                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4114



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


BRANDI HAMBRICK, a/k/a Jessica Marie Long,
a/k/a Jessica Brandy Long,

                                             Defendant - Appellant.



                             No. 06-4271



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

           versus


ERIC GIRAULT, a/k/a E,

                                             Defendant - Appellant.



Appeals from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber, Chief
District Judge. (2:04-cr-00019-3; 2:04-cr-00019-4)


Argued:   March 15, 2007                   Decided:   August 3, 2007
Before WILKINSON and MOTZ, Circuit Judges, and WILKINS, Senior
Circuit Judge.


Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.


ARGUED: Bruce Steven Harvey, Atlanta, Georgia; David O. Schles,
Charleston, West Virginia, for Appellants. Stephanie Lou Haines,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Huntington, West Virginia, for Appellee. ON BRIEF: Mark
Yurachek, Atlanta, Georgia, for Appellants.    Charles T. Miller,
United States Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Eric Girault and Brandi Hambrick (collectively, “Appellants”)

appeal their convictions and sentences for conspiracy to distribute

100 kilograms of marijuana, see 21 U.S.C.A. § 846 (West 1999),

conspiracy to launder money, see 18 U.S.C.A. § 1956(h) (West Supp.

2007), and promotion and facilitation of unlawful activity in

violation of the Travel Act, see 18 U.S.C.A. § 1952(a)(3) (West

2000).1    For the reasons set forth below, we affirm Appellants’

convictions   and   Girault’s   sentence,   but   we   vacate   Hambrick’s

sentence and remand for resentencing.


                                   I.

     In late 2002, the Drug Enforcement Agency and the Internal

Revenue Service began an investigation into the drug trafficking

activities of Fred Tyson and Kevin Lee in the Charleston, West

Virginia area.      The investigation subsequently revealed a drug

trafficking network covering a wider geographic territory.

     In 1999, Tyson began distributing marijuana that he received

from a supplier in Atlanta, Georgia.        This relationship had ended

by 2000.    In 2000, Tyson received a telephone call from Girault,

who stated that he knew Tyson’s previous supplier and requested a

meeting with Tyson.    The two men met and agreed that Girault would



      1
       Girault was also convicted of using a communication facility
 to distribute 28 pounds of marijuana. See 21 U.S.C.A. § 843(b)
 (West 1999). He does not appeal this conviction.

                                   3
now supply marijuana to Tyson.          Under their arrangement, Girault

would ship the marijuana from Atlanta in a courier-driven vehicle

to Tyson in Charleston.          When the marijuana shipments arrived in

Charleston, Tyson and Lee would repackage the drugs into small

plastic baggies for sale. Tyson would then return a portion of the

sale proceeds, in vacuum-sealed packages, to Girault in Atlanta.

In total, Tyson received approximately six to eight shipments, each

containing 80 to 160 pounds of marijuana.

       Beginning in late 2001 or early 2002, Tyson took a break from

his business relationship with Girault. However, by late 2003, the

two men resumed their business activities by trafficking mid-grade

marijuana, a more expensive type.          Using the same procedures as

before, marijuana was delivered by courier from Girault in Atlanta

to Tyson in Charleston on three occasions.             There were quality

control issues, however, with the first shipment of mid-grade

marijuana (it was moldy and unmarketable).            To ensure that the

future shipments arrived in sale condition, Girault traveled to

Charleston for the scheduled deliveries.            The second and third

shipments arrived as scheduled on the weekends of January 10 and

January 17, 2004 in a vehicle driven by Hambrick.

       At   this   time,   law   enforcement   officials   were   conducting

intense surveillance, including camera and telephone surveillance,

of Tyson.     On January 10, law enforcement intercepted a telephone

call   between     Tyson   and   Lee   confirming   Girault’s     arrival   in


                                       4
Charleston and a meeting at a local restaurant.                  Lee and Girault

were   also   captured   on    surveillance       camera    at    various    times

throughout the delivery weekend in the parking lot of a local

business used by Tyson to process the drugs.                After Girault left

Charleston, law enforcement intercepted telephone calls between

Tyson and Lee in which they discussed future shipments, sales

collection    efforts,    and     Girault’s       next     scheduled      trip    to

Charleston.

