United States v. James Dixon , 901 F.3d 1322 ( 2018 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14354
________________________
D.C. Docket No. 1:14-cr-20017-KMW-9
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES DIXON,
MAURIN CHACON,
RODOLFO PORTELA,
CHRISTOPHER ALTAMIRANO,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_______________________
(August 24, 2018)
Before WILLIAM PRYOR, JILL PRYOR, Circuit Judges, and RESTANI, * Judge.
WILLIAM PRYOR, Circuit Judge:
*
Honorable Jane A. Restani, United States Judge for the Court of International Trade, sitting by
designation.
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These consolidated appeals involve the convictions of four defendants who
participated in a drug conspiracy in Little Havana, Miami. Maurin Chacon,
Christopher Altamirano, Rodolfo Portela, and James Dixon were members of the
self-described “Big Money Team,” a gang of drug dealers who also committed
robberies and illegally possessed guns as part of their conspiracy. A jury convicted
the defendants of conspiracy to distribute 280 grams of cocaine base and several
other charges of drug trafficking, firearm possession, armed robbery, and assault.
All four defendants argue that the government presented insufficient evidence of a
conspiracy. And they raise individual challenges about the sufficiency of the
evidence for separate charges, the denial of a motion to suppress evidence, the
refusal to give a jury instruction on entrapment, the admission of evidence of
uncharged conduct, the prosecutor’s closing argument, the failure to conduct a
competency hearing, and the reasonableness of their sentences. We affirm.
I. BACKGROUND
For several years, the “Big Money Team,” a gang of drug dealers in Little
Havana, Miami, maintained a set of “traps,” locations where members of the
Team—and only members of the Team or their associates—sold drugs. Individual
dealers cooperated to establish a marketplace with a reliable supply of drugs to
attract customers to the exclusive territory of the Team. They manned a cluster of
locations in close proximity. Some members of the Team also committed robberies
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to sustain supplies. And some carried guns, especially when they were at the traps
at night.
Two cooperating witnesses, Nadim Guzman and Dayaan Zerquera, provided
key testimony about the Team. Guzman explained that being a member of the
Team meant “[t]hat you [could] sell drugs and make money with them.” He
testified that members of the Team coordinated to supply drugs to the customers
who visited the traps to buy drugs. Guzman explained that “if you had [what a
customer wanted] on you, you could sell it.” Otherwise, members would “bring[]
customers to one another” to satisfy customers’ demands and facilitate each other’s
sales. Some members also pooled their money to buy larger supplies of drugs. And
they guarded against competition and disruption by warning nonmembers not to
sell drugs near the traps, and by serving as lookouts for each other.
Guzman explained that he sold one to two grams a day of cocaine base, also
known as crack cocaine, for 11 months in 2013. He also estimated that three to six
members sold drugs at the traps at a time and that each sold about one gram a day.
Zerquera testified that he sold two to three grams a day and estimated that the
Team as a whole sold three to 18 grams a day, with average sales falling between
16 and 18 grams a day.
Chacon, Altamirano, Portela, and Dixon were all members of the Team.
Although the Team had no official “boss” who gave members orders, the Team
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had an internal hierarchy. Members would “gain respect” or “lose respect” based
on perceived contributions, including a reputation for violence and participation in
robberies. Chacon and Altamirano were “top guys” who “call[ed] shots.” They also
participated in robberies and carried guns. Portela also carried guns.
The City of Miami Police Department started to investigate the Team in the
summer of 2013. Detective David Bernat of the Gang Intelligence Unit
coordinated surveillance of the traps and arranged for purchases of narcotics by a
confidential informant. An undercover detective, Kenneth Veloz, also conducted
controlled purchases from members of the Team and made video and audio
recordings of their interactions.
On November 18, 2013, Officer David Segovia of the Miami-Dade Police
Department stopped a car driving on the wrong side of the road. The driver was
Portela’s girlfriend, and Portela was in the front passenger seat. During the stop,
Segovia “smell[ed] . . . marijuana” wafting from the vehicle, and Portela admitted
to Segovia that he had a bag of marijuana on his person. Segovia looked inside the
car and saw “loose particles” of marijuana on the floorboard. He also observed a
gun under the front passenger seat. Another officer then informed him that there
was an outstanding warrant for Portela’s arrest. Segovia arrested Portela and put
him in the police car.
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Detective Thomas Wever arrived on the scene approximately two hours later
and interviewed Portela. After Wever warned Portela of his rights to remain silent
and to counsel, Portela signed a waiver of rights form. He explained that he bought
the gun for protection, that it was loaded, and that he had been carrying the gun on
his person before the stop, at which point he placed it under the seat.
Meanwhile, Agent Rosniel Perez of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives was investigating a separate incident involving Portela’s
illegal possession of a gun. Although Perez was still “considering whether to open
a formal federal investigation,” he obtained a search warrant for Portela’s DNA
shortly after Portela’s arrest at the traffic stop. Perez then executed the warrant at
the jail where Portela was being held on state charges after having been appointed
counsel. When Perez presented the warrant, Portela initiated a conversation and
stated that he “wanted to cooperate and make a deal.” After Perez warned Portela
of his rights and that Perez could not make any deals with him at that time, Portela
waived his rights and made incriminating statements.
On November 20, 2013, Altamirano left a trap to go on a “mission” with
another member. The duo robbed five people at gunpoint, taking cash and cell
phones. As they fled the scene, Altamirano fired a shot from his gun. Altamirano
and the other member then returned to the trap, where the robbers “talk[ed] about
[the] robbery . . . and show[ed] [other Team members] . . . a phone and a wallet
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they took.” Police officers traced one of the stolen phones to the trap, where they
found Chacon, Guzman, other members of the Team, cocaine base, other drugs,
and a gun. The officers found Altamirano one block away.
On February 25, 2014, Veloz, the undercover detective, asked Chacon if he
had guns for sale during a recorded conversation. Chacon said that he had a
“couple” but “need[ed] some more” and mentioned that guns were “expensive
right [then].” At a later meeting in Veloz’s car, Chacon sold Veloz a revolver that
he referred to as “[his] baby.”
Also in 2014, Perez obtained search warrants for Team members’ social
media accounts. He collected posts in which members of the Team identified
themselves, boasted about drug sales and violence, brandished weapons, and
displayed the Team hand sign.
A federal grand jury indicted Chacon, Altamirano, Portela, Dixon, and
several codefendants on one count of conspiracy to possess with intent to distribute
280 grams or more of cocaine base, 21 U.S.C. §§ 841(a), (b)(1)(A)(iii), 846,
between 2011 and October 2014. The grand jury also indicted Portela on two
counts of possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1), one
count of possession with intent to distribute marijuana, 21 U.S.C. § 841(a)(1), and
one count of possession of a firearm in furtherance of a drug-trafficking crime, 18
U.S.C. § 924(c). The grand jury indicted Altamirano for assault with a dangerous
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weapon in aid of a racketeering enterprise, id. § 1959(a)(3), for possession of a
firearm in furtherance of a crime of violence, id. § 924(c), and for possession of
cocaine base with intent to distribute, 21 U.S.C. § 841(a)(1). The grand jury
indicted Chacon for two charges stemming from the same robbery—assault with a
dangerous weapon in aid of a racketeering enterprise, 18 U.S.C. § 1959(a)(3), and
possession of a firearm in furtherance of a crime of violence, id. § 924(c). The
grand jury also indicted Chacon for possession with intent to distribute cocaine
base, 21 U.S.C. § 841(a)(1), and possession of a firearm in furtherance of a drug-
trafficking crime, 18 U.S.C. § 924(c), on the basis of the drugs and the gun that
police found when they searched the trap after the November 20 armed robbery.
And the grand jury indicted Chacon for possession of a firearm by a convicted
felon, id. § 922(g)(1).
Before trial, Portela filed a motion to suppress the gun that police found in
his girlfriend’s car, his statements to Wever after he was arrested, and the
statements he later made at the jail. After an evidentiary hearing, the magistrate
judge recommended denying the motion. The district court adopted the report and
recommendation of the magistrate judge.
