                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 October 22, 2010
                     UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                  Clerk of Court



    UNITED STATES OF AMERICA,

                Plaintiff–Appellee,

    v.                                                  No. 09-3216
                                             (D.C. No. 2:07-CR-20090-KHV-2)
    TONY WASHINGTON,                                     (D. Kan.)

                Defendant–Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, LUCERO, and MURPHY, Circuit Judges.



         Tony Washington was convicted by a jury of one count of conspiracy to

distribute or possess with intent to distribute fifty grams or more of cocaine base

(“crack cocaine”) and marijuana, in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(A)(iii), all in violation of 21 U.S.C. § 846 (“Count One”); and one count of

conspiracy to maintain a residence for the purpose of distributing and using



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
cocaine base and marijuana, in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C.

§ 2, all in violation of 21 U.S.C. § 846 (“Count Four”). 1 He was sentenced to a

term of imprisonment of 300 months on Count One and 240 months on Count

Four, to run concurrently. He appeals his convictions and sentences. Exercising

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.

                                         I

      Washington raises four issues on appeal. He contends: (1) there was

insufficient evidence to support his convictions; (2) the jury instructions omitted

an element of the offenses—the alleged conspirators’ interdependence; (3) neither

the drug quantity that determined his base offense level nor two enhancements the

district court applied were proven by a preponderance of the evidence; and (4) his

sentence was substantively unreasonable and unconstitutional because the

crack/powder cocaine sentencing disparity disproportionately impacts African-

Americans including Washington.

                                         A

      Washington argues that the evidence presented at trial was insufficient

because there was no evidence that he and anyone else acted interdependently,

which is one element of a conspiracy charge under 21 U.S.C. § 846. See United

1
       Although Count One and Count Four charged Washington and his six
co-defendants with conspiracy to distribute cocaine base and marijuana, the jury
instructions and the verdict form referred to cocaine base or marijuana. Further,
throughout his briefs, Washington’s arguments concern only cocaine base. We
therefore do not consider the marijuana aspects of either count.

                                         -2-
States v. Wright, 506 F.3d 1293, 1298 & n.3. (10th Cir. 2007). We review

challenges to the sufficiency of the evidence de novo, viewing the evidence and

drawing all reasonable inferences in favor of the jury’s verdict. Id. at 1297. A

conviction may be reversed only if “no reasonable juror could have reached the

disputed verdict.” United States v. Carter, 130 F.3d 1432, 1439 (10th Cir. 1997).

      Washington argues that, although there was evidence that he and his

co-conspirators had buyer-seller relationships, shared suppliers, and were

competitors, there was no evidence that they acted together for their mutual

benefit. Instead, he argues, each of the conspirators acted for his or her own

benefit. We disagree. The evidence at trial indicated that twice a week over the

course of several months in 2007, Washington pooled his money with that of one

of his indicted co-conspirators, Elton Simmons, and another individual, Travis

Williams, in order to purchase several ounces of powder cocaine. 2 The evidence

further showed that Washington and Simmons would then convert the powder

cocaine into crack cocaine at Washington’s apartment on Appleton Street in

Parsons, Kansas, and sell the crack cocaine to others, including two of their

indicted co-conspirators, Carol Boyce and Carlton Coleman. Boyce testified that

she assisted Washington in the distribution of crack cocaine, either by bringing

him new customers or selling to other people, and that Washington sometimes


2
      At sentencing, the district court found that a total of 680.4 grams of cocaine
was acquired in this manner (1.5 ounces twice per week for eight weeks).

                                         -3-
gave her crack cocaine as compensation for her sales efforts. Boyce also testified

that on three occasions she obtained approximately fourteen grams of crack

cocaine for Washington to distribute, and in return he provided her with crack

cocaine. Coleman also testified that he sold crack for Washington, although the

quantity is unclear.

      Washington points to some contrary evidence, but viewed in the light most

favorable to the verdict, there was sufficient evidence Washington intended to act

together with others “for their shared mutual benefit within the scope of the

conspiracy charged,” which is the hallmark of the interdependence element of a

conspiracy charge. United States v. Caldwell, 589 F.3d 1323, 1329 (10th Cir.

2009) (quotation omitted). This is not a case merely involving a shared supplier,

which we have said is insufficient to establish interdependence. See id. at 1330.

There is more, including selling to others in a cooperative manner, see id., and

acting with others in a mutually beneficial manner for the distribution of crack

cocaine.

