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                                                          [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12445
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 4:13-cr-00020-WTM-GRS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

MICHAEL JONATHAN BENNETT,

                                                          Defendant-Appellant.

                       ________________________

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

                            (February 5, 2014)

Before HULL, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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      After pleading guilty, Michael Bennett appeals his 48-month sentence for

unlawful use of a facility in interstate commerce, namely his use of a cell phone as

part of his involvement in a conspiracy to distribute schedule II and schedule IV

controlled substances, in violation of 18 U.S.C. § 1952(a)(3). On appeal, Bennett

challenges only the district court’s relevant conduct finding used to determine the

amount of drugs attributable to Bennett at sentencing. After review, we affirm.

                           I. BACKGROUND FACTS

A.    Offense Conduct

      In 2011, law enforcement conducted an undercover investigation of Donald

and Martha Fowler, who were operating a large prescription drug distribution

scheme in Chatham County, Georgia. To conduct their operation, the Fowlers

used between three and five “drug mules” to obtain prescription medications from

various “pill-mill” doctors in Georgia and Florida. During the investigation, agents

searched the Fowlers’ residence and seized approximately 2,500 prescription pills

and drug ledgers dating back to 2003.

      Defendant Bennett was one of the Fowlers’ drug mules and traveled to

various locations in Georgia and Florida to obtain pills. Defendant Bennett was

aware that he was not the Fowlers’ only drug mule. After his arrest, Bennett was

interviewed by agents and admitted to his role in the Fowlers’ pill distribution

scheme. Defendant Bennett said that the Fowlers kept drug ledgers with each drug


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mule’s transactions and acknowledged that his own participation in the scheme

was recorded in the drug ledgers.

      According to the drug ledgers and witness interviews, Defendant Bennett

participated in the Fowlers’ drug conspiracy from October 2007 to November

2011, for about 50 months. Defendant Bennett’s name appeared on at least 52

separate pages of the drug ledgers, and each of those pages listed between 3 and 15

monetary transactions involving Defendant Bennett. A specific summary of

Defendant Bennett’s transactions does not exist. According to a prescription

summary for Lori Jones, another of the Fowlers’ drug mules, Jones obtained

between 7.56 grams and 8.82 grams of oxycodone in each month between January

and May 2011.

B.    Presentence Investigation Report

      The Presentence Investigation Report (“PSI”) noted that there was no

prescription summary of Defendant Bennett’s transactions with the Fowlers.

Using the prescription summary of Jones’s transactions, the PSI estimated that

each mule in the drug conspiracy was “attributed with obtaining a minimum of

7.56 grams of oxycodone each month,” and that, therefore, Bennett was

accountable for 378 grams of oxycodone (7.56 grams x 50 months). The PSI

stated that the 378 grams of oxycodone was a conservative quantity representing




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“the reasonably foreseeable relevant conduct in the jointly undertaken criminal

activity.”

      Based on the drug quantity equivalency tables in U.S.S.G. § 2D1.1, the PSI

converted the 378 grams of oxycodone to 2,532.6 kilograms of marijuana. See

U.S.S.G. § 2D1.1, cmt. n.8(D) (providing that 1 gram of oxycodone is equivalent

to 6,700 grams of marijuana). Using this drug quantity, the PSI calculated a base

offense level of 30 under U.S.S.G. § 2D1.1(a)(5) and (c)(4). The PSI

recommended that the offense level be decreased by three levels for acceptance of

responsibility and by four levels because Bennett was minimal participant in the

jointly undertaken criminal activity. With a total offense level of 23 and a criminal

history category of IV, the PSI recommended an initial guidelines range of 70 to 87

months’ imprisonment. However, because the statutory maximum sentence was

five years, the advisory guidelines sentence became 60 months under U.S.S.G.

§ 5G1.1(a). In light of Bennett’s substantial assistance to the government, the PSI

recommended a 50-month sentence.

      Bennett objected to the 378 grams of oxycodone attributed to him. Bennett

argued that Jones’s oxycodone transactions with the Fowlers were outside of the




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scope of the criminal activity he agreed to undertake with the Fowlers and thus

were not reasonably foreseeable to him. 1

       In an addendum to the PSI, the probation officer stated that 378 grams of

oxycodone was properly attributed to Bennett as relevant conduct under U.S.S.G.

§ 1B1.3(a). The probation officer had interviewed Martha Fowler and reviewed

the drug ledgers with her. According to Martha Fowler, Bennett visited the

Fowlers’ residence daily either to sell or buy pills or to “hang out,” and Bennett

knew he was not the only drug mule “because he was often present during drug

transactions involving” Donald Fowler and the other mules.

