           Case: 18-15057   Date Filed: 05/01/2020   Page: 1 of 22



                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-15057
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 5:17-cr-00050-JDW-PRL-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                   versus

SANTONIO JUVON JACKSON,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                              (May 1, 2020)

Before MARTIN, ROSENBAUM, and GRANT, Circuit Judges.

PER CURIAM:
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      Santonio Juvon Jackson appeals his convictions and concurrent 240-month

sentences for conspiring to distribute or possess with intent to distribute and

distributing or possessing with intent to distribute a controlled substance. Jackson

contends that the district court (1) abused its discretion in admitting “prior bad act”

evidence about his history of drug transactions with a witness and plainly erred in

not finding that the government’s questioning of the witness to elicit that testimony

constituted prosecutorial misconduct; (2) plainly erred in using the government’s

proposed verdict form, which Jackson alleges differed from the indictment in

material ways, or in the alternative, plainly erred in failing to conclude that the

indictment was duplicitous; and (3) plainly erred in sentencing him as a career

offender under § 4B1.1 of the United States Sentencing Guidelines. We affirm.

                                           I.

      A federal grand jury returned an indictment charging that on or about

October 26, 2017, Jackson distributed and possessed with intent to distribute “a

controlled substance, which violation involved 100 grams or more of a mixture and

substance containing a detectable amount of heroin, a Schedule I controlled

substance, and a detectable amount of fentanyl, a Schedule II controlled

substance,” in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 and punishable

as provided in 21 U.S.C. § 841(b)(1)(B) (Count 1), and that from on or about

October 26, 2017 through on or about October 30, 2017, Jackson conspired with


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others to distribute and possess with intent to distribute a controlled substance in

violation of 21 U.S.C. § 846, again stating that the “violation involved 100 grams

or more of a mixture and substance containing” detectable amounts of heroin and

fentanyl, punishable as provided in 21 U.S.C. § 841(b)(1)(B) (Count 2). Jackson

pleaded not guilty and proceeded to trial.

      Before trial, Jackson moved in limine to exclude evidence of drug activity

between him and a prosecution witness, John Chesnet, that occurred before the

time frame of the indictment. The government responded that it intended to ask

Chesnet about his prior arrangement with Jackson regarding the price of heroin but

did not otherwise intend to present evidence of earlier drug transactions unless

Jackson opened the door to such testimony. The court granted Jackson’s motion to

the extent that it addressed prior bad acts that were beyond the scope of the

indictment, noting that the government could demonstrate the relationship between

Chesnet and Jackson “without getting into specific conduct.” The court instructed

the government to approach the court before asking about specific prior acts if the

prosecutor believed that Jackson had opened the door to such evidence.

      At trial, the government called Chesnet to testify about a videotaped drug

transaction between him and Jackson, in which Jackson delivered to Chesnet

approximately six ounces (later determined to be 167 grams) of a substance

containing heroin and fentanyl. Chesnet testified that he had been arrested for


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narcotics offenses in September 2017 and had agreed to cooperate with law

enforcement in the hope of getting a lower sentence for those offenses. Chesnet

said that Jackson was his source of supply for heroin, and that he and Jackson had

a prior arrangement that Chesnet would pay $3,000 per ounce for heroin. Chesnet

testified that during the videotaped transaction, Jackson delivered a package

containing about six ounces of heroin to Chesnet and told Chesnet that he owed

$18,000 for the drugs. A few days later, Chesnet called Jackson at the direction of

law enforcement officers and arranged to make a partial payment of $5,000.

According to Chesnet, Jackson told him during that phone call that he would front

Chesnet some cocaine too.

