UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-4006



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


DOROTHY MARIE JACKSON, a/k/a Dorothy Winston,

                                            Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CR-
02-478-PJM)


Submitted:   February 8, 2006         Decided:   February 22, 2006


Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Fred Warren Bennett, Gary E. Bair, BENNETT & BAIR, L.L.P.,
Greenbelt, Maryland, for Appellant. Allen F. Loucks, United States
Attorney, Deborah A. Johnston, Assistant United States Attorney,
Bryan E. Foreman, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

           A jury convicted Dorothy Marie Jackson on all counts of

an indictment charging her with (among other things) participating

in a conspiracy to distribute prescription painkillers.                     The

district court sentenced her to a 200-month prison term.             Jackson

appeals, challenging the conspiracy conviction and her sentence.

We affirm the conviction, but vacate the sentence and remand for

resentencing consistent with United States v. Booker, 

(2005).



                                     I.

                                     A.

           In June 2004 a grand jury in the District of Maryland

handed down a third superseding indictment against Jackson.            Count

One of the 15-count indictment charged that Jackson, "together

with" her brother (Rodney), Emmanuel Thad Ereme, and others, "did

knowingly,    intentionally    and       unlawfully   combine,     conspire,

confederate and agree together to distribute and possess with

intent to distribute" oxycodone and Oxycontin, two Schedule II

controlled substances. J.A. 18; 21 U.S.C. § 846. The indictment’s

other   counts   charged   instances      of   possession   with   intent    to

distribute controlled substances and acquisition of controlled

substances by fraud. Jackson pleaded not guilty and went to trial.




                                     2
            The jury returned a guilty verdict on all counts, and we

therefore state the evidence in the light most favorable to the

government.   Jackson and her brother Rodney worked for a doctor in

an office building in Temple Hills, Maryland.           Located in the same

building was the office of Dr. Cyrus Nemati.           Sometime in 1998 or

1999 Rodney approached Cora Moran, who was employed as Dr. Nemati's

office manager, seeking Moran's cooperation in a scheme to obtain

access to prescription drugs.       Eventually Moran agreed to sell Dr.

Nemati's blank prescription forms to Jackson and Rodney for $30 per

form.

            Moran sometimes gave Jackson and Rodney the forms when

they visited the office; at other times, she delivered them to

Jackson's home.    Moran learned from Jackson and Rodney that they

usually wrote prescriptions for the painkiller Percocet on the

forms and that they then sold the prescriptions to buyers for about

$300 per prescription.     (Percocet is the brand name of a chemical

combination   of   oxycodone   (a   Schedule    II    controlled    substance

available   only   by   prescription,    see   21    U.S.C.   §   829(a))   and

acetaminophen. The generic name of Percocet is Roxicet. The brand

name of oxycodone in time-release form is Oxycontin.

            Jackson sold the Percocet to buyers such as David Zubres

who came to her home.     Zubres testified that when he did not have

money to pay, Jackson let him earn some of the drug by carrying

multiple Percocet prescriptions into a pharmacy to be filled.               For


                                     3
this purpose Jackson sent Zubres to one pharmacy only:                the Hremt

Pharmacy, owned and operated by Ereme, a licensed pharmacist.

Zubres expressed worries to Jackson about presenting numerous

prescriptions to be filled at a single time.              But Jackson assured

him that service at the Hremt Pharmacy "won't be any problem,

shouldn't be any problem," and that the pharmacy would likely

assume   Zubres    was     merely    a   courier    delivering      the    filled

prescriptions to bed-ridden people who could not go to the pharmacy

themselves.

           A woman who at the time worked as a pharmacy technician

at Hremt Pharmacy, Roselyn Odom-Fauntleroy, noticed that patients

were bringing in prescriptions from Dr. Nemati for Percocet and

Oxycontin "in groups," which was unusual.             Ereme told her not to

worry    about    these     prescriptions,      assured     her    that    their

authenticity had already been verified, and instructed her to fill

them.

           In     1999    the     U.S.   Drug   Enforcement       Agency   began

investigating     the     Hremt    Pharmacy.       Drug   enforcement      agents

executing a search warrant at the pharmacy in November 2000 and in

March 2002 retrieved 687 prescriptions on forms from Dr. Nemati.

A document examiner from the U.S. Secret Service concluded that

Jackson probably filled out the patient information for 651 of the

forms in the name of 66 different patients.               A drug enforcement




                                         4
agent testified that the prescriptions were for a total of 48,035

pills of drugs, including Oxycontin, that contained oxycodone.



                                     B.

             At the close of the government's case-in-chief, Jackson

moved for judgment of acquittal.               She contended that no direct

evidence connected Jackson to Ereme, contrary to the allegation in

the conspiracy count. The district court denied the motion. After

instructing the jury on the law to be applied (including the law

concerning a single conspiracy), the district court asked whether

the   parties    had   any   suggested       corrections   or   identified   any

omissions.      The government and Jackson said they had neither.            At

the conclusion of closing arguments, however, defense counsel

sought an instruction on multiple conspiracies on the asserted

ground that the government had "charged a different conspiracy in

the indictment." J.A. 540. The district court denied the request.