The four defendants, as well as a fifth codefendant, went to trial in February
2015. After the parties rested, the district court granted Chacon’s motion for a
judgment of acquittal of the two charges against him for the November 20 armed
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robbery. But the government argued in closing that the jury should convict Chacon
of one of those charges. The district court then granted Chacon’s motion to strike
and instructed the jury to disregard the references to the acquitted counts. Chacon
moved for a mistrial, but the district court denied the motion. The district court
also refused Chacon’s request for a jury instruction on entrapment as a defense to
the count of possession of a firearm by a convicted felon. 18 U.S.C. § 922(g)(1).
The jury convicted the four defendants on the counts involved in this appeal, but it
acquitted the fifth codefendant.
The district court sentenced Chacon to 420 months of imprisonment,
Altamirano to 235 months of imprisonment, and Dixon to 144 months of
imprisonment. It sentenced Portela, who was facing a mandatory life sentence, to a
term of 360 months after he negotiated a deal with the government not to appeal
his sentence. At the sentencing hearing, Portela introduced some evidence that he
had diminished mental capacity, but the district court found that he had knowingly
and voluntarily waived his right to appeal.
II. DISCUSSION
We divide our discussion in several parts. First, we explain that sufficient
evidence supports each defendant’s conviction for the drug conspiracy. Next, we
explain that the district court correctly denied Portela’s motion to suppress
evidence, that sufficient evidence supports his conviction for possession of a
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firearm in furtherance of a drug-trafficking crime, that he was not entitled to a
competency hearing, and that he waived his right to appeal his sentence. We then
explain that sufficient evidence supports Altamirano’s conviction for a violent
crime in aid of racketeering. We next explain that sufficient evidence supports
Chacon’s convictions for possession of a firearm and for possession of narcotics
and that the district court did not err when it admitted evidence of his uncharged
conduct, when it refused to instruct the jury on entrapment, or when it denied his
motion for a mistrial. We also explain that Chacon’s sentence is procedurally and
substantively reasonable. Finally, we explain that the remaining issues raised by
the defendants are meritless.
A. Sufficient Evidence Supports Each Conviction for Conspiracy to
Distribute 280 Grams of Cocaine Base
Chacon, Altamirano, Portela, and Dixon challenge the sufficiency of the
evidence for their convictions for conspiracy to possess with intent to distribute
280 grams or more of cocaine base, 21 U.S.C. §§ 841(a), (b)(1)(A)(iii), 846, on
several grounds. They argue that the government failed to prove the existence of a
single conspiracy to sell drugs. And each defendant contends that insufficient
evidence establishes that he joined that conspiracy. They also attack the sufficiency
of the evidence about the quantity of drugs they conspired to distribute. “We
review de novo the sufficiency of evidence.” United States v. Duperval, 777 F.3d
1324, 1331 (11th Cir. 2015). But we must “view the evidence in the light most
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favorable to the government and draw all reasonable inferences and credibility
choices in favor of the jury’s verdict.” Id. (alterations adopted) (quoting United
States v. Demarest, 570 F.3d 1232, 1239 (11th Cir. 2009)).
To establish a conspiracy, the government must prove that “a conspiracy (or
agreement) existed,” that the defendants “knew the essential [unlawful] objects of
the conspiracy,” and that the defendants “knowingly and voluntarily participated.”
United States v. Green, 818 F.3d 1258, 1274 (11th Cir. 2016) (quoting United
States v. Westry, 524 F.3d 1198, 1212 (11th Cir. 2008)). And when the government
attempts to prove that defendants were part of a single overarching conspiracy and
not multiple smaller conspiracies, it may rely on evidence such as “whether a
common goal existed [among the conspirators],” “the nature of the underlying
scheme,” and “the overlap of participants.” United States v. Richardson, 532 F.3d
1279, 1284 (11th Cir. 2008) (quoting United States v. Moore, 525 F.3d 1033, 1042
(11th Cir. 2008)). “It is important to note that ‘separate transactions are not
necessarily separate conspiracies, so long as the conspirators act in concert to
further a common goal. If a defendant’s actions facilitated the endeavors of other
co-conspirators, or facilitated the venture as a whole, a single conspiracy is
established.’” Id. (alteration adopted) (emphases omitted) (quoting Moore, 525
F.3d at 1042).
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The government presented ample evidence of a single conspiracy to sell
drugs by members of the self-described “Big Money Team.” It offered evidence of
a common goal when Guzman testified that membership in the Team meant “[t]hat
you [could] sell drugs and make money with them.” It also introduced evidence
that the Team maintained a set of “traps” where members of the Team—and only
members or associates of the Team—sold drugs, shared customers, kept lookout
for one another, and cooperated to supply the drugs that consumers demanded. For
example, Guzman explained that “customer[s] would come” to the traps to buy
narcotics, “and if you had [the drugs] on you, you could sell [them].” Otherwise,
Team members would “bring[] customers to one another.” He also testified that
Team members would “split money” from certain drug sales. And Veloz testified
about “an undercover drug [deal]” with Dixon and another member of the Team,
whom Dixon asked to sell Veloz the “additional crack rock” needed to complete
the deal. As we concluded in a similar case that also involved a common sales area
and the sharing of customers and money, “[f]rom this evidence the jury was free to
infer that [members of the Team] had a common goal: to deal in cocaine [base] and
to provide a marketplace for cocaine [base], and an overlap of participants.” United
States v. Brown, 587 F.3d 1082, 1090 (11th Cir. 2009). Indeed, we have explained
that such a “‘marketplace’ is at the heart of [a] conspiracy because those seeking
cocaine [will] be drawn to a location and not to a particular dealer.” Id. The
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evidence established that members of the Team “facilitated the endeavors of other
co-conspirators” and “the venture as a whole.” Richardson, 532 F.3d at 1284(emphasis omitted) (quoting Moore, 525 F.3d at 1042).
The defendants respond that the evidence instead establishes “several
different conspiracies to buy and sell illegal drugs and to commit robberies” that
involved only some of the defendants. They assert that individual dealers operated
independent drug businesses at the traps. They stress that “[e]veryone bought for
themselves and sold for themselves” and that “[t]here was no boss” who gave them
“orders” about their drug sales. And they cite Zerquera’s testimony that no one
assigned Team members specific shifts at the traps and that “everybody would be
selling at their own risk.”
These arguments assume that a unified conspiracy requires a command-and-
control structure, with one or more “boss” conspirators coordinating the actions of
each player. But our precedents hold otherwise. We explained in Westry that
“[individual] drug dealers” who collaborate “to achieve the overall results of their
several efforts” can be conspirators—even if they “sometimes, or even always,
compete for supplies or customers.” Westry, 524 F.3d at 1213 (quoting United
States v. Johnson, 54 F.3d 1150, 1154–55 (4th Cir. 1995)). Although the dealers in
Westry sold drugs at separate locations and engaged in “healthy competition” with
one another, we held that the “interrelatedness” of their operations and the manner
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in which “their combined efforts produced a haven for the illegal distribution of
drugs” established a conspiracy. Id. The same is true in this appeal. Members of
the Team “act[ed] in concert to further a common goal,” Richardson, 532 F.3d at
1284 (emphasis omitted) (quoting Moore, 525 F.3d at 1042), by “engaging in a
consistent series of smaller transactions that furthered [the Team’s] ultimate object
of supplying the consumer demand of the market,” Westry, 524 F.3d at 1213(citation and internal quotation marks omitted). And even if the government did
need to establish that the conspiracy had an internal control structure, the evidence
suggests at least an unofficial hierarchy. Guzman testified that Chacon and
Altamirano were “top guys” who “call[ed] shots”; indeed, they would “[t]ell
people how to do [things], how to sell, where to go, who[m] to talk to, [and]
who[m] not to talk to.”
The defendants’ individual arguments that the government failed to prove
that they were members of the larger conspiracy are also unavailing. “Once the
existence of a conspiracy is established, only slight evidence is necessary to
connect a particular defendant to the conspiracy.” United States v. Garcia, 405
F.3d 1260, 1270 (11th Cir. 2005) (quoting United States v. Clavis, 956 F.2d 1079,
1085 (11th Cir. 1992)). The cooperators identified all four defendants as Team
members who sold drugs at the traps. Indeed, Guzman testified that he had served
as a lookout for each of them.
