United States v. Hector Almedina , 686 F.3d 1312 ( 2012 )

Case: 11-13846 Date Filed: 07/13/2012 Page: 1 of 11
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-13846
________________________
D. C. Docket No. 6:11-cr-00087-JA-GJK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR ALMEDINA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 13, 2012)
Before DUBINA, Chief Judge, JORDAN and ALARCÓN,* Circuit Judges.
*
Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
Case: 11-13846 Date Filed: 07/13/2012 Page: 2 of 11
DUBINA, Chief Judge:
A federal grand jury charged Appellant, Hector Almedina, with conspiracy
to import 100 grams or more of heroin from Colombia to the United States, from
January 2011 through February 25, 2011, in violation of 21 U.S.C. § 963 (Count
One); importation of 100 grams or more of heroin from Colombia to the United
States, in violation of 21 U.S.C. § 952(a), Id. § 960(b)(2)(A), and 18 U.S.C. § 2(Count Two); conspiracy to possess with intent to distribute 100 grams or more of
heroin, from January 2011 through February 25, 2011, in violation of 21 U.S.C. §
846 (Count Three); and possession with intent to distribute 100 grams or more of
heroin, in violation of 21 U.S.C. § 841(a), Id. § 841(b)(1)(B)(I), and 18 U.S.C. § 2(Count Four). A jury found Almedina guilty on each count and found that each
charged offense involved at least 100 grams of heroin. After a sentencing hearing,
the district court ordered Almedina to serve concurrent 97-month terms of
imprisonment, which Almedina now appeals. After reviewing the record, reading
the parties’ briefs, and having the benefit of oral argument, we affirm Almedina’s
sentence.
I.
On February 25, 2011, a package containing 485.68 grams of heroin arrived
at the Miami International Airport from Medellín, Colombia. Immigration
2
Case: 11-13846 Date Filed: 07/13/2012 Page: 3 of 11
Customs Enforcement (“ICE”) agents performed a controlled delivery of the
package to Almedina in Orlando, Florida. After the controlled delivery, agents
arrested Almedina and he informed the ICE agents that he expected to be paid
$1,000 to receive the package for Victor Salgado (“Salgado”), whom Almedina
knew from playing poker. Almedina also told the agents that he received a
package from Colombia for Salgado the previous month and that he received
$1,300 for accepting it.
With Almedina’s assistance, ICE agents carried out a controlled delivery of
the package to Salgado. At the conclusion of the delivery, agents arrested
Salgado, who stated that he expected to be paid $5,000 to receive the package and
deliver it to “people from South America.” [PSI ¶ 16.] Salgado also said that he
received a package on a previous occasion for which he was paid a little less than
$5,000.
At trial, the Government showed that Almedina accepted a package in
January 2011 in the same manner as he accepted the February package. Based on
this similar conduct, the Government and the United States Probation Officer
recommended holding Almedina accountable for the January package. Because
Almedina and Salgado were paid similar amounts for the January and February
packages, the Government approximated that the same amount of heroin was
3
Case: 11-13846 Date Filed: 07/13/2012 Page: 4 of 11
shipped in each package. Based on this approximation, the district court found the
January package to contain at least 215 grams of heroin, which is less than half the
485.68 grams of heroin contained in the February package. Thus, the packages
together contained 701 grams of heroin. Therefore, the district court determined
that Almedina’s total offense level was 30 under the United States Sentencing
Guidelines (“U.S.S.G.”), which applies to 700 to 999 grams of heroin, see
U.S.S.G. § 2D1.1(c)(5) (2011), and his criminal history category was I, which
provided a Sentencing Guidelines range of 97 to 121 months in prison. After the
court sentenced Almedina to serve 97 months, the lowest term within the guideline
range, Almedina perfected this appeal.
II.
This court “must review [a challenged] sentence under an abuse-of-
discretion standard” and, in doing so, “must first ensure that the district court
committed no significant procedural error.” Gall v. United States, 552 U.S. 38,
51, 128 S. Ct. 586, 597 (2007). A district court procedurally errs if it improperly
calculates the sentencing guidelines range, among other things. Id. This court
reviews for clear error the district court’s underlying determination of the drug
quantity attributable to a defendant. United States v. Chavez, 584 F.3d 1354, 1367
(11th Cir. 2009).