       As the date of the January 17th shipment grew closer, law

enforcement continued to intercept telephone calls between Tyson

and Girault. During one of these calls, Girault advised Tyson that

Hambrick was at a Charleston hotel with the marijuana and directed

Tyson to contact her for pickup details. Tyson was also instructed

to   give   collected    sales    proceeds       to   Hambrick.      Later,      law

enforcement observed Tyson, Lee, and Hambrick meeting in the hotel

parking lot and retrieving a box from her vehicle.

       On January 18, after learning that Tyson and Girault agreed to

meet in an apartment owned by Tyson, law enforcement officers

proceeded to arrest the members of the drug conspiracy.                     At the

apartment,    the   officers     found       Girault,    Hambrick   and    another

individual.     Hambrick was arrested, and the officers seized a

suitcase containing more than $18,000 in vacuum-sealed packets, as

well as $900 in cash and a pair of false driver’s licenses from

Hambrick’s    purse.     The     officers      also     seized   other    physical


                                         5
evidence, including a work bench with marijuana residue, a knife

with residue, digital scales, and a heat sealer from the business

Tyson and Lee used to process the marijuana they received from

Girault. Prior to trial, Tyson, Lee, and two other co-conspirators

pleaded guilty to various money laundering and drug conspiracy

charges.   Pursuant to their plea agreements, all testified on

behalf of the government.

     After a five-day jury trial in which Hambrick and Girault

testified in their own defense, both were found guilty on all

charges.   In preparation for Hambrick’s sentencing on January 24,

2006, a presentence report (PSR) was prepared.   At her sentencing,

Hambrick objected to the calculated base offense level of 26

because it overstated the quantity of marijuana attributable to her

individually.    See United States Sentencing Guidelines Manual

§§ 1B1.3, 2D1.1(c)(7) (2005).        The district court agreed and

reduced her base offense level to 16.       The district court also

applied a two-level enhancement because Hambrick was convicted

under 18 U.S.C.A. § 1956, see id. § 2S1.1(b)(2)(B), a two-level

reduction for her minor role in the offense, see id. § 3B1.2(b),

and a two-level increase for obstruction of justice, see id.

§ 3C1.1.   The resulting final offense level of 18, when combined

with Hambrick’s Criminal History Category of I, yielded an advisory

guideline range of 27-33 months.       The district court, however,

concluded that Hambrick’s conviction for conspiracy to distribute


                                 6
more than 100 kilograms of marijuana required imposition of a 60-

month mandatory minimum sentence, regardless of the drug quantity

attributable to her individually.               See 21 U.S.C.A. § 846 (“Any

person who ... conspires to commit any offense defined in this

subchapter       shall   be   subject     to   the    same   penalties        as   those

prescribed for the offense, the commission of which was the object

of the ... conspiracy.”); id. § 841(b)(1)(B)(vii) (West 1999 &

Supp. 2007) (requiring imposition of 5-year minimum sentence for

distribution of 100 kilograms or more of marijuana); U.S.S.G.

§ 5G1.1(b) (“Where the statutorily required minimum sentence is

greater than the maximum of the applicable guideline range, the

statutorily       required    minimum     sentence     shall   be       the   guideline

sentence.”).

     Girault’s PSR recommended attribution of 100 kilograms or more

of marijuana, corresponding to a base offense level of 26, see

U.S.S.G    §    2D1.1(c)(7),     a   two-level       enhancement        for   Girault’s

conviction under 18 U.S.C.A. § 1956, see id. § 2S1.1(b)(2)(B), a

four-level enhancement based on Girault’s role as an organizer and

leader of the conspiracy, see id. § 3B1.1(a), and a two-level

increase       for   obstruction     of   justice,    see    id.    §    3C1.1.      The

resulting final offense level of 34, when combined with Girault’s

Criminal History Category of I, yielded an advisory guideline range

of 151 to 188 months.         The district court imposed a sentence of 151

months imprisonment.