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The government also presented substantial corroborating evidence that the
defendants “knowingly and voluntarily participated” in a single conspiracy. Green,
818 F.3d at 1274 (quoting Westry, 524 F.3d at 1212). Guzman distinguished
between “an official member” of the Team and a mere “associate,” and the
defendants were members. Chacon boasted about the Team, saying “BMT we run
the block” and “the block, we took it over.” Altamirano forbade nonmembers from
selling at the traps and warned Chacon about threats to the Team from possible
informants or cooperators. These “efforts to conceal a conspiracy may support the
inference that [Chacon] knew of the conspiracy and joined it.” United States v.
Reeves, 742 F.3d 487, 500 (11th Cir. 2014). Portela also attempted to “conceal
[the] conspiracy,” id., when, after his arrest, he warned Chacon and “[the] boys” to
“clear” out drugs. Although Dixon asserts that he never sold drugs “with anyone
else,” the testimony of a detective that he “participate[d] in an undercover drug
transaction with . . . Dixon” contradicts his assertion. And Dixon displayed the
Team hand sign in a picture with other members that was posted on social media.
The defendants respond that “mere presence at the scene of a crime is
insufficient to support a conspiracy conviction” by itself, United States v.
McDowell, 250 F.3d 1354, 1365 (11th Cir. 2001), but this argument misses the
mark. The government did not rely only on evidence that the defendants were
discovered at the scene of drug trafficking. It instead presented testimony that each
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defendant in fact sold drugs, and it connected these sales through Guzman’s
testimony that he served as a lookout for each defendant. In any event, we have
explained that “repeated presence” at trafficking sites is “material and probative”
evidence “that the jury may consider.” United States v. Calderon, 127 F.3d 1314,
1326 (11th Cir. 1997) (citation and internal quotation marks omitted). Indeed,
evidence that a defendant participated in just two drug transactions can establish
that he joined the conspiracy. See United States v. Lyons, 53 F.3d 1198, 1202–03
(11th Cir. 1995). And the government presented evidence that the defendant with
the briefest tenure on the Team, Dixon, sold drugs at the traps “[m]ore than a
dozen” times. The evidence of frequent, coordinated drug sales rebuts each
defendant’s argument that he merely “decided to sell drugs by himself, for his own
account, in front of the same areas where some of the people he knew were also
selling.”
The defendants also attack the veracity of the cooperators’ testimony about
the quantity of drugs that they conspired to distribute, but this challenge fails
because “the jury has exclusive province over [witness credibility] and we may not
revisit the question.” Green, 818 F.3d at 1274 (quoting United States v. Hernandez,
743 F.3d 812, 814 (11th Cir. 2014)). Indeed, “[w]e will not disturb the jury’s
verdict ‘unless the testimony is incredible as a matter of law.’” Id. (quoting United
States v. Flores, 572 F.3d 1254, 1263 (11th Cir. 2009)). And “[f]or testimony of a
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government witness to be incredible as a matter of law, it must be unbelievable on
its face. It must be testimony as to facts that the witness physically could not have
possibly observed or events that could not have occurred under the laws of nature.”
Calderon, 127 F.3d at 1325 (alteration adopted) (citations and internal quotation
marks omitted). The defendants provide no reason to conclude that the cooperating
conspirators could not have possibly observed the operations of the conspiracy and
the quantity of drugs sold by its members. The jury was entitled to credit their
testimony.
B. The District Court Correctly Denied Portela’s Motion to Suppress
Portela argues that the district court should have suppressed both the gun
found in his girlfriend’s car and his post-arrest statements because the search of the
car violated his rights under the Fourth Amendment. He also contends that the
district court should have suppressed statements he later made while in jail because
of a violation of his Sixth Amendment right to counsel. A mixed standard of
review applies to the denial of a motion to suppress. See United States v. Barber,
777 F.3d 1303, 1304 (11th Cir. 2015). “We review the district court’s findings of
fact for clear error and its legal conclusions de novo. All facts are construed in the
light most favorable to the party prevailing below.” United States v. Johnson, 777
F.3d 1270, 1274 (11th Cir. 2015) (quoting United States v. Virden, 488 F.3d 1317,
1321 (11th Cir. 2007)).
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1. Portela’s Challenge to the Search of his Girlfriend’s Car Fails
Portela’s challenge to the warrantless search of the car fails for two
independent reasons. First, he lacks standing to challenge the search because he
lacked a reasonable expectation of privacy in the car. Second, the officers were
entitled to search the car.
The Fourth Amendment prohibits “unreasonable searches and seizures,”
U.S. Const. Amend. IV, and this prohibition extends to cars, see Byrd v. United
States, 138 S. Ct. 1518, 1526 (2018). But not every occupant has standing to
challenge a flawed search. Instead, “[a] defendant has standing to challenge a . . .
search if the defendant had a ‘legitimate expectation of privacy’ in the property
when it was searched.” United States v. Gibson, 708 F.3d 1256, 1276 (11th Cir.
2013) (quoting Rakas v. Illinois, 439 U.S. 128, 143 (1978)). An expectation of
privacy is reasonable if “it ‘has a source outside of the Fourth Amendment, either
by reference to concepts of real or personal property law or to understandings that
are recognized and permitted by society.’” Id. (quoting Minnesota v. Carter, 525
U.S. 83, 88 (1998)). “We have held that a ‘passenger in a private car, who has no
possessory interest in the automobile, does not have a legitimate expectation of
privacy in the interior of the automobile because he does not have the right to
exclude others from the car.’” United States v. Lee, 586 F.3d 859, 864 (11th Cir.
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2009) (alterations adopted) (quoting United States v. Harris, 526 F.3d 1334, 1338
(11th Cir. 2008)).
Portela argues that the district court erred when it concluded that he lacked
standing to challenge the search of the car. Although Portela admits that he was
only a passenger in a car that he did not own, he nonetheless asserts that he had a
reasonable expectation of privacy because “he had a possessory interest in the
vehicle.”
Portela lacked a possessory interest in the vehicle. The term “possessory
interest” means “[t]he present right to control property, including the right to
exclude others, by a person who is not necessarily the owner”; or “[a] present or
future right to the exclusive use and possession of property.” Possessory interest,
Black’s Law Dictionary (10th ed. 2014); see also Byrd, 138 S. Ct. at 1527 (“One of
the main rights attaching to property is the right to exclude others, and, in the main,
one who owns or lawfully possesses or controls property will in all likelihood have
a legitimate expectation of privacy by virtue of the right to exclude.” (citation and
internal quotation marks omitted)). Portela falls short of this definition because he
had no legal interest in the vehicle and, at the time of the search, was a passenger
with no power to control the vehicle or exclude others from it. See Lee, 586 F.3d at
864. To be sure, Portela maintains that he had “permission to use [the car] any time
he wanted” and that he had the spare key to the car. He also asserts that he “le[ft]
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personal belongings in the car,” paid to repair the car, and sometimes purchased
gas. But these connections to the car hardly establish an interest that is grounded in
“property law or . . . recognized and permitted by society.” Byrd, 138 S. Ct. at
1527 (citation and internal quotation marks omitted). Portela did not have
“exclusive custody and control” of the car, Gibson, 708 F.3d at 1278, when the
legal owner was driving it and he was a mere passenger. That he may have used
the car on other occasions, even frequently, does not give him a durable interest in
the car equivalent to that of the legal owner and driver.
In any case, other evidence suggests that Portela overstates his connections
to the car. For example, Portela “did not have a driver’s license,” and his girlfriend
“permitted him to drive her car by himself” only the “short distance from his
residence to the corner store.” And Portela “never used” the spare key. Because
Portela lacked a personal Fourth Amendment interest in the car, his challenge to
the search of the car and its fruits fails.
In any event, the officers were entitled to search the car without a warrant
under the automobile exception. “[T]he automobile exception permits warrantless
vehicle searches if the vehicle is operational and agents have probable cause to
believe the vehicle contains evidence of a crime.” United States v. Tamari, 454
F.3d 1259, 1264 (11th Cir. 2006); accord United States v. Lanzon, 639 F.3d 1293,
1299–300 (11th Cir. 2011). “Probable cause exists when there is a fair probability
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that contraband or evidence of a crime will be found in the vehicle under the
totality of the circumstances.” Lanzon, 639 F.3d at 1300. We have explained that
an officer’s credible testimony that he smelled marijuana can establish probable
cause. See United States v. Tobin, 923 F.2d 1506, 1512 (11th Cir. 1991) (en banc).
