                                                       NOT PRECEDENTIAL



                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                    _____________

                                     No. 10-3855
                                    _____________

                          UNITED STATES OF AMERICA

                                            v.

                   ROBERT WILLIAMS, a/k/a Bashir a/k/a Bash


                                   Robert Williams,
                                             Appellant

                                    _____________


                  On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                        District Court No. 2-07-cr-00737-014
                 District Judge: The Honorable Eduardo C. Robreno


                 Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                               September 13, 2012

                  Before: SMITH and CHAGARES, Circuit Judges
                             ROSENTHAL, District Judge*



   *
     The Honorable Lee H. Rosenthal, District Judge for the United States District Court
for the Southern District of Texas, sitting by designation.
                           (Filed: September 17, 2012)



                            _____________________

                                   OPINION
                            _____________________

SMITH, Circuit Judge.

      A jury convicted Robert Williams of conspiracy to distribute cocaine and

distributing cocaine, and the District Court sentenced him to 300 months

imprisonment. Williams appeals his conviction and sentence. We will affirm.

                                        I.

      On August 6, 2008, Williams was indicted and charged with, inter alia,

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

crack cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(A) (“Count

1”) and possession with the intent to distribute cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A) (“Count 4”). The government alleged that Kareem Smith

was the head of a conspiracy to distribute cocaine and crack cocaine in parts of

Philadelphia and Cecil County, Maryland from November 2002 through

September 2007 (referred to in the Indictment as the Smith Crack Cocaine Gang or

“SCCG”). It further alleged that Williams was a co-conspirator whose role was to

supply cocaine to the SCCG.

      On June 2, 2009, following a jury trial, Williams was convicted on Counts 1
                                        2
and 4. On September 14, 2009, Williams filed a motion for judgment of acquittal

pursuant to Federal Rule of Criminal Procedure 29(c). On March 10, 2010, the

District Court denied Williams’ motion.

      On June 28, 2010, the District Court held a hearing as to the quantity of

drugs that should be attributed to Williams and his co-defendants at sentencing.

On July 16, 2010, the District Court issued an order as to the drug weight

attribution and established the applicable sentencing guidelines for Williams and

his co-defendants.

      On September 13, 2010, the District Court imposed a sentence on Williams

of 300 months imprisonment to be followed by an 5-year period of supervised

release, along with a $2,000 fine and a $200 special assessment.

      Williams appealed his conviction and sentence.1

                                          II.

                                          A.

      Williams argues that, although he was a drug dealer and may have sold

cocaine to members of the SCCG on a periodic basis, those sales were made as

part of a standard buyer-seller relationship, and thus, the evidence was insufficient

to prove that he joined the SCCG.


1
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

                                          3
      We review a challenge to the denial of a motion for judgment of acquittal de

novo, viewing the evidence in the light most favorable to the government. United

States v. Flores, 454 F.3d 149, 154 (3d Cir. 2006). We must sustain the verdict if

“any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). It is

immaterial that the evidence also permits a “less sinister conclusion” because “the

evidence need not be inconsistent with every conclusion save that of guilt.” United

States v. Brodie, 403 F.3d 123, 134 (3d Cir. 2005) (citation and quotation marks

omitted). In sum, the verdict must stand unless the insufficiency of the evidence is

clear. United States v. Smith, 294 F.3d 473, 477 (3d Cir. 2002) (citation and

quotation marks omitted).

      The elements of a conspiracy charge under § 846 are: (1) a unity of purpose

between the alleged conspirators; (2) an intent to achieve a common goal; and (3)

an agreement to work together toward that goal. See United States v. Iglesias, 535

F.3d 150, 156 (3d Cir. 2008).