4
Case: 11-13846 Date Filed: 07/13/2012 Page: 5 of 11
III.
Almedina argues that the district court improperly speculated in determining
the drug quantity attributable to him. He admitted that he received two packages
for Salgado. However, there was no evidence as to what the first package
contained; therefore, he argues it was speculative to presume that the first package
contained heroin just because the second package contained heroin. He contends
that because the street value of heroin was $40,000 to $50,000 and he was paid
$1,300 to accept the package, it is plausible that the first package contained no
contraband and was simply a dry run. Almedina also contends that it is unlikely
that drug dealers would send that amount of contraband to an unknown person
without first determining that the person was reliable and trustworthy. Further,
even if the first package did contain contraband, there was no evidence as to the
type or amount of contraband it might have contained.
In response, the Government contends in its brief that the district court did
not merely speculate. Rather, the Government argues the district court correctly
calculated the amount of drugs for which Almedina was accountable, because it
was unlikely that drug dealers would have paid Almedina $1,300 and Salgado
$5,000 for an empty package. The Government contends that the court did not
commit clear error in concluding that the first package contained at least 215
5
Case: 11-13846 Date Filed: 07/13/2012 Page: 6 of 11
grams of heroin based on the similarities between the first and second packages.
Further, the Government argues that the district court’s estimate that the first
package contained half of the amount of heroin found in the second package was
fair and conservative.
Where a fact pattern gives rise to two reasonable and different
constructions, “the factfinder’s choice between them cannot be clearly erroneous.”
United States v. Izquierdo, 448 F.3d 1269, 1278 (11th Cir. 2006) (quoting
Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574, 105 S. Ct. 1504, 1511
(1985)). “For a finding to be clearly erroneous, this Court must be left with a
definite and firm conviction that a mistake has been committed.” United States v.
Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010) (internal quotation marks
omitted). The Government bears the burden of establishing drug quantity by a
preponderance of the evidence. United States v. Rodriquez, 398 F.3d 1291, 1296
(11th Cir. 2005). This burden “requires the trier of fact to believe that the
existence of a fact is more probable than its nonexistence.” United States v.
Trainor, 376 F.3d 1325, 1331 (11th Cir. 2004) (quoting Concrete Pipe & Prods.
of Cal., Inc. v. Constr. Laborers Pension Trust for So. Cal., 508 U.S. 602, 622,
113 S. Ct. 2264, 2279 (1993)). The preponderance of the evidence standard is not
toothless, however. United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir.
6
Case: 11-13846 Date Filed: 07/13/2012 Page: 7 of 11
1995). The district court must ensure that the Government carries its burden by
presenting reliable and specific evidence. Id.When the drug amount that is seized does not reflect the scale of the
offense, the district court must approximate the drug quantity. United States v.
Frazier, 89 F.3d 1501, 1506 (11th Cir. 1996); see also U.S.S.G. § 2D1.1 cmt. n.12
(2011). In making this determination, the court may rely on evidence
demonstrating the average frequency and amount of a defendant’s drug sales over
a given period of time. Frazier, 89 F.3d at 1506. This determination “may be
based on fair, accurate, and conservative estimates of the quantity of drugs
attributable to a defendant, [but it] cannot be based on calculations of drug
quantities that are merely speculative.” United States v. Zapata, 139 F.3d 1355,
1359 (11th Cir. 1998) (per curiam).
In United States v. Chavez, officers found in the defendant’s house $17,500
in cash and a receipt for the cash purchase of a Chevrolet Tahoe for the amount of
$15,179. 584 F.3d at 1366. The defendant admitted that he participated in the
drug conspiracy at issue, and the court found that he was the source of 27.7 grams
of methamphetamine. Id. The district court then inferred that the cash constituted
proceeds from methamphetamine trafficking and determined drug quantity by
converting the quantity of cash into the quantity of drugs, finding that one pound
7
Case: 11-13846 Date Filed: 07/13/2012 Page: 8 of 11
of methamphetamine was worth $14,000. Id. Based on this evidence, this court
determined that the district court made a reasonable inference that was not
speculative to the point of being clearly erroneous. Id. at 1367.