      On cross examination, Jackson’s attorney noted that part of the alleged

heroin transaction was not visible on video. Counsel implied that the heroin that

Chesnet claimed had come from Jackson really belonged to Chesnet, pointing out

that Chesnet had large quantities of heroin and cocaine in his possession when he

was arrested in September 2017. He also implied that Jackson had actually given

Chesnet money, not heroin, and that the money was a personal gift or loan to help

with Chesnet’s bail and legal fees. Counsel challenged Chesnet’s testimony that

Jackson had given him $18,000 worth of heroin on credit:

      Q.     So somebody is going to give you street value of 18- $30,000 worth of
             drugs and, as you say, front it, and then just hope that you pay them?
      A.     That’s right.
      Q.     Okay. And in this particular case, you hadn’t paid them any money –
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            according to you, you said you owed him $30,000. Is that in addition
            to the–
      A.    No.
      Q.    That’s including the new stuff that you claimed you got?
      A.    It was 10- at first.
      Q.    What do you mean “at first”?
      A.    Prior to the 18-.
      Q.    Oh, so you had an outstanding debt of 10- that you were behind on?
      A.    Yeah.
      Q.    So now he’s going to give you 18- more, because you’re behind on
            10-?
      A.    That’s right.
      Q.    Okay. And now this is where the $30,000 comes in? Is that what
            you’re telling me?
      A.    That’s right.
                                      . . .

      Q.    But you just -- supposedly just got $18,000 worth of heroin?
      A.    Yeah.
      Q.    And you were going to get cocaine now on top of heroin?
      A.    Uh-huh (affirmative).
      Q.    And you still owed this man $30,000?
      A.    Uh-huh (affirmative).
      Q.    Does that make any sense to you?
      A.    To me it does, yeah.

      After establishing that Chesnet expected to receive between $4,000 and

$18,000 in cocaine from Jackson, counsel continued:

      Q.    All right. So we’re going to double down. You’re in the hole now 18-
            to 28,000. We’re going to throw another 18,000 on the pot. So you're
            going to be in the hole almost 50 grand here?
      A.    Well, no. Usually I bring more than half of that back.
      Q.    Well, but -- yeah. But you have no history, according to this testimony
            that we have here today. All you came up with was supposedly
            $5,000. Whose idea was it to pay $5,000?
      A.    The officers.

      On redirect, the prosecutor had the following exchange with Chesnet:
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Q.    So, Mr. Chesnet, now that you’ve answered a number of questions
      from [defense counsel] about your history of drug activities from Mr.
      Jackson, let’s go into a little more detail about that. You mentioned on
      -- on or around September 27th you were arrested on a number of
      state warrants for trafficking in heroin?
A.    Yes, sir.
Q.    Where did you get that heroin from?
A.    Santonio.
Q.    Did you owe him money for that heroin?
A.    At that time I owed him 10,000.
Q.    All right. [Defense counsel] was asking you why on earth
      Mr. Jackson would front you drugs if you already owed him a
      great deal of money. Did you have a history of accepting drugs on
      consignment from Santonio Jackson?
A.    Yes, sir.
Q.    How far back did that history go?

[DEFENSE COUNSEL]: Objection, Your Honor. Outside the -- well outside
the scope.

THE COURT: Overruled.

BY [THE PROSECUTOR]:
Q.   Go ahead.
A.   Since about, like, March of -- February or March of ’17.
Q.   So would it be correct to say that you’ve been accepting narcotics
     from Santonio Jackson and selling them, and then paying him back
     with some of the proceeds of those sales since March of 2017?
A.   Yes, sir.
Q.   Did you have a well-established history of selling drugs on
     consignment for Mr. Jackson from March to September?
A.   Yes, sir.
Q.   Might that have been a reason why he would be comfortable fronting
     you large amounts of narcotics while you still owed him money?
A.   Yes, sir.
Q.   And, in fact, wasn’t it Mr. Jackson’s practice to keep you perpetually
     in debt? Were you ever able to clear your debt with Mr. Jackson
     during the course of your drug dealings with him?
A.   No, sir.


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       Q.      What was the typical arrangement for -- like, when Mr. Jackson
               would show up to front you narcotics, would he ask you how much
               you wanted?
       A.      No.
       Q.      Would he ask you what kind you wanted?
       A.      No.
       Q.      Would he just show up with whatever he wanted to give you at that
               date and tell you what you owed him?
       A.      Yes, sir.

       The jury found Jackson guilty on all counts charged in the indictment. With

Jackson’s consent, 1 the court used the government’s proposed verdict form, which

included special interrogatories regarding the type and quantity of drug involved in

each count. The jury found that Jackson’s offenses involved “a mixture and

substance containing a detectable amount of heroin in the amount [of] One

hundred (100) grams or more” and “a mixture and substance containing a

detectable amount of fentanyl in the amount [of] Forty (40) grams or more.”

