[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-10285 JUNE 17, 2010
________________________ JOHN LEY
CLERK
D. C. Docket No. 06-00086-CR-HLM-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARACHURE BENICIO BAZA,
a.k.a. Benny,
ELIUD RIOS ESCOBAR,
a.k.a. Eliu,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(June 17, 2010)
Before BLACK, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
I.
Appellants-Defendants Carachure Benicio Baza, a/k/a Benny (“Baza”) and
Eliud Rios Escobar, a/k/a Eliu (“Escobar”), along with six other co-conspirator
defendants, were indicted for: (1) conspiracy to possess with intent to distribute at
least 5 kilograms or more of a mixture containing cocaine, beginning no later than
February 2006 and continuing until approximately December 11, 2006, in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii) and 846 (Count 1); and (2) conspiracy to
transport and attempt to transport funds from a place in the United States to
Mexico with the intent to promote the carrying on of specified unlawful activity,
beginning in or about February 2006 and continuing until approximately December
11, 2006, in violation of 18 U.S.C. § 1956(a)(2)(A), (h) (Count 2). The indictment
also contained a forfeiture count, listing approximately $1.4 million in U.S.
currency seized in relation to the offenses.
Defendants Baza and Escobar proceeded to trial on both counts. The
government’s witnesses included unindicted co-conspirator Alejandro Rivas-
Najera, U.S. Drug Enforcement Administration agents, and police officers. The
government also introduced evidence of, inter alia, seized drug money and
transcripts of telephone calls obtained through wiretaps. After a five-day trial, the
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jury convicted Defendants Baza and Escobar on Counts 1 and 2. The district court
sentenced Baza to 360 months’ imprisonment on Count 1 and 240 months’
imprisonment on Count 2, to run concurrently; 5 years’ supervised release on
Count 1 and 3 years’ supervised release on Count 2, to run concurrently; and a
$200 special assessment. The district court sentenced Escobar to 121 months’
imprisonment on Counts 1 and 2, to run concurrently; 5 years’ supervised release
on Count 1 and 3 years’ supervised release on Count 2, to run concurrently; and a
$200 special assessment.
II.
On appeal, Defendants Baza and Escobar both raise multiple issues as to
their convictions. Defendant Baza appeals his sentence, but Defendant Escobar
does not challenge his sentence. The issues presented for appellate review are:
Baza and Escobar
1. Whether the district court erred in denying Defendants’ motions to
suppress evidence and statements obtained during the officers’
December 11, 2006 traffic stop and search of Escobar’s pick-up truck
and arrest of Baza and Escobar, who had $289,880 in cash covered in
clear plastic wrap inside two thirteen-gallon garbage bags with red tie
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strings in the bed of Escobar’s pick-up truck;1 and
2. Whether the district court erred in admitting certain expert and lay
testimony on the patterns and practices of drug-smuggling
organizations and the meaning of various coded words.2
Baza
1. Whether the district court erred in allowing the government to
withdraw what Baza refers to as a “stipulation” and admit evidence
that expanded the scope of the suppression hearing without notice to
defense counsel;3
2. Whether the evidence adequately supported the sentencing court’s
finding that Baza was accountable for 195 kilograms of cocaine for
purposes of calculating Baza’s advisory guidelines range;4 and
1
“We review the district court’s denial of a motion to suppress evidence as a mixed
question of law and fact.” United States v. Ponce-Aldona, 579 F.3d 1218, 1221 (11th Cir. 2009),
cert. denied, 130 S. Ct. 1094 (2010). We review the district court’s legal conclusions de novo,
and its findings of fact for clear error, construing the facts in the light most favorable to the
prevailing party. Id. Furthermore, we “may affirm the denial of a motion to suppress on any
ground supported by the record.” United States v. Caraballo, 595 F.3d 1214, 1222 (11th Cir.
2010).
2
We review the admissibility of expert testimony for abuse of discretion and cannot
reverse “unless the ruling is manifestly erroneous.” United States v. Frazier, 387 F.3d 1244,
1258 (11th Cir. 2004) (en banc).
3
We review a district court’s decision regarding the admissibility of evidence for abuse of
discretion. United States v. Schlei, 122 F.3d 944, 990 (11th Cir. 1997).
4
We state the standard of review for this issue and the next below. See infra notes 7 & 9.
