F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                           MAR 5 2004
                                TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                     No. 02-3322
                                              (D.C. No. 98-CR-20076-03-JWL)
 KEITH V. WEATHERSBY,                                (District of Kansas)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before MURPHY, ANDERSON, and McCONNELL, Circuit Judges.



I.    INTRODUCTION

      Defendant Keith V. Weathersby was convicted by a jury of conspiracy to

possess with intent to distribute cocaine and of possession with intent to distribute

cocaine or aiding and abetting the possession with intent to distribute cocaine. 1

      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      1
        The verdict form recording the jury’s conclusion articulated count 2
against Weathersby as “possess[ion] with the intent to distribute, or aid[ing] and
abett[ing] the same . . . .” [Vol 2. at tab 159] The only possible possession to
which the aiding and abetting verdict could have referred was the possession by
                                                                       (continued...)
[Appx. Vol. 2 at Tab 159] At the close of the government’s evidence, and again

following trial, Weathersby moved for a judgment of acquittal arguing that the

evidence against him was insufficient to support a conviction. [Vol. 9 at 570,

Vol. 3 at tab 162] The court denied both motions. [Vol. 9 at 603, Vol. 3, tab 173

at 15] After the verdict was entered, Weathersby filed a motion for a new trial.

[Vol. 3, tab. 181] The district court denied that motion as well. [Vol. 3, tab 173

at 15] Weathersby was sentenced to 292 months’ imprisonment. [Vol. 3, tab 184

at 2]

        On appeal, Weathersby challenges the denial of his motions for a judgment

of acquittal and motion for a new trial. [W’s Br. at 16-18] Weathersby also

argues that the district court committed plain error by applying an upward

adjustment to his base offense level for reckless endangerment. [W’s Br. at 20]

This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms the

district court’s decisions.

II.     BACKGROUND

        Denise Theus and Marlane Battle were stopped by highway patrol troopers

while driving in Kansas. [Vol. 8 at 190-91] The troopers discovered four

kilograms of cocaine hidden inside the spare tire of the car they drove. [Id. at




      (...continued)
        1

Theus and Battle.

                                         2
194] The women told the officers that they were driving the car from Los

Angeles to Kansas City for a friend but that they were unaware of the drugs

hidden in the tire. [Id. at 228] The troopers contacted the DEA, and DEA agents

attempted a controlled delivery of the drugs in Kansas City. [Id. at 198, 233]

After the attempted delivery failed, the women were released. [Id. at 230] Law

enforcement agents continued their investigation into the source of the drugs.

      Sometime later, after Theus had been arrested on other charges, she was

indicted in connection with the four kilograms for possession with intent to

distribute cocaine. [Vol. 1, tab 1; Vol 9 at 483-84] She agreed to cooperate with

prosecutors and pleaded guilty. [Vol. 11 at 128] The government then obtained a

superseding indictment against Theus, Battle, Weathersby, and Gary Terrell.

[Vol. 1, tab 26] The indictment charged that the four defendants conspired to

distribute cocaine in Kansas between November 1996 and January 1997. [Id.]

Battle and Terrell were arrested and eventually pleaded guilty to possession with

the intent to distribute cocaine. [App. Vol. 1 at tab 62, 65]

      Weathersby eluded capture for some time after his co-conspirators had been

apprehended. On July 6, 2001, law enforcement officers followed Weathersby to

a freeway entrance ramp in Los Angeles. [Transcript of 9/6 at 9-10, 16] When

Weathersby stopped at a traffic light, one officer maneuvered his vehicle to block

Weathersby from driving onto the freeway. [Id. at 17] Weathersby then rammed


                                          3
the officer’s car and escaped by driving up an embankment onto the freeway. [Id.

at 18-19] Weathersby was apprehended about a month later. [Id. at 24-25] By

the time Weathersby was caught, Terrell, Theus, and Battle had agreed to assist in

his prosecution. [Vol. 5 at 4-5, Vols 13, 16]

      At trial, Terrell testified that he and Weathersby had been close friends and

that they had both sold cocaine in Los Angeles. [Vol. 11 at 11] Terrell stated

that, in the past, he and Weathersby had sometimes pooled their money in order to

purchase bulk quantities of cocaine. [Id.] Terrell also testified that he and Theus

were partners in the business of selling cocaine, which they often purchased from

Weathersby. [Id. at 29-30, 132] Although Terrell and Theus purchased the

cocaine in Los Angeles, they usually sold it in Kansas City, Kansas and Kansas

City, Missouri. [Id. at 123, 135]. Terrell testified that Weathersby provided the

four kilograms of cocaine seized by Kansas Highway Patrol when Theus and

Battle were pulled over. [Vol. 11 at 33-34]

