United States v. Phil Caron Givens , 212 F. App'x 910 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 28, 2006
No. 06-10938 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00747-CR-3-ODE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PHIL CARON GIVENS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 28, 2006)
Before DUBINA, CARNES and WILSON, Circuit Judges.
PER CURIAM:
Phil Caron Givens (“Givens”) appeals his convictions and sentence for
conspiracy to possess with intent to distribute at least 1,000 kilograms of
marijuana, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(vii), and attempted
possession with intent to distribute at least 1,000 kilograms of marijuana, in
violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(vii) and 18 U.S.C. § 2. Givens
argues that there was insufficient evidence at trial to convict him of either count.
Givens also argues that at sentencing the district court erred in determining the
drug quantity attributable to him. Givens further argues that his sentence is
unreasonable because it is “substantially disparate” from the sentences that his co-
defendants received. Upon review of the record and upon consideration of the
parties’ briefs, we discern no reversible error.
BACKGROUND
On July 28, 2004, a federal grand jury returned a second superceding
indictment charging Givens and four co-defendants with conspiracy to possess
with the intent to distribute at least 1,000 kilograms of marijuana, in violation of 21
U.S.C. §§ 846 and 841(b)(1)(A)(vii), and attempted possession with intent to
distribute at least 1,000 kilograms of marijuana, in violation of 21 U.S.C. §§ 846
and 841(b)(1)(A)(vii) and 18 U.S.C. § 2. Prior to trial, three co-defendants pled
guilty. Givens was tried together with co-defendant Raul Moreno Zunigo.
At trial, the evidence established the following. In late October 2003, a
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confidential informant (“CI”) working with Special Agent Alfredo Ibanez, United
States Bureau of Immigration and Customs Enforcement (“ICE”), was contacted
by co-defendant Jose Burnias (“Jose”). Jose asked the CI if he knew anyone who
could transport a large amount of marijuana from Texas to North Carolina. The CI
said that he would look into it and immediately contacted Agent Ibanez. Agent
Ibanez, through the CI, planned a controlled delivery, wherein a tractor trailer
owned by ICE would transport the marijuana to North Carolina. Once there, ICE
agents would arrest or identify other individuals involved in the drug trafficking
operation. Agent Ibanez then arranged to pick up the marijuana. After Agent
Ibanez successfully coordinated the pick up of the van containing the marijuana,
Agent Ibanez took the van to a secure government facility. The estimated weight
of the marijuana was 2,650 pounds.
In November 2003, co-defendant Michael Burnias (“Michael”), Jose’s
brother, contacted Givens about purchasing some of the marijuana that was going
to be delivered to North Carolina. Givens agreed to purchase one hundred pounds
for $50,000. Since there was such a large quantity of marijuana being transported
to North Carolina, Michael testified that he discussed with Givens the possibility of
Givens purchasing another five to six hundred pounds.
On December 3, 2003, the tractor trailer, driven by a special crimes
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investigator, departed Texas for North Carolina. Michael kept Givens informed
about status of the marijuana transport. Michael told Givens that he needed
$35,000 in payment up front for the one hundred pounds that Givens had agreed to
purchase. Michael intended to use the money to pay the person transporting the
marijuana upon the driver’s arrival in North Carolina.
While in route to North Carolina, Jose told the special agent transporting the
marijuana that he was now to deliver the marijuana to Atlanta, Georgia instead of
North Carolina. Michael notified Givens of the change in plans. Michael told
Givens that he did not have a place to off load the marijuana once it reached
Atlanta. Givens informed Michael “that he had the perfect spot” to unload the
truck. (R-9 at 456). Givens assured Michael that he was on his way to Atlanta
with the money.
On December 7, 2003, Givens met Michael in Atlanta and lead him to the
place that Givens had selected to off load the marijuana. After scouting the
designated site, Michael gave the directions to Jose and told him to give the
directions to the driver who was transporting the marijuana. Later that day, all the
defendants arrived at the designated site. Givens arrived in a white van. The truck
carrying the marijuana arrived and Givens and the other defendants began to off
load the marijuana, which was wrapped in plastic and grey duck tape. At one
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point, Givens became concerned about a white truck that was parked nearby.