       Based on these drug-quantity findings and Jackson’s prior felony drug

convictions, the district court determined that Jackson was subject to an enhanced

statutory sentencing range of ten years to life under 21 U.S.C. § 841(b)(1)(B). The

court also determined that Jackson qualified as a career offender under the

Sentencing Guidelines because his conviction on Count 1 was a controlled-

substance offense and he had two prior Florida felony convictions for controlled-



1
  Jackson initially objected to the verdict form, but affirmatively withdrew his objection after the
close of evidence at trial.
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substance offenses. See U.S.S.G. § 4B1.1(a). As a career offender, Jackson’s

Sentencing Guidelines range was 360 months to life in prison. Over the

government’s objection, the district court varied downward from the Guidelines

range and sentenced Jackson to 240 months’ imprisonment and eight years’

supervised release. This is Jackson’s appeal.

                                          II.

      Jackson argues that the district court erred by admitting Chesnet’s testimony

concerning prior drug transactions with Jackson outside the scope of the October

2017 conspiracy alleged in the indictment, and that the admission of that testimony

deprived him of a fair trial. For the first time on appeal, he also contends that the

government’s questioning that elicited the “prior bad act” testimony constituted

prosecutorial misconduct.

                                          A.

      We review the district court’s evidentiary rulings, including the admission of

“prior bad act” evidence under Federal Rule of Evidence 404(b), for abuse of

discretion. United States v. Gari, 572 F.3d 1352, 1361 (11th Cir. 2009). Under

Rule 404(b), evidence of a defendant’s prior bad conduct is not admissible to prove

that the defendant was of bad character and that he committed the charged crime in

conformity with that character. Fed. R. Evid. 404(b)(1). But the evidence may be

admissible for other purposes, “such as proving motive, opportunity, intent,


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preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

Fed. R. Evid. 404(b)(2). “To be admissible under Rule 404(b)(2), a prior act

(1) must be relevant to an issue other than defendant’s character, (2) must be

sufficiently proven to permit a jury determination that the defendant committed the

act, (3) must have probative value that is not substantially outweighed by undue

prejudice, and (4) must otherwise satisfy Federal Rule of Evidence 403.”2

United States v. Nerey, 877 F.3d 956, 974 (11th Cir. 2017).

       We have no difficulty concluding that evidence of Jackson’s prior drug

transactions with Chesnet was admissible under Rule 404(b). First, Jackson’s prior

drug activity was relevant to the issue of intent. A defendant’s not guilty plea to a

drug conspiracy charge “makes intent a material issue and opens the door to

admission of prior drug-related offenses as highly probative, and not overly

prejudicial, evidence of a defendant’s intent.” United States v. Smith, 741 F.3d

1211, 1225 (11th Cir. 2013) (quoting United States v. Calderon, 127 F.3d 1314,

1332 (11th Cir. 1997)). Second, Chesnet’s testimony that Jackson had given him

drugs on consignment before was sufficient to allow the jury to find that Jackson

committed those prior offenses. See United States v. Dickerson, 248 F.3d 1036,




2
  Rule 403 provides that relevant “evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading
the jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.”
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1047 (11th Cir. 2001) (“the uncorroborated word of an accomplice” is sufficient to

connect the defendant to prior uncharged crimes for purposes of 404(b) (citation

omitted)).

      Third, the probative value of the evidence was not outweighed by the risk of

unfair prejudice, confusion, misleading the jury, or inefficiency. The probative

value of prior drug activity is especially high where, as here, the defendant

questions the credibility of the government’s witness on the issue of intent or

implies that he was merely present at the scene and did not participate in the

charged offense. See Calderon, 127 F.3d at 1332; United States v. Delgado, 56

F.3d 1357, 1365 (11th Cir. 1995) (affirming the introduction of prior bad acts

evidence in part because the defendant “presented a ‘mere presence’ defense,

forcing the government to prove his criminal intent so as to negate any innocent

explanation for his presence”). And contrary to Jackson’s characterization of the

evidence as severely prejudicial, we have said before that “extrinsic drug offenses

do not tend to incite a jury to an irrational decision.” Delgado, 56 F.3d at 1366.

