                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                     FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             AUGUST 14, 2007
                             No. 06-16113                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 05-00045-CR-5-RS

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

RODDERICK TRINARD DAVIS,
a.k.a. Rod,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      _________________________

                            (August 14, 2007)

Before TJOFLAT, CARNES and HULL, Circuit Judges.

PER CURIAM:
       Rodderick Davis appeals his conviction and 266-month sentence for

conspiracy to distribute 50 grams or more of cocaine base and 5 kilograms or more

of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A)(ii)–(iii), and 846. We affirm.

       Davis first contends that the district court’s failure to enter judgment for him

based on a material variance between the single conspiracy charged in the

indictment and the proof at trial of multiple conspiracies was plain error. “An

appellate court may not correct an error the defendant failed to raise in the district

court unless there is: (1) error, (2) that is plain, and (3) that affects substantial

rights. If all three conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005) (citations and quotations

omitted). Here, we find no error at all in the court’s decision not to enter judgment

for Davis.

       “A material variance between an indictment and the government’s proof at

trial occurs if the government proves multiple conspiracies under an indictment

alleging only a single conspiracy.” United States v. Alred, 144 F.3d 1405, 1414

(11th Cir. 1998) (citations and quotations omitted). “[T]he arguable existence of

multiple conspiracies does not constitute a material variance from the indictment if,



                                             2
viewing the evidence in the light most favorable to the government, a reasonable

trier of fact could have found that a single conspiracy existed beyond a reasonable

doubt.” Id.

      There are three relevant factors for determining whether a single conspiracy

existed: (1) whether there was a common goal; (2) the nature of the scheme; and

(3) the overlap of participants. Id. “In finding a single conspiracy, there is no

requirement that each conspirator participated in every transaction, knew the other

conspirators, or knew the details of each venture making up the conspiracy.”

United States v. Taylor, 17 F.3d 333, 337 (11th Cir. 1994). “A single conspiracy

may be found where there is a ‘key man’ who directs the illegal activities, while

various combinations of other people exert individual efforts towards the common

goal.” Id. (citations omitted).

      We also have explained that, “to prove a single, unified conspiracy as

opposed to a series of smaller, uncoordinated conspiracies, the government must

show an interdependence among the alleged co-conspirators.” United States v.

Chandler, 388 F.3d 796, 811 (11th Cir. 2004). Separate transactions do not

constitute separate conspiracies “so long as the conspirators act in concert to

further a common goal.” Id. (emphasis omitted).

      “It is often possible, especially with drug conspiracies, to divide a single



                                           3
conspiracy into sub-agreements . . . . This does not, however, mean that more than

one conspiracy exists. The key is to determine whether the different sub-groups

are acting in furtherance of one overarching plan.” United States v. Calderon, 127

F.3d 1314, 1329 (11th Cir. 1997) (quotation omitted). Moreover, “[t]he fact that

various defendants entered the conspiracy at different times . . . performed

different functions [and] . . . participated in numerous separate transactions does

not convert a single conspiracy to multiple conspiracies.” Id. (citation omitted,

alteration in original).

       In this case, the evidence at trial proved the sole charge of the

indictment—that Davis was involved in a conspiracy with Bruce Falson, Trevin

Nunnally, and “other people” to distribute cocaine from 2000 to 2005. The

government presented testimony that a core group of “other” co-

conspirators—Donta Spurlin, Corey Smith, and Marvin Newsome, and, to a lesser

extent, Saderrick Noird and Perry Wilson—participated in a common plan from

2000 to 2005 to purchase powder cocaine, convert it into crack cocaine, and sell

the crack cocaine to willing purchasers. The evidence also established that Davis

supplied his co-conspirators with the powder cocaine from 2003 to 2005, within

the time frame alleged in the indictment.

       Davis argues that he, Falson, and Nunnally didn’t participate in the



                                            4
conspiracy at the same time because some of them were arrested and in jail during

the alleged span of the conspiracy. However, the fact that all co-conspirators did

not participate in the conspiracy at the same time does not mean that there was no

single conspiracy to sell crack cocaine. As we said in Calderon, “[t]o find that the

evidence established a single conspiracy it is not necessary for each conspirator to

participate in every phase of the criminal venture, provided there is assent to

contribute to a common enterprise.” Calderon, 127 F.3d at 1329 (quotation

omitted); see also Taylor, 17 F.3d at 337 (“In finding a single conspiracy, there is

no requirement that each conspirator participated in every transaction, knew the

other conspirators, or knew the details of each venture making up the

conspiracy.”).

      Here, the government presented evidence establishing that the co-

conspirators had agreed on the common goal to purchase powder cocaine, turn it

into crack cocaine, and sell the crack cocaine to third parties. The evidence also

established that Davis provided the powder cocaine to further the conspiracy from

2003 to 2005, when he was indicted. Even if Davis entered the conspiracy after

others had exited, the government’s evidence established that he participated in the

conspiracy with the core group of Spurlin, Smith, and Newsome. Accordingly,

there was not a material variance between the single conspiracy alleged in the



                                           5
indictment and the government’s evidence at trial.

      Davis next contends that the district court erred in allowing the government

to admit evidence of his prior marijuana distribution conviction. We review this

preserved challenge to the court’s decision to admit prior conviction evidence for

abuse of discretion. Calderon, 127 F.3d at 1331.