Givens thought that it might be the police and went to check out the truck. Givens
returned satisfied that it was not the police. Givens continued to off load the
marijuana.
When the police moved in to arrest the defendants, Givens ran to his van in
an attempt to flee. Givens was unable to start the van and then ran towards a
wooded area. Given was apprehend by an ICE agent soon after he entered the
woods.
After Givens was arrested, he was taken to the Atlanta Pretrial Detention
Center. Keith Jones shared the same housing unit with Givens and testified at trial
that Givens told him the details about why he was incarcerated. Jones testified that
Givens told him about the truck carrying approximately three thousand pounds of
marijuana. Jones testified that Givens claimed responsibility for one thousand six
hundred pounds of marijuana and also told Jones that Givens had planned to steal
the entire load of marijuana from his co-defendants. The net weight of the
marijuana that was seized at the scene was later determined to be 1,314.45
kilograms. The jury convicted Givens and his co-defendant on both counts.
Prior to sentencing, the probation officer prepared a presentence
investigation report (“PSI”), which calculated Givens’s base offense level as 32,
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pursuant to U.S.S.G. § 2D1.1(c)(4). The probation officer determined that Givens
was responsible for 1,314.45 kilograms of marijuana. The probation officer
determined that Givens had 11 criminal history points, resulting in a criminal
history category of V and an advisory sentencing range of 188 to 235 months.
At sentencing, Givens argued that because he was not involved at the outset
of the conspiracy, and because his name was not mentioned by any of the co-
defendants until the offense conduct took place in Georgia, the scope of his
involvement was limited to the one hundred pounds of marijuana that he had
intended to purchase. Givens asserted that one hundred pounds was equivalent to
approximately forty-five kilograms, and thus, Givens’s base offense level should
be 20.
The government responded that Givens should be held responsible for the
entire 1,314.45 kilograms seized as a result of the controlled delivery. The
government argued that the jury had found Givens responsible for at least one
thousand kilograms of marijuana. The government further argued that Givens
conspired with the other co-defendants to execute the delivery and assisted with the
delivery up until the arrests had occurred.
Based on the evidence presented at trial, the district court found that Givens
was responsible for 1,314.45 kilograms of marijuana. Specifically, the court found
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that there was evidence that Givens had arranged to purchase one hundred pounds
of marijuana. The court also found that the evidence clearly showed that Givens
was aware that the amount of the marijuana being transported was much larger
than one hundred pounds. The court determined that the advisory Guideline range
was 188 to 235 months. The court sentenced Givens to 188 months’ imprisonment
and five years’ supervised release for each count, to be served concurrently. The
court noted that the sentence was reasonable in light of the Guidelines and after
considering the level of Givens’s participation in the offense and his extensive
criminal history.
STANDARD OF REVIEW
We review de novo “whether there is sufficient evidence to support the
jury’s verdict.” United States v. Ortiz, 318 F.3d 1030, 1036 (11th Cir. 2003) (per
curiam). On review, the evidence is viewed “in the light most favorable to the
government, with all reasonable inferences and credibility choices made in the
government’s favor.” Id. (quotation omitted). “[W]e are bound by the jury’s
credibility determinations, and by its rejection of the inferences raised by the
defendant.” United States v. Peters, 403 F.3d 1263, 1268 (11th Cir. 2005).
A district court’s determination of drug quantity used to establish a
defendant’s base offense level is reviewed for clear error. United States v.
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Simpson, 228 F.3d 1294, 1298 (11th Cir. 2000). We review a defendant’s ultimate
sentence, in its entirety, for unreasonableness in light of the factors in 18 U.S.C. §
3553(a). See United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir. 2005)
(per curiam).
