Case: 14-14461   Date Filed: 09/10/2015   Page: 1 of 13


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-14461
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 1:14-cr-00037-WS-C-3



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

MICHAEL LAMAR SWEAT,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                       ________________________

                            (September 10, 2015)

Before WILSON, JORDAN, and JULIE CARNES, Circuit Judges.

PER CURIAM:
              Case: 14-14461     Date Filed: 09/10/2015   Page: 2 of 13


      Michael Lamar Sweat was indicted by a federal grand jury on one count of

conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. § 846

(Count One), one count of attempted manufacture of methamphetamine, in

violation of 21 U.S.C. § 841(a)(1) (Count Two), and one count of possession of

pseudoephedrine with knowledge and reasonable cause to believe that it would be

used to manufacture a controlled substance, in violation of 21 U.S.C. § 841(c)(2)

(Count Five). The indictment also charged co-defendants William Cowart and

Jammie Hopkins—Cowart and Hopkins pleaded guilty to the charges, and Sweat

proceeded to trial. At the conclusion of the prosecution’s case in chief, Sweat

moved for judgment of acquittal as to all counts charged in the indictment. The

district court granted the motion as to Count Two, but denied his motion as to

Counts One and Five. Sweat was convicted of Counts One and Five.

      On appeal, Sweat contends that there was insufficient evidence to support a

conviction as to those counts. As to Count One, Sweat argues that there was

insufficient evidence to establish the existence of a single conspiracy, as opposed

to multiple conspiracies. With respect to Count Five, Sweat avers that there was

insufficient evidence to establish that the date listed on the indictment was

reasonably near the date of his possession. Finally, Sweat argues that the district

court committed clear error in determining the drug quantity attributable to him




                                          2
              Case: 14-14461      Date Filed: 09/10/2015     Page: 3 of 13


and in denying him a sentence reduction for having played a minor or minimal role

in the commission of the offense.

      After review of the parties’ briefs and the record on appeal, we conclude that

Sweat’s arguments are without merit and thus affirm his convictions and sentence.

                           I. Sufficiency Of The Evidence

      The district court’s denial of judgment of acquittal based on sufficiency of

evidence grounds is reviewed de novo. See United States v. Capers, 

, 1296 (11th Cir. 2013). We “consider[] the evidence in the light most

favorable to the [g]overnment, and draw[] all reasonable inferences and credibility

choices in the [g]overnment’s favor.” 

a defendant challenges

a denial of a judgment of acquittal based on insufficient evidence with an argument

not presented before the district court, our review is for plain error. See United

States v. Joseph, 

, 1103 (11th Cir. 2013). Plain error occurs when

there is “(1) error, (2) that is plain, and (3) that affects substantial rights.” United

States v. McNair, 

, 1222 (11th Cir. 2010) (internal quotation marks

omitted). If the first three conditions are met, then we “may exercise discretion to

correct a forfeited error, but only if (4) the error seriously affects the fairness,

integrity, or pubic reputation of judicial proceedings.” 

marks omitted).

                                     A. Count One


                                            3
              Case: 14-14461     Date Filed: 09/10/2015    Page: 4 of 13


      Sweat contends that Count One should have been dismissed because a

reasonable jury could not have concluded beyond a reasonable doubt that a single

conspiracy existed. The evidence, according to Sweat, established the existence of

multiple conspiracies. However, because Sweat never presented the argument that

the evidence established multiple conspiracies rather than a single conspiracy

before the district court, we review denial of his motion for judgment of acquittal

as to Count One for plain error. See 

.

      A jury may freely choose among reasonable interpretations of the evidence,

and the evidence is not required to exclude “every reasonable hypothesis of

innocence or be wholly inconsistent with every conclusion except that of guilt.”

United States v. Williams, 

, 1323–24 (11th Cir. 2004) (internal

quotation marks omitted). We must affirm a conviction unless the jury could not

have found the defendant guilty beyond a reasonable doubt under any reasonable

construction of the evidence. See United States v. Edouard, 

, 1349

(11th Cir. 2007).