      Terrell also testified that Weathersby assisted him in obtaining the

automobile used by Theus and Battle to transport the cocaine. Weathersby

suggested that Terrell contact a certain salesman and accompanied Terrell when

he went to lease the vehicle. [Vol. 11 at 17-18]

      Theus testified that Weathersby regularly supplied her with cocaine and had

completed a two-and-a-half kilogram deal with her shortly before the four


                                         4
kilogram purchase. [Id. at 132-33, 136] Theus also testified that Weathersby had

supplied the four kilograms discovered in the spare tire. [Id. at 141-43] Battle’s

testimony supported the evidence given by Theus and Terrell. She testified that

Weathersby told her that he made “a lot of money” from the cocaine market in

Kansas City and that he dealt with Theus in distributing cocaine there. [Id. at

110]. Battle stated that she was present on one occasion when Theus purchased

cocaine from Weathersby. [Id. at 107-09]

      At the close of the prosecution’s evidence, Weathersby moved for a

judgment of acquittal, arguing that there was insufficient evidence to show that he

had any agreement with his co-conspirators to distribute cocaine in Kansas. [Vol.

9 at 570-71] The district court denied the motion. [Id. at 603] After the jury

found him guilty, Weathersby renewed the motion, and the court again denied it.

[Vol. 3 at tab. 173]

      Before sentencing, Weathersby filed a motion seeking a new trial based on

information given by Johnny Frazier, a fellow inmate. [Vol. 3, tab 181] In an

interview with Weathersby’s counsel, Frazier stated that Terrell had told him the

four kilograms of cocaine had been supplied by someone other than Weathersby.

[Id. at 3] Frazier reported that Terrell had planned to falsely accuse Weathersby

so that his sentenced would be reduced. The district court denied the motion,

holding that a new trial could not be granted on the basis of impeachment


                                         5
evidence and that in the alternative a new trial was unlikely to produce an

acquittal. [Vol. 7 at 24, 26]

       At sentencing, the district court adjusted Weathersby’s base offense level

upward by two levels for reckless endangerment during flight pursuant to

U.S.S.G. § 3C1.2. [Vol. 18 at 27-28] The court based the adjustment on

Weathersby’s escape from law enforcement officers on July 6, 2001. [Id.]

Weathersby appeals the district court’s sentencing decision as well as the district

court’s rulings on his motions for a judgment of acquittal and for a new trial.

III.   DISCUSSION

       A.    The Motions for a Judgment of Acquittal

       Whether the evidence is sufficient to support the judgment is reviewed de

novo. United States v. McKissick, 

, 1289 (10th Cir. 2000). The

question is whether the evidence, when viewed in the light most favorable to the

government, would permit a reasonable jury to find guilt beyond a reasonable

doubt. 

Conspiracy Charge

       A conviction for conspiracy requires the government to show: (1) two or

more persons including the defendant, agreed to violate the law, (2) the defendant

knew the essential objective of the conspiracy; (3) the defendant knowingly and

voluntarily became part of the conspiracy; and (4) the alleged co-conspirators


                                         6
were interdependent. United States v. Ivy, 

, 1285 (10th Cir. 1996).

Weathersby argues that there was insufficient evidence of an agreement between

him and his co-conspirators to sustain a conviction for conspiracy to distribute

cocaine. [W’s br. at 25-26] Weathersby asserts that, at best, the evidence showed

only a buyer-seller relationship. [Id. at 28-29] This circuit has held that proof of

the existence of a buyer-seller relationship, without more, is inadequate to tie the

buyer to a larger conspiracy. See United States v. Flores, 

, 1277

(10th Cir. 1998). As we noted in Ivy, however, “the purpose of the buyer-seller

rule is to separate consumers, who do not plan to redistribute drugs for profit,

from street-level, mid-level, and other distributors, who do intend to redistribute

drugs for profit, thereby furthering the objective of the conspiracy.” 

. The testimony of Terrell, Theus, and Battle clearly showed that

Weathersby was not a buyer, but rather a distributor who sold relatively large

quantities of narcotics for redistribution. Likewise, Terrell and Theus

acknowledged that they were not mere consumers, but purchased cocaine in order

to sell it to others.

       Weathersby asserts, however, that in this specific transaction he lacked a

“shared stake in the buyer’s illegal venture.” Therefore, according to

Weathersby, the sale of the four kilograms could not have been part of a larger

conspiracy. United States v. Rivera, 

, 755 (7th Cir. 2001)(quotation


                                          7
omitted). 2 [W’s Br. at 25] Weathersby notes that fronting the narcotics in

expectation of payment is important evidence of a conspiracy to distribute and is

noticeably absent in this case. [W’s Br. at 26] Weathersby points out that Terrell

also testified that he and Weathersby were not partners, had no agreement

regarding distribution of the drugs, and that once the money changed hands

Weathersby had no stake in the outcome of Terrell’s and Theus’s activity. [Vol.