The automobile exception applies to the search of Portela’s girlfriend’s car.
There is no doubt that “the vehicle [was] operational,” Tamari, 454 F.3d at 1264,
because she was driving it—albeit on the wrong side of the road—before the stop.
And the officers had probable cause to search the car. Segovia testified that he
“smelled the odor of marijuana” when he approached the passenger side of the car
and that he “saw small buds of marijuana on the floorboard,” and the district court
did not clearly err when it credited this testimony. Although Portela contended that
it was “impossible” that Segovia smelled marijuana, the magistrate judge, who saw
and heard the witnesses testify, found that “Portela was not credible whe[n he]
contradicted the testimony of [the officers].” Portela also stresses that Wever did
not notice the smell of marijuana. But the magistrate judge explained that Wever’s
testimony did not conflict with Segovia’s because Wever did not arrive until at
least two hours after Segovia stopped the car. The district court was entitled to
deny Portela’s motion to suppress the gun and his later inculpatory statements.
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2. The Interview at the Jail Did Not Violate Portela’s Right to Counsel
The Sixth Amendment entitles criminal defendants to counsel, United States
v. Burgest, 519 F.3d 1307, 1309–10 (11th Cir. 2008), and this right “attach[es]
[when] a prosecution is commenced . . . [by] the initiation of adversary judicial
criminal proceedings,” id. at 1310 (quoting McNeil v. Wisconsin, 501 U.S. 171,
175 (1991)). Once the right attaches, the government may not “initiate
interrogation” of the defendant. Id. (quoting Michigan v. Jackson, 475 U.S. 625,
636 (1986)). But this right “is offense specific” and ordinarily binds only the
sovereign that has charged the defendant. Id. In other words, a defendant’s
“invocation of his right to counsel for [a] charged state offense d[oes] not attach to
[an] uncharged federal . . . offense[] if the federal offense[] [is a] separate offense[]
from the state . . . offense.” Id. “[W]here conduct violates laws of separate
sovereigns, the offenses are distinct . . . .” Id.Portela contends that the district court should have suppressed statements he
made to Perez and Bernat while in jail after his arrest on state charges, but this
argument fails. Portela highlights that he had been appointed counsel for the state
offense, and he contends that the state charges concerned the same case as the
federal investigation. But these contentions are irrelevant. The Sixth Amendment
bars only the “police [from] initiat[ing] interrogation after a defendant’s assertion
[of his right to counsel].” Id. (emphasis added) (citation and internal quotation
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marks omitted). Here, the magistrate judge found that Portela “initiated the
conversation with Agent Perez concerning the federal investigation,” and Portela
has not challenged this finding, much less established that it is clearly erroneous.
And Portela acknowledged in the district court that if he “initiated the conversation
regarding the federal investigation, . . . there was no violation of his right to
counsel based on the prior invocation of his rights.” Because Portela initiated the
conversation, his Sixth Amendment challenge fails.
C. Sufficient Evidence Supports Portela’s Conviction for Possession of a
Firearm in Furtherance of a Drug-Trafficking Crime
Portela argues that the government failed to present sufficient evidence that
he possessed the gun found in his girlfriend’s car in furtherance of a drug-
trafficking crime. He maintains that the “half a gram of marijuana [discovered
during the search] is insufficient evidence of . . . drug trafficking” and that “no
other evidence . . . [suggests] that a drug trafficking crime was being engaged in.”
He also argues that, even if he were engaged in drug trafficking, “the firearm and
ammunition found underneath the seat” lacked a “nexus” to the offense.
Federal law forbids the possession of a firearm “in furtherance of [a drug-
trafficking crime].” 18 U.S.C. § 924(c)(1)(A). We have explained that the “in
furtherance” requirement demands that the government “establish that ‘the firearm
helped, furthered, promoted, or advanced the drug trafficking.’” United States v.
Mercer, 541 F.3d 1070, 1076 (11th Cir. 2008) (quoting United States v. Timmons,
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283 F.3d 1246, 1252 (11th Cir. 2002)). In other words, the government must
“show[] . . . some nexus between the firearm and the drug selling operation.” Id.(quoting Timmons, 283 F.3d at 1253). Evidence of a nexus may include “the kind
of drug activity . . . being conducted, accessibility of the firearm, the type of
firearm, whether the firearm is stolen, the status of the possession (legitimate or
illegal), whether the firearm is loaded, proximity of the firearm to the drugs or drug
profits, and the time and circumstances under which the firearm is found.” Id. at
1076–77. We review the sufficiency of the evidence de novo. Id. at 1074.
The jury was entitled to find that Portela was engaged in drug trafficking and
that the firearm had a nexus to the offense. The government introduced a
conversation between Portela and another person on the day of the stop in which
that person requested marijuana from Portela. And it introduced a recording in
which Portela explained that he told his girlfriend to get the car that night because
“[he] was trying to go do something and get some money . . . .” Based on these
interactions and the marijuana found in the car, a reasonable jury could infer that
Portela was on his way to sell drugs when the police stopped the car. And
sufficient evidence connected the gun to this offense. The jury heard testimony
from the officers that the firearm was in “proximity” to the drugs found in the car,
id. at 1077, that the firearm found under the seat was “accessib[le]” to Portela, id.
at 1076, that “the firearm [was] loaded,” id. at 1077, and that Portela “illegal[ly]”
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possessed the gun, id. Indeed, Portela admitted to the officers that he had
marijuana on his person and had the gun on his person before the traffic stop.
D. Portela’s Arguments About His Competency and Sentence Fail
Portela makes two arguments related to his “traumatic brain injury and
mental deficits.” He contends that the district court violated his procedural due
process rights by not “sua sponte conduct[ing] a competency hearing to determine
if [he] was competent to plead guilty and fully underst[oo]d the legal ramifications
of his actions.” And he argues that his impairments render invalid the waiver of his
right to appeal his sentence. We reject both arguments.
1. The District Court Did Not Abuse Its Discretion when It Failed to Order a
Competency Hearing Sua Sponte
“Due process requires that a defendant not be made to stand trial for a
criminal charge unless he is mentally competent.” Fallada v. Dugger, 819 F.2d
1564, 1568 (11th Cir. 1987). In other words, he must have “sufficient present
ability to consult with his lawyer with a reasonable degree of rational
understanding and . . . a rational as well as factual understanding of the
proceedings against him.” United States v. Cruz, 805 F.2d 1464, 1479 (11th Cir.
1986) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960)). If the district
court has “reasonable cause to believe that the defendant [is not competent],” it
must sua sponte order a competency hearing. 18 U.S.C. § 4241(a); see also United
States v. Wingo, 789 F.3d 1226, 1235–36 (11th Cir. 2015). In deciding whether to
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order a hearing, the district court should consider “evidence of the defendant’s
irrational behavior,” his “demeanor at trial,” and “prior medical opinion regarding
the defendant’s competence.” Wingo, 789 F.3d at 1236 (quoting Tiller v. Esposito,
911 F.2d 575, 576 (11th Cir. 1990)). “We review for abuse of discretion a district
court’s failure to sua sponte order a hearing on the defendant’s competency under
[s]ection 4241.” Id.Portela contends that the district court should have ordered a competency
hearing. He highlights that he informed the district court of a “neuro-psychological
evaluation” that found that he had an IQ of 78, his “history of traumatic head
injuries,” and his “impaired” “higher executive function” and “impulse control.”
On appeal he also cites for the first time a medical report that shows a history of
mental issues.
The district court did not abuse its discretion when it declined to order a
hearing. Although Portela presented evidence of mental problems, the district court
also possessed evidence that Portela was both competent and feigning illness to
avoid responsibility. For example, during recorded prison calls Portela instructed
an associate to “tell hi[s lawyer] that . . . [Portela is] kind of crazy” and stated that
he was “trying to” be “sen[t] . . . to a crazy hospital.” He also told his doctor to
prescribe him medication because he “[had] to work [his] magic on this [case].”
