           Case: 16-16762   Date Filed: 10/03/2017   Page: 1 of 6


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-16762
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:15-cr-00335-RDP-TFM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

CARLOS RENALDO WARE,

                                                         Defendant-Appellant.

                      ________________________

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

                            (October 3, 2017)

Before HULL, WILSON and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
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      Carlos Ware appeals his sentence of 294 months of imprisonment following

his pleas of guilty to one count of conspiring to distribute cocaine, 21 U.S.C.

§§ 841(a)(1), 846; five counts of using a communication facility unlawfully, id.

§ 843(b); 18 U.S.C. § 2; and one count each of attempting to possess with intent to

distribute five kilograms of cocaine, of possessing with intent to distribute 500

grams of cocaine, and of possessing with intent to distribute a detectable amount of

cocaine, id., 21 U.S.C. § 841(a)(1). Ware contests being held accountable for more

than 50 kilograms of cocaine, see United States Sentencing Guidelines Manual

§ 2D1.1(c) (Nov. 2015); the addition of two points to his criminal history score for

committing his offense while under a criminal justice sentence, see id. § 4A1.1(d);

and the addition of four levels for his aggravating role, see id. § 3B1.1(a). Ware

also argues that his sentence is substantively unreasonable. We affirm.

      The district court did not clearly err in attributing to Ware more than 50

kilograms of cocaine. During Ware’s sentencing hearing, Carlos Bogan testified

that, from May 2014 to May 2015, he sold Ware “[t]wo to four kilo[gram]s” of

cocaine every “two or three weeks”; in May 2015, he negotiated to sell Ware an

additional nine kilograms of cocaine; and between May 2015 and August 2015, he

supplied Ware with indeterminate quantities of cocaine on more than one occasion.

Based on Bogan’s testimony, excluding the nine kilograms and indeterminate

transactions, Ware acquired an average of three kilograms of cocaine every three


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weeks, which totaled 52 kilograms of cocaine. See United States v. Almedina, 686

F.3d 1312, 1315–16 (11th Cir. 2012). The district court made a “fair, accurate, and

conservative estimate[]” of the quantity of cocaine for which Ware was

responsible. See United States v. Zapata, 139 F.3d 1355, 1359 (11th Cir. 1998).

The district court committed no error when it assigned Ware a base offense level of

34 based on his acquisition of more than 50 kilograms but less than 150 kilograms

of cocaine. See U.S.S.G. § 2D1.1(c)(3).

      The district court also did not clearly err by finding that Ware engaged in

conduct relevant to his conspiracy offense while completing his sentence for

conspiring to distribute cocaine and for carrying a firearm during a drug trafficking

offense. See id. § 4A1.1(d). Under the guidelines, the district court could hold

Ware responsible for all acts that were part of a “common scheme or plan as the

offense of conviction.” See id. § 1B1.3(a)(2). Offenses are part of a common

scheme or plan when they are “substantially connected to each other by at least one

common factor, such as common victims, common accomplices, common purpose,

or similar modus operandi.” Id. § 1B1.3, cmt. n.5(B)(i). Ware purchased ecstasy

and half of a kilogram of cocaine from Bogan in 2007 and 2008, when Ware was

on supervised release. As the district court stated, Ware’s conspiracy and earlier

drug purchases involved Bogan as a “common accomplice”; they had a “common

modus operandi” in that “Ware would go to Atlanta, acquire the narcotics, [and]


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bring them back to Montgomery for distribution and resale”; and the offenses had

“a common scheme” because “the purpose of all [the] transactions” was for the

two men to “profit from drug transactions and the drugs coming in from Atlanta.”

Ware argues that the district court failed to account for the long interval between

his transactions with Bogan, but the guidelines use temporal proximity as a factor

in determining whether offenses are part of the same course of conduct, id. § 1B1.3

cmt. n.5(B)(ii), not in determining whether they constitute a common scheme or

plan, id. § 1B1.3 cmt. n.5(B)(i). Because Ware’s conduct occurred “while under a[]

criminal justice sentence” and shared a common pattern and purpose with his

“instant offense,” he was subject to a two-point increase in his criminal history

score. See id. § 4A1.1(d). Unlike in United States v. Maxwell, 34 F.3d 1006 (11th

Cir. 1004), where a defendant’s single sale of cocaine made one year before being

arrested for participating in a scheme to distribute dilaudid did not count as

relevant conduct, id. at 1011, the similarities in Ware’s offenses established that

they were substantially related.

       Ample evidence supported the decision to increase Ware’s offense level for

his role as a leader of the conspiracy. See id. § 3B1.1(a). Ware did not dispute that

the conspiracy involved more than five people. He had to assert control over only

one other participant to constitute a leader, and Ware concedes that he exercised

control over his brother, Twayne Ware, and two coconspirators, Alonzo Prevo and


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Kyon Hall. See id. § 3B1.1 cmt. n.2 & 4. Ware managed the amount of drugs for

the conspiracy by purchasing kilogram quantities of cocaine from Bogan in

Atlanta, Georgia, and transporting the drugs to Montgomery, Alabama. Ware also

exercised substantial control over the conspiracy by selecting who distributed and

sold the cocaine and by arranging drug sales. Ware also directed his brother, Prevo,

Hall, Wallace McCree, Shaffer Wright, and James Hawkins how much and to

whom to sell cocaine; he monitored their transactions; he instructed Wright,

McCree, and Hawkins to cook powder cocaine into cocaine base; and he ordered

his brother to weigh, allocate, and deliver cocaine to stash houses and distributors

in Montgomery. The district court did not clearly err in finding that Ware led the

conspiracy.

      The district court did not abuse its discretion by imposing a sentence within

the advisory guidelines range. Ware controlled a conspiracy involving at least ten

other participants who distributed large quantities of cocaine. Ware may have, in

his words, had a “limited criminal history,” but that was in large part due to his

lengthy incarceration as a young adult for conspiring to traffic the same illegal

substance while carrying a firearm. With an offense level of 37 and criminal

history of III, Ware faced a sentencing range of 262 to 327 months. The district

court reasonably determined that a “midrange sentence . . . of 294 months” was

required to address Ware’s “history and characteristics” and “the circumstances of


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[his] offense,” which involved leading a “very extensive drug conspiracy.” See 18

U.S.C. § 3553(a); United States v. Frazier, 823 F.3d 1329, 1333 (11th Cir. 2016)

(“The district court has discretion to determine how much weight to grant to a

specific § 3553(a) factor.”). Ware argues that the district court failed to consider

his background and family responsibilities, but the district court found that

information “cut both ways, in that [Ware] saw the strife, personal despair, and

other ails of life [involving substance abuse and those who deal drugs,] and

pursued it anyway.” Ware’s sentence, which is well below his statutory maximum

penalty of life imprisonment, is reasonable. See United States v. Gonzalez, 550

F.3d 1319, 1324 (11th Cir. 2008).

      We AFFIRM Ware’s sentence.




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