DISCUSSION
1. Sufficiency of the Evidence
Givens argues that there was insufficient evidence to convict him of
conspiracy to possess with intent to distribute at least 1,000 kilograms of
marijuana, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(vii), and attempted
possession with intent to distribute at least 1,000 kilograms of marijuana, in
violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(vii) and 18 U.S.C. § 2. Givens
contends that at the time of his arrest, he was only present with the co-defendants
because he had agreed to purchase one hundred pounds of marijuana. Givens
further argues that the testimony of his co-defendants and the jailhouse informant
was not credible and failed to establish that he had prior knowledge of the
conspiracy.
In order to sustain a conviction for conspiracy to possess marijuana with
intent to distribute, the government must prove beyond a reasonable doubt that
“(1) an illegal agreement existed; (2) the defendant knew of it; and (3) the
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defendant, with knowledge, voluntarily joined it.” United States v. McDowell, 250
F.3d 1354, 1365 (11th Cir. 2001). The government may establish such proof with
circumstantial evidence, and the jury may infer a common plan or scheme from the
parties’ conduct or other circumstances. United States v. Hogan, 986 F.2d 1364,
1374 (11th Cir. 1993). It is not necessary that the government prove the defendant
knew or participated in every essential stage of the conspiracy. United States v.
Brito, 721 F.2d 743, 746 (11th Cir. 1983).
In order to sustain a conviction for attempted possession with the intent to
distribute marijuana, the government must prove beyond a reasonable doubt that
Givens “(1) acted with the kind of culpability required to possess [marijuana]
knowingly and wilfully and with the intent to distribute it; and (2) engaged in
conduct which constitutes a substantial step toward the commission of the crime
under circumstances strongly corroborative of their criminal intent.” McDowell,
250 F.3d at 1365.
The evidence supports that (1) Givens knew of a plan to transport a
truckload of marijuana from Texas to North Carolina; (2) Givens agreed to
purchase one hundred pounds of marijuana and promised to pay $35,000 up front,
knowing that the money was needed to pay for transportation of the marijuana; (3)
Givens was in contact with a co-defendant throughout the shipment of the load and
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personally arranged the delivery site for the marijuana in Atlanta; (4) Givens
helped unload the marijuana from the truck and acted as a look-out; and (5) Givens
claimed responsibility for over one thousand pounds of marijuana and expressed
his intent to steal the entire load from his co-defendants. Accordingly, in the light
most favorable to the government, there was sufficient evidence to support the
jury’s determination that an agreement existed between Givens and his co-
defendants to violate the narcotics laws, that Givens knew of the conspiratorial
goal, and that Givens knowingly joined and participated in this illegal venture. See
McDowell, 250 F.3d at 1365. Furthermore, in the light most favorable to the
government, there was sufficient evidence to support the jury’s determination that
Givens’s actions were consistent with a person who knowingly and wilfully
possessed marijuana and intended to distribute it, and that Givens engaged in
conduct that constituted a substantial step towards the commission of this crime.
See id.
As to Givens’s arguments regarding the credibility of the testimony of his
co-defendants and the jailhouse informant, the jury members were instructed by the
district court that as the sole judges of witness credibility, they were free to believe
or disbelieve any testimony heard during the trial. In finding Givens guilty of the
two counts, the jury found the testimony of the co-defendants and the jailhouse
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informant credible and rejected Givens’s assertions that he had no knowledge of
the agreement and was only present with his co-defendants because he wanted to
purchase a small amount of marijuana. We are bound by the jury’s credibility
determinations. Peters, 403 F.3d at 1268. Accordingly, we affirm Givens’s
convictions.
2. Calculation of the Drug Quantity
Givens argues that the testimony of his co-defendants establishes that he was
only responsible for one hundred pounds of marijuana. He asserts that only the
jailhouse informant stated that he had a larger role in the conspiracy, and argues
that the informant is not a reliable witness because he was not a participant in the
conspiracy and because had an extensive criminal record. Givens contends that the
district court’s error in calculating the drug quantity attributable to him at
sentencing was not harmless because it substantially increased his base offense
level.