We have explained that evidence that a defendant’s “behavior was the product of a
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competent, calculating mind” is grounds to deny a competency hearing. United
States v. Perkins, 787 F.3d 1329, 1340 (11th Cir. 2015); see also Hance v. Zant,
696 F.2d 940, 948 (11th Cir. 1983) (affirming the denial of a competency hearing
when evidence “could . . . easily be interpreted to be evidence [of] . . . a rational,
albeit immature, plan of deception”), overruled on other grounds by Brooks v.
Kemp, 762 F.2d 1383 (11th Cir. 1985) (en banc). The district court also had the
advantage of assessing this evidence in combination with its firsthand observations
of Portela’s “demeanor at trial.” Wingo, 789 F.3d at 1236 (quoting Tiller, 911 F.2d
at 576). We see no abuse of discretion.
2. Portela Waived His Right to Appeal His Sentence
Portela attempts to appeal his sentence despite an agreement in which the
government agreed to recommend a sentence of 360 months of imprisonment if
Portela waived his right to appeal. He contends that, although the district court
questioned him about the waiver at the plea hearing, his “cognitive deficits”
prevented him from “mak[ing] a cogent decision.” He concludes that “the record
does not reflect a knowing and voluntary relinquishment of [his] right to appeal.”
A defendant’s waiver of his right to appeal his sentence “is valid if [he]
enters into it knowingly and voluntarily.” United States v. Bascomb, 451 F.3d
1292, 1294 (11th Cir. 2006). We have explained that a waiver is knowing and
voluntary if “either: (1) the district court specifically questioned the defendant
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about the waiver during the plea colloquy, or (2) the record clearly shows that the
defendant otherwise understood the full significance of the waiver.” United States
v. Grinard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005) (emphasis omitted)
(quoting United States v. Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997)).
Portela’s waiver was valid. “[T]he district court specifically questioned
[Portela] about the waiver during the plea colloquy,” id., when it asked if he
“underst[oo]d” that he “[would] not appeal [his] sentence to a [h]igher [c]ourt.”
Portela unambiguously responded, “Yes, I do, Your Honor.” The district court also
specifically found “that the waiver was knowing and voluntary.” And Portela
cannot rely on his mental issues to avoid responsibility for his answer in the light
of the evidence that he was competent and attempted to exaggerate his
impairments.
E. Sufficient Evidence Supports Altamirano’s Conviction for a Violent
Crime in Aid of Racketeering
Federal law punishes anyone who, “for the purpose of . . . maintaining or
increasing [his] position in an enterprise engaged in racketeering activity, . . .
[commits] assault[] with a dangerous weapon.” 18 U.S.C. § 1959(a). The
government can establish the motive element with evidence “that [the defendant]
committed [the violent crime] because he knew it was expected of him by reason
of his membership in [the gang] or that he committed [the violent crime] in
furtherance of that membership.” United States v. Robertson, 736 F.3d 1317, 1330
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(11th Cir. 2013) (citation and internal quotation marks omitted). For example,
evidence that “violence was a part of the group’s culture,” “that the group expected
its members to . . . engag[e] in violent acts,” or that the defendant reported his
actions to prove himself or “to brag,” id., supports the inference that the defendant
“was motivated” by his membership, id. at 1331. We review the sufficiency of the
evidence de novo. Mercer, 541 F.3d at 1074.
Altamirano argues that the government failed to prove that he acted with the
requisite motive of “maintaining or increasing [his] position in [the] enterprise,” 18
U.S.C. § 1959(a), but we disagree. Zerquera explained that some members of the
Team “had more . . . authority than others” within the gang and that the members
who “carrie[d] the most respect” had reputations for violence. Guzman also
testified that “the money for the drugs” came “[f]rom robberies” and that a member
would “lose respect” if he refused to help with a robbery. He also explained that
Altamirano was “one of the top guys.” This close connection between violence,
participation in robberies, and status entitled the jury to conclude that Altamirano
“committed [robberies] because he knew it was expected of him by reason of his
membership in [the Team].” Robertson, 736 F.3d at 1330 (quoting United States v.
Whitten, 610 F.3d 168, 178 (2d Cir. 2010)); see also id. at 1331. Indeed, after the
November 20, 2013, armed robbery, Altamirano and the other robber returned to
other Team members at the trap, where they “talk[ed] about [the] robbery” and
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“show[ed] [off] . . . a phone and a wallet they took.” This evidence of boasting also
supported the jury’s verdict. For these reasons, we reject Altamirano’s challenge to
his conviction under section 1959(a).
F. Sufficient Evidence Supports Chacon’s Convictions for Possession with
Intent to Distribute Cocaine Base and for Possession of a Firearm in
Furtherance of a Drug-Trafficking Crime
Chacon challenges the sufficiency of the evidence for his convictions for
possession with intent to distribute cocaine base, 21 U.S.C. §§ 841(a)(1),
841(b)(1)(A)(iii), and possession of a firearm in furtherance of a drug-trafficking
crime, 18 U.S.C. § 924(c)(1)(A), that stem from the drugs and gun that the police
found at the trap after the armed robbery. He contends that because no evidence
suggests he joined a conspiracy concerning these offenses, the district court erred
when it gave an instruction that allowed the jury to convict him based on his role in
the conspiracy under the doctrine established in Pinkerton v. United States, 328
U.S. 640 (1946). Chacon argues that although he was present at the trap when the
police searched it after the armed robbery, no evidence “proved that [he] was
[]aware of the . . . drugs” or “of the gun.” And he confusingly contends that the
jury could not have convicted him for possessing the gun in furtherance of a drug-
trafficking offense because the gun was the same weapon used in the robbery and
the district court dismissed the charges against Chacon related to the robbery.
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Under Pinkerton, a “member of a conspiracy . . . is criminally liable” for the
“reasonably foreseeable crimes” that other conspirators commit “during the course
of and in furtherance of the conspiracy.” United States v. Moran, 778 F.3d 942,
961 (11th Cir. 2015). To establish that the defendant was part of a conspiracy, “the
[g]overnment must prove that a conspiracy existed, that the defendant had
knowledge of the essential aims of the conspiracy, and that with such knowledge,
the defendant joined the conspiracy.” United States v. Newton, 44 F.3d 913, 921
(11th Cir. 1995). Once it does so, the defendant may be liable for substantive
offenses committed by fellow conspirators even if he “lack[ed] . . . knowledge
thereof,” United States v. Silvestri, 409 F.3d 1311, 1335 (11th Cir. 2005)
(emphasis omitted) (quoting United States v. Mothersill, 87 F.3d 1214, 1218 (11th
Cir. 1996)). “[A] district court does not err in giving a Pinkerton instruction if ‘the
evidence was sufficient for a reasonable jury to have concluded, beyond a
reasonable doubt, that the [crimes] were reasonably foreseeable consequences of
the conspiracy.’” United States v. Shabazz, 887 F.3d 1204, 1219 (11th Cir. 2018)
(alterations adopted) (quoting United States v. Alvarez, 755 F.2d 830, 848 (11th
Cir. 1985)). We review the sufficiency of the evidence de novo. Mercer, 541 F.3d
at 1074.
The district court was entitled to give a Pinkerton instruction, and the jury
was entitled to find Chacon guilty for the drug and firearm offenses based on his
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role in the conspiracy. As explained above, ample evidence establishes that Chacon
was part of the conspiracy. For example, Guzman testified that Chacon “was one
of the top guys” in the Team. The possession of cocaine base at one of the traps
from which the Team sold drugs naturally was a “reasonably foreseeable crime[]”
“during the course of and in furtherance of the conspiracy.” Moran, 778 F.3d at
961. The possession of the gun also was reasonably foreseeable and occurred
during the course of and in furtherance of the conspiracy in the light of Guzman’s
testimony that the Team looked favorably on violence, that “the money for the
drugs” came “[f]rom robberies,” and that Chacon, Altamirano, and Portela carried
guns when they sold out of the traps at night. This evidence about the connection
between drugs, violence, and robberies also establishes that the gun had the
necessary “nexus,” Mercer, 541 F.3d at 1076 (quoting Timmons, 283 F.3d at
1253), to a drug-trafficking crime under section 924(c)(1)(A). And Chacon’s
argument that the dismissal of the robbery charges absolves him of responsibility
for the gun fails because the prohibition in section 924(c) on possessing a gun in
furtherance of drug trafficking defines a freestanding criminal offense that does not
depend on any other charges or convictions.