      With respect to Count Four, Washington summarily stated in his opening

brief that the evidence was insufficient, but he did not develop any argument or

explain why the evidence was insufficient. And despite the government’s

delineation of such evidence in its response brief, Washington replied merely that

it was improper to use acts that established Count Four to support a conviction on




                                         -4-
Count One. 3 Thus, we do not consider this issue. See Am. Airlines v.

Christensen, 967 F.2d 410, 415 n.8 (10th Cir. 1992) (“It is insufficient merely to

state in one’s brief that one is appealing an adverse ruling below without

advancing reasoned argument as to the grounds for the appeal.”); see also Fed. R.

App. P. 28(a)(4).

                                           B

      Washington’s second argument is that the district court erred when it gave

a jury instruction that omitted an element of the conspiracy offenses: the alleged

conspirators’ interdependence. Because he did not raise this issue at trial, we

review for plain error, which is an error that is plain, affects substantial rights,

and “seriously affects the fairness, integrity or public reputation of judicial

proceedings.” United States v. Duran, 133 F.3d 1324, 1330 (10th Cir. 1998)

(quotation and alteration omitted).

      Applying these standards, we conclude that there was no plain error in the

district court’s instructions. The omission of “interdependence” as a separately

numbered element in a conspiracy instruction is not plainly erroneous provided


3
      To the extent the latter argument is a complaint that Counts One and Four of
the indictment suffered from a multiplicity problem and prejudiced him in the
eyes of the jury, Washington waived the issue by not raising it before trial. See
United States v. Morehead, 959 F.2d 1489, 1506 & n.11 (10th Cir. 1992)
(explaining that multiplicity occurs when multiple counts cover the same criminal
behavior and that, absent pretrial objection to the indictment, review is limited to
the validity of multiple sentences), aff’d en banc, United States v. Hill, 971 F.2d
1461 (10th Cir. 1992).

                                          -5-
that “the instructions as a whole adequately apprized the jury of the need to find

interdependence.” United States v. Heckard, 238 F.3d 1222, 1232 (10th Cir.

2001). The elements instructions referenced an agreement between two or more

persons to distribute crack cocaine and to maintain an apartment for that purpose,

as charged in the indictment, thereby distinguishing the charged conspiratorial

conduct from mere buyer or seller conduct. This point was driven home in

Instruction Number 17: “The mere existence of a buyer-seller relationship does

not establish a conspriacy to distribute or possess with intent to distribute.”

Notably, the jury acquitted Washington on two counts of simple distribution,

which suggests the instructions adequately distinguished the conspiracy charges

from the distribution charges.

      Instruction Number 18 applied to both counts. In it, the district court

instructed the jury that it had to find Washington understood “the unlawful

character of the plan, and intentionally encourage[d], advise[d] or assist[ed] for

the purpose of furthering the plan.” The court further instructed:

      To be a member of the conspiracy, defendant need not know all of
      the other members or all of the details of the conspiracy, or the
      means by which its purposes were to be accomplished. Each member
      of the conspiracy may perform separate and distinct acts. For
      defendant to be a member of the conspiracy, however, the
      government must prove beyond a reasonable doubt that defendant
      was aware of the common purpose and was a willing participant with
      the intent to advance the purposes of the conspiracy. A person who
      has no knowledge of a conspiracy, but just happens to act in a way
      which furthers its objectives or purpose, does not thereby become a
      conspirator.

                                          -6-
(Emphases added.) The reference to an awareness of a “common purpose” and

the requirement that a defendant be a “willing participant with the intent to

advance the purposes of the conspiracy” is analogous to the terminology we

approved in Heckard, 238 F.3d at 1232 (“join together”; “partners in crime”) and

United States v. Russell, 109 F.3d 1503, 1513 (10th Cir. 1997) (“a mutual

understanding to try to accomplish a common and unlawful plan”) as adequate

substitutes for the term “interdependent.”

                                          C

      Washington challenges the district court’s application of the United States

Sentencing Guidelines in determining his sentencing range. He contends that the

base offense level and two enhancements were not proven by a preponderance of

the evidence. In reviewing the court’s application of the Guidelines, we examine

“the district court’s findings of fact for clear error and legal conclusions de

novo.” United States v. Beltran, 571 F.3d 1013, 1020 (10th Cir. 2009). “We will

not disturb a factual finding unless it has no basis in the record[,] and in

reviewing the court’s decision to apply an enhancement, we view the evidence

and inferences therefrom in the light most favorable to the district court’s

determination.” Id. (quotation and alterations omitted).

