                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               DEC 27, 2007
                               No. 07-11318                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                      D. C. Docket No. 06-00080-CR-CB

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

TYRONE LATROY SPRATT,
a.k.a. Deuce,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Alabama
                        _________________________

                             (December 27, 2007)

Before TJOFLAT, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

     Tyrone Spratt appeals his conviction and sentence for conspiracy to possess
with intent to distribute more than 500 grams of cocaine in violation of 21 U.S.C.

§ 846. He challenges his conviction on two grounds: (1) the evidence was

insufficient to establish the charged offense, and (2) the district court erred in

refusing to include in its charge to the jury an instruction to the effect that a person

who only purchases drugs for personal use does not thereby become a member of a

drug trafficking conspiracy. He challenges his sentence on two grounds as well:

(1) the court erred in finding the cocaine attributable to him based on a

preponderance of the evidence, and (2) his sentence is unreasonable because the

court did not limit the cocaine it attributed to the quantity found by the jury. We

address these challenges in order.

      Spratt contends that the evidence was insufficient to convict because all that

it established was that he agreed with individual buyers to engage in isolated

buyer-seller transactions and did not reveal a joint objective to distribute cocaine.

The evidence showed much more than isolated buyer-seller transactions. Spratt

properly concedes that the evidence was that he sold large quantities of drugs over

an extended period of time. In addition, in a recorded telephone conversation, he

indicated that he split profits from selling drugs with other people and that he and

another individual were going to split the profits from selling drugs. This alone

was enough to authorize the jury to convict. In sum, the evidence was sufficient to



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convict.

      A district court’s failure to give a requested jury instruction is an
      abuse of discretion if the requested instruction (1) was correct, (2) was
      not substantially covered by the charge actually given, and (3) dealt
      with some point in the trial so important that failure to give the
      requested instruction seriously impaired the defendant’s ability to
      conduct his defense.

United States v. Browne, No. 05-11137, manuscript op. at 86 (11th Cir. Oct. 25,

2007) (quotation omitted). In United States v. Lively, we held that the defendant’s

requested instruction – that a buyer/seller relationship is insufficient standing alone

to establish a conspiracy – was adequately addressed by the court’s instruction that,

to establish a conspiracy, (1) two or more people must come to a mutual

understanding to try to accomplish the unlawful conduct charged in the indictment,

(2) the defendant must knowingly and willfully join such a conspiracy, and (3) a

person who has no knowledge of a conspiracy, but who happens to act in a way

which advances some purpose of one, does not thereby become a conspirator. 803

F.2d 1124, 1128-29 (11th Cir. 1986).

      In this case, as in Lively, the court instructed the jury that to establish a

conspiracy, (1) two or more people must come to a mutual understanding to try to

accomplish the unlawful conduct charged in the indictment, (2) the defendant must

knowingly and willfully join such a conspiracy, and (3) that a person who has no

knowledge of a conspiracy, but who happens to act in a way which advances some

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purpose of one, does not thereby become a conspirator. See Lively, 803 F.3d at

1128-29. The court committed no error here, much less an abuse of discretion,

because the jury charge “adequately and correctly cover[ed] the substance of the

requested instruction.” Id. at 1128.

      Addressing his sentence, Spratt argues that the court violated his Sixth

Amendment right to a jury trial by fashioning a Guidelines sentence based on the

drug quantity it found, rather than the drug quantity the jury found. His argument

is meritless because the court treated the Guidelines as advisory, rather than

mandatory. United States v. Chau, 426 F.3d 1318, 1324 (11th Cir. 2005); United

States v. Duncan, 400 F.3d 1297, 1304-05 (11th Cir. 2005) (holding that the

district court was permitted to find conduct that had been acquitted by the jury

when determining the defendant’s sentence); see also United States v. Thomas, 446

F.3d 1348, 1355 (11th Cir. 2006) (holding that there is no Fifth Amendment right

to have all facts used to enhance a defendant’s Guidelines range charged in the

indictment).

      Having found no constitutional violation, we turn now to the question of

whether Spratt’s sentence is unreasonable. As prescribed by 18 U.S.C. § 3553(a),

among the factors a sentencing court must consider in arriving at a reasonable

sentence are (1) the nature and circumstances of the offense; (2) the history and



                                          4
characteristics of the defendant; (3) the need to reflect the seriousness of the

offense, to promote respect for the law, and to provide just punishment for the

offense; (4) the need for deterrence; (5) the need to protect the public; (6) the

sentencing guidelines range; and (7) the need to avoid unwanted sentencing

disparities. In his brief, Spratt appears to be challenging the procedural

reasonableness of his sentence because he claims that the court erred by not

accounting for the jury’s findings as to the quantity of cocaine involved in the

offense. The court explicitly took these factors into consideration in fashioning

Spratt’s sentence. Section § 3553(a) does not require the court to “account” for the

jury’s findings; thus, his procedural argument fails. His contention that his

sentence is substantively unreasonable also fails: nothing in our precedent renders

a within-Guidelines sentence unreasonable because the court held the defendant

accountable for a greater quantity of drugs than the jury found. In short, in light of

the court’s proper and explicit consideration of the § 3553(a) sentencing factors,

we do not disturb Spratt’s sentence.

      AFFIRMED.




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