226 F.3d 792 (7th Cir. 2000)
UNITED STATES OF AMERICA, Plaintiff-Appellee,v.ODIN D. PAYNE, Defendant-Appellant.
No. 99-3458
In the  United States Court of Appeals  For the Seventh Circuit
Argued April 14, 2000Decided September 1, 2000

Appeal from the United States District Court  for the Eastern District of Wisconsin.  No. 98 CR 103--Rudolph T. Randa, Judge.[Copyrighted Material Omitted]
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge.


1
On June 16, 1998, a grand  jury indicted Odin D. Payne and three others on  charges of conspiracy to manufacture and  distribute marijuana and money laundering. The  other defendants, Chad Nelson, Mike Salinas and  Eli Colon-Rivera, pled guilty to some of the  charges. Payne proceeded to trial, and was  convicted of the drug conspiracy count under 21  U.S.C. sec.sec. 841(a)(1) & 846, but acquitted on  the money laundering counts. He appeals his drug  conspiracy conviction, alleging that the evidence  demonstrated the possibility of multiple  conspiracies and the court failed to provide a  proper instruction, and that the court erred in  calculating his sentence.


2
The trial testimony established an extensive  conspiracy to acquire and distribute marijuana.  Payne used various other persons during the  conspiracy to obtain, store, and distribute  marijuana in the Milwaukee area at his direction.  To maximize profits, Payne sought alternately to  obtain marijuana at lower prices and to obtain  higher-quality marijuana that would command a  higher resale price. He thus traveled, or sent  others, to Texas and California to obtain  marijuana at lower prices, and also obtained  higher-quality marijuana from sources in  Minnesota. The "home-grown" marijuana from  Minnesota proved so profitable that Payne decided  to establish his own growing operation in an  attempt to duplicate the quality. Nelson was the  appointed horticulturist. He initially had  established a growing operation in an attic, but  later Payne with others located a warehouse which  they leased to begin a larger scale marijuana  crop. They purchased 2000 pots for cultivating  marijuana plants, and began construction of the  growing lights and other requirements of a  successful operation. The government raided the  site before the actual plants were introduced.

I.

3
Payne asserts that the evidence at trial  established multiple conspiracies rather than the  one charged in the indictment, and therefore  caused a prejudicial variance between the  allegations in the indictment and the proof at  trial. He further contends that the district  court erred in refusing his multiple conspiracy  jury instruction. We review first his claim that  the court erred in refusing to give his proffered  jury instruction.


4
A defendant is entitled to an instruction on  his theory of defense only if: (1) the proffered  instruction is a correct statement of the law;  (2) the defendant's theory is supported by the  evidence; (3) the asserted defense theory is not  already part of the charge; and (4) the failure  to include the instruction on the defendant's  theory would deny him a fair trial. United States  v. Wilson, 134 F.3d 855, 864 (7th Cir. 1998).  Payne's proposed instruction fails the first  prong in that it was not a correct statement of  the law. The instruction required the jury to  acquit if it found that the conspiracy to which  Payne was a party varied from the conspiracy  charged in the indictment:


5
If you find that a particular defendant was a  member of a separate conspiracy other than the  conspiracy charged in the indictment and do not  find beyond a reasonable doubt that such  defendant was a member of the conspiracy charged  in the indictment, then you must acquit the  defendant.


6
In other words, to find a defendant guilty of the  conspiracy charge, you must find beyond a  reasonable doubt that he was a member of the  conspiracy charged in the indictment, not some  other conspiracy.


7
In Wilson, we held that a nearly identical  instruction was erroneous and should not be  given. Id. at 864-65. As in Wilson, Payne's  instruction would require the jury to acquit if  it found that the conspiracy proven varied from  the conspiracy charged in the indictment. That  ignores the established principle that a  prosecutor may elect to proceed on a subset of  the allegations in an indictment and prove a  conspiracy smaller than the one alleged. Id. at  865; United States v. Duff, 76 F.3d 122, 126 (7th  Cir. 1996). Where a subset of the charged  conspiracy is proven, the variance between the  indictment and the conspiracy proven is not fatal  because the indictment would have adequately  notified the defendant of the government's  accusations. Wilson, 134 F.3d at 865. Because the  proposed instruction suggests that a variance  will always be fatal, "the proposed instruction[  ] always will be incorrect." Id. Accordingly,  Payne was not entitled to the submission of his  proposed instruction because it was not a correct  statement of the law.


8
Moreover, we note that the district court in  fact instructed the jury that the government had  to prove that Payne was part of the conspiracy  charged:


9
To sustain the charge of conspiracy to distribute  or manufacture marijuana, the Government must  prove first that the conspiracy as charged in  Count 1 existed. And second, that the Defendant  knowingly became a member of the conspiracy with  intention to further the conspiracy. And third,  that an overt act was committed by at least one  conspirator in furtherance of the conspiracy.


10
Transcript Vol. 4, p. 802 (emphasis added). We  have held that similar instructions eliminated  any prejudice from the failure to give a multiple  conspiracy instruction. United States v.  Thornton, 197 F.3d 241, 255 (7th Cir. 1999);  United States v. Katalinich, 113 F.3d 1475, 1482-  83 (7th Cir. 1997).