      In United States v. Gibbs, 190 F.3d 188, 194 (3d Cir. 1999), we addressed

the issue of the scope of conspiracy liability for a defendant whose sole

involvement with the conspiracy consisted of buying drugs from another member

of the conspiracy and reselling those drugs to others. “It is well-settled that a

simple buyer-seller relationship, without any prior or contemporaneous

                                         4
understanding beyond the sales agreement itself, is insufficient to establish that the

buyer was a member of the seller’s conspiracy.” Id. at 197. However, even an

occasional supplier or buyer for redistribution could be shown to be a member of

the conspiracy by evidence, direct or inferential, of knowledge that he was part of a

larger operation. See id. at 198. Where the only evidence linking the seller or

buyer to the conspiracy is the transactions themselves, courts look to the

surrounding circumstances to determine whether the defendant was a mere seller or

buyer that cannot be held to be a conspirator or whether he has “knowledge of the

conspiracy to the extent that his drug [sales] or purchases are circumstantial

evidence of his intent to join that conspiracy.”          Id.    When making this

determination, courts generally consider the following factors: how long the

defendant was affiliated with the conspiracy; whether there was an established

method of payment; the extent to which transactions were standardized; whether

the actions of the defendant and members of the conspiracy demonstrated a level of

mutual trust; whether the transactions involved a large amount of drugs; and

whether the buyer purchased the drugs on credit. Id. at 199.

      A reasonable jury could conclude that the evidence, viewed in the light most

favorable to the government, sufficiently demonstrates Williams’ participation in

the SCCG. This evidence includes that: Smith and other members of the SCCG

regularly contacted Williams during a five-year period, during which time

                                          5
Williams supplied large amounts of cocaine to the group (Supp. App. 224-26, 535-

38, 540, 558-59); members of the SCCG informed Williams of their operational

plans, including that that they could sell crack in Maryland for four times the price

it was in Philadelphia (Supp. App. 574-75, 592-93); Smith sent Williams to sell

cocaine on behalf of the SCCG to one of Smith’s acquaintances, who —

unbeknownst to Smith or Williams — was a confidential informant (Supp. App.

385-402, 652-60); case agent John Bowman testified regarding phone records

showing extensive phone communications between Williams and Smith (Supp.

App. 898-936); and on at least one occasion, Williams supplied Smith with cocaine

as a gift to get Smith back on his feet after his release from jail (Supp. App. 605-

07).2 Based on this evidence, a reasonable jury could infer that Williams was a

member of the SCCG.

       Accordingly, the District Court did not err in denying Williams’ Rule 29

motion for judgment of acquittal.




2
  Williams argues that he, like the defendant in United States v. Pressler, 256 F.3d 144
(3d Cir. 2001), never agreed to work with either his seller or his buyers to achieve a
common goal or advance a common interest. However, Pressler is inapposite for
primarily two reasons. First, the issue in Pressler was whether a conspiracy existed at all,
not whether a particular individual was a member of a documented conspiracy. See Id. at
147, 151 (distinguishing Gibbs because the issue in Pressler was whether a conspiracy
existed). Second, the evidence demonstrates that Williams, unlike the defendant in
Pressler, was so closely connected with the conspiracy that a reasonable jury could infer
he shared a unity of purpose with — and joined — the SCCG with the intent to further its
common goals.
                                             6
                                         B.

      We review the District Court’s determination as to the amount of drugs

attributed to a defendant for clear error. United States v. Yeung, 241 F.3d 321, 322

(3d Cir. 2001).

      When sentencing co-conspirators, the sentencing court may consider “all

reasonably foreseeable acts and omissions of others in furtherance of the jointly

undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B) (2008) (Williams was

sentenced under the 2008 version of the Sentencing Guidelines Manual). As to

offenses involving controlled substances, a “defendant is accountable for all

quantities of contraband with which he was directly involved and, in the case of a

jointly undertaken criminal activity, all reasonably foreseeable quantities of

contraband that were within the scope of the criminal activity that he jointly

undertook.” See id. cmt. n.2. We have held that, under § 1B1.3, a defendant can

be responsible for the amount of drugs distributed by his co-conspirators only if the

drugs distributed: (1) were in furtherance of the conspiracy; (2) were within the

scope of the defendant’s agreement; and (3) were reasonably foreseeable in

connection with the criminal activity that the defendant agreed to undertake. See