      Under Fed. R. Evid. 404(b), prior conviction evidence is not admissible to

establish a “defendant’s character in order to show action in conformity therewith.

Such evidence is, however, admissible if it is relevant to other material issues in

that case.” Id. at 1330. We use a three part test to determine if evidence of a prior

conviction is admissible: (1) the conviction must be relevant to an issue other than

a defendant’s character; (2) the evidence must be sufficient to support a finding

that the defendant actually committed the extrinsic act; and (3) the probative value

of the evidence must not be substantially outweighed by unfair prejudice. Id.

      “In every conspiracy case, . . . a not guilty plea renders the defendant’s intent

a material issue . . . . Evidence of such extrinsic offenses as may be probative of a

defendant’s state of mind is admissible unless [the defendant] ‘affirmatively takes

the issue of intent out of the case.’” United States v. Roberts, 619 F.2d 379, 383

(5th Cir. 1980) (alteration omitted).

      Although the prior conviction has less probative value the longer between



                                           6
the extrinsic conviction and the charged offense, we have found that “[e]xtrinsic

offenses more remote than fifteen months have been properly admitted.” United

States v. Terebecki, 692 F.2d 1345, 1349 (11th Cir. 1982) (citations omitted). We

also have found Rule 404(b) evidence to be probative where the prior conviction

and the charged offense are “two to three years apart.” United States v. Hernandez,

896 F.2d 513, 522 (11th Cir. 1990) (quotation omitted); see also United States v.

Pollock, 926 F.2d 1044, 1047–49 (11th Cir. 1991) (concluding that a prior

conviction that was more than five years old was not too remote to be probative).

In addition, to the extent that evidence of the prior conviction might be prejudicial

to the defendant, the district court can mitigate the prejudice by giving a cautionary

instruction to the jury on the limited use of such evidence both when the evidence

was introduced and again at the close of trial. See Hernandez, 896 F.2d at 523.

      Here, the evidence of Davis’ prior marijuana distribution conviction was

relevant to prove his intent to join the conspiracy. We have held that a prior

conviction increases the likelihood that the defendant intended to conspire to

commit similar subsequent criminal conduct. See Roberts, 619 F.2d at 383–84

(“Proof that Mr. Roberts had intentionally joined in a conspiracy to operate a

gambling business four years prior to his present participation in such an operation

increases the likelihood that he had conspired with others to establish and operate



                                           7
the gambling business.”); United States v. Beechum, 582 F.2d 898, 913 (5th Cir.

1978) (en banc) (“Once it is determined that the extrinsic offense requires the same

intent as the charged offense and that the jury could find that the defendant

committed the extrinsic offense, the evidence satisfies the first step under rule

404(b). The extrinsic offense is relevant (assuming the jury finds the defendant to

have committed it) to an issue other than propensity because it lessens the

likelihood that the defendant committed the charged offense with innocent

intent.”). Davis put his intent in issue by pleading not guilty to the present cocaine

distribution charge, and he never conceded the issue or did anything to take intent

off the table at trial.

       The evidence was sufficient to establish that Davis actually committed the

prior offense. The government presented the testimony of the officer who stopped

Davis and the others in the car in which the marijuana was discovered and seized.

Moreover, the government introduced into evidence a certified copy of the

judgment of Davis’ marijuana distribution conviction.

       Finally, the probative value of the extrinsic evidence is not substantially

outweighed by unfair prejudice. The officer testified that he seized the marijuana

in October 2002, which is within the time frame of the conspiracy charged in the

this case and within a few months of Davis joining the cocaine distribution



                                           8
conspiracy. Thus, the prior marijuana distribution conviction was not too

temporally remote to be probative. See Pollock, 926 F.2d at 1047–49; Hernandez,

896 F.2d at 522; Terebecki, 692 F.2d at 1349. To limit any prejudice to Davis, the

district court instructed the jury, both when the extrinsic evidence was admitted

and at the close of trial, to consider the prior conviction only for the purpose of

determining whether he had the necessary intent to join the conspiracy.

      Accordingly, we conclude that the district court did not abuse its discretion

in admitting evidence regarding Davis’ prior marijuana distribution conviction

pursuant to Fed. R. Evid. 404(b).

      Davis’ final contention is that the district court erred in enhancing his

sentence based on its finding regarding the amount of cocaine Davis sold to his co-

conspirators. According to Davis, the court’s drug-quantity finding violated his

Sixth Amendment rights, as interpreted by the Supreme Court in United States v.

Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), because it was not based on evidence

admitted by him or found by a jury beyond a reasonable doubt.

      We have held that “[w]hen the district court applies the Guidelines in an

advisory manner, nothing in Booker prohibits district courts from making, under a

preponderance-of-the-evidence standard, additional factual findings that go beyond

a defendant’s admissions.” United States v. Smith, 480 F.3d 1277, 1281 (11th Cir.



                                           9
2007). Here, the district court clearly stated that it was applying the sentencing

guidelines in an advisory manner. Thus, there was no Booker violation.1

       AFFIRMED.




       1
          Davis contends for the first time in his reply brief that the Booker decision cannot be
reconciled with Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), or Cunningham v.
California, 549 U.S.__, 127 S. Ct. 856 (2007). We decline to address this contention, however,
since Davis did not raise it in his initial brief. See United States v. Levy, 416 F.3d 1273, 1276
n.3 (11th Cir. 2005) (“[T]his Court . . . declines to consider issues raised for the first time in an
appellant’s reply brief.”).

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