[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-13220 APRIL 28, 2010
Non-Argument Calendar JOHN LEY
________________________ CLERK
D. C. Docket No. 08-20337-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGELIO CABRERA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 28, 2010)
Before EDMONDSON, BIRCH and BLACK, Circuit Judges.
PER CURIAM:
Rogelio Cabrera appeals his convictions and sentences imposed for
conspiracy to transport stolen goods, receiving or possessing stolen goods, and
knowingly transporting stolen goods. Cabrera asserts two issues on appeal. He
claims (1) the evidence was insufficient to support his convictions, and (2) the
district court erred in denying his motion for a two-level reduction in his offense
level based on his minor role in the offense. We conclude there was sufficient
evidence to support Cabrera’s convictions and that the district court did not err in
denying Cabrera a minor-role reduction. Accordingly, we affirm.
I. SUFFICIENCY OF THE EVIDENCE
We review the district court’s denial of a motion for acquittal based on
sufficiency of the evidence de novo, “viewing the evidence in the light most
favorable to the government and drawing all reasonable inferences in favor of the
verdict.” United States v. Schier, 438 F.3d 1104, 1107 (11th Cir. 2006). A jury is
free to disbelieve a defendant’s testimony and consider any false explanation he
gives for his behavior as substantive evidence of his guilt. United States v.
Williamson, 339 F.3d 1295, 1301 n.14 (11th Cir. 2003).
A. Conspiracy
Cabrera first challenges the sufficiency of the evidence to support his
conviction for conspiracy to transport stolen goods in interstate commerce. To
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prove Cabrera violated 18 U.S.C. § 371, the Government was required to show
(1) Cabrera conspired with at least one other person to “to achieve an unlawful
objective;” (2) Cabrera knowingly and voluntarily participated in the conspiracy;
and (3) an overt act was committed to further the conspiracy. See United States v.
Harmas, 974 F.2d 1262, 1267 (11th Cir. 1992). Because conspiracy offenses are
“predominately mental in composition,” the government may rely on
circumstantial evidence to demonstrate a meeting of the minds. United States v.
Arias-Izquierdo, 449 F.3d 1168, 1182 (11th Cir. 2006). Presence and association,
while not controlling, are probative of conspiracy and may be considered by the
jury. United States v. Lluesma, 45 F.3d 408, 410 (11th Cir. 1995).
Cabrera claims his conviction rested solely on evidence that he associated
with the persons who robbed the warehouses. He claims there was no evidence he
actually knew about or participated in the conspiracy to steal the merchandise.
However, Cabrera admits to driving the other conspirators from Florida to Texas
and renting a hotel room for them over the weekend of the break-in. He was
found with the co-conspirators in the warehouse area near the time of the break-in
while in possession of burglary tools. He was also tied to the truck used to
transport stolen goods back to Florida. Drawing inferences in the Government’s
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favor, a reasonable jury could conclude that Cabrera was a knowing participant in
the conspiracy to steal from the warehouses.
B. Receiving and Transporting Stolen Goods
Cabrera next disputes the sufficiency of the evidence to support his
convictions for receiving stolen goods under 18 U.S.C. § 2315, and transporting
stolen goods under 18 U.S.C. § 2314. To support a conviction under each of these
statutes, the Government was required to show Cabrera knew the goods in
question were stolen. See 18 U.S.C. §§ 2314, 2315.
Cabrera contends the evidence was insufficient to demonstrate that he knew
the goods were stolen. Cabrera’s association with the other robbers in the area of
the break-in near the time of the crime while in possession of the type of tools
needed to accomplish the theft, along with his failure to offer a plausible
alternative explanation as to his reason for traveling from Florida to Texas with
the other robbers on the weekend of the crime, was sufficient to allow a reasonable
jury to conclude that Cabrera knew the goods in question were stolen. Having
found the evidence sufficient to support the jury’s verdict on all three counts, we
affirm Cabrera’s convictions.
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II. ROLE IN THE OFFENSE
We review for clear error the district court’s denial of an offense-level
reduction requested for a mitigating role in an offense. United States v. De Varon,
175 F.3d 930, 937 (11th Cir. 1999) (en banc). The district court’s factual findings
may be based on evidence at trial, undisputed statements in the Presentence
Investigation Report (PSI), and evidence at the sentencing hearing. United States
v. Polar, 369 F.3d 1248, 1255 (11th Cir. 2004).
The Sentencing Guidelines provide that, with regard to the offense level, “if
the defendant was a minor participant in any criminal activity, decrease by 2
levels.” U.S.S.G. § 3B1.2(b). A minor participant means any participant “who is
less culpable than most other participants, but whose role could not be described
as minimal.” U.S.S.G. § 3B1.2 cmt. 5. The proponent of an adjustment bears the
burden of proving his sentence should be reduced to reflect his role in the offense
by a preponderance of the evidence. De Varon, 175 F.3d at 939.
The PSI found Cabrera rented a hotel room and a vehicle on behalf of the
conspiracy. It also noted the conspiracy’s ring leader stated that Cabrera
personally helped break into the warehouse. Cabrera did not object to those
findings. We thus conclude the district court did not clearly err in finding that
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Cabrera did not qualify for a minor role reduction. We, accordingly, affirm his
sentence.
AFFIRMED.
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