United States v. Dexter Hubbard ( 2006 )


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               IN THE UNITED STATES COURT OF APPEALS
                                                              FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                        SEPTEMBER 7, 2006
                             No. 03-11905               THOMAS K. KAHN
                       ________________________              CLERK
    
    
                    D. C. Docket No. 02-00045-CR-19-1
    
    UNITED STATES OF AMERICA,
    
    
                                                   Plaintiff-Appellee,
    
                                 versus
    
    NEYAUNTEU STALLINGS,
    a.k.a. "Coolio",
    MILTON LUCAS,
    RICHARD ALLEN HEPBURN,
    a.k.a. "Al",
    WALTER DEAN JOHNSON,
    a.k.a. "Walt",
    
    
                                                    Defendants-Appellants.
                           ________________________
    
                                 No. 03-12620
                           ________________________
    
                        D. C. Docket No. 02-00045-CR-11-1
    
    UNITED STATES OF AMERICA,
    
    
                                                             Plaintiff-Appellee,
    
                                       versus
    
    EUSEBIO PHELPS,
    a.k.a. "Ebbie",
    
                                                             Defendant-Appellant.
                           ________________________
    
                                 No. 04-10882
                           ________________________
    
                        D. C. Docket No. 02-00045-CR-8-1
    
    UNITED STATES OF AMERICA,
    
    
                                                             Plaintiff-Appellee,
    
                                       versus
    
    ALEX SESSION,
    
                                                             Defendant-Appellant.
                           ________________________
    
                    Appeals from the United States District Court
                        for the Northern District of Georgia
                          _________________________
    
                                 (September 7, 2006)
    
                                         2
    Before ANDERSON, BARKETT and CUDAHY,* Circuit Judges.
    
    PER CURIAM:
    
           This appeal stems from a complicated criminal drug conspiracy centered in
    
    Atlanta, Georgia. In January 2002, a grand jury returned an indictment charging
    
    more than twenty defendants in a conspiracy involving cocaine hydrochloride and
    
    heroin. Six defendants are before us on appeal. These six defendants initially
    
    entered pleas of not guilty; one later changed his plea. The district court sentenced
    
    all the defendants to varying prison sentences, which they timely appealed. We
    
    consider defendant Walter Dean Johnson’s argument that the district court erred in
    
    enhancing his sentence for possession of a firearm under U.S.S.G. § 2D1.1(b)(1) in
    
    a separate published opinion. United States v. Stallings et al.,         F.3d         (11th
    
    Cir. 2006).
    
           Neyaunteu Stallings appeals his 240-month sentence imposed following a
    
    jury verdict finding him guilty of conspiracy to possess with intent to distribute at
    
    least 5 kilograms of cocaine in violation of 21 U.S.C. §§ 841(b)(1)(A)(ii) and 846
    
    (Count 1) and distribution of cocaine hydrochloride (Count 12). Milton Lucas
    
    appeals his 235-month sentence imposed following a jury verdict finding him
    
    guilty of conspiracy to possess with intent to distribute at least 5 kilograms of
    
    
           *
            The Honorable Richard D. Cudahy, Circuit Court Judge for the United States Court of
    Appeals for the Seventh Circuit, sitting by designation.
    
                                                  3
    cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(ii) (Count 1). Richard
    
    Allen Hepburn appeals his 120-month sentence imposed following (1) his
    
    conviction by a jury of conspiracy to possess with intent to distribute at least 5
    
    kilograms of cocaine, in violation of 21 U.S.C. §§ 841(b)(1)(A)(ii) and 846 (Count
    
    1); and (2) his plea of guilty to conspiracy to possess with intent to distribute at
    
    least 100 grams of heroin, in violation of 21 U.S.C. §§ 841(b)(1)(B)(i) and 846,
    
    and distribution of at least 100 grams of heroin, in violation of 21 U.S.C. §
    
    841(a)(1) and (b)(1)(B)(i) (Counts 16 and 17). Johnson appeals his 168-month
    
    sentence imposed following his conviction by a jury of distribution of cocaine, in
    
    violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Count 1).         Eusebio Phelps
    
    appeals his 70-month sentence imposed following his plea of guilty to two counts
    
    of distribution of cocaine, both in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C)
    
    (Counts 9 and 11).      Alex Session appeals his 324-month sentence imposed
    
    following a jury verdict finding him guilty of conspiracy to possess with intent to
    
    distribute at least 5 kilograms of cocaine, in violation of 21 U.S.C. §§
    
    841(b)(1)(A)(ii) and 846 (Count 1).
    
          Stallings, Lucas and Session argue that the evidence produced at trial was
    
    insufficient to support convictions for the single conspiracy charged in the
    
    indictment. Johnson, Lucas and Session argue that the evidence produced at trial
    
    
    
                                             4
    was insufficient to support their convictions. Lucas argues that the district court
    
    erred (1) in determining the amount of drugs for sentencing purposes attributable
    
    to him, and (2) in sentencing him under the federal sentencing guidelines in light of
    
    United States v. Booker, 
    543 U.S. 220
    , 125 S.Ct. 738,160 L.Ed.2d 621 (2005), by
    
    basing his sentence upon a drug amount that was not determined by a jury or
    
    admitted by him. Hepburn argues that the district court erred in sentencing him
    
    because he was not afforded an opportunity to be interviewed by the government
    
    prior to sentencing in an attempt to meet the criteria of U.S.S.G. § 5C1.2 (“safety
    
    valve”).   Johnson argues that the district court clearly erred in enhancing his
    
    sentence for obstruction of justice under U.S.S.G. § 3C1.1, and for possession of a
    
    weapon under U.S.S.G. § 2D1.1(b)(1) (we consider the latter argument in a
    
    separate, published opinion). Phelps argues that the district court plainly erred in
    
    sentencing him under the federal sentencing guidelines in light of Booker, 543 U.S.
    
