United States v. Juan Ubaldo-Viezca

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16341 ELEVENTH CIRCUIT
OCTOBER 6, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK

D. C. Docket No. 07-00139-CR-2-WKW-SRW

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN UBALDO-VIEZCA,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Alabama
_________________________

(October 6, 2010)

Before EDMONDSON, MARTIN and FAY, Circuit Judges.

PER CURIAM:

Juan Ubaldo-Viezca appeals his convictions and 255-month total sentence
for importation of five kilograms or more of cocaine and possession with intent to

distribute five kilograms or more of cocaine. Ubaldo-Viezca argues that the district

court erred in (1) denying his motion to suppress incriminating statements and

evidence discovered during a vehicle search and failing to conduct an independent

hearing; (2) denying his motion in limine to exclude firearms that were found

during a search of his home in Texas; and (3) imposing a substantively

unreasonable sentence. For the reasons set forth below, we affirm.

I.

A federal grand jury charged Ubaldo-Viezca with importation of five

kilograms or more of cocaine, in violation of 21 U.S.C. §§ 952 and 960; and

possession with intent to distribute five kilograms or more of cocaine, in violation

of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Ubaldo-Viezca pled not guilty to both

charges.

Prior to trial, Ubaldo-Viezca moved to suppress incriminating statements

and evidence discovered during a traffic stop. He argued that he was questioned

and advised of his Miranda1 rights in English, even though he spoke Spanish, and

that the officer who conducted the traffic stop did not have reasonable suspicion to

continue detaining him after the initial stop.

1
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2
 The government responded that Ubaldo-Viezca lacked standing to challenge

the search of a trailer attached to the vehicle in which he was riding, because he

was merely a passenger and did not own the vehicle or trailer that were searched.

It also argued that the officer who conducted the stop had reasonable suspicion of

criminal activity, based on his observations of, and conversations with,

Ubaldo-Viezca and the driver.

At the suppression hearing, Will Barnes, an Alabama State Trooper, testified

that, on June 26, 2007, he stopped Azecunas Garcia’s vehicle for speeding. The

vehicle, an Expedition, was pulling a dual-axle utility trailer. When Barnes

approached the vehicle, Ubaldo-Viezca, the passenger, spoke for Garcia and stated

that they had not wanted to make any sudden movements because there had been

“problems in [their] area with the police.” Garcia informed Barnes that she did not

have the registration for the vehicle, although she produced a title and stated that

she had recently purchased the vehicle. Barnes instructed Garcia to step out of the

vehicle so that he could speak to her alone, because Ubaldo-Viezca “appeared to be

attempting to control the stop.” When Barnes noted that Garcia’s name was not

listed on the title, Garcia informed Barnes that she had not purchased the vehicle,

but had been given the vehicle as payment for a debt. Barnes asked for Garcia’s

proof of insurance, which she could not produce. Garcia stated that she and

3
Ubaldo-Viezca were traveling to North Carolina to purchase cars at an auction,

while Ubaldo-Viezca stated that the auction was in South Carolina.

Barnes attempted to verify Garcia’s and Ubaldo-Viezca’s information by

calling the Blue Light Operation Center (“BLOC”). While Barnes waited to hear

from BLOC, he gave Garcia the warnings he had issued and returned the title and

Ubaldo-Viezca’s and Garcia’s licenses. Garcia informed Barnes that she was once

arrested for smuggling people into the country, and that she sometimes still

smuggled individuals into the country. Garcia also told Barnes that Ubaldo-Viezca

was her boyfriend and her business partner, but she did not know his name. Garcia

stated that both she and Ubaldo-Viezca owned the trailer, but later stated that the

trailer was only in her name. After 20 or 25 minutes, Barnes had not heard from

BLOC, so he called again and obtained the information he needed.

The BLOC check revealed that both the Expedition and the trailer were

registered to Garcia, that Garcia’s license was valid, and that Garcia had an alias

and multiple prior arrests for alien smuggling. The check also revealed that

Ubaldo-Viezca was a suspect in an ongoing narcotics investigation. Barnes then

asked Garcia for consent to search the vehicle, which Garcia granted. Before

Barnes searched the vehicle, Ubaldo-Viezca asked to speak to him in private.

Ubaldo-Viezca told Barnes that he was a criminal informant working for a Drug

4
Enforcement Administration (“DEA”) agent named Norris Rogers, who worked

out of the Houston office. Ubaldo-Viezca could not produce a phone number for

Rogers. A search of the Expedition revealed nothing of evidentiary value. Barnes

conducted an “echo test” on the axles of the trailer by striking the axle with his

flashlight. The test indicated that something was inside the axle. Because traffic

was becoming increasingly heavy, Barnes asked Ubaldo-Viezca to drive the

Expedition to the trooper auto shop, where he could take the trailer apart and look

inside the axles.

Upon arriving at the trooper shop, Ubaldo-Viezca immediately told Barnes

that he needed to speak to him again. Ubaldo-Viezca told Barnes that he was

currently working on a deal for the DEA. Barnes then stated “let me guess.

There’s dope in the axles.” Ubaldo-Viezca stated that there was. Barnes asked

him how much cocaine was inside, and Ubaldo-Viezca responded, “I’m not going

to lie. It’s eight kilos.” The officers took apart the trailer and discovered 16

packages, containing a total of 8 kilograms of cocaine, inside the axles. After the

cocaine was discovered, Ubaldo-Viezca was advised of his Miranda rights.