       During his post-arrest interview, Bennett also admitted, among other things,

that he knew he had made the Fowlers a lot of money and that other individuals

also had obtained pills and sold them to the Fowlers. In fact, although Bennett

conspired with the Fowlers and several other drug mules in furtherance of jointly

undertaken criminal activity, Bennett was “only attributed with the drug amounts

of one ‘mule.’”

B.     Sentencing

       At sentencing, the parties agreed that there was no dispute as to the PSI’s

facts and that the dispute as to relevant conduct was a legal question. The district


       1
         Bennett also objected to the denial of safety-valve relief. The district court overruled
Bennett’s safety-valve objection because Bennett’s criminal history disqualified him for such
relief. Bennett does not challenge this safety-valve ruling on appeal.
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court summarized the facts as follows: (1) Bennett worked as a drug mule for the

Fowlers obtaining pills from doctors, keeping some, and selling the rest to the

Fowlers; (2) on some occasions, the Fowlers accompanied Bennett on his doctor

visits; (3) Bennett knew that other drug couriers were also supplying pills and that

the Fowlers were selling the pills; and (4) Bennett knew the Fowlers well, visited

with them often, and was aware that he made a lot of money for them. Bennett’s

counsel stated that he had no problem with the district court’s understanding of the

facts.

         The district court then heard testimony from the probation officer and

Bennett. According to this testimony, Bennett obtained for the Fowlers Xanax,

hydrocodone, and Soma, schedule III and IV drugs. Defendant Bennett also

sometimes bought prescription pills from the Fowlers, including oxycodone, a

schedule II drug. Lori Jones obtained oxycodone pills for the Fowlers.

         Defendant Bennett began supplying the Fowlers with his prescription drugs

because he needed help getting to the doctor. The Fowlers loaned Defendant

Bennett money to finance his trips to buy medications. Defendant Bennett would

keep some pills, and sell the rest to the Fowlers to reduce his debt to them. The

Fowlers also sometimes accompanied Defendant Bennett to his doctor visits.

         Defendant Bennett was close to the Fowlers and was a friend of the Fowlers’

son, who employed Bennett to do lawn care and automotive work. Defendant


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Bennett visited the Fowlers’ home frequently, at least two or three times a week.

The Fowlers sold pills in their kitchen, and Defendant Bennett sometimes observed

these transactions, but was not directly involved in them.

      Defendant Bennett admitted that he knew that the Fowlers made money

selling prescription pills, that they used other drug mules to obtain pills, and that

they kept ledgers of their transactions. Defendant Bennett often saw Lori Jones at

the Fowlers’ home and assumed that she also supplied pills to the Fowlers.

However, Defendant Bennett and Jones did not travel together to obtain pills, did

not visit the same doctors, did not exchange pills or pool resources with each other,

did not discuss obtaining or selling pills, and were not present for each other’s

transactions with the Fowlers. Defendant Bennett knew that, in addition to Jones,

another source of supply for the Fowlers was Thomas Taylor.

      At the conclusion of the evidence, the district court found that there was no

objection to the factual statements in the PSI and adopted the PSI’s findings of

fact. As to drug quantity, the district court stated that it “agree[d] with the findings

in the [PSI] and concur[red] with those findings, including the addendum.” The

district court stated that it had “made an individualized finding as regards to Mr.

Bennett.” The district court further stated that (1) the Fowlers’ criminal activity

was widespread, with drug mules going outside of Chatham County; (2) the

Fowlers used several drug mules, some of whom Bennett knew and some of whom


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he did not; (3) Bennett’s involvement with the Fowlers lasted for many months; (4)

Bennett both furnished to, and received drugs from, the Fowlers; and (5) Bennett

knew of the Fowlers’ widespread activities getting pills from others and

distributing them because Bennett was in the Fowlers home on an almost daily

basis and “could witness firsthand the comings and goings at the Fowler

residence.”

      The district court concluded that “the estimate of drugs attributable to Mr.

Bennett in this case is a conservative estimate” and agreed with the PSI that “this

was in fact a jointly undertaken criminal activity by the Fowlers and Mr. Bennett

and other individuals such as himself and that Mr. Bennett should have easily

reasonably foreseen the acts and the omissions of others.” The district court

stressed that Bennett admitted he had assumed that Lori Jones “was doing the same

thing he was doing and that what he and the others were doing was in furtherance

of the jointly undertaken criminal activity in this case.”

      The district court adopted the PSI’s calculations and advisory guideline

sentence of 60 months. The district court granted the government’s motion for a

downward departure based on substantial assistance and, after considering the 18

U.S.C. § 3553(a) factors, imposed a 48-month sentence. Bennett renewed his

objections to the district courts drug quantity finding and relevant conduct

determination.