    at 244, based upon distribution of 5 to 15 kilograms of cocaine and that the district
    
    court’s contradictory information regarding his potential period of supervised
    
    release constitutes a breach of his plea agreement. Session argues that the district
    
    court plainly erred in sentencing him under the federal sentencing guidelines in
    
    light of Booker, 543 U.S. at 244, by basing his sentence upon a drug amount that
    
    was not determined by a jury or admitted by him, by enhancing his sentence under
    
    
    
                                             5
    U.S.S.G. § 2D1.1(b)(1), for possession of a firearm and by increasing his sentence
    
    under U.S.S.G. § 3C1.1, for obstruction of justice. Session also argues that the
    
    district court clearly erred by denying his request for a minor role reduction under
    
    U.S.S.G. § 3B1.2.
    
    
    
                                  I. FATAL VARIANCE
    
    
    
          The first issue we consider is whether the evidence that the government
    
    introduced at trial was sufficient to support convictions for the single conspiracy
    
    charged in the indictment.        Stallings, Lucas and Session argue that their
    
    convictions must be overturned because the evidence proved multiple, unrelated
    
    conspiracies to distribute narcotics rather than one single conspiracy.         The
    
    evidence, they argue, constitutes a fatal variance from the indictment, which must
    
    therefore invalidate their convictions.
    
          Claims of a fatal variance are treated as attacks on the sufficiency of the
    
    evidence. E.g., United States v. Plotke, 
    725 F.3d 1303
    , 1308 (11th Cir. 1984). In
    
    reviewing this issue, this Court views the evidence in the light most favorable to
    
    the government and considers whether a reasonable jury could have determined
    
    beyond a reasonable doubt that a single conspiracy existed.        United States v.
    
    
    
                                              6
    Calderon, 
    127 F.3d 1314
    , 1327 (11th Cir. 1997). To determine whether a jury
    
    could have found that a single conspiracy existed, we review (1) whether a
    
    common goal existed; (2) the nature of the underlying scheme; and (3) whether the
    
    participants in the alleged multiple schemes overlapped. Id.
    
          Although this conspiracy is complicated, it is plain that the parties shared at
    
    least one common goal sufficient to satisfy the first factor of the single-conspiracy
    
    test: the distribution of cocaine in northwest Atlanta. Id.; United States v. Adams, 
    1 F.3d 1566
    , 1583–84 (11th Cir. 1993) (holding that the “common goal” inquiry was
    
    satisfied by the common crime of importing marijuana); United States v. Jones,
    
    
    913 F.2d 1552
    , 1560–61 (11th Cir. 1990) (holding that the “common goal” inquiry
    
    was satisfied by the common crime of importing cocaine); United States v. Khoury,
    
    
    901 F.2d 948
    , 956–57 (11th Cir. 1990) (holding that the “common goal” inquiry
    
    was satisfied by the common crime of importing methaqualone).             One overall
    
    agreement among the various parties to perform different functions to carry out the
    
    objectives of the conspiracy indicates that there is indeed one single conspiracy.
    
    United States v. Knowles, 
    66 F.3d 1146
    , 1159 (11th Cir. 1995); United States v.
    
    Cole, 
    755 F.2d 748
    , 764 (11th Cir. 1985).         Although the parties here played
    
    different roles, each defendant’s tasks plainly worked to facilitate the larger goal of
    
    
    
    
                                              7
    cocaine distribution. The government has provided sufficient evidence to satisfy
    
    the first inquiry.
    
             Satisfied that the government has established that a common goal existed,
    
    we move on to the second and third factors outlined in Calderon, which merge in
    
    this case.     Where many people agree to one ultimate illegal goal and each
    
    undertakes a different role to achieve that goal, there is a single conspiracy
    
    regardless of the absence of a single participant to supervise, administer or
    
    dominate the conspiracy. Cole, 755 F.2d at 764 (11th Cir. 1985); see also United
    
    States v. Brito, 
    721 F.2d 743
    , 747 (11th Cir. 1983).       Here, perhaps the most
    
    compelling evidence that a single conspiracy existed is the substantial overlap of
    
    the participants—the participants are all connected to each other in ways relating to
    
    the conspiracy’s common goal.       Cf. United States v. Chandler, 
    388 F.3d 796
    ,
    
    807–08 (11th Cir. 2004) (holding that the evidence varied fatally from the
    
    indictment because of lack of such relationships). Those connections, tied together
    
    with the evidence detailing each defendant’s role in the conspiracy is sufficient to
    
    support a single conspiracy.        United States v. LaSpesa, 
    956 F.2d 1027
    ,
    
    1031–32(11th Cir. 1992); United States v. Stitzer, 
    785 F.2d 1506
    , 1518 (11th Cir.
    
    1986).
    
    
    
    
                                             8
          The defendants rely mainly on a pair of Supreme Court cases holding that it
    
    was impermissible for the government to charge a single conspiracy when in fact
    
    several separate conspiracies existed. Kotteakos v. United States, 
    328 U.S. 750
    
    (1946); Berger v. United States, 
    295 U.S. 78
     (1935). Each of the Supreme Court
    
    cases involved a complicated criminal enterprise centered on a common individual.
    