11
Payne contends, however, that there was a  prejudicial variance between the allegations in  the indictment and the proof at trial because the  evidence established multiple conspiracies rather  than the single conspiracy charged in the  indictment. Specifically, Payne asserts that the  evidence at trial established four separate  conspiracies, which are characterized by the  different suppliers of marijuana to Payne and his  conspirators. We have repeatedly held that a  claim of a variance based upon multiple  conspiracies amounts to a challenge to the  sufficiency of the evidence supporting the jury's  finding that the conspiracy charged in the  indictment was proven. United States v.  Polichemi, 219 F.3d 698, 705-06(7th  Cir.2000). Therefore, Payne can succeed  on his variance claim only if he can establish  that the evidence at trial was insufficient to  support the jury's finding of a single conspiracy  and that he was prejudiced by the variance.  Wilson, 134 F.3d at 865.


12
The evidence in this case was more than  sufficient to support the finding of a single  conspiracy. The indictment in this case charged  a conspiracy to manufacture and distribute  marijuana and included the allegation that Payne  would direct couriers to California and/or Texas  for the purpose of acquiring marijuana to  distribute in Wisconsin, and that he made  preparations to establish an indoor marijuana  grow operation. Payne grounds his claim of  multiple conspiracies on the existence of  different suppliers of marijuana. The existence  of multiple suppliers in a conspiracy to  distribute marijuana in one geographic area, here  the Milwaukee area, does not equate with multiple  conspiracies. In fact, the indictment itself  identifies three different potential sources for  the marijuana: Texas, California, and a potential  indoor marijuana grow operation. Payne  nevertheless attempts to parse out multiple  conspiracies based upon the nature of the  supplier. Thus, according to Payne, the first  conspiracy involves suppliers located in  California and Texas, the second conspiracy  involves suppliers in Minnesota, the third  involves suppliers in the Milwaukee area, and the  fourth was the conspiracy named in the  indictment. The first obvious defect in this  argument is that the indictment in fact  identifies the sources in Texas and California,  so his first and fourth conspiracies are  virtually indistinguishable. More fundamentally,  the trial testimony is clear that all of the  transactions identified as separate conspiracies  by Payne were actually part of the same  conspiracy to obtain and distribute marijuana in  the Milwaukee area. There was significant overlap  in the individuals involved in the Minnesota,  Texas, California, and Milwaukee area  transactions, as well as substantial interaction  among those individuals that was unrelated to  those transactions but related to the  distribution scheme as a whole. Thus, the  individuals who participated in the transactions  with those sources did not limit their  involvement in the conspiracy to those  transactions alone, but rather were involved in  a number of ways in other aspects of the  distribution scheme in Milwaukee. The use of  different sources was simply a reflection of the  consistent effort to maximize profits for the  single distribution scheme-- whether by  increasing quality and thus raising resale price  (which motivated the Minnesota transaction and  the indoor grow operation) or by decreasing cost  and thus increasing profit on resale (which  sparked the California and Texas acquisitions).  Therefore, the employment of diverse suppliers  did not evidence "separate agreements to  effectuate distinct purposes" that are the  hallmarks of multiple conspiracies. Katalinich,  113 F.3d at 1482. There was ample evidence here  for a jury to find a single conspiracy.

II.

13
Payne also raises a number of challenges to the  court's determination of relevant conduct in  sentencing him. First, Payne argues that the  court erred in considering acts alleged to have  occurred in 1997 and 1998. His sole argument  against inclusion of those years in calculating  drug weights is that those acts were beyond the  scope of the indictment which was limited to the  years 1993 to 1996. Relevant conduct, however, by  definition can be broader than the conduct  underlying the offense of conviction. In  determining drug weight, the term "relevant  conduct" includes "all acts and omissions that  were part of the same course of conduct or common  scheme or plan as the offense of conviction."  U.S.S.G. sec. 1B1.3(a)(2). Payne raises no  argument to this court that the conduct in 1997  and 1998 was not part of the same course of  conduct (and he would probably have fared poorly  had he made such an argument.) His contention  that relevant conduct cannot include acts  occurring beyond the time frame of the indictment  is unsupported by law.


14
Payne next asserts that the relevant conduct  determination is defective because the court  erred by including the 2000 empty pots intended  for the warehouse grow operation in its drug  weight calculations. The court calculated that  Payne was responsible for 570 kilograms of  marijuana. In reaching that figure, the court  accepted the government's figures that break down  as follows:


15
1993 April 1994...........................40 kilograms
April 1994 July 1998.....................285 kilograms
Chad Nelson attic grow operation...........5 kilograms
Minnesota transactions....................40 kilograms
2000 pots = 2000 plants x 100 grams......200 kilograms
_________________________________________________________
TOTAL RELEVANT CONDUCT...................570 kilograms