      A conviction will not be reversed when a single conspiracy is charged in the

indictment and multiple conspiracies are revealed at trial unless the resulting

variance is both material and substantially prejudicial. 

Thus, a jury’s

determination that a single conspiracy existed will not be disturbed if it is

supported by substantial evidence, even when the existence of multiple


                                           4
             Case: 14-14461     Date Filed: 09/10/2015   Page: 5 of 13


conspiracies is arguable. See 

existence of multiple conspiracies

is insufficient to find a material variance when a reasonable jury could have found

a single conspiracy.). In order to determine “whether the jury could have found a

single conspiracy, we consider: (1) whether a common goal existed; (2) the nature

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

marks omitted).

      In this case, the government charged that Sweat conspired with codefendants

Hopkins, Cowart, and other persons to manufacture methamphetamine. The nature

of the underlying scheme was for Sweat, Hopkins, Cowart, and other individuals to

buy pseudoephedrine that would later be sold to Cowart. Cowart would then use

the pseudoephedrine to manufacture methamphetamine. While Cowart was

responsible for manufacturing the methamphetamine, he relied on Sweat, Hopkins,

and other individuals to provide the necessary amount of pseudoephedrine to

manufacture methamphetamine. While separate transactions to sell

pseudoephedrine to Cowart may have occurred, these separate transactions did not

necessarily establish multiple conspiracies because there was a common goal to

manufacture the methamphetamine, and the co-conspirators intentionally joined in

this goal. See 

do not separate conspiracies when

conspirators act in furtherance of a common objective, and when a defendant’s

conduct aides the objectives of other co-conspirators a single conspiracy is


                                         5
              Case: 14-14461      Date Filed: 09/10/2015   Page: 6 of 13


demonstrated). Therefore, because we conclude that a common goal existed

among the co-conspirators such that a reasonable jury could have concluded that a

single conspiracy existed, the jury’s verdict as to Count One will remain

undisturbed. See 

Five

      According to Sweat, Count Five was not sufficiently proven because the

alleged date of its commission in the indictment was not reasonably near his

possession of pseudoephedrine. Sweat argues that the last of three purchases that

were accompanied by Cowart occurred on August 27, 2013, and there was no

evidence to establish that his December 18, 2013 purchase of pseudoephedrine was

for an illegal purpose. Sweat contends that while Cowart testified that he received

pseudoephedrine from Sweat between August and December of 2013, Cowart

never testified to a specific date.

      It is required that the allegations in the indictment and the proof at trial

correspond so that a defendant receives proper notice of the charges; such notice

will allow the defendant to assert a defense, and ensure that the he remain guarded

against subsequent prosecution for the same offense. See United States v. Reed,

, 1403 (11th Cir. 1989). It is well-settled that “proof of a date

reasonably near to the specified date is sufficient” when an indictment charges an

offense using the designation “on or about.” See United States v. Champion, 813


                                            6
              Case: 14-14461      Date Filed: 09/10/2015    Page: 7 of 

, 1168 (11th Cir. 1987). When this designation is used, “the defendant is

on notice that the charge is not limited to the specific date or dates set out in the

indictment.” 

.

      Here, the date in the indictment alleging that Sweat knowingly and willfully

possessed pseudoephedrine with knowledge and reasonable cause to believe that it

would be used to manufacture methamphetamine was December 18, 2013. The

indictment used the designation “on or about,” and thus Sweat was on notice that

the charge was not limited to the date set out in the indictment. 

the

pseudoephedrine logs used at trial indicated that Sweat purchased pseudoephedrine

on December 18, 2013, and Cowart’s testimony that Sweat personally provided

him pseudoephedrine between August and December of 2013, the jury could have

reasonably concluded that the purpose of Sweat’s December 18, 2013 purchase

was to provide Cowart with pseudoephedrine to manufacture methamphetamine.

