We will not reverse convictions based on a variance unless that variance was: (1) material; and (2) substantially prejudicial to the defendant. United States v. Coy, 19 F.3d 629, 632 (11th Cir.) (citing United States v. Reed, 980 F.2d 1568, 1581 (11th Cir. 1993), cert. denied, 509 U.S. 932, 113 S.Ct. 3063, 125 L.Ed.2d 745 (1993)), cert. denied, 513 U.S. 1006, 115 S.Ct. 525, 130 L.Ed.2d 429 (1994). Thus, a two step inquiry is required.

In addition, courts must be alert to the fact that material variances between an indictment and the proof presented at trial can affect fair notice of the charges against which a defendant must respond. See, e.g., United States v. Coy, 19 F.3d 629, 634 (11th Cir. 1994); United States v. Reed, 980 F.2d 1568, 1583 (11th Cir. 1993). Although there are scores of cases in this circuit as well as others in which criminal conspiracies approvingly have served as a basis for joinder of multiple defendants, there are an equal number in which joinder has been disapproved.

We will reverse a conspiracy conviction based on a variance between the conspiracy charged in the indictment and the trial evidence only if the variance (1) is material and (2) substantially prejudiced the defendant. Calderon, 127 F.3d at 1327; United States v. Coy, 19 F.3d 629, 633 (11th Cir. 1994). Even if Defendants have shown a material variance here, they were not prejudiced.

The statutory language indicates that Congress intended for the factors listed in § 960(b) to serve as sentencing factors that come into play only upon a defendant's conviction for a substantive offense under § 960(a). See United States v. Coy, 19 F.3d 629, 636-37 (11th Cir. 1994) (per curiam). Thus, drug type and quantity are not elements of a substantive offense under 21 U.S.C. § 960(a), but instead are factors to be considered by the judge at sentencing under § 960(b).

But when a sentencing court makes a finding on the amount of narcotics attributable to a defendant—a factual determination on a historical matter—that finding controls for purposes of the statutory sentencing range and for purposes of the Sentencing Guidelines. See United States v. Coy, 19 F.3d 629, 636-37 (11th Cir. 1994). B

We will not reverse a conviction based on an allegation of a material variance between the charged indictment and the proof shown at trial, unless the variance was (1) material and (2) substantially prejudicial. United States v. Coy, 19 F.3d 629, 633 (11th Cir. 1994). Specifically, this two-step analysis requires us to determine (1) whether a reasonable jury, viewing the evidence in the light most favorable to the government, could have found beyond a reasonable doubt that a single conspiracy existed, and (2) whether the defendant suffered any substantial prejudice if more than one conspiracy did indeed exist.

As we repeatedly have admonished, "[a]rguments raised for the first time in a reply brief are not properly before a reviewing court." United States v. Coy, 19 F.3d 629, 632 n. 7 (11th Cir. 1994) (citation omitted); see also United States v. Whitesell, 314 F.3d 1251, 1256 (11th Cir. 2002) (Court need not address issue raised for first time in reply brief), cert. denied, 539 U.S. 951, 123 S.Ct. 2628, 156 L.Ed.2d 643 (2003); United States v. Dicter, 198 F.3d 1284, 1289 (11th Cir. 1999) (issue raised for first time in reply brief waived); United States v. Martinez, 83 F.3d 371, 377 n. 6 (11th Cir. 1996) (declining to consider arguments raised for the first time in a reply brief). Although Herring's failure to present his procedural bar argument in his initial brief is determinative, we nevertheless briefly discuss procedural bar and the arguments Herring raises in his reply brief.

Variance between allegations and proof is reversible only when the defendant is actually prejudiced. See United States v. Coy, 19 F.3d 629, 634 (11th Cir. 1994). Under these legal principles, the record reflects that the evidence proved an overarching conspiracy to defraud Medicare. A reasonable juror could justifiably find, beyond a reasonable doubt, that the Medicare fraud conspiracy alleged was the Medicare conspiracy proven.

The Court declines to consider this argument because Defendants did not raise it in their opening brief. See United States v. Coy, 19 F.3d 629, 632 n.7 (11th Cir. 1994) (“Arguments raised for the first time in a reply brief are not properly before a reviewing court.”).

This argument fails because Defendants did not raise it until their reply brief—and "[a]rguments raised for the first time in a reply brief are not properly before a reviewing court." United States v. Coy, 19 F.3d 629, 632 n.7 (11th Cir. 1994). Moreover, even if Defendants had properly raised the argument, it would fail on the merits.