16
Thus, the total figure included 200 kilograms  that were attributable to the warehouse grow  operation. That figure was reached by equating  the 2000 empty pots with an intention to  cultivate 2000 marijuana plants. The 2000  marijuana plants are converted under the  guidelines to 200 kilograms of marijuana.  U.S.S.G. sec. 2D1.1 Background. All parties agree  that no actual marijuana plants had yet been  grown at that location. Nevertheless, sec. 2X1.1  of the guidelines instructs the court to apply  the base offense level "for the substantive  offense, plus any adjustments from such guideline  for any intended offense conduct that can be  established with reasonable certainty." That  section directs the court to sec. 2D1.1 for the  calculation of the offense level. Under sec.  2D1.1, the court was required to determine the  amount of marijuana for which Payne was  responsible under the relevant conduct provisions  of sec.sec. 1B1.3 and 2D1.1. Application Note 12  of sec. 2D1.1 provides that


17
[w]here . . . the amount seized does not reflect  the scale of the offense, the court shall  approximate the quantity of the controlled  substance. In making this determination, the  court may consider, for example, . . . similar  transactions in controlled substances by the  defendant, and the size or capability of any  laboratory involved.


18
If the offense involved both a substantive drug  offense and an attempt or conspiracy . . . the  total quantity involved shall be aggregated to  determine the scale of the offense.


19
Therefore, the court could properly examine the  size and capability of the warehouse grow  operation in calculating the relevant conduct.  The focus is on whether the defendant had the  intent to provide the amount of drugs at issue,  and whether the defendant was reasonably capable  of providing them. See, e.g., United States v.  Bertrand, 926 F.2d 838, 845-47 (9th Cir. 1991)  (under same guideline provision, court included  "potential" methamphetamine production of a lab  in calculating drug weight even though one  essential ingredient was not present). An  examination of the facts reveals that Payne  intended to grow a significant amount of  marijuana at that location, and had taken  substantial steps towards realizing that  intention. The government raid on the warehouse  revealed preparations for an extensive grow  operation there. Construction had begun to  transform the area into a space suitable for  growing marijuana, including building a wall and  assembling light racks and a shelving system with  8 foot fluorescent lights attached. The  conspirators had acquired growing lights, a  regulator which regulates CO-2 for indoor growing  operations, a chemical additive for paint that  would reduce the penetration of heat through the  walls, as well as the 2000 empty pots that were  intended to hold marijuana plants. The existence  of that equipment supported a finding that Payne  intended to establish a grow operation there of  a substantial size. Moreover, Payne had  demonstrated his ability to coordinate a  successful grow operation with the success of the  attic grow operation undertaken by co-conspirator  Nelson at Payne's direction. Nelson was involved  in the preparations at the warehouse as well.  Therefore, we have here evidence that Payne  intended to grow marijuana plants at the  warehouse, that he had the physical space and the  equipment necessary to begin that operation, and  that he possessed the know-how, through Nelson,  to accomplish that task. Those facts support a  finding to a reasonable certainty that Payne  intended to grow marijuana plants there and was  reasonably capable of doing so.


20
We need not consider whether the court, in  determining relevant conduct, could properly  include all 2000 pots as representing 2000  marijuana plants (and thus 200 kilograms). Payne  falls within the sentencing range of 121-151  months if he is responsible for 400 to 700  kilograms of marijuana. U.S.S.G. sec. 2D1.1(c).  It is undisputed that 370 of the total kilograms  were attributable to sources other than the  intended warehouse operation. The only question,  then, is whether the court could properly  attribute 30 kilograms to that warehouse  operation. We find no error in such a conclusion.  If even 15%, or 300, of the 2000 empty pots were  to be used, then the 30 kilogram figure is met.  The equipment found at the warehouse as well as  the past experience in growing marijuana allowed  the court to find that Payne intended to grow at  least 300 marijuana plants at that location, and  that he had the capability to do so. Accordingly,  the court did not err in determining the  guideline range for sentencing and in sentencing Payne to the low end of that range, 121 months.


21
Because Payne was sentenced to 121 months under  the guidelines, we need not consider Payne's  objections to the 10-year mandatory minimum  sentence held applicable to him under 21 U.S.C.  sec. 841(b). Because his guideline range was  greater than the mandatory minimum, that  provision was not applied to him and did not  affect his sentence in any way.


22
Finally, Payne also complains that the court  erred in increasing his offense level by four  levels pursuant to U.S.S.G. sec. 3B1.1(a) based  upon its determination that he maintained a  supervisory and leadership role in the  conspiracy. This argument is without merit. We  would have to reject the testimony of virtually  every other participant in this conspiracy in  order to reject the court's conclusion that he  acted in a leadership and supervisory role. The  consistent testimony is that Payne was directing  the actions of others in the acquisition and  distribution of drugs and in the collection of  the proceeds. The court's finding is well-  supported by the testimony in this case, and we  find no clear error. See United States v.  Hardemon, 188 F.3d 843, 851 (7th Cir. 1999)  (decision to apply an adjustment for role in the  offense is reviewed for clear error).


23
For the above reasons, we find no reversible  error in the conviction or sentence. The decision  of the district court is affirmed.