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                                     II. DISCUSSION

       The district court must approximate the drug quantity when, as here, a

defendant’s base offense level under the guidelines is determined by drug quantity,

and the amount of drugs seized does not reflect the scale of the offense. 2 United

States v. Frazier, 89 F.3d 1501, 1506 (11th Cir. 1996); see also U.S.S.G. § 2D1.1,

cmt. n.5. In estimating the drug quantity attributable to the defendant, the district

court may rely on evidence demonstrating the average frequency and amount of

the defendant’s drug sales over a given period of time. Id. This determination may

be based on fair, accurate, and conservative estimates of drug quantities

attributable to the defendant, but not on mere speculation. United States v. Zapata,

139 F.3d 1355, 1359 (11th Cir. 1998). It is the government’s burden to prove drug

quantity by a preponderance of the evidence. United States v. Lawrence, 47 F.3d

1559, 1566 (11th Cir. 1995). However, the district court may rely on undisputed

statements in the PSI. United States v. Hedges, 175 F.3d 1312, 1315 (11th Cir.

1999).

       Here, the district court had to estimate the amount of drugs involved in the

underlying drug conspiracy while Bennett participated in it. The district court did


       2
         Section 2E1.2, the provision applicable to Bennett’s offense, provides that the base
offense level is either 6 or the offense level applicable to the underlying unlawful activity,
whichever is greater. U.S.S.G. § 2E1.2(a)(1),(2). In Bennett’s case, the offense level for the
underlying drug conspiracy is determined using the drug quantity tables in U.S.S.G. § 2D1.1(c).
Thus, the district court had to estimate the amount of drugs involved in the conspiracy to
determine Bennett’s offense level.
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this by calculating the average amount of drugs that one of the Fowlers’ drug

mules, Lori Jones, obtained for the Fowlers per month (between 7.56 grams and

8.82 grams) and then attributing the low end of that amount (7.56 grams) to each of

the three to five drug mules (including Bennett) who the Fowlers used in the drug

conspiracy. The district court then multiplied that average monthly drug quantity

for one drug mule by the number of months Bennett participated in the conspiracy

(50 months), to arrive at a conservative estimate of the total amount of drugs (378

grams) attributable to Bennett (representing 7.56 grams x 50 months = 378 grams).

       On appeal, Bennett does not challenge the district court’s factual findings as

to the amount of drugs involved in the Fowlers’ overall drug scheme or argue that

the district court’s method for estimating that drug amount was not conservative or

was mere speculation. Instead, Bennett argues only that the district court could not

use Jones’s oxycodone transactions with the Fowlers to calculate his drug quantity

because Jones’s oxycodone transactions were not part of the criminal activity he

jointly undertook with the Fowlers and thus were not relevant conduct.3

       Under the advisory guidelines, a defendant is held accountable for his

“relevant conduct,” which includes his own “acts or omissions” and also “all

reasonably foreseeable acts and omissions of others in furtherance of the jointly

       3
        Although we review a district court’s finding of the drug quantity attributable to the
defendant for clear error, United States v. Chavez, 584 F.3d 1354, 1367 (11th Cir. 2009), we
review de novo whether the district court misapplied the relevant conduct provisions of U.S.S.G.
§ 1B1.3, United States v. McCrimmon, 362 F.3d 725, 728 (11th Cir. 2004).
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undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(A), (B). In drug conspiracy

cases, relevant conduct includes drug amounts with which the defendant was

directly involved and also “all reasonably foreseeable quantities of contraband that

were within the scope of the criminal activity that the he jointly undertook.”

U.S.S.G. § 1B1.3, cmt. n.2.; United States v. Ismond, 993 F.2d 1498, 1499 (11th

Cir. 1993).

      A “jointly undertaken criminal activity” is a criminal plan or scheme

undertaken by the defendant together with others, even if not charged as a

conspiracy. U.S.S.G. § 1B1.3, cmt. n.2. The scope of the jointly undertaken

activity is not necessarily the same as the scope of the entire conspiracy. Id. Thus,

to hold the defendant responsible for the conduct of others, the district court must

determine: (1) the scope of the criminal activity that the defendant agreed to jointly

undertake; and then (2) whether the conduct of others was in furtherance of, and

reasonably foreseeable in connection with, the criminal activity jointly undertaken

by the defendant. Id.; see also United States v. Hunter, 323 F.3d 1314, 1319-20

(11th Cir. 2003). In determining the scope of the criminal activity, the district

court may consider any implicit agreement fairly inferred from the conduct of the

defendant and others. U.S.S.G. § 1B1.3, cmt. n.2.