           The jury found Jackson guilty on all counts.               The jury

specifically found that the conspiracy involved 135 grams of

Oxycontin pills and 25,527.6 grams of pills containing oxycodone.

The district court then convened the jury to make special findings

for sentencing.     The jury found that Jackson had not been "a leader

or organizer in criminal activity which involved five or more

participants or was otherwise extensive," USSG § 3B1.1(a), but that




                                         5
she had been a "manager or supervisor" in such activity, USSG

§ 3B1.1(b).    J.A. 578.

            At sentencing the government agreed that the Guidelines

required focusing not on the total weight of the pills but on the

weight    of   the    active    ingredient   oxycodone    in    those   pills,

generating a base offense level of 32.           Notwithstanding the jury's

determination,       the   government   sought   a   judicial   finding   that

Jackson had been a USSG § 3B1.1(a) "leader or organizer," requiring

a four-level increase in Jackson's offense level to 36, and the

district court agreed.         The district court then declined Jackson's

request for a downward departure based on her medical condition and

responsibility for the care of a disabled son.

            With a criminal history category of I and offense level

of 36, the Guidelines sentence range for Jackson was 188 to 235

months.    (Had Jackson's base offense level been increased by only

three levels under the jury's "manager or supervisor" finding, the

range would have been 168 to 210 months.).               The district court

sentenced Jackson to 188 months on the conspiracy count and an

additional 12 months on Count Two (acquisition of a controlled

substance by fraud, 21 U.S.C. § 843(a)(3)), with sentences on all

other counts to run concurrently.




                                        6
                                     II.

            On   appeal   Jackson   challenges    her     conviction        on   the

conspiracy count. She argues that the government failed to present

evidence at trial connecting Jackson to Ereme, even though the

indictment alleged a conspiracy between Ereme, Jackson, and Rodney.

Jackson contends that this is a contradiction presenting grounds

for either (a) reversing her conviction because the evidence

presented at trial constructively amended the indictment, or (b)

ordering a new trial because the district court did not give the

multiple conspiracy instruction Jackson sought.



                                     A.

            Jackson   first    alleges     that   the    evidence      at    trial

constructively     amended    the   indictment.         The    Fifth   Amendment

provides:    "No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or indictment of

a Grand Jury . . . ." U.S. Const. amend. V.             "When the government,

through its presentation of evidence and/or its argument, or the

district court, through its instructions to the jury, or both,

broadens the bases for conviction beyond those charged in the

indictment, a constructive amendment . . . occurs."               United States

v. Randall, 

, 203 (4th Cir. 1999).                "[A] constructive

amendment violates the Fifth Amendment right to be indicted by a

grand jury, is error per se, and must be corrected on appeal even


                                      7
when the defendant did not preserve the issue by objection."                        

different evidence is presented at trial but

the evidence does not alter the crime charged in the indictment, a

mere   variance    occurs.        A    mere     variance   does      not   violate    a

defendant's    constitutional          rights     unless      it   prejudices       the

defendant either by surprising him at trial and hindering the

preparation of his defense, or by exposing him to the danger of a

second prosecution for the same offense." 

must ascertain whether Jackson faced a constructive

amendment or a mere variance, of course, only if there was a

divergence between the evidence presented at trial and the grand

jury's indictment.      Jackson presupposes that when an indictment

alleges the existence of a single conspiracy between multiple

defendants,   if    direct   trial          evidence   does    not    show   express

agreement   between   all    of       the   defendants,    then      there   must    be

multiple conspiracies at work and hence a constructive amendment.

            This presupposition is mistaken.                  To prove a single

conspiracy under 21 U.S.C. § 846, the government must prove an

agreement to violate a federal drug law, the defendant's knowledge

of the conspiracy, and the defendant's willing participation.

United States v. Strickland, 

, 384-85 (4th Cir. 2001).

"By its very nature, a conspiracy is clandestine and covert,

thereby frequently resulting in little direct evidence of such an

agreement."    United States v. Burgos, 

, 857 (4th Cir.


                                            8
1996) (en banc).      "Participation in a criminal conspiracy need not

be proved by direct evidence; a common purpose and plan may be

inferred from a development and a collocation of circumstances."

Glasser v. United States, 

, 80 (1942) (punctuation

omitted).

            Here, the government introduced ample evidence from which

the jury could infer that Jackson and Ereme were co-conspirators

even though there was no evidence of a meeting or communication

between them.      Moran testified that Jackson used Dr. Nemati's

prescription forms; Zubres testified that Jackson repeatedly sent

him with batches of prescription forms to the Hremt Pharmacy; Odom-

Fauntleroy testified that Ereme instructed her not to worry about

verifying the unusually grouped prescriptions coming in on Dr.

Nemati's forms.