    Despite the common individual, however, the government could not show that the
    
    others were engaged in a single criminal enterprise. The Supreme Court agreed
    
    with the government that the evidence showed “separate spokes meeting in a
    
    common center” but noted that the theory was “without the rim of the wheel to
    
    enclose the spokes.” Kotteakos, 328 U.S. at 755. Although no person necessarily
    
    sits at the center of the conspiracy here, the common goal of cocaine distribution
    
    and the overlap of participants is sufficient to supply the wheel.
    
          Given that the evidence is sufficient to support the government’s theory of a
    
    single conspiracy, the defendants were not materially and substantially prejudiced.
    
    Thus, the defendants have not established that a fatal variance existed between
    
    what was charged in the indictment and what was proved at trial.
    
    
    
    
                                               9
                        II. SUFFICIENCY OF THE EVIDENCE
    
    
    
          We next consider whether the evidence presented at trial supports the
    
    convictions of Johnson, Lucas and Session. Whether there is sufficient evidence to
    
    support a conspiracy conviction is a question of law reviewed de novo. United
    
    States v. Massey, 
    89 F.3d 1433
    , 1438 (11th Cir. 1996).           Where, however, a
    
    defendant does not move the district court for a judgment of acquittal at the close
    
    of the evidence, this Court may reverse the conviction only to prevent a manifest
    
    miscarriage of justice. United States v. Hamblin, 
    911 F.2d 551
    , 556–57 (11th Cir.
    
    1990). Under such a standard of review, an appellate court must find that the
    
    evidence on a key element is so tenuous that a conviction would be shocking. Id.
    
    at 557 n.2. Here, the defendants argue that the evidence presented at their trial was
    
    insufficient to support the jury’s guilty verdict because (1) they were not knowing
    
    and voluntary participants in the conspiracy; and (2) the jury’s determination rested
    
    on crediting the testimony of unreliable cooperating individuals.
    
          Six cooperating witnesses provided evidence against Lucas and Johnson at
    
    trial. These witnesses each testified that they were involved in cocaine transactions
    
    with Lucas and Johnson between 1992 and 2001.              Two witnesses provided
    
    substantive testimony against Session.        Those witnesses testified that Session
    
    
    
                                             10
    worked for other members of the conspiracy in that he delivered drugs and picked
    
    up money. The witnesses also testified that Session executed another conspirator
    
    named Mario Cobb to protect the operation when other members of the conspiracy
    
    grew concerned that Cobb would provide information to the police. This evidence
    
    is sufficient to support Session’s conviction. Although the defendants take issue
    
    with the credibility of the cooperating witnesses, they have produced no evidence
    
    suggesting a manifest miscarriage of justice; it is well settled that the existence of a
    
    conspiracy may be proved by circumstantial evidence such as inferences from the
    
    conduct of those alleged to have participated. United States v. Toler, 
    144 F.3d 1423
    , 1426 (11th Cir. 1998).
    
    
    
                        III. ALLEGED SENTENCING ERRORS
    
    
    
                                      A. Drug Quantity
    
    
    
          At sentencing the government bore the burden of establishing the drug
    
    quantity level by a preponderance of the evidence, and we will reverse the district
    
    court’s determination of drug quantity only if it was clearly erroneous. United
    
    States v. Mertilus, 
    111 F.3d 870
    , 873 (11th Cir. 1997). “Although sentencing may
    
    
    
                                              11
    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, 
    139 F.3d 1355
    ,
    
    1359 (11th Cir. 1998) (citation omitted). In this case, Lucas and Session argue that
    
    the district court’s drug quantity calculation was clearly erroneous.
    
          The district court sentenced Lucas based upon 150 kilograms or more of
    
    cocaine. The court based this finding on testimony at trial by Robert Horton that
    
    he and Lucas conducted 100 kilogram cocaine deals “more than twice,” and that he
    
    took 100 kilograms of cocaine to Lucas’s home.          It also considered Arevalus
    
    Whitehead’s testimony that Keaton Young purchased 50 kilograms of cocaine
    
    from Lucas and had bought cocaine from him previously. Accordingly, the district
    
    court’s calculation that Lucas was responsible for at least 150 kilograms of cocaine
    
    was not speculative, but was supported by evidence in the record, and it was not
    
    clearly erroneous for the district court to sentence him based upon that amount.
    
          The district court sentenced Session based on a drug amount of at least 50
    
    but less than 150 kilograms.       The court based this determination in part on
    
    Session’s concession at sentencing that “the only arguable amount of cocaine
    
    would be 50 kilos.” This concession is sufficient to support the district court’s
    
    
    
    
                                              12
    sentence, and it was therefore not clearly erroneous to sentence Session based upon
    
    that amount.
    
    
    
                                             B. Booker Error
    
    
    
           Because Lucas, Phelps1 and Session failed to object in the district court on
    
    the basis of the Sixth Amendment, Apprendi v. New Jersey, 
    530 U.S. 466
    , 490, 
    120 S. Ct. 2348
    , 2362-63, 
    147 L. Ed. 2d 435
     (2000), or other related cases, their
    
    arguments on appeal are reviewed for plain error.                     See Fed.R.Crim.P. 52(b);
    
    Booker, 543 U.S. at 267. To satisfy the plain error standard, we must find that (1)
    
    the district court committed “error,” (2) the error was plain or obvious, and (3) the
    
    error “affected substantial rights” in that the error was prejudicial. United States v.
    
    Olano, 
    507 U.S. 725
    , 730-32, 
    113 S. Ct. 1770
    , 1776, 
    123 L. Ed. 2d 508
     (1993).
    