11. at 12, 74-75]

      Even assuming that if Weathersby lacked a “shared stake in the buyer’s

illegal venture” the buyer-seller rule would apply, that is not the situation in this

case. While the defendant’s partial summary of Terrell’s testimony is accurate, it

ignores other evidence in the case showing that Weathersby had a continuing

interest in the disposition of the drugs at issue in this case. Weathersby told

Battle that he made a great deal of money from the Kansas cocaine market and

knew that Theus had contacts there. [Id. at 110] Battle also noted that

Weathersby stated that he worked with Theus to distribute cocaine in Kansas City.


      2
        Weathersby argues that this court should use the four-factor test
developed in United States v. Rivera to determine whether a buyer and a seller
were involved in a conspiracy. [W’s Br. at 25] This test examines: (1) the
length of the relationship between the buyer and seller, (2) whether there was an
established method of payment such as fronting, (3) the extent to which the
transactions were standardized, and (4) the level of mutual trust between the
buyer and the seller. United States v. Rivera, 

, 755 (7th Cir. 2001).
We decline to do so. Because United States v. Ivy, 

(10th Cir. 1996)
is controlling in this case it is unnecessary for this court to utilize Rivera.

                                          8
[Id.] As noted, Weathersby also assisted in obtaining a transport vehicle from a

dealership in Kansas City, Missouri.

      Although much of this evidence relates to drug transactions not

encompassed in the indictment in this case, the evidence of the course of conduct

is highly relevant to determining the nature of Weathersby’s relationship with his

co-conspirators. Essentially, Theus and Terrell operated as retailers for

Weathersby and he knew that if business was “booming in Kansas” he would

continue to make money. [Vol. 11 at 110] Based on the evidence described

above, the jury could reasonably infer that Weathersby’s interest in the conspiracy

went beyond the simple act of selling the four kilograms to Theus and Terrell.

Thus, the buyer-seller rule simply does not apply in this case.

      There is also sufficient evidence of the factors listed in Ivy. From the

evidence described above, the jury could readily infer that Weathersby knew the

intentions of Terrell and Theus and agreed to assist them. Likewise, the evidence

of the course of conduct between the parties supports the conclusion that the

parties were interdependent and that Weathersby participated willingly. The jury

could have inferred that Theus and Terrell relied on Weathersby to provide drugs

and transportation, and that Weathersby relied on Theus and Terrell as return

buyers to pay him for the drugs and distribute them. Accordingly, we conclude

that there is sufficient evidence to sustain the jury’s verdict concerning the


                                          9
conspiracy to distribute cocaine.

      2.      The Possession Charge

      The jury convicted Weathersby of either possessing cocaine with the intent

to distribute or aiding and abetting possession by his co-conspirators. 3 [Vol 2 at

Tab 159] Weathersby argues that there is insufficient evidence to support a

conviction regarding the aiding and abetting for the same reasons that the

evidence does not support a conviction for conspiracy. [W’s Reply Br. at 10] For

reasons discussed above we reject that argument and conclude there was

sufficient evidence to support the jury’s verdict. Weathersby also argues that he

did not possess the cocaine because he had no “ability to guide the destination of

the [drug].” United States v. Carter, 

, 1441 (10th Cir. 1997). We

reject that argument as well because constructive possession may be joint among

several individuals involved in a conspiracy. United States v. Ruiz-Castro, 

, 1531 (10th Cir. 1996). Accordingly, we conclude that the evidence

was sufficient to sustain the aiding and abetting conviction.

B.    The Motion for a New Trial

      The denial of a motion for a new trial based on newly discovered evidence

is reviewed for an abuse of discretion. United States v. Sutton, 

, 728

(10th Cir. 1985). To prevail on such a motion, the defendant must show that: (1)


      3
          See footnote 1.

                                         10
the evidence was discovered after trial; (2) the failure to learn of the evidence

was not caused by defendant’s own lack of diligence; (3) the new evidence is not

merely impeaching; (4) the new evidence is material to the principal issues

involved; and (5) the new evidence is of such a nature that in a new trial it would

probably produce an acquittal. United States v. Sinclair, 

, 1531

(10th Cir. 1997).

      Weathersby argues that Frazier’s testimony contradicted the government’s

only evidence that Weathersby supplied the four kilograms of cocaine seized in

this case. 4 [W’s reply br. at 11] Weathersby argues that the district court erred in

concluding that Terrell’s testimony remained credible despite the information

offered by Frazier. [W’s br. at 38] Weathersby notes that the court felt Terrell

had little incentive to lie because he had already received a substantial reduction

in his sentence. [Id.] He argues that the court should have recognized that

without directly implicating Weathersby, Terrell had little information to offer

prosecutors. [Id.]