The district court also gave a limiting instruction to the jury regarding the evidence

of prior transactions, which reduced the risk of undue prejudice. See United States

v. Wilchcombe, 838 F.3d 1179, 1193 (11th Cir. 2016).

      In any event, Jackson opened the door to Chesnet’s testimony about his prior

dealings with Jackson by questioning the source of Chesnet’s debt to Jackson and


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implying that Jackson would never give him heroin without payment if Chesnet

already owed him money. Otherwise inadmissible extrinsic evidence is admissible

on redirect examination to explain or clarify testimony elicited by defense counsel

during cross examination. See United States v. West, 898 F.2d 1493, 1500 (11th

Cir. 1990); United States v. Elliott, 849 F.2d 554, 559 (11th Cir. 1988). And

evidence that is “not part of the crime charged but pertaining to the chain of events

explaining the context, motive and set-up of the crime,” is admissible without

regard to Rule 404(b) if it is “linked in time and circumstances with the charged

crime, or forms an integral and natural part of an account of the crime, or is

necessary to complete the story of the crime for the jury.” United States v. Holt,

777 F.3d 1234, 1262 (11th Cir. 2015) (quoting United States v. McLean, 138 F.3d

1398, 1403 (11th Cir. 1998)). Because defense counsel’s cross examination raised

questions about the source of Chesnet’s debt to Jackson and why Jackson would

give Chesnet $18,000 worth of drugs on credit, the government could elicit

testimony on redirect to clarify or explain those issues. The district court did not

abuse its discretion in admitting Chesnet’s testimony about his history of drug

transactions with Jackson.

                                          B.

      We generally review determinations regarding prosecutorial misconduct de

novo. United States v. Rivera, 780 F.3d 1084, 1090 (11th Cir. 2015). But when


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the defendant fails to object to the alleged misconduct contemporaneously, we

review the claim for plain error. Id. To prevail on plain-error review, the appellant

must show an error that is plain or obvious and that affected the defendant’s

substantial rights. Id. We may exercise our discretion to correct a plain error if it

“seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id.

      To qualify as misconduct, a prosecutor’s questions must be (1) improper and

(2) “prejudicial to the defendant’s substantial rights.” Id. at 1096. “If the

defendant cannot show that the prosecutor’s conduct was improper, the

prosecutorial misconduct claim must fail.” United States v. Chirinos, 112 F.3d

1089, 1098 (11th Cir. 1997). Substantial rights are prejudiced when there is a

reasonable probability that, but for the misconduct, the outcome of the trial would

have been different. Rivera, 780 F.3d at 1096.

      Here, the prosecutor’s questions eliciting testimony from Chesnet about his

prior arrangements with Jackson were not improper because defense counsel

opened the door to such testimony on cross examination. Chesnet’s testimony

about their history of drug transactions was admissible to explain why Jackson

would give him drugs on consignment and to clarify the source of his preexisting

debt to Jackson. And although the prosecutor should have complied with the

court’s order to request a bench conference before eliciting the testimony, his


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failure to do so did not affect Jackson’s substantial rights because the district court

heard and overruled Jackson’s objection to the evidence.

                                          III.

      Next, Jackson argues that the verdict form differed from the indictment in

significant ways, and that his convictions and sentences are therefore invalid.

Specifically, he argues that (1) the indictment charged him with drug offenses

involving 100 grams or more of a controlled substance, but the verdict form

permitted the jury to find him guilty of offenses involving an unspecified quantity

of drugs; (2) the indictment alleged that the controlled substance involved in his

offenses contained both heroin and fentanyl, but the verdict form asked the jury to

find whether his offenses involved heroin or fentanyl; and (3) the indictment

alleged that he distributed or conspired to distribute 100 grams or more of a

substance containing unspecified amounts of heroin and fentanyl, but the verdict

form asked the jury to determine the weight of heroin or fentanyl in the substance,

rather than the weight of the mixture as a whole.

      Jackson argues that these differences permitted the jury to make findings

regarding drug quantities not charged in the indictment, so that the court’s use of

the verdict form constituted a constructive amendment of the indictment and his

sentence based on the jury’s drug-quantity findings was unconstitutional. “A

constructive amendment occurs ‘when the essential elements of the offense


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contained in the indictment are altered to broaden the possible bases for conviction

beyond what is contained in the indictment.’” Holt, 777 F.3d at 1261 (quoting

United States v. Narog, 372 F.3d 1243, 1247 (11th Cir. 2004)). “A constructive

amendment ‘is per se reversible error.’” Id. (quoting Narog, 372 F.3d at 1247).