    
    
           1
              Phelps also argues that the 5-year term of supervised release constitutes a breach of his
    plea agreement, which provided for a 3-year term. This argument was not raised at sentencing
    and is waived. See United States v. Nealy, 
    232 F.3d 825
    , 830–31 (11th Cir. 2000). He also
    argues that the conflicting terms render his plea invalid because it was not knowing and
    voluntary. This argument is subject to plain-error review. United States v. Woodard, 
    387 F.3d 1329
    , 1331 (11th Cir. 2004). While the district court likely did err in informing Phelps that he
    was subject to three years of supervised release, Phelps cannot show prejudice. The record
    clearly indicates that the district court told Phelps he was subject to a penalty of up to 20 years of
    imprisonment (240 months) plus three years of supervised release. He ultimately received only
    70 months of imprisonment, followed by the 5 years of supervised release. Because his total
    penalty (70 months plus 5 years of supervised release) is well below his agreed potential penalty
    (240 months plus 3 years of supervised release), he cannot show substantial prejudice.
    
                                                      13
    Concerning the third prong, in most cases the error will be prejudicial if it
    
    “affected the outcome of the district court proceedings.” Id. at 734, 113 S.Ct. at
    
    1778.    If these criteria are met, we may correct the plain error if it “seriously
    
    affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id. at
    
    736, 113 S.Ct. at 1779 (internal quotations and citation omitted).
    
            In Apprendi, 530 U.S. at 490, 120 S.Ct. at 2362–63, the Supreme Court held
    
    that “[o]ther than the fact of a prior conviction, any fact that increases the penalty
    
    for a crime beyond the prescribed statutory maximum must be submitted to a jury
    
    and proved beyond a reasonable doubt.” The Court then revisited that rule and
    
    clarified that “the ‘statutory maximum’ for Apprendi purposes is the maximum
    
    sentence a judge may impose solely on the basis of the facts reflected in the jury
    
    verdict or admitted by the defendant. . . . In other words, the relevant ‘statutory
    
    maximum’ is not the maximum sentence a judge may impose after finding
    
    additional facts, but the maximum he may impose without any additional findings.”
    
    Blakely v. Washington, 
    542 U.S. 296
    , 
    124 S. Ct. 2531
    , 2537, 
    159 L. Ed. 2d 403
    
    (2004) (emphasis in original).       In a footnote, however, the Court explicitly
    
    remarked that “[t]he Federal Guidelines are not before us, and we express no
    
    opinion on them.” Blakely, 542 U.S. at 305 n.9.
    
    
    
    
                                              14
          More recently, the Supreme Court in Booker found “no distinction of
    
    constitutional significance between the Federal Sentencing Guidelines and the
    
    Washington procedures at issue [in Blakely].”      See Booker, 543 U.S. at 231.
    
    Therefore, the Court concluded that the mandatory nature of the guidelines
    
    rendered them incompatible with the Sixth Amendment’s guarantee of the right to
    
    a jury trial. Id. at 749–51. The Court also explicitly reaffirmed its rationale in
    
    Apprendi that “[a]ny fact (other than a prior conviction) which is necessary to
    
    support a sentence exceeding the maximum authorized by the facts established by a
    
    plea of guilty or a jury verdict must be admitted by the defendant or proved to a
    
    jury beyond a reasonable doubt.” Id. at 756.
    
          We have held that there are two types of Booker error: statutory and
    
    constitutional. See United States v. Shelton, 
    400 F.3d 1325
    , 1329-30 (11th Cir.
    
    2005). Specifically, in Shelton we determined that there was no Sixth Amendment
    
    constitutional violation under Booker because the defendant’s sentencing
    
    enhancements were based on either prior convictions or facts admitted by the
    
    defendant. Shelton, 400 F.3d at 1329-30. Nevertheless, we held that even when
    
    there is no “Sixth Amendment enhancement violation,” there is still statutory error
    
    under Booker “when the district court misapplies the Guidelines by considering
    
    them as binding as opposed to advisory.” Id. at 1330–31.
    
    
    
                                            15
          In United States v. Rodriguez, 
    398 F.3d 1291
    , 1298 (11th Cir.) cert. denied,
    
    
    125 S. Ct. 2935
     (2005), we considered an appeal in which the appellant had failed
    
    to preserve a Blakely/Booker objection in the district court, and the Supreme Court
    
    had decided Booker while the appellant’s sentence was pending on direct appeal.
    
    Rodriguez, 398 F.3d at 1292–97. Applying plain error review, we determined that
    
    the appellant had satisfied the first prong of plain error by showing error because,
    
    under a mandatory guideline system, the appellant’s sentence had been enhanced
    
    as a result of judicially determined facts that went beyond the facts admitted by the
    
    defendant or found by the jury. Rodriguez, 398 F.3d at 1298.
    
          We, however, ultimately concluded in Rodriguez that no plain error had
    
    occurred because, under the third prong of plain error review, the appellant had
    
    failed to show that the Booker error “affect[ed] substantial rights,” that is, that the
    
    error “must have affected the outcome of the district court proceedings.”
    
    Rodriguez, 398 F.3d at 1299, 1306 (quoting United States v. Cotton, 
    535 U.S. 625
    ,
    
    632, 
    122 S. Ct. 1781
    , 1786, 
    152 L. Ed. 2d 860
     (2002)). In reaching this conclusion,
    
    we explained that the test for showing that the error “affected the outcome of the
    
    district court proceedings” was the formulation of a reasonable probability of a
    
    different result, which means a probability “sufficient to undermine confidence in
    
    the outcome.” Rodriguez, 398 F.3d at 1299. We also stated that, under the third
    
    
    
                                              16
    prong, “[i]t is the defendant rather than the [g]overnment who bears the burden of
    
    persuasion with respect to prejudice.” Rodriguez, 398 F.3d at 1299.
    