      That argument fails because Terrell’s credibility was already in question


      4
        The district court held that Frazier’s testimony was “merely impeaching”
evidence and could not be the basis for a new trial. [Vol 7 at 24] Weathersby
argues that the evidence presented by Frazier goes to a central issue in the case
and therefore it is not “merely impeaching.” [W’s Br. at 36-38] We need not
reach that question, however, because we agree with the district court’s
alternative holding [Vol. 7 at 28] that even if a new trial was warranted it would
be unlikely to produce a different result.

                                         11
before the discovery of Frazier’s information. Terrell testified about his criminal

history, [Vol. 11 at 6-7] about lies he had told in the past, [Id. at 48, 59, 61, 65-

66] and about his motivations for testifying against Weathersby. [Id. at 3-6, 10-

11] The information offered by Frazier would have added very little. The jury

was already aware that Terrell had a grudge against Weathersby and had been

given a reduced sentence for his testimony. Moreover, the jury was aware Terrell

purchased cocaine both from Weathersby and others. [Id. at 30] Frazier would

have added only that Terrell had stated his intention to falsely accuse Weathersby.

      We note that Frazier himself would have been subject to significant

impeachment. Frazier was incarcerated for money laundering at the time he gave

the information and he admitted that there was a conflict between him and Terrell.

[Vol. 3, Tab 181 at 2-3] Given Terrell’s admissions at trial concerning numerous

instances of perjury, his criminal history, and his acknowledgment of a grudge

against Weathersby, nothing indicates that Frazier’s testimony would have

changed the outcome. Accordingly, we conclude that the district court did not

abuse its discretion by denying the motion for a new trial.

C.    The Sentencing Adjustment for Reckless Endangerment

      On appeal, Weathersby argues that there must be a connection between the

defendant’s flight which causes reckless endangerment and the offense of

conviction. [W’s br. at 40] Weathersby did not raise this issue before the district


                                          12
court. [Id. at 41] Therefore, we review the district court’s decision for plain

error. United States v. Brown, 

, 1155 (10th Cir. 2003). Under the

plain error standard, Weathersby must show an error, that is plain and that affects

his substantial rights. 

conditions are met, the court may exercise its

discretion to notice the forfeited error, but only if the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings. 

§ 3C1.2, an upward adjustment of two levels should apply

“[i]f the defendant recklessly created a substantial risk of death or serious bodily

injury to another person in the course of fleeing from a law enforcement officer.”

Weathersby argues that sentencing adjustments to the base offense level are made

based on relevant conduct and the guidelines definition of relevant conduct looks

to events occurring “in the course of attempting to avoid detection or

responsibility for” the offense of conviction. U.S.S.G. § 1B1.3(a)(1). [W’s Br. at

42]

      This circuit has not decided whether a nexus between the flight and the

offense of conviction is required by the Sentencing Guidelines. We will assume

solely for the sake of argument that the district court erred by not examining the

connection, but we conclude that any error was not plain. Generally, we do not

consider an error to be “plain” in the absence of controlling precedent. United

States v. Haney, 

, 1167 (10th Cir. 2003) (en banc). There is no


                                          13
Supreme Court or binding Tenth Circuit decision on the issue of whether section

3C1.2 requires a connection to the offense of conviction.

      Weathersby argues that binding precedent is unnecessary because the clear

language of the sentencing guidelines requires a nexus. [W’s reply br. at 17] We

disagree. Nothing in section 3C1.2 itself requires that there be a connection

between the offense of conviction and the flight incident. While it is true that

section 1B1.3 would suggest that a nexus is needed, it does not unequivocally

state a requirement. That section allows for consideration of “any other

information specified in the applicable guideline.” U.S.S.G. § 1B1.3(a)(4). In

this case, the applicable guideline can be read to call for consideration of reckless

endangerment caused during any attempt to escape.

      Our conclusion that the language of the Guidelines does not immediately

resolve the issue is reinforced by examining relevant case law. No circuit has

held that a nexus is required, although some have assumed a nexus is required.

See, e.g., United States v. Duran, 

, 559-60 (9th Cir. 1994). On the

other hand, an unpublished Tenth Circuit case has rejected the notion that any

nexus is required. See United States v. Green, 

at *2-*3 (10th

Cir. Aug. 18, 1999). While these decisions are not binding, they certainly

indicate that a substantial question exists as to whether a nexus to the offense of

conviction is required by section 3C1.2. Accordingly, we cannot conclude that


                                         14
the district court’s decision to apply the adjustment was plain error.

IV.   CONCLUSION

      For the foregoing reasons, this court affirms the district court’s denial of

the motion for a judgment of acquittal, affirms the denial of the motion for a new

trial and affirms Weathersby’s sentence.

                                              ENTERED FOR THE COURT



                                              Michael R. Murphy
                                              Circuit Judge




                                         15