United States v. Carlos Marin-Vega , 403 F. App'x 358 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
NOV 09, 2010
No. 09-16468 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 09-00123-CR-ORL-28DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS MARIN-VEGA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 9, 2010)
Before BARKETT, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Carlos Marin-Vega appeals his convictions for conspiracy to possess with the
intent to distribute cocaine (Count 1), attempted possession with the intent to
distribute five kilograms of cocaine, under 21 U.S.C. § 846 and 18 U.S.C. § 2 (Counts
1 and 2), and possession of a firearm in furtherance of a drug trafficking crime, under
18 U.S.C. § 924(c)(1)(A) and (2) (Count 3). The district court imposed a sentence of
121 months’ imprisonment for Counts 1 and 2 to run concurrently, followed by 60
months’ imprisonment for Count 3. On appeal, Marin-Vega argues that: (1) the
mandatory minimum consecutive sentencing provisions of 18 U.S.C. § 924(c)(1)(A)
are unconstitutional, and we should adopt the holding of the Second Circuit in United
States v. Williams, 558 F.3d 166 (2d Cir. 2009); (2) the mandatory minimum
sentencing provisions of 21 U.S.C. § 841(b) are unconstitutional and in conflict with
18 U.S.C. § 3353(a); (3) he was not properly identified during trial as the alleged
perpetrator, as there is no way to determine other than mere speculation that Marin-
Vega was identified as the perpetrator; (4) the prosecutor violated Fed. R. Crim. P.
16(a)(1)(E) when he failed to disclose his intention to call five government agents as
experts; and (5) the prosecutor committed prosecutorial misconduct when he
impermissibly argued that it was not necessary for the defendant’s guilt to proven
beyond a reasonable doubt, and the prosecutor impermissibly appealed to the
sympathy of the jury. After thorough review, we affirm.
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We review questions of statutory interpretation de novo, and also review de
novo a district court’s finding concerning the constitutionality of a sentencing statute.
United States v. Mazarky, 499 F.3d 1246, 1248 (11th Cir. 2007); United States v.
Quinn, 123 F.3d 1415, 1425 (11th Cir. 1997). Where a defendant fails to object to
an issue in the district court, we review for plain error. United States v. Marcus, 130
S. Ct. 2159, 2164 (2010); United States v. Monroe, 353 F.3d 1346, 1349-50 (11th
Cir. 2003). Rule 52(b) permits us to recognize a plain error that affects substantial
rights, even if the claim of error was not brought to the attention of the district court.
Marcus, 130 S. Ct. at 2164. The Supreme Court has held that we may, in our
discretion, correct an error not raised at trial only where the appellant demonstrates
that (1) there is an error; (2) the error is clear or obvious, rather than subject to
reasonable dispute; (3) the error affected the appellant’s substantial rights, which in
the ordinary case means it affected the outcome of the district court proceedings; and
(4) the error seriously affects the fairness, integrity or public reputation of judicial
proceedings. Id. Under plain error review, the silent defendant has the burden to
show “the error plain, prejudicial, and disreputable to the judicial system.” Monroe,
353 F.3d at 1349-50 (quotation omitted).1
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Because Marin-Vega failed to object to the in-court identification, the law enforcement
officers’ testimony at trial, and the prosecutor’s statements during the trial, the plain error
standard of review is the applicable standard for these three issues on appeal. Monroe, 353 F.3d
3First, we reject Marin-Vega’s claim that the mandatory minimum consecutive
sentencing provisions of 18 U.S.C. § 924(c)(1)(A) are unconstitutional, and that we
should adopt the holding of the Second Circuit in Williams, 558 F.3d at 166. For
starters, Marin-Vega’s argument that consecutive mandatory minimum sentences are
unconstitutional is not supported by the record as he was sentenced at the bottom of
the applicable guideline range to 121 months’ imprisonment followed by the 60-
month minimum mandatory sentence pursuant to § 924(c). Moreover, in United
States v. Segarra, we expressly rejected the Second Circuit’s interpretation that it was
improper to sentence a defendant for both the § 841 mandatory minimum and the §
924(c) mandatory minimum under the statute’s “except” clause. 582 F.3d 1269, 1272
(11th Cir. 2009) (citing Williams, 558 F.3d at 169-70). Thus, even if Marin-Vega had
been sentenced to two mandatory minimum sentences, his arguments are foreclosed
by precedent.
Second, we find no merit in Marin-Vega’s argument that the mandatory
minimum sentencing provisions of 21 U.S.C. § 841(b) are unconstitutional and in
conflict with § 3353(a). We have said that § 3553(a) makes no mention of statutory
mandatory minimum sentences, and in reading § 3553(a) as a whole, § 3553(a)
plainly does not confer upon the district court the authority to sentence a defendant
at 1349-50.
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below the statutory minimum based on its consideration of the § 3553(a) factors.
