[DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________                    FILED
                                                            U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                 No. 07-13703
                                                                   July 29, 2008
                             Non-Argument Calendar             THOMAS K. KAHN
                           ________________________                CLERK

                        D. C. Docket No. 06-20325-CR-SH

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                      versus

CARLOS VILLAVICENCIO,
a.k.a. Carlito,

                                                             Defendant-Appellant.

                           ________________________

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

                                  (July 29, 2008)

Before ANDERSON, HULL and MARCUS, Circuit Judges.

PER CURIAM:

      Carlos Villavicencio appeals from his conviction for conspiracy to possess

with intent to distribute a controlled substance in violation of 21 U.S.C. § 846. On
appeal, Villavicencio argues that: (1) the government failed to present sufficient

evidence to establish a conspiracy to possess methamphetamine, and the evidence

that was produced resulted in a material variance from the indictment; and (2) the

district court abused its discretion by admitting evidence of his cocaine possession

because it bore no relation to the charged crime and was highly prejudicial. After

thorough review, we affirm.

      We review the record for sufficiency of the evidence de novo in the light

most favorable to the government. United States v. Brown, 

, 1221

(11th Cir. 1994). Ordinarily, the issue of variance between indictment and proof at

trial is one form of a challenge to the sufficiency of the evidence. United States v.

Jenkins, 

, 616 (11th Cir. 1986). If, however, a defendant does not

raise the issue of variance before the trial court, it is reviewed for plain error.

United States v. Dennis, 

, 1300 (11th Cir. 2001).         We normally

review the admission of prior crimes or bad acts for abuse of discretion. United

States v. Ellisor, 

, 1267 (11th Cir. 2008). Where, however, the error

is invited, we are precluded from invoking the plain error rule and reversing.

United States v. Silvestri, 

, 1327 (11th Cir. 2005).

      The relevant facts, as gleaned from the trial transcript, are straightforward.

Jose Terazon testified that he ran a methamphetamine ring, in which he would mail



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the drug to Scarlett Herrera and Natalie Gianella for distribution in South Florida.

At some point, Herrera introduced Terazon to Villavicencio, and Terazon later

agreed to pay Villavicencio $1000 per ounce to sell the drug. The first transaction,

at which Terazon was present, was for one ounce, and subsequent transactions, at

which Terazon used a man named Juan Luis Sanchez-Reyes, were for two ounces,

one ounce, and eight ounces, respectively. In August 2005, Terazon sent a five-

pound package to Sanchez-Reyes and Gianella, two to three pounds of which were

for Villavicencio, but police intercepted the package and arrested Sanchez-Reyes

and Gianella. On cross-examination, Terazon testified that although the factual

proffer with his guilty plea did not specifically state that two to three pounds were

to go to Villavicencio, that was the intention.

      Sanchez-Reyes testified that Herrera and Terazon introduced him to

Villavicencio, to whom Sanchez-Reyes sold methamphetamine that he received

from Terazon. The first deal was for one ounce at $800, and a man named Juan

Madiedo came with Villavicencio to the first two deals.        Ultimately, Sanchez-

Reyes sold methamphetamine to Villavicencio on five occasions. On the day he

was arrested, he was supposed to give eight ounces of the five-pound shipment to

Villavicencio.   On cross-examination, he said that Terazon never told him that he




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was supposed to give Villavicencio two or three pounds from the five pound

shipment, and that he collected $800 an ounce, not $1000.

      Others testified as well, including: (1) Herrera, who said that during the

conspiracy with Villavicencio to sell methamphetamine, Villavicencio asked her to

contact Terazon to arrange a methamphetamine transaction, and she ultimately

brokered two more deals -- one for about four ounces and one for about half of a

pound -- between Terazon and Villavicencio; (2) Gianella, who said that before she

was arrested with Sanchez-Reyes on their way to pick up the five-pound shipment

-- of which Villavicencio was to receive about nine ounces -- Villavicencio called

Sanchez-Reyes about the shipment; (3) Madiedo, who said that he bought

methamphetamine from Villavicencio on many occasions, and that he was in the

car with Villavicencio at the first transaction with Terazon and in the transactions

with Sanchez-Reyes; and (4) Drug Enforcement Agency (“DEA”) Agent Todd

Phillips, who testified about a search of Villavicencio’s bedroom, was asked by

defense counsel on cross-examination if two grams of cocaine were found during

the search, and replied that they were. Later in the trial, the government introduced

a stipulation of facts providing that two grams of cocaine were recovered from a

search of Villavicencio’s bedroom, and Villavicencio did not object to the

admission of the stipulation.



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      During the jury instructions, the district court informed the jury that it had

heard testimony from persons who had entered into plea bargains with the

government, and that such agreements were legal, but that the jury should consider

their testimony with more caution than testimony of other witnesses. The jury

nonetheless found Villavicencio guilty.      The district court then ordered the

preparation of a presentence investigation report (“PSI”), which stated that

Villavicencio was directly responsible for 368.543 grams of methamphetamine.

The district court sentenced Villavicencio to 120 months’ imprisonment and 5

years’ supervised release. This appeal follows.