            The   jury    could    reasonably       have     inferred   from   this

"collocation of circumstances" that Jackson was guilty beyond a

reasonable    doubt      of   a   single       conspiracy,    namely,   the    very

conspiracy alleged in the indictment.              The trial evidence did not

differ from the indictment’s allegations.                  We conclude that the

district court correctly denied Jackson's motion for judgment of

acquittal and that Jackson's allegation of a constructive amendment

is not supported by the facts or the law.




                                           9
                                     B.

             Jackson next contends that she was entitled to a jury

instruction on the law of multiple conspiracies.            "The standard of

review for determining whether the district court should have given

a jury instruction is abuse of discretion." United States v. Ruhe,

, 384 (4th Cir. 1999).          "A district court's refusal to

provide     an   instruction    requested    by   a   defendant   constitutes

reversible error only if the instruction: (1) was correct; (2) was

not substantially covered by the court's charge to the jury; and

(3) dealt with some point in the trial so important, that failure

to   give    the    requested    instruction      seriously   impaired    the

defendant's ability to conduct his defense."               United States v.

Lewis, 

, 32 (4th Cir. 1995) (punctuation omitted).

             Our standard for measuring the need for a multiple

conspiracy instruction is well established.             Such an instruction

"is not required unless the proof at trial demonstrates that

appellants were involved only in separate conspiracies unrelated to

the overall conspiracy charged in the indictment."            United States

v. Squillacote, 

, 574 (4th Cir. 2000).                 "A single

conspiracy exists where there is one overall agreement, or one

general business venture.        Whether there is a single conspiracy or

multiple conspiracies depends upon the overlap of key actors,

methods, and goals."      

we have already explained, there was on the one

hand   substantial   evidence      supporting   the   jury’s    finding      that

Jackson was culpable in the single conspiracy alleged in the grand

jury indictment.     On the other hand, Jackson fails to identify any

evidence in the record that would support the existence of any

conspiracies not related to the one charged in the indictment.

Accordingly, there was no demonstrated basis for giving a multiple

conspiracy instruction, and the district court's decision not to

give the instruction was within its discretion.



                                     III.

           Finally, Jackson alleges that her sentence contravened

Booker.   Under Booker there are two types of sentencing errors.

First, "a sentencing court commits Sixth Amendment error if it

enhances a sentence beyond the maximum authorized by facts found by

a jury beyond a reasonable doubt or admitted by the defendant."

United States v. Rodriguez, 

(4th Cir. 2006).              This is

because the Sixth Amendment guarantees that "[i]n all criminal

prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury . . . ." U.S. Const. amend. VI.

Second,   "[a]   court   commits    statutory   error   if     it   treats    the

Guidelines as mandatory, rather than as advisory."             

.




                                      11
             Jackson claims that when the district court relied on its

own    finding   that   Jackson       was    a   USSG   §   3B1.1(a)   "leader   or

organizer" (and not, as the jury found, a USSG § 3B1.1(b) "manager

or supervisor"), the district court committed constitutional Booker

error because it increased her base offense level by one level more

than   was   allowed    under    the    jury-found      facts.    This   argument

misconstrues Booker's constitutional analysis, which focuses on the

actual sentence imposed, not on the offense level used in computing

the Guidelines sentence.          See United States v. Hughes, 

, 547 (4th Cir. 2005) ("In Booker, the Court ruled that a

sentence exceeding the maximum allowed based only on the facts

found by the jury violates the Sixth Amendment.") (emphasis added).

Here, on the facts found by the jury, Jackson was eligible for a

sentence on the conspiracy count of 168 to 210 months.                 The actual

sentence     imposed    was     188    months     for   the   conspiracy   count.

Jackson's sentence, in other words, fell short of the 210-month

maximum that the district court could have imposed based solely

upon the jury's determinations.             Thus, there was no constitutional

Booker error.

             Jackson also contends that the district court committed

statutory Booker error by treating the Sentencing Guidelines as

mandatory, not advisory.         She made her objection to the sentencing

proceedings known to the district court by citing Blakely v.

Washington, 

(2004).             This objection "plainly notified


                                            12
the    court    of   [her]     position    that    [she]   was    being     sentenced

illegally, and [she] identified the line of Supreme Court precedent

upon   which     [she]   now    relies."         

.

Consequently, we review the claim for harmless error, under which

the burden is on the government "to show that such an error did not

affect the defendant's substantial rights."                

not

Jackson’s burden to establish that but for the district court’s

mandatory application of the Guidelines, she would have received a

more lenient sentence.              The district court's silence on how it

would apply the factors in 18 U.S.C. § 3553(a) in ascertaining a

proper sentence for Jackson must be construed in Jackson's favor.

has not satisfied its burden to show

that the error was harmless, Jackson is entitled to be resentenced.



                                           IV.

               For the foregoing reasons, we affirm Jackson's conviction

but vacate her sentence and remand for resentencing.                    We dispense

with oral argument because the facts and legal contentions are

adequately      presented      in    the   materials   before     the     court,   and

argument would not aid the decisional process.



                                                                 AFFIRMED IN PART,
                                                                  VACATED IN PART,
                                                                      AND REMANDED




                                           13