United States v. Castaing-Sosa, 530 F.3d 1358, 1361 (11th Cir. 2008). To avoid
infringing a defendant’s Sixth Amendment right to a jury trial, Booker2 made
advisory the Sentencing Guidelines, not statutory mandatory minimums enacted by
Congress. Id. at 1362. Thus, Booker’s instruction to district courts to consider the
factors in § 3553(a) in fashioning a reasonable sentence cannot be read to authorize
using the § 3553(a) factors to impose a sentence below an applicable statutory
minimum. Id. Accordingly, we reject Marin-Vega’s argument on this issue.
Third, we are unpersuaded by Marin-Vega’s claim that there was plain error
since he was not properly identified during trial as the alleged perpetrator. As the
record shows, three witnesses identified him by the clothing he was wearing, and one
officer gestured to Marin-Vega and identified him as the driver of the car conducting
counter-surveillance. Further, the record does not indicate that Marin-Vega was not
the individual dressed in the light tan, greenish beige suit. As we’ve held, courtroom
identification is not necessary when the evidence is sufficient to permit the inference
that the defendant on trial is the person who committed the crime. United States v.
Lopez, 758 F.2d 1517, 1520 (11th Cir. 1985). Accordingly, the district court did not
plainly err in concluding that there was sufficient evidence and testimony to permit
2
United States v. Booker, 543 U.S. 220 (2005).
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the inference on the part of the jury that Marin-Vega was the person who committed
the crimes charged.
Fourth, we reject Marin-Vega’s claim that there was plain error resulting from
the prosecutor’s violation of Fed. R. Crim. P. 16(a)(1)(E) when he failed to disclose
his intention to call five government agents as experts. We have held that opinion
testimony of officers is admitted not because of experience, training or specialized
knowledge within the realm of an expert, but because of the particularized knowledge
that the witness has by virtue of his position in the business. Tampa Bay
Shipbuilding & Repair Co. v. Cedar Shipping Co., Ltd., 320 F.3d 1213, 1222 (11th
Cir. 2003). Moreover, the credibility of witnesses is the exclusive province of the
jury. United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999).
Here, the testimony objected to by Marin-Vega was given by law enforcement
officers who testified based upon personal observations regarding the instant case or
similar investigations involving narcotics. The officers were not tendered as experts
nor was their testimony treated as expert testimony. Because they are officers of the
law, they are permitted to testify based on their personal observations, and their
testimony need not be treated as expert testimony. The admission of the officers’
testimony therefore did not constitute plain error.
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Lastly, we disagree with Marin-Vega’s claim that there was plain error because
the prosecutor committed prosecutorial misconduct when he impermissibly argued
that it was not necessary for the defendant’s guilt to be proven beyond a reasonable
doubt, and the prosecutor impermissibly appealed to the sympathy of the jury.
Because statements and arguments of counsel are not evidence, improper statements
can be rectified by the district court’s instruction to the jury that only the evidence in
the case be considered. United States v. Lopez, 590 F.3d 1238, 1256 (11th Cir.
2009). A district court’s repeated reminder to the jury that the United States bore the
burden of proof beyond a reasonable doubt precludes the possibility of prejudice.
United States v. Simon, 964 F.2d 1082, 1087 (11th Cir. 1992).
We have stated that “[a]lthough a prosecutor may not make an argument
directed to passions or prejudices of the jurors instead of an understanding of the facts
and law . . . there is no prohibition on colorful and perhaps flamboyant remarks if
they relate to the evidence adduced at trial.” United States v. Bailey, 123 F.3d 1381,
1400 (11th Cir. 1997). It has long been the law that in giving effect to inferences as
may reasonably be drawn from the evidence, juries properly apply their common
knowledge, observations, and experience in the affairs of life. United States v. Cruz-
Valdez, 773 F.2d 1541, 1546 (11th Cir. 1985). Prosecutorial appeals for the jury to
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act as the conscience of the community are not impermissible, unless calculated to
inflame. United States v. Beasley, 2 F.3d 1551, 1560 n.24 (11th Cir. 1993).
As the record shows, although the prosecutor did misstate the government’s
burden with respect to proving Marin-Vega guilty beyond a reasonable doubt, the
prosecutor immediately preceding and immediately following that misstatement
correctly stated its burden and explained reasonable doubt. Additionally, the district
court properly instructed the jury on the law pertaining to reasonable doubt and
reminded the jurors that anything the lawyers said was not evidence in the case,
thereby, rectifying the prosecutor’s misstatement. As a result, Marin-Vega has not
demonstrated plain error based on the prosecutor’s misstatement of the law.
As for Marin-Vega’s claims of prosecutorial misconduct, he again has failed
to demonstrate plain error. Both statements pertain to evidence adduced at trial. The
prosecutor’s statement pertaining to the $130,000 called upon the jury to apply their
common knowledge and life experience in considering whether it is difficult for most
people to generate $130,000. The prosecutor’s statement pertaining to the job of
stopping illegal activity does not satisfy plain error, since it was not argued that it was
the jury’s job to stop illegal activity and was akin to a generalized statement towards
the criminal justice system. Additionally, neither of these statements is sufficient to
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qualify as inflaming the conscience of the jury, and therefore, did not appeal to the
sympathy of the jury. Accordingly, there was no plain error, and we affirm.
AFFIRMED.
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