A district court’s determination of drug quantity used to establish a
defendant’s base offense level is reviewed for clear error. Simpson, 228 F.3d at
1298. Pursuant to the Supreme Court’s decision in United States v. Booker, the
Sentencing Guidelines are no longer mandatory. 543 U.S. 220, 264, 125 S. Ct.
738, 767, 160 L. Ed. 2d 621 (2005). Although the Guidelines are advisory, a
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district court must calculate the advisory sentencing range correctly and must
consider it when determining a defendant’s sentence. United States v. Crawford,
407 F.3d 1174, 1178-79 (11th Cir. 2005). The amount of drugs attributable to a
defendant is determined by assessing the defendant’s relevant conduct. “[I]n the
case of a jointly undertaken criminal activity [relevant conduct includes] . . . all
reasonably foreseeable acts and omissions of others in furtherance of the jointly
undertaken criminal activity.” U.S.S.G. § 1B1.3(a)(1)(B). If the case involves
drugs, “the defendant is accountable for all quantities of contraband with which he
was directly involved and, in the case of a jointly undertaken criminal activity, all
reasonably foreseeable quantities of contraband that were within the scope of the
criminal activity that he jointly undertook.” U.S.S.G. § 1B1.3, cmt. n. 2.
At sentencing, the district court made an explicit finding that although
Givens had agreed to purchase only one hundred pounds of marijuana, he was fully
aware that the entire deal was much larger, and therefore, it was reasonable to find
him responsible for the entire amount of marijuana involved. The record reflects
that Givens knew that his co-defendants planned to transport a truckload of
marijuana from Texas to North Carolina. Givens received updates on the status of
the shipment and arranged a new delivery site in Atlanta. Givens drove a van to
the delivery location, helped to unload the drugs, and kept watch for suspicious
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vehicles. Givens also expressed his intent was to take off with the entire shipment.
Based on the evidence in the record, the district court did not clearly err in
attributing the entire load of 1,314.45 kilograms to Givens, and accordingly, did
not err in calculating his base offense level.
3. Reasonableness of Sentence
Givens argues that his sentence is unreasonable because it is “substantially
disparate” from the sentences imposed upon his co-defendants. This Court reviews
a defendant’s ultimate sentence, in its entirety, for unreasonableness in light of the
factors in 18 U.S.C. § 3553(a). See Winingear, 422 F.3d at 1245. “[N]othing in
Booker or elsewhere requires the district court to state on the record that it has
explicitly considered each of the § 3553(a) factors or to discuss each of the §
3553(a) factors.” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
Instead, indications in the record that the district court considered facts and
circumstances falling within § 3553(a)’s factors will suffice. Id. at 1329-30. We
have held that the “[d]isparity between the sentences imposed on codefendants is
generally not an appropriate basis for relief on appeal.” United States v. Regueiro,
240 F.3d 1321, 1325-26 (11th Cir. 2001) (per curiam).
Here, the district court imposed a reasonable sentence because it considered
the sentencing factors in § 3553(a) along with the parties’ arguments and, as shown
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above, it correctly applied the Guidelines. See Crawford, 407 F.3d at 1178-79.
The court specifically stated that it considered the level of Givens’s participation in
the offense and his extensive criminal history in imposing a sentence of 188
months’ imprisonment, which was at the low-end of the Guideline range. Givens’s
argument that his sentence is unreasonable because it is “substantially disparate”
from the sentences of his co-defendants is without merit. The record indicates that
Givens had an extensive criminal record, resulting in a criminal history category of
V and thus, a higher advisory sentencing range than those co-defendants with
lower criminal history scores. Moreover, Givens did not receive an adjustment for
acceptance of responsibility, unlike Jose and Michael, who pled guilty to their
offenses and cooperated with the government by testifying at Givens’s trial.
Accordingly, Givens’s sentence of 188 months’ imprisonment is reasonable.
Accordingly, we find no reversible error and affirm.
AFFIRMED.
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