directly involved, but also for reasonably foreseeable amounts in coconspirators’
transactions. United States v. McLee, 436 F.3d 751, 765 (7th Cir. 2006). The jury
here reasonably concluded that Howard could foresee that the conspiracy involved
more than 50 kilograms. The government presented transcripts of telephone
conversations in which Howard and Greer discussed amounts of cocaine well beyond
those with which he was directly involved. The government also presented Greer’s
undisputed testimony that he delivered nine ounces of cocaine to Howard every two
months for two years, and that in the months before his arrest, he delivered cocaine
to Howard many times, including five kilograms at one point.

      Finally, Howard argues that the district court tendered overbroad jury
instructions of multiple conspiracies that would allow a jury to consider activities
beyond the scope of the charged conspiracy. He contends that if the jury considered
cocaine sales beyond the scope of the charged conspiracy, he could end up being
convicted for these sales a second time at a later trial.

       Howard did not object to the jury instructions at trial, so our review is for
plain error. United States v. Peters, 435 F.3d 746, 754 (7th Cir. 2006). We will
affirm jury instructions that fairly and accurately summarized the law and are
supported by the record. United States v. Graham, 431 F.3d 586, 589 (7th Cir.
2005). Improper jury instructions rarely justify reversing a criminal conviction
when the defendant did not object in the district court, so the error must be such
that it probably changed the outcome of the trial. Peters, 435 F.3d at 754.

       Here, the instructions do not direct the jury to consider activities beyond the
scope of the charged conspiracy. The instructions stated that to convict Howard, the
jury would need to “find beyond a reasonable doubt that there were two or more
conspiracies and that Mr. Howard was a member of one or more of these
conspiracies,” and the jury would also need to “find beyond a reasonable doubt that
this proven conspiracy was included within the scope of the conspiracy as described
in Count I.” The instruction specifically directed the jury to consider only activities
“within the scope of the conspiracy” in Count I. Additionally, these instructions
Nos. 05-1506 & 05-1837                                                          Page 5

have already been approved as an accurate description of the law for multiple
conspiracies. See United States v. Wilson, 134 F.3d 855, 865 (7th Cir. 1998).

      Accordingly, we AFFIRM the district court’s denial of Thomas’s motion to
withdraw his plea as well as Howard’s conviction.