            Applying this third-prong analysis to the facts in Rodriguez, we explained
    that:
    
            [P]re-Booker defendants must establish a reasonable probability that if
            the district court had considered the guidelines range it arrived at
            using extra-verdict enhancements as merely advisory, instead of
            mandatory, and had taken into account any otherwise unconsidered
            § 3553 factors, the court would have imposed a lesser sentence than it
            did. That inquiry makes sense because it hooks the prejudice inquiry
            to the procedural change necessary to remedy the error.
    
    Rodriguez, 398 F.3d at 1302. Because we ultimately determined that the record in
    
    Rodriguez “provide[d] no reason to believe any result [was] more likely than not,”
    
    we concluded that the appellant had not met his burden of showing that his
    
    substantial rights had been affected. Id. at 1301. Moreover, we noted that, because
    
    the appellant had not met his burden as to the third prong of the plain error test, the
    
    Court “ha[d] no occasion to decide how he would have fared under the fourth
    
    prong.” Id.
    
            In the instant case, the district court arguably committed constitutional error
    
    by enhancing Lucas, Phelps and Session’s sentences. See Rodriguez, 398 F.3d at
    
    1299; see R22 at 16).       The court also arguably committed statutory error by
    
    sentencing them under the mandatory guidelines scheme, and both the
    
    constitutional and statutory errors are now plain. See Rodriguez, 398 F.3d at 1299.
    
                                               17
          Under Rodriguez, we conclude that the appellants have not satisfied the third
    
    prong of plain error. Specifically, they have neither alleged nor shown that they
    
    would have received lesser sentences had the district court considered the
    
    guidelines advisory as opposed to mandatory. Moreover, the record does not show
    
    that the district court would have been inclined to have imposed lesser sentences
    
    but for the then-mandatory nature of the guidelines.
    
          Although the district court sentenced the appellants to the lower end of the
    
    guidelines range, the likelihood of a different result would be speculative without a
    
    clear statement or sign from the district court that, but for the fact that its discretion
    
    was constrained under the guidelines, it would have imposed a lighter sentence.
    
    See Rodriguez, 398 F.3d at 1301; United States v. Fields, 
    408 F.3d 1356
    , 1360–61
    
    (11th Cir.) cert. denied 
    126 S. Ct. 221
     (2005) (under plain-error review, holding
    
    that the fact that the defendant was sentenced to the bottom of the mandatory
    
    guideline range is insufficient to satisfy the requirement that the defendant show a
    
    reasonable probability of a lesser sentence under an advisory guideline system).
    
    Specifically, the district court did not state whether it would have imposed
    
    different sentences under an advisory guideline scheme or express regret as to the
    
    length of the sentences it imposed under the mandatory scheme. See United States
    
    v. Paz, 
    405 F.3d 946
    , 948–49 (11th Cir. 2005).
    
    
    
                                               18
          Accordingly, it is unclear whether the district court would have imposed
    
    different sentences if it had applied the guidelines in an advisory instead of binding
    
    fashion. Lucas, Phelps and Session, therefore, have not met the burden of showing
    
    a reasonable probability that the result of his sentencing would have been different
    
    but for the Booker error, and we need not apply the fourth prong of plain error. See
    
    Rodriguez, 398 F.3d at 1301. Similarly, the Supreme Court’s ruling in Booker
    
    does not entitle them to a new trial or resentencing.      See Booker, 543 U.S. at
    
    231–35.
    
    
    
                                        C. Safety-Valve
    
    
    
          A district court’s factual determinations and denial of “safety valve” relief
    
    under § 5C1.2(a)(5) are reviewed for clear error. United States v. Camacho, 
    261 F.3d 1071
    , 1072 (11th Cir. 2001).
    
          Section 2D1.1(b)(6) of the sentencing guidelines provides a 2-level
    
    reduction for a defendant who meets the five requirements of the safety-valve relief
    
    set forth in § 5C1.2. One criterion is that “no later than the time of the sentencing
    
    hearing the defendant truthfully provide to the government all information and
    
    evidence he has concerning the offense or offenses that were part of the same
    
    
    
                                              19
    course of conduct or of a common scheme or plan.” U.S.S.G. § 5C1.2(a)(5). We
    
    have held that the defendant bears the burden to prove eligibility for safety-valve
    
    such relief no later than sentencing. United States v. Brownlee, 
    204 F.3d 1302
    ,
    
    1304 (11th Cir. 2000).
    
          In United States v. Garcia, 
    405 F.3d 1260
    , 1274–75 (11th Cir. 2005), we
    
    held that an appellant who sought sentencing under the safety-valve provision was
    
    entitled to have his case remanded because the district court failed to grant his
    
    motion for a continuance of sentencing for additional debriefing. Garcia, 405 F.3d
    
    at 1274–75.    We noted the following facts in reaching that holding: (1) the
    
    appellant, a first time drug offender who did not speak English, underwent a
    
    debriefing that was translated by a government agent rather than an independent
    
    translator; (2) defense counsel erroneously believed that his client had made a
    
    statement sufficient to qualify for safety-valve; (3) he had been assured by
    
    government agents that they would conduct additional debriefings; and (4) there
    
    was no evidence that the appellant’s failure to fully debrief prior to commencement
    
    of the sentencing hearing was an attempt to mislead, manipulate, stall or delay. Id.
    
    at 1274–75.
    
