                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                          NOVEMBER 16, 2006
                              No. 06-10824                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                  D. C. Docket No. 03-00671-CR-01-ODE-1

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                                   versus

DEBRA STEWART,

                                                      Defendant-Appellant.


                        ________________________

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

                            (November 16, 2006)

Before DUBINA, CARNES and WILSON, Circuit Judges.

PER CURIAM:

     Debra Stewart appeals her conviction and 72-month sentence for conspiracy
to possess with intent to distribute marijuana, in violation of 21 U.S.C.

§§ 841(b)(1)(D) and 846 (Count 1), possession with intent to distribute marijuana,

in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D) (Counts 2 and 4), conspiracy

to provide contraband to a prisoner, in violation of 18 U.S.C. §§ 1791(a)(1) and

371 (Count 7), and providing contraband to a prisoner, in violation of 18 U.S.C.

§§ 1791(a)(1), (b)(3), and (d)(1)(B) (Count 8). On appeal, Stewart argues that the

district court erroneously admitted a sexually explicit letter that was irrelevant and

unfairly prejudicial. She also argues that the district court erred when calculating

her advisory guideline range by attributing amounts of methamphetamine without

finding that it was reasonably foreseeable to Stewart that methamphetamine would

be a part of the conspiracy.

                                  BACKGROUND

      Stewart worked as a corrections officer at the Atlanta Federal Penitentiary

and engaged in an illicit relationship with an inmate, co-defendant Mitchell

Brewster. This relationship came to the attention of a special agent of the Federal

Bureau of Prisons, Darroll Acre. Acre also learned that a staff member was

bringing drugs into the prison. Acre investigated the matter which led to a reverse

sting operation. During the reverse sting, Brewster’s sister contacted Stewart to

pick up a package for Brewster from a trash can. When Stewart retrieved the bag,



                                           2
which contained marijuana and methamphetamine, she was arrested.

      Although Stewart allegedly received payment for her participation in the

conspiracy, the government argued at trial that her motive to participate was her

illicit relationship with Brewster. The government tried to introduce evidence of

this relationship including a sexually explicit letter, nude photographs that

appeared to be Stewart, and Brewster’s testimony. Stewart made a Fed. R. Evid.

403 objection to the introduction of the photographs and the letter. The court

sustained the objection to the photographs, but still allowed the prosecution to

reference the pictures. The court overruled the objection to the letter, but didn’t

allow the letter to be read in court and instead allowed the jury to read the letter in

jury deliberations.

      In the letter, which is signed only “your wife, your sunlight,” the author (1)

discusses photographing herself for Brewster, (2) describes sex acts she will

perform with Brewster, (3) tells Brewster how much she loves him and how she

wants to spend her life with him, (4) acknowledges that she is married, and (5)

concludes “we will be careful [] I still need this job.” Brewster testified that

Stewart delivered the letter to him along with several nude photographs. The

prosecutor also referred to the letter in closing arguments.

      The jury convicted Stewart of the counts listed above and made a special



                                           3
finding that the conspiracy did not involve methamphetamine. The Presentence

investigation report (“PSI”) calculated a base offense level of 26 for Counts 1, 2,

and 4 because the offense involved 2 ounces of methamphetamine and 2.5 pounds

of marijuana creating a marijuana equivalency of 114.5 kilograms. The PSI also

included two 2-level enhancements for distribution of controlled substances in a

prison and abusing a position of trust. With a total offense level of 30 and a

criminal history category of I, the PSI determined a guideline range of 97 to 121

months’ imprisonment. Stewart objected to the use of a base offense level

predicated upon the methamphetamine. The court overruled the objection stating

that “under the guidelines she is just responsible for whatever was in the package.”

The court sentenced Stewart to 36 months for each of the accounts, with the

sentences for Counts 1, 2, 4 , and 7 to run concurrently and the sentence for Count

8 to run consecutively, resulting in a total sentence of 72 months of imprisonment.