See 

. Furthermore, Sweat does not establish that any

variance in the date prevented him from presenting his defense, nor does any

variance raise the possibility that Sweat may be prosecuted again for the same

offense. See 

. Therefore, because we conclude that a

reasonable jury could have concluded that Sweat purchased pseudoephedrine

reasonably near to the date alleged in the indictment with knowledge that it would




                                           7
              Case: 14-14461    Date Filed: 09/10/2015   Page: 8 of 13


be used to manufacture methamphetamine, the jury’s verdict as to Count Five will

also remain undisturbed.

      Accordingly, the district court did not err in denying Sweat’s motion for

judgment of acquittal as to both counts One and Five.

                           II. Attributed Drug Quantity

      Sweat argues that the district court erred in holding him accountable for

purchases made by other co-conspirators that were disconnected from him. He

claims that his relevant conduct covered 65.67 grams of pseudoephedrine, which

represented his own purchases and attempted purchases of pseudoephedrine, in

addition to instances when he accompanied his wife to the store while she made

purchases of pseudoephedrine. Sweat argues that the district court’s use of the

Sentencing Commission’s fifty percent ratio of pseudoephedrine to actual

methamphetamine found in the Guidelines’ Chemical Quantity tables was

arbitrary.

      We review the sentencing court’s determination of the quantity of drugs

attributable to a defendant for clear error. United States v. Almedina, 

, 1315 (11th Cir. 2012). We will only find clear error and disturb the district

court’s quantity determination if we are “left with a definite and firm conviction

that a mistake has been committed.” 

marks omitted). A




                                          8
              Case: 14-14461     Date Filed: 09/10/2015   Page: 9 of 13


district court’s application of the Guidelines to those facts is reviewed de novo.

United States v. Kinard, 

, 1297 n.3 (11th Cir. 2006) (per curiam).

      The government bears the burden of establishing the disputed quantity by a

preponderance of the evidence. See 

. When

determining the approximate drug quantity, “the [district] court may rely on

evidence demonstrating the average frequency and amount of a defendant’s drug

sales over a given period of time.” 

“Although sentencing may be

based on fair, accurate, and conservative estimates of the quantity of drugs

attributable to a defendant, sentencing cannot be based on calculations of drug

quantities that are merely speculative.” United States v. Zapata, 

,

1359 (11th Cir. 1998) (per curiam). “For sentencing purposes[,] member of a drug

conspiracy is liable for his own acts and the acts of others in furtherance of the

activity that the defendant agreed to undertake and [acts] that are reasonably

foreseeable in connection with that activity.” United States v. Ismond, 

, 1499 (11th Cir. 1993).

       Sweat agreed to purchase pseudoephedrine for Cowart knowing that he

would use it to manufacture methamphetamine and drove both Cowart and

Hopkins to stores in order to purchase pseudoephedrine. He is liable for the

foreseeable acts of both Cowart and Hopkins that were in furtherance of the

activity that he agreed to undertake. See 

. Sweat is


                                          9
             Case: 14-14461     Date Filed: 09/10/2015    Page: 10 of 13


accountable for both the pseudoephedrine he bought for the conspiracy and for the

pseudoephedrine bought by both Cowart and Hopkins, which the district court

fairly and accurately approximated to be 155.6 grams based on the evidence.

Contrary to Sweat’s assertions, a review of the record reveals that the district court

only held him accountable for his own purchases and the purchases of Cowart and

Hopkins.

      Finally, Sweat’s argument that the district court’s use of the fifty percent

ratio of pseudoephedrine to actual methamphetamine found in the Guidelines’

Chemical Quantity Table is arbitrary fails because Sweat may not challenge the

reasonableness of the Sentencing Guidelines. See United States v. Dorman, 

, 938 (11th Cir. 2007) (holding that the reasonableness standard applies to

the final sentence, not to each individual decision made during the sentencing

process). Therefore, we conclude that the district court did not commit clear error

when determining the attributable drug quantity.