G. The District Court Did Not Err when It Admitted Evidence of Chacon’s
Uncharged Conduct
Chacon contends that the district court abused its discretion when it admitted
certain evidence about his conduct that was not charged in the conspiracy. This
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evidence includes a video of Chacon robbing an elderly man in 2014, a police
officer’s testimony that he twice seized marijuana from Chacon, a neighbor’s
testimony that he witnessed Chacon commit robberies and fire a gun in front of the
traps, and testimony about a fight that started when Chacon robbed the witness’s
girlfriend.
Federal Rule of Evidence 404 provides that “[e]vidence of a crime, wrong,
or other act is not admissible to prove a person’s character in order to show that on
a particular occasion the person acted in accordance with the character.” Fed. R.
Evid. 404(b)(1). But this Rule does not apply to “evidence of uncharged offenses
that are intrinsic to the charged conduct.” United States v. Holt, 777 F.3d 1234,
1262 (11th Cir. 2015). Evidence is intrinsic if “arose out of the same transaction or
series of transactions as the charged offense,” “is necessary to complete the story
of the crime,” or “is inextricably intertwined with the evidence regarding the
charged offense.” Id. (quoting United States v. McLean, 138 F.3d 1398, 1403 (11th
Cir. 1998)). Intrinsic evidence is still subject to Rule 403, see United States v.
Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007), which provides that a district
court “may exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice,” Fed. R. Evid. 403. We review
evidentiary rulings for abuse of discretion. See Gibson, 708 F.3d at 1275.
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The government offers several procedural responses to Chacon’s arguments,
but we need not address them because Chacon’s arguments fail on the merits. The
video of the robbery and the testimony about robberies and the gun were intrinsic
because they were “linked in time and circumstances with the charged
[conspiracy],” Holt, 777 F.3d at 1262 (quoting McLean, 138 F.3d at 1403). More
specifically, the government described a conspiracy in which “the money for the
drugs” came “[f]rom robberies” and the status of members was tied to robberies
and violence, so it was entitled to offer examples of such robberies to the jury.
Chacon’s objection to the testimony about the fight likewise fails because this fight
was prompted by “a robbery [of the witness’s] girlfriend.” Chacon’s marijuana
possession was also intrinsic because it naturally was “linked in time and
circumstances” with a conspiracy centered on drug trafficking. Id. (quoting
McLean, 138 F.3d at 1403). For example, Guzman testified that the conspiracy
involved sales of marijuana and that he sold marijuana to Chacon, so this evidence
helped establish Chacon’s association with the Team.
The intrinsic evidence also satisfied Rule 403. Its probative value in
illustrating the nature of the conspiracy and the operations of the Team was not
substantially outweighed by the risk of unfair prejudice. Indeed, “Rule 403 is an
extraordinary remedy that must be used sparingly because it results in the
exclusion of concededly probative evidence,” United States v. U.S. Infrastructure,
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Inc., 576 F.3d 1195, 1211 (11th Cir. 2009), and “the balance ‘should be struck in
favor of admissibility.’” Edouard, 485 F.3d at 1344 n.8 (quoting United States v.
Smith, 459 F.3d 1276, 1295 (11th Cir. 2006)). The district court did not abuse its
discretion when it admitted evidence of Chacon’s uncharged conduct.
H. The District Court Correctly Denied Chacon’s Motion for a Mistrial
Based on Prosecutorial Misconduct During Closing Arguments
Chacon complains about references in the prosecution’s closing argument to
charges against him that the district court had dismissed. He underscores that the
government asserted that Chacon should have foreseen Altamirano’s robbery and
the use of the gun in the robbery and that the government showed the jury a
slideshow that listed these charges. Chacon contends that these references
prejudiced his substantial rights because they “put before the jury speculation that
he was tied []to these counts” and “conveyed to the jury [that he] was guilty” of
them. He also argues that the district court’s instruction that the jury “disregard any
reference” to the charges and the government’s concession to the jury that it had
erred were insufficient to cure the mistake.
The government commits misconduct at trial when it makes “improper”
remarks that “prejudicially affect the substantial rights of the defendant.” Reeves,
742 F.3d at 505 (quoting United States v. Gonzalez, 122 F.3d 1383, 1389 (11th Cir.
1997)). “A defendant’s substantial rights are prejudicially affected when a
reasonable probability arises that, but for the remarks, the outcome of the trial
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would have been different.” Id. (quoting United States v. Eckhardt, 466 F.3d 938,
947 (11th Cir. 2006)). Accordingly, our analysis considers the remarks “in the
context of the trial as a whole” and examines whether the comments “had a
tendency to mislead the jury or prejudice the defendant,” “whether the comments
were isolated or extensive,” whether the government intentionally made the
comments, and the “strength of the [evidence].” Id. Importantly, “[b]ecause
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)
(quoting United States v. Smith, 918 F.2d 1551, 1562 (11th Cir. 1990)). “Even if
[the] comments [are] inappropriate, reversal is only warranted if the entire trial is
so replete with errors that [the defendant] was denied a fair trial.” Eckhardt, 466
F.3d at 947. We review this issue “de novo because it is a mixed question of law
and fact.” Id.
No error occurred, and Chacon is not entitled to a new trial. Although the
prosecutor misspoke, this mistake did not amount to misconduct because it did not
“prejudicially affect [Chacon’s] substantial rights.” Reeves, 742 F.3d at 505
(quoting Gonzalez, 122 F.3d at 1389). The references to the dismissed charges
were not “extensive,” nothing suggests that the prosecutor acted “deliberately,”
extensive evidence “establish[ed] the guilt of [Chacon],” and the prosecutor’s
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quick admission of error reduced the possibility that the jury was “misle[d].” Id.The district court also took an adequate “curative measure” when it promptly
instructed the jury to disregard all references to the acquitted counts, see Lopez,
590 F.3d at 1256, and “we must presume that [the] jur[y] follow[ed this]
instruction[],” United States v. Zitron, 810 F.3d 1253, 1258 (11th Cir. 2016)
(quoting Johnson v. Breeden, 280 F.3d 1308, 1319 (11th Cir. 2002)). The district
court committed no error when it denied Chacon’s motion for a mistrial.
I. The District Court Did Not Err when It Refused to Instruct the Jury on
Entrapment
Chacon argues that the district court erred when it refused his request for an
entrapment instruction. “The entrapment defense involves two separate elements:
(1) [g]overnment inducement of the crime, and (2) lack of predisposition on the
part of the defendant.” United States v. Isnadin, 742 F.3d 1278, 1297 (11th Cir.
2014) (emphasis omitted). “The defendant bears an initial burden of production to
show . . . [g]overnment inducement.” Id. (emphasis omitted). He can satisfy this
burden by “produc[ing] any evidence sufficient to raise a jury issue ‘that the
[g]overnment’s conduct created a substantial risk that the offense would be
committed by a person other than one ready to commit it.’” Id. (quoting United
States v. Andrews, 765 F.2d 1491, 1499 (11th Cir. 1985)). If the defendant does
satisfy this burden, “the burden shifts to the [g]overnment to prove beyond a
reasonable doubt that the defendant was predisposed to commit the crime.” Id. A
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defendant who asserts the affirmative defense of entrapment “is entitled to an
entrapment instruction whenever there is sufficient evidence from which a
reasonable jury could find entrapment.” Mathews v. United States, 485 U.S. 58, 62
(1988).
We review the refusal of a district court to grant an entrapment instruction
de novo, although we acknowledge the inconsistency in our precedents that have
alternatively “applied a de novo standard of review” and “purported to review the
question for an abuse of discretion.” United States v. Sistrunk, 622 F.3d 1328, 1333
(11th Cir. 2010) (collecting cases). The correct standard of review is de novo.