      In the alternative, Jackson argues that if the indictment matched the verdict

form, then the indictment was duplicitous because it charged two offenses in each

count—one involving heroin, and the other involving fentanyl. See United States

v. Burton, 871 F.2d 1566, 1573 (11th Cir. 1989) (“A duplicitous indictment

charges two or more separate and distinct crimes in a single count.”). Because

Jackson failed to make his arguments regarding the indictment and the verdict

form to the district court, our review is for plain error only. See Holt, 777 F.3d at

1261; United States v. Barrington, 648 F.3d 1178, 1190 n.6 (11th Cir. 2011);

United States v. Acevedo, 285 F.3d 1010, 1011–12 (11th Cir. 2002).

                                          A.

      Jackson argues that the indictment charged different offenses than those

presented on the verdict form because the indictment alleged that his offenses

involved 100 grams or more of a controlled substance, triggering the penalties set

out in 21 U.S.C. § 841(b)(1)(B), whereas the verdict form permitted the jury to

find him guilty of offenses involving an unspecified drug quantity, punishable

under 21 U.S.C. § 841(b)(1)(C). These arguments are based on Jackson’s


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misreading of the indictment, the verdict form, and the federal drug trafficking

statute, 21 U.S.C. § 841.

      The indictment alleged that Jackson distributed or possessed with intent to

distribute a controlled substance (Count 1) and that he conspired to distribute or

possess with intent to distribute a controlled substance (Count 2). These

allegations were sufficient to state a (single) violation of 21 U.S.C. § 841(a)(1) in

Count 1 and a (single) violation of 21 U.S.C. § 846 in Count 2, without regard to

the type or quantity of controlled substance involved. See United States v. Sanders,

668 F.3d 1298, 1309 (11th Cir. 2012) (“a person violates § 841(a) merely by

knowingly possessing with intent to distribute a controlled substance”; “the specific

amount and type of drugs are not elements of the [§ 841(a)(1)] offense” (alteration

in the original) (citation omitted)); United States v. Parrado, 911 F.2d 1567, 1570

(11th Cir. 1990) ( “To support a conspiracy conviction under 21 U.S.C. § 846, the

government must prove that there is an agreement by two or more persons to violate

the narcotics laws.”).

      Under 21 U.S.C. § 841(b), however, the type and quantity of drugs involved

is a key factor in determining the statutory sentencing range for a drug trafficking

offense. For a defendant like Jackson with one or more qualifying prior drug

convictions, a violation of § 841(a) or § 846 involving an unspecified quantity of

heroin or fentanyl is punishable by up to 30 years’ imprisonment and at least 6


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years’ supervised release. 21 U.S.C. § 841(b)(1)(C). But an offense involving

either 100 grams or more of a substance containing heroin or 40 grams or more of a

substance containing fentanyl is punishable by ten years to life in prison, followed

by at least eight years’ supervised release. 21 U.S.C. § 841(b)(1)(B)(i) &

(b)(1)(B)(vi). Under Apprendi v. New Jersey, 530 U.S. 466 (2000), therefore, the

government was required to allege the relevant drug type and quantity in the

indictment and prove those facts to the jury beyond a reasonable doubt before

Jackson could be subjected to the enhanced penalties in § 841(b)(1)(B). See

Apprendi, 530 U.S. at 489; Sanders, 668 F.3d at 1309–10. Jackson’s indictment

complied with this requirement by alleging that his drug trafficking offenses

involved 100 grams or more of a substance containing heroin and fentanyl.3

       In other words, the allegations in the indictment followed the structure of the

drug trafficking statute by alleging conduct that violated § 841(a)(1) or § 846 and

also alleging facts that, if proven, would trigger enhanced penalties under

§ 841(b)(1)(B). Contrary to Jackson’s assertions, the verdict form corresponded to

the indictment, in that it asked the jury to find Jackson guilty or not guilty of the