                            III. Minor Role Reduction

      Sweat argues that he was entitled to a minor role reduction for his conduct in

the conspiracy. He attempts to distinguish himself from Hopkins by contending

that Hopkins played a much more prominent role, reasoning that Hopkins not only

purchased pseudoephedrine for Cowart, but was also present during the cooking.

In addition, he claims that playing a necessary part in the conspiracy does not


                                          10
                Case: 14-14461   Date Filed: 09/10/2015   Page: 11 of 13


preclude the imposition of a minor role reduction, as the district court incorrectly

concluded.

      We review the district court’s findings of fact in determining a defendant’s

role in an offense for clear error. United States v. Rodriguez De Varon, 

, 937 (11th Cir. 1999) (en banc). “[T]he district court has considerable

discretion in making this fact-intensive determination . . . .” United States v. Boyd,

, 1277–78 (11th Cir. 2002). The defendant bears the burden of

establishing his qualification for a minor role reduction by a preponderance of the

evidence. United States v. Alvarez-Coria, 

, 1343 (11th Cir. 2006)

(per curiam).

      Under the Guidelines, a defendant may receive a four-level reduction if he

was a minimal participant, a two-level reduction if he was a minor participant, or a

three-level reduction if he was somewhere between a minimal and minor

participant. See U.S.S.G. § 3B1.2. A minimal participant is one who is “plainly

among the least culpable of those involved in the conduct of the group.” 

cmt. n.4. An indication that a defendant’s participation may be minimal is

his “lack of knowledge or understanding of the scope and structure of the

enterprise and of the activities of others.” 

are those who are

“less culpable than most other participants, but whose role could not be described

as minimal.” 

cmt. n.5. In determining whether a mitigating role


                                          11
             Case: 14-14461      Date Filed: 09/10/2015    Page: 12 of 13


adjustment applies, the district court should consider two principles extracted from

the Guidelines: “first, the defendant’s role in the relevant conduct for which [he]

has been held accountable at sentencing, and, second, [his] role as compared to that

of other participants in [his] relevant conduct.” Rodriguez De 

. Under the first principle, “the district court must measure the defendant’s role

against the relevant conduct for which [he] has been held accountable,” keeping in

mind that certain convictions—such as a conspiracy conviction—will result in

some defendants being “held accountable for conduct that is much broader than

their specific acts,” 

In considering the second principle, the district

court should first “look to other participants only to the extent that they are

identifiable or discernable from the evidence.” 

Then, “the district court

may consider only those participants who were involved in the relevant conduct

attributed to the defendant.” 

is possible that none of the participants

are minor or minimal participants, the fact that a defendant’s role is less than other

participants’ roles may not be dispositive. 

pseudoephedrine to be used to manufacture

methamphetamine and transported both Cowart and Hopkins to stores so that they

could do the same. While Cowart may have played the most significant role in the

conspiracy as the methamphetamine cook, Sweat participated in the same way as

Hopkins did: they both purchased and sold pseudoephedrine to Cowart to facilitate


                                          12
             Case: 14-14461    Date Filed: 09/10/2015   Page: 13 of 13


the manufacture of the methamphetamine. See 

conduct of Sweat and

Hopkins, Sweat was not substantially less culpable or plainly among the least

culpable of the co-conspirators. The fact that Sweat bought fewer boxes of

pseudoephedrine than Hopkins is of no moment, because it is possible that none of

the co-conspirators are minor participants. See 

has failed to

satisfy his burden of establishing by a preponderance of the evidence that he

qualifies for a minor role reduction. See 

.

Accordingly, we conclude that the district court’s finding that Sweat was not a

minor participant in the conspiracy was not clearly erroneous.

                                  IV. Conclusion

      Based on the foregoing, we affirm Sweat’s convictions and sentence.

      AFFIRMED.




                                         13