          Hepburn does not argue that he met the criteria of § 5C1.2(a)(5), either in
    
    the letter he presented to the government or otherwise. Rather, he argues that the
    
    
    
                                            20
    government was required to afford him an opportunity to meet with it prior to
    
    sentencing so that he could disclose information necessary to meet the safety-valve
    
    requirement. Hepburn did not, however, request a continuance of the sentencing
    
    hearing. He did not claim that he believed prior to sentencing that he had met the
    
    safety-valve criteria. Hepburn does not dispute that the letter he submitted omitted
    
    information about his involvement in the drug conspiracy and, therefore, was
    
    incomplete with respect to his involvement in the criminal scheme. He did not
    
    request a continuance, comply with the safety-valve requirements prior to
    
    sentencing, or attempt to comply at sentencing. See Garcia, 405 F.3d at 1274–75.
    
    Therefore, Hepburn is not entitled to safety-valve relief.
    
    
    
                           D. Obstruction of Justice Enhancement
    
    
    
          “This Court reviews the district court’s interpretation and application of the
    
    sentencing guidelines de novo.” United States v. Machado, 
    333 F.3d 1225
    , 1227
    
    (11th Cir. 2003). When reviewing the application of U.S.S.G. § 3C1.1, we have
    
    determined:
    
    
    
            Where the district court must make a particularized assessment of
            the credibility or demeanor of the defendant, we accord special
    
                                              21
              deference to the district court’s credibility determinations, and we
              review for clear error.       Conversely, where the defendant’s
              credibility or demeanor is not at issue, and the defendant’s conduct
              can be clearly set forth in detailed, non-conclusory findings, we
              review de novo the district court’s application of the enhancement.
    
    United States v. Amedeo, 
    370 F.3d 1305
    , 1318 (11th Cir. 2004) (citations and
    
    quotations omitted). Section 3C1.1 provides that a 2-level enhancement may be
    
    applied to the base offense level if “the defendant willfully obstructed or impeded,
    
    or attempted to obstruct or impede, the administration of justice during the course
    
    of the investigation, prosecution, or sentencing . . . .” U.S.S.G. § 3C1.1.        The
    
    commentary to § 3C1.1 cites “providing materially false information to a judge or
    
    magistrate” and “committing, suborning, or attempting to suborn perjury” as
    
    examples of conduct to which the enhancement applies. See id., comment. (n.4(b),
    
    (f)). The guidelines define a “material statement” as a statement “that, if believed,
    
    would tend to influence or affect the issue under determination.”            U.S.S.G.
    
    § 3C1.1, comment. (n.6) (2001). We have held that “the threshold for materiality
    
    is conspicuously low.” United States v. Dedeker, 
    961 F.2d 164
    , 167 (11th Cir.
    
    1992).
    
             The Supreme Court has held that:
    
    
    
             if a defendant objects to a sentence enhancement resulting from h[is]
             trial testimony, a district court must review the evidence and make
             independent findings necessary to establish a willful impediment to or
             obstruction of justice, or an attempt to do the same, under the perjury
    
                                                22
          definition we have set out. When doing so, it is preferable for a
          district court to address each element of the alleged perjury in a
          separate and clear finding. The district court’s determination that
          enhancement is required is sufficient, however, if . . . the court makes
          a finding of an obstruction of, or impediment to, justice that
          encompasses all of the factual predicates for a finding of perjury.
    
    
    
    United States v. Dunnigan, 
    507 U.S. 87
    , 95, 
    113 S. Ct. 1111
    , 1117, 
    122 L. Ed. 2d 445
     (1993) (citations omitted).     “[C]ourts must not speculate concerning the
    
    existence of a fact which would permit a more severe sentence under the
    
    guidelines.”   United States v. Cataldo, 
    171 F.3d 1316
    , 1321 (11th Cir. 1999)
    
    (quotation omitted).
    
          The district court did not err by enhancing Johnson’s sentence for
    
    obstruction of justice. The district court viewed the entirety of Johnson’s conduct
    
    as warranting the enhancement and specifically pointed to his allowance of the
    
    representations by his attorney that he had never been convicted of a crime or even
    
    arrested prior to the charges at issue. Because the enhancement was not based
    
    upon testimony that occurred at trial, it was not necessary for the district court to
    
    make specific factual findings. See Dunnigan, 507 U.S. at 95, 113 S.Ct. at 1117.
    
    The record supports the conclusion that Johnson, through his attorney, lied to the
    
    magistrate judge. Because the magistrate judge lowered the bond amount from
    
    $75,000 to $40,000 following the representation that Johnson had no criminal
    
                                             23
    history and had never been arrested, the district court did not clearly err in finding
    
    that the misrepresentation was “material,” and therefore a sufficient basis to
    
    impose an obstruction of justice enhancement. U.S.S.G. § 3C1.1, comment.
    
    (n.4(f)); United States v. Odedina, 
    980 F.2d 705
    , 707 (11th Cir. 1993); Dedeker,
    
    961 F.2d at 167.
    
          Nor did the district court err in enhancing Session’s sentence for obstruction
    
    of justice. We review for clear error the district court’s findings of fact necessary
    
    for an obstruction of justice enhancement based upon perjury, giving great
    
    deference to the credibility determinations of the district court. United States v.
    
    Singh, 
    291 F.3d 756
    , 763 (11th Cir. 2003). We give due deference to the district
    
    court’s application of the guidelines to the facts, reviewing it de novo. Singh, 291
    
    F.3d at 763.
    