3
  Specifically, the indictment charged that Jackson’s offenses “involved 100 grams or more of a
mixture and substance containing a detectable amount of heroin, a Schedule I controlled
substance, and a detectable amount of fentanyl, a Schedule II controlled substance, and is
therefore punished under 21 U.S.C. § 841(b)(1)(B).” To the extent that Jackson argues that this
language described 100 grams of a substance containing heroin and an unspecified amount of a
second substance containing fentanyl (and that his sentence should have been based on the latter
substance), that contention is plainly wrong and warrants no further discussion.
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charged offense, and if guilty, to make further findings about the type and quantity

of controlled substance involved. We have previously upheld the use of a verdict

in this format. See United States v. Clay, 355 F.3d 1281, 1285 (11th Cir. 2004).

The district court did not err, much less plainly err, by using a verdict form that

allowed the jury to make separate findings regarding drug quantity if it found that

he was guilty of the charged offense. See id.

                                          B.

      Jackson also contends that the verdict form constructively amended the

indictment and led to the imposition of an unconstitutional sentence because the

indictment charged him with distributing or conspiring to distribute a substance

containing heroin and fentanyl, but the verdict form permitted the jury to find him

guilty if it determined that his offenses involved heroin or fentanyl. He also notes

that the indictment alleged that the substance containing fentanyl weighed more

than 100 grams, but the verdict form asked the jury whether the substance

containing fentanyl weighed 40 grams or more. In the alternative, Jackson argues

that if the indictment matched the verdict form, then the indictment was duplicitous

because it charged offenses involving two different controlled substances.

      It is well settled, however, “that an indictment may charge numerous

offenses or the commission of any one offense in several ways. As long as the

crime and the elements of the offense that sustain the conviction are fully and


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clearly set out in the indictment, the right to a grand jury is not normally violated

by the fact that the indictment alleges more crimes or other means of committing

the same crime.” United States v. Miller, 471 U.S. 130, 136 (1985). This means

that “where an indictment charges in the conjunctive several means of violating a

statute, a conviction may be obtained on proof of only one of the means, and

accordingly the jury instruction may properly be framed in the disjunctive.”

United States v. Simpson, 228 F.3d 1294, 1300 (11th Cir. 2000); see United States

v. Burton, 871 F.2d 1566, 1573 (11th Cir. 1989). “The conjunctive allegations do

not render the indictment duplicitous.” Burton, 871 F.2d at 1573.

      Here, the verdict form did not expand the bases for conviction beyond those

that were alleged in the indictment. To the contrary, the charges in the indictment

fully encompassed the findings that the jury was asked to make. Again, the

indictment charged Jackson with a single violation of 21 U.S.C. § 841(a)(1) in

Count 1 by alleging that he distributed or possessed with intent to distribute a

controlled substance, and charged him with a single violation of 21 U.S.C. § 846 in

Count 2 by alleging that he conspired with others to distribute or possess with

intent to distribute a controlled substance. See 21 U.S.C. §§ 841(a)(1), 846. The

indictment charged that Jackson violated the relevant statutes in multiple ways, in

that his offenses involved multiple controlled substances. But because proof that

Jackson distributed and conspired to distribute any controlled substance was


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sufficient to support convictions on the counts charged, Jackson could be found

guilty as charged if his offenses involved either heroin or fentanyl, and the district

court did not plainly err in using a verdict form that instructed the jury accordingly.

      Similarly, the indictment charged that Jackson’s offenses involved 100

grams of a substance containing heroin and fentanyl, although proof that the

offenses involved 100 grams of a substance containing heroin alone, or 40 grams

of a substance containing fentanyl alone, was sufficient to expose Jackson to the

enhanced penalties in 21 U.S.C. § 841(b)(1)(B). See 21 U.S.C. § 841(b)(1)(B)(i)

(providing that a violation of § 841(a) involving “100 grams or more of a mixture

or substance containing a detectable amount of heroin” is punishable under

§ 841(b)(1)(B)); 21 U.S.C. § 841(b)(1)(B)(vi) (same for an offense involving “40

grams or more of a mixture or substance containing a detectable amount of

[fentanyl]”). By alleging that Jackson possessed with intent to distribute, and

conspired to distribute, 100 grams or more of a substance containing heroin and

fentanyl, the government also necessarily alleged that he possessed with intent to

distribute and conspired to distribute 100 grams or more of a substance containing

heroin, and 40 grams or more of a substance containing fentanyl. Thus, the options

offered to the jury on the verdict form were fully contained within the indictment,

and the verdict form did not constructively amend the indictment. See Miller, 471

U.S. at 136; Simpson, 228 F.3d at 1300.


