[DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                             No. 09-16045               ELEVENTH CIRCUIT
                                                          OCTOBER 13, 2010
                         Non-Argument Calendar
                                                             JOHN LEY
                       ________________________
                                                              CLERK

                  D. C. Docket No. 09-60025-CR-WPD

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

DENISIER JEAN-LOUIS,

                                                        Defendant-Appellant.


                       ________________________

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

                           (October 13, 2010)



Before EDMONDSON, BLACK and MARTIN, Circuit Judges.

PER CURIAM:
      Denisier Jean-Louis appeals his 120-month sentence and conviction for

conspiracy to possess with intent to distribute 50 grams or more of crack cocaine in

violation of 21 U.S.C. § 846. Jean-Louis asserts two issues on appeal: (1) whether

there was sufficient evidence of the existence of an agreement, beyond a mere

buyer-seller relationship, to sustain a guilty verdict; and (2) whether he was denied

due process because of the Government’s refusal to allow him the same parity in

sentencing, that was extended to his co-defendants. We address each issue in turn,

and affirm Jean-Louis’ conviction and sentence.

                                          I.

      Jean-Louis first asserts the Government presented insufficient evidence of an

agreement with his drug dealer, Leroy Estime, to possess crack with intent to

distribute. Jean-Louis claims he simply had a buyer-seller relationship with

Estime, and an investigation by the Government and Estime’s own testimony failed

to prove otherwise. Additionally, Jean-Louis contends Estime’s testimony was

unreliable because he hoped to expedite his release from prison by testifying

against Jean-Louis.

      We review a challenge to the sufficiency of the evidence de novo. United

States v. Majors, 

, 1210 (11th Cir. 1999). This Court views the

evidence in the light most favorable to the government, draws credibility choices in



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favor of the verdict, and determines whether the jury could have found the

defendant guilty beyond a reasonable doubt. United States v. Young, 

,

1565 (11th Cir. 1994).

      To convict a defendant for conspiracy, the evidence must show (1) a

conspiracy existed, (2) the defendant knew of it, and (3) the defendant, with

knowledge, voluntarily joined it. United States v. Perez-Tosta, 

, 1557

(11th Cir. 1994). While the existence of a simple buyer-seller relationship alone

does not furnish the requisite evidence of a conspiratorial relationship, an

agreement to distribute drugs may be inferred when the evidence shows a

continuing relationship that results in the repeated transfer of illegal drugs to a

purchaser. United States v. Thompson, 

, 1292 (11th Cir. 2005).

What distinguishes a conspiracy from a mere buyer-seller relationship is the joint

objective of distributing drugs. See United States v. Dekle, 

, 829

(11th Cir. 1999).

      The fact that a witness thought that his testimony would benefit him does not

make his testimony incredible. United States v. Cravero, 

, 670 (5th

Cir. 1976). For testimony to be considered incredible as a matter of law, “it must

be unbelievable on its face, i.e., testimony as to facts that [the witness] could not




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have possibly observed or events that could not have occurred under the laws of

nature.” United States v. Rivera, 

, 1561 (11th Cir. 1985).

      The Government presented sufficient evidence for a jury to find Jean-Louis

and Estime were involved in a conspiracy to distribute crack cocaine. The record

shows Jean-Louis talked about his customers with Estime, Estime sold Jean-Louis

crack in distributable one-gram rocks, and Jean-Louis bought considerably more

than user quantities. Moreover, Jean-Louis revealed his intention to resell the

crack by telling Estime his strategy for selling the one-gram rocks at a profit.

Finally, the jury could infer a conspiracy to distribute crack based on the repeated

transfer of drugs between Estime and Jean-Louis. See 

.

      The fact that Estime thought his testimony for the Government would

benefit him does not make his testimony incredible. See 

.

Estime’s testimony that Jean-Louis talked about dealing drugs is not unbelievable

on its face because the Government presented evidence of recorded phone

conversations corroborating this testimony. Thus, Jean-Louis’ argument that the

Government presented insufficient evidence of a conspiracy to distribute crack

cocaine is without merit.




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                                             II.

       Jean-Louis next contends he was denied due process of law because the

Government did not inform the court, as it did in the case of his co-defendants, that

it would not object to a variance in his sentence based on a one-to-one ratio

between crack cocaine and powder cocaine. In addition, Jean-Louis claims the

prosecutor’s “distortion of government policy” rendered the sentence imposed on

Jean-Louis fundamentally unfair.

       Jean-Louis’ assertion, raised for the first time on appeal, is reviewed for

plain error. See United States v. Moriarty, 

, 1018 (11th Cir. 2005)

(reviewing constitutional objection not raised before the district court for plain

error). “[A]n appellate court may, in its discretion, correct an error not raised at

trial only where the appellant demonstrates that (1) there is an error; (2) the error is

clear or obvious, rather than subject to reasonable dispute; (3) the error affected the

appellant's substantial rights . . . ; and (4) the error seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.” United States v. Marcus,

, 2164 (2010).

       Although the district court is required “to avoid unwarranted sentence

disparities among defendants with similar records who have been found guilty of

similar conduct,” 18 U.S.C. § 3553(a)(6), defendants who cooperate with the



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Government are not similarly situated to a defendant who provides no assistance to

the government and proceeds to trial. United States v. Docampo, 

,

1101 (11th Cir. 2009). There is no unwarranted disparity even when the sentence

the cooperating defendant receives is “substantially shorter.” 

did not deprive Jean-Louis of his due process rights when

it did not ask for the same variance to be applied to him during sentencing. Jean-

Louis fails to cite any authority requiring the Government to announce policies

consistently during the sentencing of all codefendants. Moreover, Jean-Louis was

not subject to an unfair disparity in his sentence because, unlike his codefendants,

he did not provide assistance to the Government. See 

.

      Further, the district court did not err in sentencing Jean-Louis to the

mandatory minimum because he did not qualify for a below mandatory minimum

sentence under 18 U.S.C. § 3553(f), the so-called “safety-valve” provision.

Review of the record shows Jean-Louis’ safety-valve proffer changed quickly in

response to questions from the court, bringing into doubt the truthfulness of his

statement as a whole. In addition, the district court acknowledged that Jean-Louis

had obstructed justice, warranting an upward enhancement. Accordingly, we affirm

Jean-Louis’ conviction and sentence.

      AFFIRMED.



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