                                           7
                                      II.

     Appellants     challenge   the    sufficiency      of   the   evidence    to

support their convictions. A defendant challenging the sufficiency

of the evidence “bears a heavy burden.”            United States v. Beidler,

110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks

omitted).   When addressing sufficiency of the evidence challenges,

we must uphold a jury verdict “if there is substantial evidence,

taking the view most favorable to the Government, to support it.”

Glasser v. United States, 315 U.S. 60, 80 (1942).               “[S]ubstantial

evidence is evidence that a reasonable finder of fact could accept

as adequate and sufficient to support a conclusion of a defendant’s

guilt beyond a reasonable doubt.” United States v. Burgos, 94 F.3d

849, 862 (4th Cir. 1996) (en banc).

                                      A.

     Appellants first argue that the Government did not prove a

single   conspiracy   to   distribute       marijuana   as   charged     in   the

indictment,   but     instead   proved       the    existence      of   multiple

conspiracies or, alternatively, a buyer-seller relationship between

Girault and Tyson.         Appellants contend that this discrepancy

between what was charged and the proof offered at trial resulted in

a fatal variance that warrants reversal of their convictions.                 See

United States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999).                   We

disagree.




                                       8
       The     Government      bears     the       burden      of   proving     the       single

conspiracy charged in the indictment.                     See United States v. Hines,

717 F.2d 1481, 1489 (4th Cir. 1983).                      The question of “[w]hether

there is a single conspiracy or multiple conspiracies depends upon

the overlap of key actors, methods, and goals.”                           United States v.

Strickland, 245 F.3d 368, 385 (4th Cir. 2001) (internal quotation

marks omitted).            We have previously determined that “[a] single

conspiracy exists where there is one overall agreement, or one

general business venture.”              United States v. Leavis, 853 F.2d 215,

218 (4th Cir. 1988) (internal quotation marks & citation omitted).

       The evidence here, viewed in the proper light, demonstrated

that     the    conspirators      shared           the    same      objective       and    goal

(distribution         of     marijuana     for           money),     the     same     methods

(transporting the drugs from Atlanta to Charleston in courier-

driven    vehicles),        and   the    same       core       participants      (including

Girault, Tyson, and Lee).                In addition, the testimony by co-

conspirators         Tyson,    Lee,     Graves,          and     Singleton      was       highly

consistent and corroborated by the testimony of law enforcement

officers as well as abundant physical evidence.                           In our view, this

was more than sufficient to support the jury finding of a single

conspiracy.

                                           B.

       Appellants also challenge the sufficiency of the evidence to

support      their    convictions        for       conspiracy        to    distribute        100


                                               9
kilograms of marijuana, conspiracy to commit money laundering, and

violation of the Travel Act.          However, our review of the record

compels us to conclude that the evidence of Appellants’ guilt was

abundant and that it amply supported the jury verdicts.                 As stated

above, the co-conspirators’ testimony regarding the operations of

the conspiracy and its leadership was consistent and detailed.

Their    testimony    regarding     Girault’s   control      of   the   shipment

schedule and receipt of the sale proceeds, when presented alongside

the overwhelming physical, audio, and visual evidence, proved

Girault’s    role    as   manager   and    Hambrick’s   as    courier     in   the

conspiracy.    Consequently, we affirm their convictions.


                                     III.

         Girault contends that the district court erred when it

prohibited him from refreshing Tyson’s recollection using the notes

of an investigating agent who debriefed Tyson on several occasions.

When Tyson admitted he could not recall certain details regarding

his relationship with previous drug suppliers, Girault’s counsel

sought to refresh Tyson’s recollection.             The court ruled that

counsel could not show Tyson the document because “it’s not his

statement.    It’s [the agent’s] version.”         J.A. 258.

     Whether to allow a witness’ recollection to be refreshed is an

evidentiary decision entrusted to the discretion of the trial

court.    See United States v. Cranson, 453 F.2d 123, 124 (4th Cir.

1971); see also Fed. R. Evid. 612.           A trial court “by definition

                                      10
abuses its discretion when it makes an error of law.”                  Koon v.