      First, we find no merit in Villavicencio’s contention that there was

insufficient evidence to establish a conspiracy to possess methamphetamine. A

person who conspires to possess with the intent to distribute a controlled substance

is subject to the same penalties as if he was charged with possession with intent to

distribute. 21 U.S.C. §§ 846, 841(a)(1). A violation of § 841(a) occurs without

regard to the nature and quantity of the controlled substance, and § 841(b) is a

sentencing provision that only becomes applicable after a defendant has been

convicted.   United States v. Cross, 

, 623 (11th Cir. 1990). “A

conviction for conspiracy to distribute drugs in violation of 21 U.S.C. § 846

requires evidence that persuades the trier of fact beyond a reasonable doubt, that



                                         5
(1) a conspiracy (or agreement) existed between Defendants or between

Defendants and others; (2) Defendants knew the essential objects of the

conspiracy, which are to do either an unlawful act or lawful act by unlawful means;

and (3) Defendants knowingly and voluntarily participated in the conspiracy.”

United States v. Westry, 

, 1212 (11th Cir. 2008).

      As summarized above, the testimony adduced at trial provided ample

evidence of Villavicencio’s knowing and voluntary agreement with Terazon to sell

methamphetamine.     And contrary to Villavicencio’s suggestion on appeal, the

government did not need to introduce into evidence the methamphetamine that was

sold nor any physical evidence, because in a conspiracy case, the essence of the

crime is the illegal agreement. The government fully met its burden of adducing

sufficient evidence to enable a reasonable factfinder to find beyond a reasonable

doubt the existence of a conspiracy to possess with intent to distribute a controlled

substance. 

.

      Moreover, the government did not fail to introduce sufficient evidence

simply because most of its witnesses were also involved in the conspiracy. As

shown above, the testimony of the witnesses involved information reasonably

within the potential knowledge of the witnesses -- including existence of the

conspiracy and the amount of drugs involved -- and thus was not incredible as a



                                         6
matter of law. See United States v. Calderon, 

, 1325 (11th Cir.

1997) (holding that testimony is only incredible as a matter of law where it is

outside the bounds of nature or the possible observation of a witness); see also

(holding that a jury is free to choose among the

constructions of the evidence). As a result, we will not revisit the jury’s credibility

determinations, see United States v. Chastain, 

, 1351 (11th Cir.

1999), especially where, as here, the jury was warned about the fact that the

witnesses had agreed to cooperate.

      We are also unpersuaded by Villavicencio’s contention that his conviction

constituted a material variance from the indictment.        We will only reverse a

conviction for a variance if the variance is material and substantially prejudices the

defendant. United States v. Edouard, 

, 1347 (11th Cir. 2007). “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. Moore, 

, 1042 (11th Cir. 2008)

(quotation omitted).   The arguable existence of multiple conspiracies does not

constitute a material variance if a reasonable trier of fact could have found, beyond

a reasonable doubt, that a single (charged) conspiracy existed, and we will not

disturb the determination of a jury if supported by substantial evidence. 

determining whether a jury could have found a single conspiracy, this

Court considers: (1) whether a common goal existed; (2) the nature of the

underlying scheme; and (3) the overlap of participants.” 

are not separate conspiracies as long as the participants act in concert to further the

common goal, and it is irrelevant if a particular co-conspirator did not participate in

every stage of the conspiracy. 

of a conspiracy is permitted where a

“key man” directs and coordinates the activities and individual efforts of various

combinations of people. 

.

      Here, because Villavicencio did not raise the issue until the appeals stage,

we review it only for plain error. See 

. Regardless of the

standard of review, however, the evidence adduced at trial showed that the same

persons were involved in the same plan to distribute the same substance,

supporting a finding of a single conspiracy, rather than multiple conspiracies. In

particular, the conspiracy began with a discussion between Villavicencio and

Terazon    about   Villavicencio   distributing   methamphetamine       for   Terazon.

Villavicencio then proceeded to continue to sell methamphetamine for Terazon on

at least five occasions, working with both Herrera and Sanchez-Reyes. The object

of the conspiracy, the persons involved, and the methods used stayed consistent

throughout the charged time period. See 

. In addition,



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Terazon functioned as a “key man” and directed the activities of the individuals

involved. See 

. As a result, the conspiracy presented at

trial was a single conspiracy, and did not result in a material variation from the

indictment. See 

.

      Finally, we reject Villavicencio’s argument that the district court abused its

discretion in allowing evidence of Villavicencio’s cocaine possession to be

admitted. Under Rule 404(b) evidence of prior bad acts is not admissible to prove

the character of a person in order to show action in conformity therewith but may

be introduced to prove motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident. Fed.R.Evid. 404(b).

      The doctrine of invited error is implicated when a party induces or invites

the district court into making an error and where such error exists, we are

precluded from reversing. 

. We have held that where a

defendant stipulates to admission of evidence he is later precluded from

challenging such admission for constitutional error. United States v. Jernigan, 

, 1290 (11th Cir. 2003). Furthermore, “[i]t is elementary that appellants

must perfect the record so as to support the issues which they present on appeal.”

United States v. Gutierrez, 

, 1491 (11th Cir. 1991).




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      Here, Villavicencio invited the error he now challenges on appeal by

introducing the fact that cocaine was discovered at a search of his house to the jury

when his counsel cross-examined Agent Phillips, and by agreeing to the

government’s stipulation of facts. He is therefore precluded from challenging the

admission of this evidence. See 

(holding that invited

error precludes review); 

(holding that stipulating to the

admission of evidence is invited error). But even if the error was not invited and

was, instead, the result of an adverse ruling on admissibility, Villavicencio has

failed to meet his burden of providing information concerning the district court’s

ruling, and it is not readily discernible from the record. See 

. As a result, Villavicencio cannot show that the district court was responsible

for admitting the evidence, and therefore, cannot show that the court abused its

discretion. Accordingly, we affirm.

      AFFIRMED.




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