                                          1

      “The trial court may rely upon an estimate [of drug quantity] to establish

the defendant’s guideline offense level so long as the information relied upon has

                                          -7-
some basis of support in the facts of the particular case and bears sufficient

indicia of reliability.” United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir.

2005) (quotations omitted). Our review of the district court’s calculation of drug

quantity for Guidelines purposes is for clear error. United States v. Todd,

515 F.3d 1128, 1135 (10th Cir. 2008).

      The district court estimated that 889.67 grams of cocaine base was

attributable to Washington, as follows: 42.52 grams obtained for him by Boyce;

81.7 grams seized in a traffic stop of one of his distributors; 85.05 grams based on

$2,600 confiscated from him when he arrived at the home of another conspirator

while law enforcement officers were executing a warrant there; and 680.4 grams

that represented 1.5 ounces, twice a week, for eight weeks that Washington,

Simmons, and Williams purchased with their pooled money. Because the total

was greater than 500 grams but less than 1.5 kilograms, the court determined the

base offense level to be 34 under U.S.S.G. § 2D1.1(c)(3). 4 Although Washington

challenges both the conversion of the $2,600 into 85.05 grams and the estimation

that he, Simmons, and Williams purchased 680.4 grams, he recognizes that only

the challenge to the 680.4 grams can lower the drug quantity below 500 grams

and thereby reduce his base offense level under U.S.S.G. § 2D1.1(c)(4). We

therefore confine our analysis to the 680.4 grams.


4
      All citations to the Guidelines are to the November 1, 2008 edition that was
used for sentencing in this case.

                                          -8-
      Washington contends that he, Simmons, and Williams purchased 1.5 ounces

of cocaine over an eight-week period once every two weeks rather than twice

every week, as the district court found. The district court based that

determination on Simmons’ testimony. Washington points to two exchanges at

trial and argues that the court should have found that the frequency was once

every two weeks. In the first exchange, the prosecutor asked Simmons, “How

often would you or [Williams] go to Coffeyville to get cocaine?” Simmons

responded, “He would go maybe twice a week.” Shortly thereafter, the prosecutor

asked, “[W]as it about every two weeks you would get this cocaine from

Coffeyville?” Simmons replied “Yes.” Simmons also replied in the affirmative

when asked “Travis would make trips to Coffeyville about twice a week?”

      Based on the inconsistency between “twice a week” and “every two

weeks,” Washington seeks a lesser estimate. But the inference the district court

drew from the evidence is certainly not “without factual support.” See Todd,

515 F.3d at 1135. The district court, thus, did not commit clear error with respect

the amount of cocaine base attributed to Washington.

                                          2

      Washington asserts that the evidence was insufficient to support the

three-level enhancement the district court applied for his role in the offense under

U.S.S.G. § 3B1.1(b). That provision states: “If the defendant was a manager or

supervisor (but not an organizer or leader) and the criminal activity involved five

                                         -9-
or more participants or was otherwise extensive, increase by 3 levels.” U.S.S.G.

§ 3B1.1(b). Washington contends that there was no evidence he exercised control

or decision-making authority over another participant.

      In applying the enhancement, the district court relied on testimony that

Coleman, Boyce, and a person named “Misty” conducted drug transactions for

Washington, and evidence that another person, Sandy Kelly, watched the

surveillance monitors at Washington’s apartment. Having reviewed the trial

transcript and Washington’s arguments, we conclude the district court did not

clearly err in its finding that the enhancement applies. 5

                                           3

      The district court also imposed a two-level enhancement for the possession

of a firearm under U.S.S.G. § 2D1.1(b)(1), finding that “clearly there were guns

in proximity to the drugs and the residence where the drugs and drug proceeds

were stored as well as drug paraphernalia.” In order for this enhancement to

apply, “the government must show a temporal proximity between a weapon, the

5
       In his reply brief, Washington reiterates his multiplicity argument, see
supra note 3, contending that to the extent evidence necessary to convict on Count
Four was used at sentencing to support the enhancement for his role in the
offense, he was subject to double jeopardy. Despite his failure to raise a pretrial
objection to the indictment on multiplicity grounds, we may review this argument
because it pertains to his sentence, not his conviction. See Morehead, 959 F.2d
at 1506 & n.11. Nonetheless, there is a clear distinction between his conspiracy
to maintain the Appleton Street apartment as a crack house and his exercise of
authority over Boyce, Coleman, and “Misty” with regard to distribution of
cocaine, and over Kelly with regard to the manner in which the crack house
functioned. Accordingly, we see no multiplicity problem.