Whether a defendant is entitled to an entrapment instruction depends on whether
“there is sufficient evidence from which a reasonable jury could find entrapment,”
Mathews, 485 U.S. at 62 (emphasis added), and the sufficiency of the evidence is a
legal question that we review de novo, see Sistrunk, 622 F.3d at 1332–33 (“We
have long held that the sufficiency of the defendant’s evidence of government
inducement is a legal issue to be decided by the trial court.”); see also, e.g.,
Calderon, 127 F.3d at 1329 (“The issue of whether the defense produced sufficient
evidence to sustain a particular instruction such as a multiple conspiracy
instruction, is generally a question of law subject to de novo review.” (italics
added) (citation and internal quotation marks omitted)); United States v. Mieres-
Borges, 919 F.2d 652, 656 (11th Cir. 1990) (“Whether there was sufficient
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evidence to support a conviction is a question of law subject to de novo review by
this Court.” (italics added)). In any event, our precedents that apply the de
novo standard predate our precedents that review for abuse of discretion. Compare
United States v. Parr, 716 F.2d 796, 802 (11th Cir. 1983) (reviewing de novo and
citing decisions by the former Fifth Circuit), with United States v. Alston, 895 F.2d
1362, 1368 (11th Cir. 1990) (reviewing for abuse of discretion). And “the earliest
panel opinion resolving the issue in question binds this circuit until the [C]ourt
resolves the issue en banc.” United States v. Dailey, 24 F.3d 1323, 1327 (11th Cir.
1994) (quoting Clark v. Hous. Auth. of Alma, 971 F.2d 723, 726 n.4 (11th Cir.
1992)).
Chacon argues that he was entitled to have the jury instructed on entrapment
in relation to his conviction for possession of a firearm by a felon, 18 U.S.C.
§ 922(g)(1), but his argument misconceives the charge and evidence against him.
Chacon’s wished-for entrapment defense rests on an undercover detective’s
attempts to persuade Chacon to sell him a gun. But Chacon was not prosecuted for
selling the gun. He was prosecuted for possessing the gun, and no “evidence
adduced at trial” suggests that the government induced Chacon to possess the gun
that he later sold. United States v. LaFond, 783 F.3d 1216, 1224 (11th Cir. 2015)
(quoting United States v. Ruiz, 59 F.3d 1151, 1154 (11th Cir. 1995)). Indeed, his
affectionate nickname for the gun—“[his] baby”—suggests that he possessed it
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before the government entered the picture. That the detective’s actions produced
the evidence of this possession does not make the government responsible for the
underlying offense. The district court was right to deny Chacon’s requested
instruction.
J. Chacon’s Sentence Is Procedurally and Substantively Reasonable
Chacon challenges his sentence on four grounds. First, he contends that the
district court clearly erred when it applied an enhancement for his role as a leader
of the drug conspiracy. Second, he contends that the district court clearly erred
when it determined that he was liable for at least 2.8 kilograms of cocaine base.
Third, he contends that the district court erred when it calculated his criminal
history. Fourth, he contends that his sentence is substantively unreasonable. These
arguments fail.
“The district court’s determination of the defendant’s role in the criminal
offense is a finding of fact we review for clear error.” United States v. Hill, 783
F.3d 842, 846 (11th Cir. 2015). We also “review[] for clear error the district
court’s underlying determination of the drug quantity attributable to a defendant.”
United States v. Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012). When a
defendant fails to raise an objection to the calculation of his sentence before the
district court, we review for plain error. United States v. Rodriguez, 398 F.3d 1291,
1298 (11th Cir. 2005). And “[w]e review the substantive reasonableness of a
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sentence imposed by the district court for abuse of discretion.” United States v.
Hunt, 526 F.3d 739, 746 (11th Cir. 2008).
1. The District Court Did Not Clearly Err when It Applied an Enhancement for
Chacon’s Role as a Leader of the Drug Conspiracy
The Sentencing Guidelines provide a four-level enhancement “[i]f the
defendant was an organizer or leader of [certain] criminal activity.” United States
Sentencing Guidelines Manual § 3B1.1(a) (Nov. 2014). The commentary explains
that “titles such as ‘kingpin’ or ‘boss’ are not controlling.” Id. § 3B1.1 cmt. n.4.
Instead, the sentencing judge considers the following factors:
(1) [the] exercise of decision making authority, (2) the nature of
participation in the commission of the offense, (3) the recruitment of
accomplices, (4) the claimed right to a larger share of the fruits of the
crime, (5) the degree of participation in planning or organizing the
offense, (6) the nature and scope of the illegal activity, and (7) the
degree of control and authority exercised over others.
United States v. Martinez, 584 F.3d 1022, 1026 (11th Cir. 2009) (quoting United
States v. Gupta, 463 F.3d 1182, 1198 (11th Cir. 2006)); accord U.S.S.G. § 3B1.1
cmt. n.4. But “[t]here is no requirement that all of the considerations have to be
present,” Martinez, 584 F.3d at 1026 (quoting United States v. Ramirez, 426 F.3d
1344, 1356 (11th Cir. 2005)), and “[t]here can . . . be more than one person who
qualifies as a leader,” U.S.S.G. § 3B1.1 cmt. n.4. Indeed, section 3B1.1 requires
only “evidence that the defendant exerted some control, influence or decision-
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making authority over another participant in the criminal activity.” Martinez, 584
F.3d at 1026.
Chacon argues that the district court clearly erred when it found that he was
a leader of the conspiracy. He contends that it erroneously relied on evidence that
members described Chacon as a “shot caller” and that he described himself as the
boss. Chacon stresses that Guzman and Zerquera testified that “Chacon was not
[their] boss” and that he “did not give [them] orders” about drug sales. Chacon also
cites testimony that someone else recruited Guzman and that the cooperators
“never had to give [Chacon] a cut” of their profits.
The district court did not clearly err. It correctly explained that “being
characterized as boss is not controlling” and instead considered specific facts that
established Chacon’s role as a leader. For example, it highlighted that although
“[t]here wasn’t any strict hierarchy [in the Team],” “[e]verybody who testified . . .
agree[d]” that Chacon was a “shot caller[]” who “inspired or promoted or directed
the activities” of the Team. The district court also heard evidence that Chacon
“le[d]” the videos that the Team posted on YouTube to boost their “image,” that
Chacon had declared both that he “r[a]n th[e] block” and that other Team members
“[had] to give [him] money,” and that a Team member stated that he had to
“respect what [Chacon] sa[id].” And Guzman testified that, after he began
cooperating with the police, Chacon called him and accused him of “snitching” and
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then later came to his house and physically attacked him. The district court was
entitled to find that Chacon was a leader in the criminal activity of the Team.
2. The District Court Did Not Err when It Determined that Chacon Was
Responsible for the Sale of at Least 2.8 Kilograms of Cocaine Base
The Guidelines establish a base offense level of 34 for an offense involving
between 2.8 and 8.4 kilograms of cocaine base. U.S.S.G. § 2D1.1(c)(3). “When the
amount of the drugs [actually] seized does not reflect the scale of the offense, the
district court [instead] must approximate the drug quantity attributable to the
defendant.” Reeves, 742 F.3d at 506. In doing so, it “may rely on evidence
demonstrating the average frequency and amount of a defendant’s drug sales over
a given period of time.” Id. “This determination may be based on fair, accurate,
and conservative estimates of the drug quantity attributable to a defendant, but it
cannot be based on calculations of drug quantities that are merely speculative.” Id.
(alteration adopted) (quoting Almedina, 686 F.3d at 1316). Relevant here, when a
district court sentences a member of a “jointly undertaken criminal activity,” it
may consider the conduct of “others that was . . . in furtherance of the jointly
undertaken criminal activity” and “reasonably foreseeable in connection with that
criminal activity.” U.S.S.G. § 1B1.3 cmt. n.2. This analysis requires the district
court to “first determine the scope of the criminal activity the particular defendant
agreed to jointly undertake.” Id.
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The district court did not clearly err when it found that Chacon was
responsible for at least 2.8 kilograms of cocaine base. As explained above, the
evidence established the Chacon was a leader in a broad drug-trafficking
conspiracy. And the district court was entitled to rely on the cooperators’ testimony
about Team activities to “approximate the drug quantity attributable to [Chacon].”