      The district court also must make individualized findings as to the scope of

the criminal activity undertaken by the defendant. Hunter, 323 F.3d at 1319;


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Ismond, 993 F.2d 1499. We need not reverse if the district court failed to make

such findings, however, where the record as a whole supports the amount of drugs

attributed to the defendant. Ismond, 993 F.2d at 1499.

      Here, Bennett had an individual sentencing hearing separate from the other

participants in the Fowlers’ drug ring. The district court explicitly made

individualized findings about Bennett’s involvement in the Fowlers’ drug scheme

on the record at the sentencing hearing. Specifically, the district court found that

Bennett agreed to a “widespread” criminal undertaking with the Fowlers and other

drug couriers—to obtain prescription medications from “pill mill” doctors

throughout Florida and Georgia to distribute in Chatham County, Georgia—and

that Bennett was aware of Jones’s involvement in the undertaking as one of the

drug couriers. The district court also noted the length of Bennett’s involvement

with the scheme, his near-daily visits to the Fowlers’ home, and his presence

during some of the transactions. Thus, the district court did not fail to make

particularized findings as to the scope of Bennett’s involvement in the drug

conspiracy.

      Bennett claims that Jones’s oxycodone transactions are not relevant conduct

because they were not in furtherance of the criminal activity he personally agreed

to jointly undertake with the Fowlers. Bennett argues that his criminal activity was

limited to selling his own schedule III and IV prescription drugs to the Fowlers and


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that he never agreed to jointly undertake the Fowler’s larger scheme or Jones’s

criminal activity of selling the Fowlers the schedule II drug oxycodone. 4

       We find no merit to Bennett’s contention that the district court was required

to find that the Fowlers were engaged in separate criminal undertakings with

Bennett and Jones. Rather, the undisputed facts in the PSI and presented at the

sentencing hearing amply support the district court’s finding that Bennett, Jones,

and the other drug mules were all participating in one scheme with the Fowlers to

distribute prescription medications obtained from “pill mill” doctors in Georgia

and Florida.

       The record shows that Bennett knew he was involved in a widespread

criminal undertaking that included Jones’s conduct because: (1) Bennett visited the

Fowlers’ home almost daily, (2) he was present when the Fowlers conducted drug

transactions in their home; (3) he supplied Xanax, Soma, and hydrocodone to the

Fowlers repeatedly over 50 months knowing they were reselling those drugs; (4)

he relied on the Fowlers to fund his travel to doctors to obtain those drugs; (5) he

knew the Fowlers used other drug mules, including Jones, and resold the drugs the

mules supplied; and (6) he sometimes purchased drugs from the Fowlers, including

oxycodone, one of the drugs that Jones, but not Bennett, supplied to the Fowlers.



       4
        On appeal, Bennett does not argue that Jones’s drug transactions were not reasonably
foreseeable to him or were not in furtherance of the Fowlers’ overall drug operation.
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         Bennett correctly points out that mere awareness of the larger criminal

undertaking is insufficient to show that a defendant agreed to participate in that

larger criminal undertaking. See Hunter, 323 F.3d at 1320-21. However, the

extent of a defendant’s knowledge of and participation in the undertaking may be

indicative of an agreement to participate in the larger scheme. See McCrimmon,

362 F.2d at 732-33. The facts here show that Bennett was more than merely aware

of the Fowlers’ overall drug operation; he was an active and trusted participant in

the Fowlers’ operation as both a courier and a purchaser for an extended period of

time. Bennett was such a close associate of the Fowlers that they conducted

transactions with others in his presence. In addition, Bennett relied upon the

Fowlers to finance his doctor visits, which suggests Bennett was invested in and

dependent on the success of the Fowlers’ larger criminal undertaking. Likewise,

Bennett’s long-time and reliable supply of Xanax, Soma, and hydrocodone helped

the Fowlers’ scheme to succeed. And, Bennett furthered the scheme from the

“demand” side by buying oxycodone from the Fowlers, which provided them an

incentive to purchase more oxycodone from their oxycodone suppliers, including

Jones.

         In light of Bennett’s long-term, extensive knowledge of and participation in

the Fowlers’ scheme, the district court properly inferred from Bennett’s conduct

that he agreed to jointly undertake the entire criminal scheme involving all the drug


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mules. Given that the scope of the criminal activity Bennett agreed to jointly

undertake, the district court did not err in including Jones’s oxycodone transactions

as relevant conduct and using them to estimate the amount of drugs involved in

that criminal activity. Accordingly, we find no reversible error in the district

court’s application of U.S.S.G. § 1B1.3.

      AFFIRMED.




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