                                          -10-
drug trafficking activity, and a defendant.” Beltran, 571 F.3d at 1021. “If the

government meets its burden, this enhancement should be applied unless a

defendant can show that it is clearly improbable that the weapon was possessed in

connection with a drug offense.” Id. (quotation omitted).

      The district court properly applied the enhancement. The record contains

substantial evidence of temporal proximity between firearms, drug trafficking

activity, and Washington, and he has not shown that it was clearly improbable

that the weapons were possessed in connection with a drug offense.

                                         D

      Washington’s final contention concerns the district judge’s refusal to grant

his request for a downward variance based on the disparate impact the

crack/powder sentencing disparity has on African-Americans. The court stated:

      I’m not going to grant a variance based on the argument about the
      crack and powder cocaine discrepancy. I think if and when the drug
      guidelines are . . . revised and made retroactive, you know that drill,
      we know how to adjust them and we’ve been through that in the past.
      I’m going to go by the guidelines which are applicable to this offense
      conduct.

      To the extent Washington has framed his challenge to the court’s refusal to

grant a downward variance as a violation of his equal protection rights or

substantive due process, we have previously rejected such arguments, see, e.g.,

United States v. Williamson, 53 F.3d 1500, 1530 (10th Cir. 1995) (equal

protection); United States v. Turner, 928 F.2d 956, 960 (10th Cir. 1991)


                                        -11-
(substantive due process), and we may not overrule those decisions “absent

en banc consideration or a superseding contrary decision by the Supreme Court,”

Mendiola v. Holder, 585 F.3d 1303, 1310 (10th Cir. 2009) (quotation omitted).

We therefore review only whether the district court abused its discretion in

denying the variance. See Beltran, 571 F.3d at 1018.

       Where a district court acknowledges its discretion to depart from the

Guidelines’ calculation of a base offense level resting on the quantity of crack

cocaine but concludes that a departure is unwarranted under the defendant’s

circumstances, nothing mandates that the court “reduce a defendant’s sentence in

order to eliminate the crack/powder sentencing disparities.” United States v.

Caldwell, 585 F.3d 1347, 1355 (10th Cir. 2009), cert. denied, No. 09-11496, 2010

WL 2516004, (U.S. Oct. 4, 2010). Here, the district court was aware of its

discretion to depart from the Guidelines but emphasized that it was going to apply

the Guidelines “applicable to this offense conduct.” In doing so, it is apparent the

court concluded that a departure was unwarranted under Washington’s

circumstances. Accordingly, the court did not abuse its discretion in denying the

variance. 6

6
       We note that the Fair Sentencing Act of 2010 was enacted on August 3,
2010, to “restore fairness to Federal cocaine sentencing.” Pub. L. No. 111-220,
124 Stat. 2372, 2372 (the “Act”). But in relevant part, the Act only increased the
minimum quantity of cocaine base, from 50 grams to 280 grams, necessary to
trigger a ten-year minimum sentence. See id., § 2, 124 Stat. at 2372. This in
effect reduced the statutory crack/powder cocaine disparity from 100:1 to
                                                                      (continued...)

                                        -12-
                                        II

      The judgment is AFFIRMED.


                                                   Entered for the Court



                                                   Carlos F. Lucero
                                                   Circuit Judge




6
 (...continued)
approximately 18:1, as five kilograms or more of powder cocaine is necessary to
trigger the same minimum sentence under 21 U.S.C. § 841(b)(1)(A)(ii).
Because Washington’s sentence was based on more than 280 grams of cocaine
base, the Act alone does not affect his mandatory minimum sentence or his
Guidelines sentence, even if the Act is considered retroactive or applicable to
cases on direct review, a determination we need not and do not make. However,
the Act provides emergency authority for the United States Sentencing
Commission (the “Commission”) to “promulgate the guidelines, policy
statements, or amendments provided for in this Act as soon as practicable and in
any event not later than 90 days after the date of enactment of this Act” and to
“make such conforming amendment to the Federal sentencing guidelines as the
Commission determines necessary to achieve consistency with other guideline
provisions and applicable law.” Pub. L. No. 111-220, § 8, 124 Stat. at 2374.
Thus, if the Commission lowers the sentencing range on which Washington’s
sentence is based, he may be entitled to seek modification of his term of
imprisonment under 18 U.S.C. § 3582(c)(2).


                                       -13-
