           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 11, 2008
                                     No. 05-30016
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee

v.

DUNCAN E WILLIAMS

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:03-CR-126-2


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Duncan E. Williams appeals his convictions and sentences imposed
following his jury trial convictions for conspiracy to possess with intent to
distribute five or more kilograms of cocaine and with possession with intent to
distribute and aiding and abetting in the possession with intent to distribute five
or more kilograms of cocaine. Williams was sentenced to a term of imprisonment
of 252 months on each count, the terms to run concurrently.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 05-30016

      Williams argues that the district court erred in denying his motion for a
judgment of acquittal because the evidence was insufficient to support his
convictions. He contends that the drugs were seized from Ramos and that the
only evidence implicating him in the drug trafficking was Ramos’s testimony
given as a result of his cooperation agreement with the Government. Williams
asserts that there was no significant corroborating evidence presented.
      Where, as here, a defendant makes a timely motion for acquittal at the
close of the Government’s case and at the close of all evidence, he has properly
preserved his sufficiency claim. United States v. Williams, 520 F.3d 414, 419
(5th Cir. 2008). Review of the motion for acquittal is de novo and is “narrow.”
Id. at 420 (internal citation and quotation omitted). This court will uphold a
jury's verdict if after viewing the evidence and inferences drawn from it in the
light most favorable to the verdict, a reasonable trier of fact could conclude from
the evidence that the essential elements of the offense were established beyond
a reasonable doubt. Id.
      Ramos’s testimony reflected that Ramos entered into an agreement with
Tony and Williams to transport a large and valuable quantity of cocaine to
Louisiana. The quantity, value, and purity of the drugs involved was evidence
that the conspiracy involved the possession of the cocaine with an intent to
distribute the cocaine. United States v. Cain, 440 F.3d 672, 675 (5th Cir. 2006).
      In addition to Ramos’s testimony, the testimony of the involved officers,
the cell phone records, and particularly the testimony of Williams’s nephew all
supported a determination that Williams participated in the drug conspiracy.
Ramos’s testimony was corroborated by the number of cell phone calls between
Ramos and Williams on the day of the stop, the testimony of Williams’s nephew
that he had seen the limousine at Tony’s house and that he had heard his uncle
discussing the traffic stop of the limousine while they were driving to Louisiana,
and the presence of Williams’s vehicle at the Race Track after Ramos was



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directed there along with the simultaneous departure of the three vehicles
involved in the drug trafficking venture.
      Viewing the evidence in the light most favorable to the verdict, a
reasonable trier of fact could have found that Williams was a member of the
conspiracy to possess with intent to distribute more than five kilograms of
cocaine and that he was in constructive possession of drugs for that purpose.
United States v. Fuchs, 467 F.3d 889, 908 (5th Cir. 2006). The evidence also
supported a conviction for aiding and abetting in the possession of cocaine with
intent to distribute. United States v. Delgado, 256 F.3d 264, 274-75 (5th Cir.
2001). Williams’s convictions are affirmed.
      Williams argues that the district court erred in applying a two-level
increase for his role in the offense pursuant to U.S.S.G. § 3B1.1(c) because the
evidence did not support a finding that he was a manager or supervisor of any
criminal activity. He contends that the Government’s factual assertions in its
objection were contradicted by the trial testimony that it was Tony who was the
leader of the drug trafficking organization.
      The Government concedes that it erroneously represented facts concerning
Williams’s role in the offense in its objections to the presentence report. The
Government asserts that because the district court relied on the incorrect
information provided by the Government in calculating the guidelines range, the
case should be remanded for resentencing to determine whether there should be
an adjustment for Williams’s role in the offense.
      As the Government concedes, Ramos’s trial testimony contradicted the
Government’s assertions concerning Williams’s role in the drug operation, which
were adopted by the probation officer and the district court. The Government
asserted that Williams had recruited Ramos, had given him all the instructions
regarding the operation, had loaded the drugs into the limousine, and had paid
Ramos. Ramos’s testimony reflected that Tony initially recruited him in 2002
and directed that operation. Ramos also testified that, with respect to the

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instant offense, the drugs were stored in Tony’s house, Tony packed and loaded
the drugs into the limousine, and Tony paid Ramos for his services. Although
the evidence reflected that Williams directed some of Ramos’s movements during
the trip, it is not clear that the Government’s inaccurate statement of the
evidence did not affect the district court’s decision to make the adjustment.
Williams has carried his burden of showing that the probation officer relied on
inaccurate information in recommending the adjustment. See United States v.
Valencia, 44 F.3d 269, 274 (5th Cir. 1995). The sentences are vacated and the
case is remanded to the district court for a factual determination whether
Williams had the requisite leadership role in the offense. See United States v.
Elwood, 999 F.2d 814, 817-18 (5th Cir. 1993).
    CONVICTIONS AFFIRMED;                 SENTENCES        VACATED       AND
REMANDED FOR RESENTENCING




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