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                                          C.

      Jackson’s final argument regarding the verdict form is based on a misreading

of the special interrogatories. Jackson argues that the special interrogatories asked

the jury to find the weight of heroin or fentanyl in the mixture he possessed, rather

than the overall weight of the mixture as alleged in the indictment, and that the

district court plainly erred in relying on the jury’s responses to the special

interrogatories in determining his statutory sentencing range. We disagree.

      For each count, the verdict form asked the jury to complete special

interrogatories regarding drug quantity if it found Jackson guilty of the underlying

offense. For example, the special interrogatories for Count 1 stated, “We, the Jury,

having found the defendant, SANTONIO JUVON JACKSON, guilty of the

offense charged in Count One, further find as to that Count that he distributed or

possessed with the intent to distribute a mixture and substance containing a

detectable amount of heroin in the amount shown,” and asked the jury to choose

(a) less than 100 grams, or (b) 100 grams or more. A second, similarly worded

interrogatory asked the jury to find whether Jackson’s offense involved “a mixture

and substance containing a detectable amount of fentanyl in the amount” of (a) less

than 40 grams, or (b) 40 grams or more.

      Although this language is not a model of clarity, the most natural reading of

the verdict form in the context of the indictment and the evidence presented at trial


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is that the special interrogatories asked the jury to determine whether the “mixture

or substance” containing heroin weighed 100 grams or more, and whether the

“mixture or substance” containing fentanyl weighed 40 grams or more—in other

words, the special verdict form asked the jury to make the factual findings

necessary to determine Jackson’s statutory sentencing range under § 841(b)(1)(B),

as charged in the indictment. See 21 U.S.C. § 841(b)(1)(B)(i) & (b)(1)(B)(vi). The

district court did not plainly err in relying on these findings to determine that

Jackson was subject to the enhanced penalties provided by 21 U.S.C.

§ 841(b)(1)(B).

                                               IV.

       For the first time on appeal, Jackson argues that the district court erred in

calculating his Guidelines sentencing range under the career-offender guideline,

U.S.S.G. § 4B1.1.4 According to § 4B1.1, a “defendant is a career offender if

(1) the defendant was at least eighteen years old at the time the defendant

committed the instant offense of conviction; (2) the instant offense of conviction is

a felony that is either a crime of violence or a controlled substance offense; and

(3) the defendant has at least two prior felony convictions of either a crime of

violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). A “controlled



4
  Because Jackson failed to challenge his sentence on this ground in the district court, our review
is for plain error only. See United States v. Bonilla, 579 F.3d 1233, 1238 (11th Cir. 2009).
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substance offense” is defined as “an offense under federal or state law, punishable

by imprisonment for a term exceeding one year, that prohibits,” among other

things, the distribution or possession with intent to distribute a controlled

substance. Id. § 4B1.2(b).

      Jackson argues that his “instant offense of conviction”—namely, the

violation of 21 U.S.C. § 841(a) charged in Count 1—does not qualify as a

controlled substance offense under § 4B1.1 because § 841(a) “contains no penalty

provision and therefore does not categorically define a federal felony offense.”

This argument borders on the frivolous. The penalty provisions for a violation of

§ 841(a) are provided by § 841(b). Under § 841(b)(1), any violation of § 841(a) is

“punishable by a term of imprisonment exceeding one year.” U.S.S.G. § 4B1.2(b);

see 21 U.S.C. § 841(b)(1)(A)–(C). Given Jackson’s record of prior felony drug

convictions, his offense, which involved 100 grams of a substance containing

heroin and fentanyl, was punishable by a minimum of ten years and a maximum of

life in prison. 21 U.S.C. § 841(b)(1)(B)(i) & (b)(1)(B)(iv) (2010). The district

court did not plainly err in sentencing Jackson as a career offender.

                                          V.

       For the reasons stated, we affirm Jackson’s convictions and 240-month

sentences.

      AFFIRMED.


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