United States v. Price, 13 F.3d 711, 732 (3d Cir. 1994). When determining the

amount of drugs attributable to a particular defendant, the sentencing court must

conduct a “searching and individualized inquiry,” United States v. Collado, 975

                                         7
F.2d 985, 995 (3d Cir. 1992), and may rely upon trial testimony of co-conspirators,

Price, 13 F.3d at 732.

      Here, the District Court — after a careful and thorough consideration of the

issue, which included a hearing addressing the issues of, inter alia, the length of

participation in the conspiracy and the drug weight attribution as to each defendant

— did not plainly err in determining that Williams was responsible for conspiring

to distribute 59.1 kilograms of crack cocaine. First, the District Court determined

that Williams was a member of the SCCG from its beginning (November 2002) to

its end (September 2007), and thus, he was involved for 58 months, which

conservatively equates to 232 weeks.         Smith’s trial testimony supported this

determination.   See Supp. App. 558-59 (testifying that Williams supplied the

SCCG with cocaine from 2002 to 2007). Second, the District Court determined

that the SCCG distributed approximately 9 ounces of crack per week, which is

equal to approximately 255 grams. This conservative determination was supported

by the trial testimony, in particular Smith’s testimony that he was obtaining

approximately 9 ounces of cocaine multiple times a week from his suppliers at the

beginning of the conspiracy (Supp. App. 540) and that this amount increased to

between 9 to 13.5 ounces later in the conspiracy (Supp. App. 550-51). Moreover,

the trial testimony also indicates that Williams knew, or that it was reasonably



                                         8
foreseeable, that others were supplying cocaine to the SCCG.3 Thus, the District

Court did not plainly err in concluding that Williams was responsible for 0.255

kilograms of crack per week multiplied by 232 weeks, totaling 59.1 kilograms of

crack.

         Accordingly, we will affirm.




3
  As discussed supra, the evidence at trial demonstrates that Williams was closely
involved with the SCCG’s operations and understood the conspiracy’s scope. Thus,
Williams knew — or reasonably should have known — that his supply of cocaine to the
SCCG was insufficient to cover its operating needs and that the SCCG used an additional
supplier. Also, the amount of cocaine provided by suppliers other than Williams to the
SCCG was within the scope of Williams’ agreement to join the conspiracy because that
amount allowed the SCCG to continue operating and potentially expand its market share
even when Williams temporarily exhausted his supply.
       Moreover, we are not persuaded by Williams’ argument that the amount of crack
cocaine for which he is responsible should be reduced on account of his incarceration
from July through November 2004 because that amount does not affect his sentencing
guideline range. The District Court determined that Williams was responsible for
conspiring to distribute 59.1 kilograms of crack, which resulted in the highest base
offense level of 38 under U.S.S.G. § 2D1.1(c)(1) (2008) (his total offense level was 40
because it included a two point enhancement under § 2D1.1(b)(1) for a dangerous
weapon). Williams was incarcerated for 16 weeks, during which the District Court
estimated that the SCCG distributed 4.08 kilograms of crack (i.e., 0.255 kilograms of
crack per week multiplied by 16 weeks). If we were to reduce the total amount found by
the District Court (59.1 kilograms) by the 4.08 kilograms that the SCCG distributed while
Williams was in jail, Williams would be responsible for approximately 55 kilograms of
crack. This amount is still well above the 4.5 kilogram threshold that corresponds with
the base offense level of 38 as set forth in § 2D1.1(c)(1) of the applicable 2008 version of
the Guidelines Manual. Consequently, even if Williams were not responsible for the
crack the SCCG sold during his period of incarceration, his offense level, and thus his
sentencing guidelines range, would remain unaffected.
                                             9