United States, 518 U.S. 81, 100 (1996).             A witness’ recollection

may be refreshed with documents that are not themselves admissible

in evidence, even if the witness himself did not prepare the

documents.   See United States v. Landof, 591 F.2d 36, 39             (9th Cir.

1978).

      Although we agree that the district court erred when it

prevented Girault from refreshing Tyson’s recollection using the

agent’s notes, we conclude that the error was harmless.                See Fed.

R. Crim. P. 52(a).    In light of the evidence described above, it is

highly unlikely that Girault’s inability to refresh Tyson’s memory

using the agent’s notes affected the jury verdict.                   See United

States v. Brooks, 111 F.3d 365, 371 (4th Cir. 1997) (holding that

an evidentiary error will be found harmless if the reviewing court

can   conclude   “with     fair   assurance,     after   pondering    all   that

happened without stripping the erroneous action from the whole,

that the judgment was not substantially swayed by the error”)

(internal quotation marks omitted).


                                         IV.

      Relying on his multiple conspiracy defense, Girault also

claims that the district court did not properly consider the

evidence   of    Tyson’s    break   in    drug   trafficking   activity     when

sentencing him.



                                         11
     The factual findings of the district court at sentencing are

reviewed for clear error.        See United States v. Uwaeme, 975 F.2d

1016, 1018 (4th Cir. 1992).        Here, it is evident from the record

that the district court did not err in the manner argued by

Girault.2         The district court sentenced Girault based upon an

adjusted offense level of 34, increased from a base offense level

of 26.       To reach a base offense level of 26 under the Guidelines,

the district court determined that Girault was involved in “a

single       continuing   conspiracy”    that     was   responsible       for   the

distribution of 100 kilograms or more of marijuana.                J.A. 731; see

U.S.S.G.      §   2D1.1(c)(7).    This       determination   was    not    clearly

erroneous.        Indeed, our review of the record reveals that evidence

of Girault’s involvement in the single conspiracy was overwhelming.

Accordingly, we affirm Girault’s sentence.




         2
       We note that Girault asserts a Sixth Amendment error in his
 reply brief.    See Apprendi v. New Jersey, 530 U.S. 466, 490
 (2000); United States v. Collins, 415 F.3d 304, 314 (4th Cir.
 2005). However, an issue first argued in a reply brief is not
 properly before us. See Cavallo v. Star Enter., 100 F.3d 1150,
 1152 n.2 (4th Cir. 1996). But even if Girault had properly raised
 such a claim, we would decline to notice it. See United States v.
 Promise, 255 F.3d 150, 161-64 (4th Cir. 2001) (en banc) (declining
 to recognize plain error when the district judge violated the
 Sixth Amendment by making drug weight findings because the
 evidence was overwhelming and “had the indictment included the
 [drug quantity], the jury would have found [the defendant] guilty
 beyond a reasonable doubt”); United States v. Hadden, 475 F.3d
 652, 670-72 (4th Cir. 2007).

                                        12
                                    V.

     Last, Hambrick asserts that she was sentenced in violation of

United States v. Collins, 415 F.3d 304, 314 (4th Cir. 2005)

(holding that for sentencing purposes in a drug conspiracy case the

jury must determine the specific amount of drugs attributable to

each individual defendant in order to set a threshold drug quantity

under § 841(b)).      The Government correctly concedes that the

district court erred in applying the mandatory minimum sentence of

60 months based upon the larger quantity of drugs attributable to

the entire conspiracy rather than the quantity attributable to

Hambrick individually. Further, the record shows that the issue of

Hambrick’s individual drug quantity culpability was not submitted

to the jury. Accordingly, we vacate Hambrick’s sentence and remand

for resentencing consistent with          Collins.      Id. at 315 (stating

remedy).


                                    VI.

     For   the   reasons   set   forth    above,   we   affirm   Appellants’

convictions and Girault’s sentence.        We vacate Hambrick’s sentence

and remand for resentencing.


                                                       AFFIRMED IN PART;
                                            VACATED AND REMANDED IN PART




                                    13