4
3. Whether Baza’s sentence violates Booker because it was based on a
drug quantity of 195 kilograms of cocaine, which amount was not
specifically charged in the indictment or proven to a jury beyond a
reasonable doubt.
Escobar
1. Whether the evidence was sufficient to support Escobar’s
convictions;5
2. Whether the district court erred in denying Escobar’s motion for a
new trial under Federal Rule of Criminal Procedure 33, which motion
was based largely on the claim that co-conspirator Rivas-Najera’s
testimony was unreliable.6
III.
After carefully reviewing the record in this case, reading the parties’ briefs,
and having the benefit of oral argument, we conclude that all of the Defendants’
issues lack merit and only three issues warrant further discussion.
A. Suppression Motions
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“We review de novo whether there is sufficient evidence in the record to support a jury’s
verdict . . . , viewing the evidence in the light most favorable to the government, and drawing all
reasonable factual inferences in favor of the jury’s verdict.” United States v. Beckles, 565 F.3d
832, 840 (11th Cir.), cert. denied, 130 S. Ct. 272 (2009).
6
Denial of a motion for a new trial is reviewed for abuse of discretion. United States v.
Day, 405 F.3d 1293, 1297 n.6 (11th Cir. 2005).
5
As to the suppression issue, Defendants have not shown error in the district
court’s determination that (1) there was probable cause to support the stop and
search of Escobar’s pick-up truck for drug proceeds, and, alternatively, (2) there
was probable cause to stop Escobar’s pick-up truck for carrying an unsecured load,
in violation of O.C.G.A. § 40-6-248.1, and that, after that traffic stop, the police
obtained valid consent to search the vehicle. The record amply supports each
finding, and the district court did not err in its legal conclusions.
B. Baza’s Sentence
Baza has not shown the district court erred in sentencing him, pursuant to
U.S.S.G. § 2D1.1(c)(1), based on its finding that the conspiracy involved 195
kilograms of cocaine because reliable and specific evidence supports this finding.7
At trial, co-conspirator Rivas-Najera testified that sometime after March
2006 he made six trips from the United States to Mexico and back, carrying
cocaine into the United States on each trip, and then transporting money back into
Mexico. Rivas-Najera estimated he transported a total of over 200 kilograms of
cocaine during those six trips. Baza paid Rivas-Najera $199,000 for these six
7
When the district court makes a finding as to the quantity of drugs to establish the base
offense level in its calculation of the advisory guidelines range, we review that drug quantity
finding for clear error. United States v. Simpson, 228 F.3d 1294, 1298 (11th Cir. 2000).
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shipments.8 Baza also arranged for the pick-up and drop-off of the van Rivas-
Najera used for most of the trips, told Rivas-Najera where to pick up the drugs, and
accompanied him on one of the trips. In addition, Rivas-Najera testified that Baza
coordinated drug pick-ups and drop-offs with co-conspirator Jesus Pineda and that
Pineda would wait at the drop-off point to ensure the drugs were delivered and
then would load the van with money. Wiretap and surveillance evidence showed
Pineda was intending to make a shipment in late October 2006. DEA Special
Agent Crosby Jones testified Pineda was arrested on October 25, 2006 and found
with 55 kilograms of cocaine hidden in the vehicle in which he was traveling.
Rivas-Najera was arrested on October 27, 2006 and found with $489,000 in cash in
his van on his way back to Mexico.
Baza’s presentence investigation report (“PSI”) cited Rivas-Najera’s
testimony about the six trips and stated that, based on a “conservative estimate of
30 kilograms” for each trip, Baza should be held responsible for 180 kilograms of
cocaine. The PSI also stated that, given that Baza was caught with $289,880 in
cash, and estimating that one kilogram of cocaine was equal to $19,000 “as used in
8
On Rivas-Najera’s first trip, he transported over 30 kilograms of cocaine and was paid
$27,000; on his second trip, he transported over 30 kilograms and was paid $32,000; for the
third, fourth, and fifth trips, he was paid $35,000 for each (there was no testimony about the
specific drug quantities transported on the third, fourth, and fifth trips); and on the sixth trip, he
transported 45 kilograms and was paid $35,000.
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other similar control buys,” the $289,880 in cash seized from Baza should be
considered the equivalent of 15 kilograms of cocaine. The PSI added these two
figures (180 and 15 kilograms) and determined Baza’s offense involved 195
kilograms of cocaine.