                             STANDARD OF REVIEW

       We review the district court’s decision to allow evidence under Fed. R.

Evid. 403 for an abuse of discretion. United States v. Gunn, 369 F.3d 1229, 1236

(11th Cir. 2004). We will not reverse if the error was harmless. Id. We review the

district court’s findings of fact in calculating the advisory guideline range for clear

error and its application of the sentencing guidelines to those facts de novo. United



                                           4
States v. Martin, 455 F.3d 1227, 1235 (11th Cir. 2006).

                                   DISCUSSION

      Stewart argues that the district court erred in admitting the sexually explicit

letter because it was more prejudicial than probative. Rule 403 permits the district

court to exclude relevant evidence only when “its probative value is substantially

outweighed by the danger unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.” Excluding evidence under Rule 403 is an

extraordinary remedy that should be used sparingly. United States v. Ross, 33 F.3d

1507, 1524 (11th Cir. 1994). We are inclined to defer to the district court given

that it “is uniquely situated to make nuanced judgments on questions that require

the careful balancing of fact-specific concepts like probativeness and prejudice.”

United States v. Jernigan, 341 F.3d 1273, 1285 (11th Cir. 2003). “Only if the

decision to admit evidence over a Rule 403 challenge is unsupportable when the

evidence is viewed in the light most supportive of the decision will we say that the

decision constitutes an abuse of discretion.” Id.

      Stewart argues that the letter was unfairly prejudicial and irrelevant because

it described Stewart’s adultery and sexual desires and did not help establish an

element of the drug conspiracy with which she was charged. Specifically, she


                                           5
asserts that the government’s case rested largely on the testimony of seven

co-defendants and unindicted co-conspirators, all of whom were of “questionable

credibility” and all of whom testified they hoped to benefit from their cooperation,

and that, consequently, the jury still could have found her not guilty. She contends

that in such a situation, the admission of “graphic and arresting” sexually explicit

evidence was likely to incite the jury to make an irrational, emotional decision.

      The letter was certainly probative of Stewart’s motive; however, the graphic

sexual nature and Stewart’s admission of adultery carry a likelihood of prejudice.

The district court weighed these issues and found that the probative value

outweighed the risk of prejudice. This conclusion is adequately supported because

this letter was among the only evidence which corroborated Brewster’s testimony

that his relationship with Stewart was romantic and sexual. Thus, we agree with

the district court that the letter helped establish Stewart’s motive for the charged

offense.

      Next, Stewart challenges her sentence, arguing that the district court erred in

calculating her advisory guideline sentence by attributing the amounts of

methamphetamine to her under U.S.S.G. § 1B when the district court did not find

that Stewart could reasonably foresee the presence of methamphetamine and the

jury made a special finding that the conspiracy did not include methamphetamine.


                                           6
Under U.S.S.G. § 1B.3, the district court must consider relevant conduct in

calculating the base offense level. Relevant conduct can include conduct for which

the defendant was acquitted so long as the government proves the conduct by

preponderance of the evidence. United States v. Duncan, 400 F.3d 1297, 1304

(11th Cir. 2005). Furthermore, Stewart’s accountability under this section would

not be limited to what is reasonably foreseeable because that requirement applies

only to the conduct of others. United States v. Alvarez-Coria, 447 F.3d 1340, 1344

(11th Cir. 2006).

      The jury found that Stewart knowingly participated in a conspiracy to

deliver illegal drugs to Brewster in prison. When determining relevant conduct

under these circumstances, it is irrelevant whether Stewart knew exactly the

amount or type of drugs. See U.S.S.G. § 1B.3 cmt. n.2(a)(1). In calculating the

base level, it was not error for the district court to hold Stewart responsible for all

her relevant conduct, which included the amounts of methamphetamine.

      Because the district court did not abuse its discretion in admitting the

sexually explicit letter or err in attributing the amounts of methamphetamine to

Stewart during sentencing, we affirm Stewart’s conviction and sentence.

       AFFIRMED .




                                            7