          Section 3C1.1 of the sentencing guidelines provides for a 2-level
    
    enhancement for defendants who obstruct or impede justice during the course of
    
    their case. Singh, 291 F.3d at 762-63. This obstruction or impediment of justice
    
    may include perjury. Id. at 763.
    
          In United States v. Gardiner, 
    955 F.2d 1492
    , 1495 (11th Cir. 1992), the
    
    defendant was convicted of conspiracy to possess cocaine with intent to distribute.
    
    Gardiner, 955 F.2d at 1495. We held that his presentence assertions to a probation
    
    officer that he knew nothing about the cocaine did not support an enhancement for
    
                                             24
    obstruction of justice because the statement was not material to sentencing since its
    
    “truth required the jury’s verdict to be in error.” Gardiner, 955 F.2d at 1499. That
    
    is, the only way the defendant’s statement could be material would be if the
    
    probation officer disregarded the jury’s verdict altogether.
    
          In Singh, we held that four elements must be present for a finding of perjury:
    
    (1) testimony under oath or affirmation, (2) that is false, (3) that is material,
    
    (4) given with the willful intent of falsehood and not resulting from mistake,
    
    confusion, or faulty memory. 291 F.3d at 763 n.4. For purposes of U.S.S.G.
    
    § 3C1.1, “‘material’. . . means evidence, fact, statement, or information that, if
    
    believed, would tend to influence or affect the issue under determination.” Singh,
    
    291 F.3d at 763 (citing U.S.S.G. § 3C1.1 n.6).
    
          In Singh, the district court found that the defendant provided false testimony
    
    at his sentencing hearing when he denied several instances of illegal conduct
    
    allegedly attributable to him and admitted to only a minor part of the crime of
    
    which he was convicted. Singh, 291 F.3d at 763. In that instance, we determined
    
    that the record supported the district court’s finding that Singh committed perjury
    
    when he testified during his sentencing hearing, noting that the evidence was
    
    contrary to Singh’s statements. Id. We found that his continued denial of the facts
    
    
    
    
                                              25
    was both incredible and “the result of a willful intent to provide false testimony,
    
    and cannot possibly be the result of a mistake, confusion, or faulty memory.” Id.
    
          We have stated that the threshold for materiality under the commentary to
    
    § 3C1.1 is “conspicuously low.”       Odedina, 980 F.2d at 707.       In Odedina, the
    
    defendant had failed to reveal all of his aliases to the probation officer and failed to
    
    reveal a prior misdemeanor arrest that was made under an alias. Odedina, 980
    
    F.2d at 707. The probation officer acknowledged that this misdemeanor conviction
    
    was not countable in Odedina’s criminal history calculation, but we still found that
    
    his failure to provide this information was material, on the basis that, if believed,
    
    the information would tend to influence or affect the determination of Odedina’s
    
    sentence within the appropriate guideline range. Id. at 707. We noted that in
    
    Gardiner, we had “held that presentence assertions contrary to an earlier jury
    
    verdict cannot be material to sentencing, because the probation officer would have
    
    to disregard the jury’s verdict to believe the defendant.” Odedina, 980 F.2d at 707
    
    n.2. We stated that, unlike in Gardiner, the record in Odedina did not indicate that
    
    the probation officer or the U.S. Attorney’s office had information from any other
    
    source regarding Odedina’s undisclosed aliases or his undisclosed conviction. Id.
    
          Here, the jury convicted Session of conspiracy to possess with intent to
    
    distribute at least 5 kilograms of cocaine, in violation of 21 U.S.C. §§ 846, 841
    
    
    
                                              26
    (b)(1)(A)(ii).   He   testified at sentencing that he never “ran anything,” sold,
    
    transported, or delivered cocaine, possessed cocaine with intent to distribute it, or
    
    otherwise had any involvement with dealing drugs. Though district court did not
    
    expressly apply the factors set forth in Singh, de novo application indicates that
    
    Session’s testimony was (1) under oath or affirmation, (2) false, (3) material, and
    
    (4) given with the willful intent to falsify and not resulting from mistake,
    
    confusion, or faulty memory.      Singh, 291 F.3d at 763 n.4.      Specifically, the
    
    statements were material because, if believed by the district court, they might have
    
    influenced the determination of Session’s sentence. See Odedina, 980 F.2d at 707.
    
    
    
                                 E. Firearms Enhancement
    
    
    
          We “review a sentencing judge’s factual findings used to determine the
    
    applicability of a weapons enhancement under section 2D1.1(b)(1) for clear error.”
    
    United States v. Alred, 
    144 F.3d 1405
    , 1420 (11th Cir. 1998). “Possession of a
    
    firearm for sentencing purposes is a factual finding.” United States v. Geffrard, 
    87 F.3d 448
    , 452 (11th Cir. 1996). The decision of whether to impose a § 2D1.1(b)(1)
    
    enhancement involves a two-stage determination.
    
                 The commentary to § 2D1.1 explains that this firearm
                 enhancement should be applied if the weapon was
    
    
                                             27
                 present, unless it is clearly improbable that the weapon
                 was connected with the offense. The government has the
                 burden under § 2D1.1 to demonstrate the proximity of
                 the firearm to the site of the charged offense by a
                 preponderance of the evidence. If the government is
                 successful, the evidentiary burden shifts to the defendant
                 to demonstrate that a connection between the weapon and
                 the offense was clearly improbable.
    