Although Chavez is instructive, it is not on point. In Chavez, the defendant
had a significant amount of cash, $17,500, and no explanation as to where he
received that money. Based on the money alone, this court inferred drug quantity.
Almedina, on the other hand, was to receive two payments totaling $2,300. While
he admitted this money was payment for the receipt of two parcels, the payment
received by Almedina alone does not appear to be enough to estimate drug
quantity. Unlike the defendant in Chavez, who appeared to be selling drugs,
Almedina only received a package and, therefore, that same inference and strong
link between cash received and drug quantity are not present.
In an unpublished opinion of this court, United States v. Curry, 188 F.
App’x 863, 876 (11th Cir. 2006) (per curiam),1 we held that the district court did
not clearly err where it estimated drug quantity based on the seizure of one of four
packages sent to the defendant. The packages were all sent from the same source,
were labeled similarly, and weighed approximately the same amount. Id. at
1
In this circuit, “unpublished opinions are not binding precedent but they may be cited as
persuasive authority.” See 11TH CIR. R. 36-2; United States v. Rodriguez-Lopez, 363 F.3d 1134,
1138 n.4 (11th Cir. 2004).
8
Case: 11-13846 Date Filed: 07/13/2012 Page: 9 of 11
875–76. We concluded that the evidence was sufficient to find that the three
unseized packages also contained a similar amount of contraband, and thus could
be counted as relevant conduct of a common scheme. Id. at 876.
In a similar case, United States v. Hollins, 498 F.3d 622 (7th Cir. 2007), the
Seventh Circuit permitted some amount of reasoned speculation and reasonable
estimation by the sentencing court. In Hollins, the district court estimated drug
quantity for one drug-smuggling trip using a closely analogous trip in which the
same specific smuggling method had been used. Id. at 632. On appeal, the
Seventh Circuit determined that it was not baseless speculation for the district
court to look at the most closely analogous trip to approximate drug quantity. Id.
at 631. Although Hollins is not binding in our circuit, we find it to be persuasive.
In this case, the Government demonstrated that Almedina received two
packages from Colombia approximately four weeks apart, both packages were to
go to Salgado, and both Almedina and Salgado were to be paid similarly for
receiving each of the parcels. While it is plausible that the first package was a dry
run and contained no contraband, since the fact pattern gives rise to two
reasonable and different constructions, the district court’s choice between them
cannot be clearly erroneous. See Izquierdo, 448 F.3d at 1278. The present case is
similar to Curry because Almedina received more than one package from the same
9
Case: 11-13846 Date Filed: 07/13/2012 Page: 10 of 11
source, Colombia. The authorities only seized one of the two packages and used
the seized package to estimate the contents of the first package. The district
court’s fair and reasonable estimation to infer drug quantity of the first package is
permitted by the Sentencing Guidelines and thus was not clear error.
Additionally, Almedina argues that he was only convicted for possession
and importation of heroin and that the first package could have contained a
different type of contraband, such as cocaine. This court has determined that a
defendant need not know the type of drug involved in a drug offense to receive a
base offense level based on that type of drug. United States v. Alvarez-Coria, 447
F.3d 1340, 1344 (11th Cir. 2006) (per curiam); see also, U.S.S.G. § 1B1.3 cmt.
n.2(a)(1) (2011) (noting that a defendant who transports a suitcase knowing that it
contains a controlled substance is accountable for the substance in the suitcase
regardless of the actual type or amount of that controlled substance). Therefore,
even if Almedina did not know the type or quantity of the drugs he received, the
district court would not be precluded from attributing heroin to him for sentencing
purposes.
10
Case: 11-13846 Date Filed: 07/13/2012 Page: 11 of 11
IV.
For the foregoing reasons, we conclude that the district court did not abuse
its discretion by sentencing Almedina to 97 months’ imprisonment, and we
therefore affirm his sentence.
AFFIRMED.
11