At sentencing, Baza objected to the 195-kilogram drug amount the PSI
attributed to him, arguing the PSI should not have credited Rivas-Najera’s
testimony because he had many reasons to lie and because Baza was never found
with any drugs. The district court overruled Baza’s objections and adopted the
195-kilogram amount recommended by the PSI. Using this 195-kilogram amount,
the district court found Baza’s total offense level was 42, which, with a criminal
history category of I, yielded an advisory guidelines range of 360 months’ to life
imprisonment on Count 1 and up to 240 months’ imprisonment on Count 2. As
stated above, the court sentenced Baza to 360 months’ imprisonment on Count 1
and 240 months’ imprisonment on Count 2, to run concurrently.
Because Rivas-Najera was a co-conspirator and considering Rivas-Najera’s
testimony about Baza’s significant role in arranging Rivas-Najera’s drug-
smuggling trips, the record amply supports the conclusion that Baza can be held
responsible for the over 200 kilograms of cocaine transported during the six trips.
See United States v. Andrews, 953 F.2d 1312, 1319 (11th Cir. 1992) (stating that,
8
for sentencing purposes, a defendant convicted of a conspiracy offense may be
held responsible for acts of others that were reasonably foreseeable and in
connection with the conspiracy); see also United States v. Maxwell, 34 F.3d 1006,
1011 (11th Cir. 1994) (evaluating the “similarity, regularity, and temporal
proximity” between the offense of conviction and the uncharged conduct to
determine whether the uncharged conduct is relevant conduct for purposes of
calculating a defendant’s base offense level). And in light of Rivas-Najera’s
testimony about Baza’s close working relationship with Jesus Pineda, Baza also
can be held responsible for an additional 55-kilogram shipment of cocaine
transported by Pineda. Other than Rivas-Najera’s cooperating with the
government to receive a favorable sentence, Baza points to no other specific reason
why his testimony should be discredited. See United States v. Rodriguez, 398 F.3d
1291, 1296 (11th Cir. 2005) (stating that, where a sentencing court bases its drug
quantity finding on its decision to credit one witness’s “coherent and facially
plausible” testimony that is not contradicted by extrinsic evidence, that finding
“can virtually never be clear error”) (citations omitted).
Accordingly, a preponderance of evidence shows Baza can be held
responsible for at least these two drug quantities of 200 and 55 kilograms of
cocaine, totaling 255 kilograms. See United States v. Lawrence, 47 F.3d 1559,
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1566 (11th Cir. 1995) (concluding the government must establish a quantity of
drugs by a preponderance of the evidence and by “reliable and specific” evidence);
United States v. Zapata, 139 F.3d 1355, 1359 (11th Cir. 1998) (stating a finding as
to the quantity of drugs to establish the base offense level is permissible if it is
“based on fair, accurate, and conservative estimates of the quantity of drugs
attributable to a defendant,” but it cannot be “merely speculative”). Thus, Baza has
shown no error in the district court’s finding attributing to him 195 kilograms of
cocaine.
Baza also argues his sentence violates United States v. Booker, 543 U.S.
220, 125 S. Ct. 738 (2005), because it is based on a drug amount not proven to the
jury.9 This argument lacks merit too. Booker requires facts to be submitted to a
jury and proven beyond a reasonable doubt only when those facts are used to
increase a defendant’s sentence above the statutory maximum sentence. Booker
543 U.S. at 232, 125 S. Ct. at 749; see also Apprendi v. New Jersey, 530 U.S. 466,
490, 120 S. Ct. 2348, 2362-63 (2000). Baza was convicted of conspiracy with
intent to distribute at least 5 kilograms of cocaine under 21 U.S.C. § 841, which
carries a statutory maximum of life imprisonment. 21 U.S.C.
9
Challenges under Booker to a district court’s enhancing a sentence based on facts not
proven to a jury beyond a reasonable doubt are reviewed de novo. United States v. Paz, 405
F.3d 946, 948 (11th Cir. 2005). Even if such a Booker error occurs, we will reverse only if that
error is harmful. Id.
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§ 841(b)(1)(A)(ii)(II). Because the statutory maximum was life imprisonment and
Baza was sentenced to 360 months, it was impossible for the district court to rely
on facts that were used to increase Baza’s sentence above the statutory maximum.
There is no Booker error in Baza’s sentence.
IV.
In conclusion, we affirm Defendant Baza’s convictions and sentence on
Counts 1 and 2 and Defendant Escobar’s convictions on Counts 1 and 2.
AFFIRMED.
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