Reeves, 742 F.3d at 506. Guzman testified that he sold one to two grams of cocaine
base a day for 11 months in 2013. He also estimated that three to six other Team
members sold one gram a day during his tenure with the Team. Zerquera testified
that he sold two to three grams a day and estimated that the Team members he
worked with sold three to 18 grams a day, with average daily sales between 16 and
18 grams. If the Team sold only 10 grams a day for 11 months—about 330 days—
that would be 3.3 kilograms. So even a “conservative estimate[]” based on
Guzman’s numbers, id., establishes that Chacon was responsible for more than 2.8
kilograms in the light of his substantial role in the conspiracy and the “jointly
undertaken criminal activity,” U.S.S.G. § 1B1.3 cmt. n.2.
3. The District Court Did Not Commit Reversible Error when It Calculated
Chacon’s Criminal History
Chacon argues that the district court erred when it calculated his criminal-
history score under section 4A1.1 of the Guidelines. He asserts that the district
court erred when it counted a juvenile offense over his objection. And on appeal he
argues for the first time that the district court erred when it counted five offenses
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for which the court withheld adjudication of guilt. He contends that these supposed
errors require remand for resentencing. We disagree.
a. The Juvenile Offense
The district court did not err when it counted Chacon’s 2005 juvenile
conviction for robbery. The Guidelines direct a district court to add one point for a
“juvenile sentence imposed within five years of the defendant’s commencement of
the instant offense.” U.S.S.G. § 4A1.2(d)(2)(B) (emphasis added). Chacon
contends that his juvenile sentence fell outside the five-year window, but the
district court was entitled to find otherwise, because Zerquera testified that Chacon
was involved with the Team in 2008, fewer than five years after the 2005 sentence.
b. The Five Offenses for Which Adjudication Was Withheld
Under section 4A1.1(c), a district court must assign one criminal-history
point, up to a total of four points, for each “prior sentence” of less than a term of
imprisonment of 60 days. U.S.S.G. § 4A1.1(c). A “prior sentence” is “any sentence
previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea
of nolo contendere.” Id. § 4A1.2(a)(1). Ordinarily, “a sentence where adjudication
of guilt is withheld” does not count. United States v. Wright, 862 F.3d 1265, 1280
(11th Cir. 2017); see also United States v. Baptiste, 876 F.3d 1057, 1062 (11th Cir.
2017). But if a defendant pleaded guilty or nolo contendere to an offense for which
the state court withheld adjudication, that “prior offense is a diversionary
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disposition that is properly counted as a prior sentence under [section] 4A1.1(c).”
Wright, 862 F.3d at 1280 (citation and internal quotation marks omitted); accord
U.S.S.G. § 4A1.2(f). The commentary to section 4A1.1(c) confirms that “[a]
diversionary disposition is counted . . . where there is a finding or admission of
guilt in a judicial proceeding.” U.S.S.G § 4A1.1(c) cmt. n.3.
The presentence report assigned Chacon eight criminal-history points based
on eight earlier offenses. It assigned one criminal-history point under section
4A1.1(c) for the 2005 juvenile robbery. It assigned two points under section
4A1.1(b) for a 2006 robbery for which adjudication was withheld in state court and
Chacon was sentenced to two years of probation. It assigned one point under
section 4A1.1(c) for a 2007 burglary and possession of a concealed weapon for
which adjudication was withheld and Chacon was sentenced to two years of
probation. It assigned two points under section 4A1.1(b) for a 2007 cocaine
possession for which Chacon was adjudicated guilty and sentenced to 364 days of
imprisonment. It assigned one point under section 4A1.1(c) for a 2010 marijuana
possession for which adjudication was withheld and only fines and court costs
were imposed. It assigned one point under section 4A1.1(c) for a 2011 marijuana
possession for which adjudication was withheld and only fines and court costs
were imposed. And it assigned one point under section 4A1.1(c) for a 2013
marijuana possession for which adjudication was withheld and only fines and court
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costs were imposed. The presentence report assigned a total of nine points, but
because section 4A1.1(c) allows only a maximum of four points for covered
offenses, his final criminal-history score was eight. This score gave Chacon a
criminal-history category of IV, which, coupled with his offense level of 40,
produced a guideline range of 360 months to life imprisonment. See U.S.S.G. ch.
5, pt. A.
Chacon contends that the district court erroneously assigned criminal-history
points for the five offenses for which adjudication was withheld, but he failed to
make this argument to the district court, so we review only for plain error. See
United States v. Shelton, 400 F.3d 1325, 1328 (11th Cir. 2005). Under this
standard, the defendant must establish “that there is an error, it is plain, and it
affects [his] substantial rights.” United States v. Suarez, 893 F.3d 1330, 1335 (11th
Cir. 2018).
No plain error occurred. Chacon had sufficient criminal-history points to
produce a guideline range of 360 months to life imprisonment, so any error did not
“affect[] [his] substantial rights.” Id. The district court correctly assigned one
criminal history point for the 2005 juvenile robbery. See U.S.S.G.
§ 4A1.2(d)(2)(B). It also correctly assigned two points for the 2007 cocaine
possession for which the court sentenced Chacon to 364 days of imprisonment. See
id. § 4A1.1(b). The 2006 robbery and 2007 burglary and firearm possession for
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which adjudication was withheld and Chacon was sentenced to probation also add
one point each because the record does not plainly establish that Chacon did not
plead guilty or nolo contendere to these charges. See Wright, 862 F.3d at 1280.
These five criminal-history points establish an offense level of III, which, when
combined with the base offense level of 40, produces the same guideline range
considered by the district court. See U.S.S.G. ch. 5, pt. A.
4. Chacon’s Sentence Is Substantively Reasonable
A district court must consider several factors before it imposes a sentence,
including “the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct.” 18 U.S.C.
§ 3553(a)(6). A sentence is substantively unreasonable if the district court “fails to
afford consideration to relevant factors that were due significant weight,” “gives
significant weight to an improper or irrelevant factor,” or “commits a clear error of
judgment in considering the proper factors.” United States v. Rosales-Bruno, 789
F.3d 1249, 1256 (11th Cir. 2015) (quoting United States v. Irey, 612 F.3d 1160,
1189 (11th Cir. 2010) (en banc)). But “it is only the rare sentence that will be
substantively unreasonable,” id. (quoting United States v. McQueen, 727 F.3d
1144, 1156 (11th Cir. 2013)), and we must respect “the institutional advantage that
district courts have in applying and weighing the [relevant] factors,” United States
v. Pugh, 515 F.3d 1179, 1190–91 (11th Cir. 2008). “The party challenging a
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sentence has the burden of showing that the sentence is unreasonable in light of the
entire record, the [statutory] factors, and the substantial deference afforded [to]
sentencing courts.” Rosales-Bruno, 789 F.3d at 1256. We “ordinarily expect a
sentence within the [g]uidelines range to be reasonable,” although we do not
“automatically presume” that it is. Hunt, 526 F.3d at 746 (alteration adopted)
(quoting United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005)).
Chacon asserts that his sentence of 420 months of imprisonment is
substantively unreasonable, but we disagree. His sentence was within the
guidelines range of 360 months to life imprisonment, see U.S.S.G. ch. 5, pt. A, so
we “expect [it] to be reasonable,” Hunt, 526 F.3d at 746 (quoting Talley, 431 F.3d
at 788). Chacon complains that he received “more than triple the sentence [length]”
of other members of the Team, see 18 U.S.C. § 3553(a)(6), but he overlooks that
he is not “similarly situated to the defendants to whom he compares himself,”
Duperval, 777 F.3d at 1338. The members who received the shortest sentences
cooperated with the government, and “[w]e have held that defendants who
cooperate with the government and enter a written plea agreement are not similarly
situated to a defendant who provides no assistance to the government and proceeds
to trial.” United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009). And
two other Team members who went to trial received lengthy sentences of 360 and
235 months. As explained above, Chacon’s leadership role also supports a longer
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sentence. The district court did not abuse its discretion in imposing a 420-month
sentence.
K. The Defendants’ Other Arguments Are Meritless
The defendants raise a number of other arguments about the sufficiency of
the evidence, interpretation of the statutes of conviction, and alleged errors by
counsel and the district court, but we have reviewed the record and determined that
these contentions are meritless. These arguments contradict the record, are
insufficiently developed, misunderstand the relevant statutes, or are not ripe for
review.
III. CONCLUSION
We AFFIRM the convictions and sentences of Dixon, Chacon, Portela, and
Altamirano.
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