    United States v. Audain, 
    254 F.3d 1286
    , 1289 (11th Cir. 2001) (internal quotations
    
    and citations omitted). We have stated that “[e]xperience on the trial and appellate
    
    benches has taught that substantial dealers in narcotics keep firearms on their
    
    premises as tools of the trade.” United States v. Alvarez, 
    755 F.2d 830
    , 849 (11th
    
    Cir. 1985). The “site of the charged conduct” includes conduct relevant to the
    
    offense of conviction, that is, acts “that were part of the same course of conduct or
    
    common scheme or plan as the offense of conviction.” United States v. Hunter,
    
    
    172 F.3d 1307
    , 1309 (11th Cir. 1999).
    
          The district court did not clearly err in imposing the firearm enhancement
    
    upon Session. Two witnesses testified that Session distributed drugs to them and
    
    that he carried at least one weapon every day that they saw him. This testimony is
    
    sufficient to connect Session’s drug activities with his weapons possession, which
    
    is sufficient to trigger the firearms enhancer. With regard to Johnson, however, we
    
    conclude that the district court’s imposition of a firearms enhancer is clearly
    
    
    
    
                                             28
    erroneous.   We have discussed this aspect of Johnson’s sentence is a separate
    
    published opinion. United States v. Stallings et al.   F.3d       (11th Cir. 2006).
    
    
    
                                  F. Minor-Role Reduction
    
    
    
           Pre-Booker standards of review concerning the district court’s application of
    
    the sentencing guidelines still apply post-Booker. United States v. Crawford, 
    407 F.3d 1174
    , 1178 (11th Cir. 2005). Because Booker requires the district court to
    
    consult and take into account the guidelines when sentencing a defendant, it
    
    necessarily requires that the district court correctly calculate the guideline range.
    
    Crawford, 407 F.3d at 1178. Accordingly, even post-Booker, we review a district
    
    court’s factual determination regarding whether a defendant is eligible for a
    
    reduction for role in the offense only for clear error. United States v. DeVaron,
    
    
    175 F.3d 930
    , 934 (11th Cir. 1999). The proponent of a role adjustment bears the
    
    burden of establishing his role in the offense by a preponderance of the evidence.
    
    Id.   We will not find clear error unless we are “left with a definite and firm
    
    conviction that a mistake has been committed.” Crawford, 407 F.3d at 1178.
    
           Pursuant to U.S.S.G. § 3B1.2, a district court can reduce a defendant’s base
    
    offense by from two to four levels if the defendant was a “minimal” or “minor”
    
    
    
                                              29
    participant in the offense. U.S.S.G. § 3B1.2(a) and (b). A defendant is a minimal
    
    participant where he is “among the least culpable of those involved in the conduct
    
    of a group.” The defendant’s lack of knowledge or understanding of the scope and
    
    structure of the enterprise and the activities of others is indicative of a minimal
    
    role, and such adjustments are to be given infrequently.        U.S.S.G. § 3B1.2,
    
    comment. (n.4). A defendant is a minor participant when he “is less culpable than
    
    most other participants,” but his role could not be described as minimal.       Id.,
    
    comment. (n.5). A defendant who is held accountable only for the conduct in
    
    which he was personally involved and who performs a limited function in the
    
    criminal activity is not precluded from consideration for an adjustment.        Id.,
    
    comment. (n.3(A)).
    
          In determining a defendant’s role in an offense, a district court (1) must
    
    consider the defendant’s role in the relevant conduct for which he has been held
    
    accountable at sentencing, and (2) may also consider his role as compared to that
    
    of other participants in his relevant conduct. DeVaron, 175 F.3d at 940, 944.
    
          With regard to the first prong of this test, the district court should grant a
    
    downward adjustment for a minor role in the offense only if the defendant can
    
    establish that he played a relatively minor role in the conduct for which he has
    
    already been held accountable. Id. at 944. Where the relevant conduct attributed
    
    
    
                                             30
    to a defendant is identical to his charged conduct, he cannot prove that he is
    
    entitled to a minor-role adjustment simply by pointing to some broader criminal
    
    scheme in which he was a minor participant but for which he was not held
    
    accountable. Id. at 941.
    
          Here, the court did not clearly err in refusing to grant Session a minor-role
    
    reduction. As to the first prong, role in the relevant conduct included conspiring
    
    with others to distribute large amounts of cocaine and crack cocaine. Session does
    
    not show how his role was minor where evidence set forth at trial showed that he
    
    was a part of a large drug trafficking conspiracy. Specifically, his role of holding
    
    kilograms of cocaine, storing drugs, running drugs from one location to another,
    
    and selling drugs, along with his statement at sentencing that he arguably was
    
    responsible for 50 kilograms of cocaine support the district court’s refusal to award
    
    a minor-role adjustment. See United States v. Ryan, 
    289 F.3d 1339
    , 1349 (11th
    
    Cir. 2002).
    
          As to the second prong, Session’s role as compared to that of other
    
    participants in his relevant conduct, there was no indication that he was less
    
    involved than any other individual convicted of the same conduct. See DeVaron,
    
    175 F.3d at 940, 944. For these reasons, Session has not shown clear error. See
    
    Crawford, 407 F.3d at 1178.
    
    
    
                                             31
                                     IV. CONCLUSION
    
    
    
           Accordingly, the judgment of the district court is A FFIRMED in all respects
    
    but in the application of the firearms enhancement in computing Johnson’s
    
    sentence, which we take up in a separate published opinion. United States v.
    
    Stallings et al.,         F.3d         (11th Cir. 2006).
    
    
    
    
                                            32