Joe Herman, a Special Agent with the Alabama Bureau of Investigation,

contacted Agent Rogers, who stated that Ubaldo-Viezca had been a DEA source

ten years ago. Ubaldo-Viezca gave Herman written consent to search his residence

5
in Friendswood, Texas. Inside Ubaldo-Viezca’s residence, agents found a large

number of weapons, but no narcotics or large sums of money.

The magistrate issued a report and recommendation (“R&R”),

recommending the denial of Ubaldo-Viezca’s motions to suppress. As an initial

matter, the magistrate determined that Ubaldo-Viezca lacked standing to challenge

the search of the Expedition and trailer, because he was not the driver or owner of

either the vehicle or the trailer and, therefore, did not have a legitimate expectation

of privacy in either piece of property. The magistrate determined that the duration

of the traffic stop was reasonable, in light of the discrepancies in the vehicle’s title

and registration, Ubaldo-Viezca’s voluntary effort to talk with Barnes, the time that

it took to key in and print the citations, and Barnes’s attempt to contact a BLOC

operator. The magistrate also found that Barnes had a reasonable, articulable

suspicion that illegal activity was occurring, which justified Barnes’s decision to

prolong the stop. The magistrate found that Ubaldo-Viezca’s pre-Miranda

incriminating statements were admissible, because Miranda warnings generally are

not required during ordinary traffic stops. The district court adopted the R&R and

denied Ubaldo-Viezca’s motions to suppress.

Prior to trial, Ubaldo-Viezca filed a motion in limine to exclude from

evidence the weapons seized from his home. He asserted that the weapons related

6
to uncharged conduct and were not “germane to the issues before [the court].”

The district court denied Ubaldo-Viezca’s motion to exclude the weapons

seized from Ubaldo-Viezca’s home, noting that the weapons were found the day

after Ubaldo-Viezca was arrested.

At trial, Barnes testified that the eight kilograms of cocaine hidden in

Garcia’s trailer were attached to straps that were used to pull the packages of

cocaine out of the axle.

Herman testified that Garcia informed him that, on Saturday, June 23, 2007,

she and Ubaldo-Viezca drove her Chevrolet Silverado and a trailer to Sabinas,

Mexico. The following Monday, they drove to her home in Rosharon, Texas.

From there, Ubaldo-Viezca took the Silverado and the trailer, leaving Garcia at her

house. The next day, Ubaldo-Viezca returned to Garcia’s home, and the two began

their trip to the Carolinas in the Expedition. Herman noted that Ubaldo-Viezca had

stated that he and Garcia traveled to Mexico and re-entered the United States with

the trailer while an unknown Hispanic male followed them. When Ubaldo-Viezca

and Garcia stopped in Texas, the unidentified man informed Ubaldo-Viezca that

there was cocaine in the trailer, and that they should drive it to South Carolina.

David Henderson, an agent with Immigrations and Customs Enforcement

(“ICE”), testified that a border crossing document indicated that a Chevrolet truck

7
owned by Garcia crossed into the United States from Mexico on June 25, 2007.

The same vehicle had crossed into Mexico from the United States on June

23, 2007.

Garcia testified that she and Ubaldo-Viezca traveled to Mexico on five

occasions. During the fourth trip, Garcia watched Ubaldo-Viezca load cocaine into

the axles of a trailer attached to the truck. Garcia would then drive her truck into

the United States while Ubaldo-Viezca followed her in a separate vehicle. Garcia

would leave her truck at Ubaldo-Viezca’s home and Ubaldo-Viezca would call

Garcia when he was ready. They would then drive Garcia’s truck to either North

Carolina or Chicago.

During the fifth trip to Mexico, Garcia watched Ubaldo-Viezca place the

cocaine inside the trailer. She noted that he attached a rope to the packages so that

it would be easier to remove the cocaine from the axles. On either the fourth or

fifth trip into Mexico, Ubaldo-Viezca placed a large firearm behind one of the door

panels of Garcia’s truck by unscrewing the door panel. The firearm was too large

to fit in the door, so Ubaldo-Viezca had to dismantle the gun and place the pieces

in the door.

After Garcia’s testimony, Ubaldo-Viezca renewed his motion in limine to

exclude from evidence the weapons found in his home. The court noted that there

8
was some testimony about Ubaldo-Viezca storing a firearm in the door of Garcia’s

vehicle on one occasion, and there was temporal proximity between the discovery

of the weapons at his home in Texas and the charged drug offenses. The court

found that the type of weapons that were found led to the conclusion that “they are

not unduly prejudicial.” It therefore, overruled Ubaldo-Viezca’s motion to exclude

the firearms.

Eric Leland, a police officer in League City, Texas, testified that he searched

Ubaldo-Viezca’s home on June 27, 2007. Leland stated that, in the home, officers

found two 37-millimeter grenade launchers, an M9 grenade launcher, an AR-style

assault rifle, two “machine pistols,” two pieces of an AK-47-type assault rifle,

three revolver pistols, a .22 caliber long rifle, a small caliber revolver, a 12-gauge

shotgun, and a .243 caliber rifle with a scope on top. Leland also identified several

bulletproof vests found in Ubaldo-Viezca’s home, including one vest that

contained an apparent bullet hole and blood stain. After Leland’s testimony, the

parties rested. The jury found Ubaldo-Viezca guilty of both counts.

The presentence investigation report (“PSI”) set Ubaldo-Viezca’s total

offense level at 38, which combined with his criminal history category of I, to yield

a guideline imprisonment range of 235 to 293 months. Pursuant to 21 U.S.C.

§§ 841(b)(1)(A) and 960(b)(1)(B), Ubaldo-Viezca was subject to a mandatory

9
minimum of ten years’ imprisonment and a maximum term of life imprisonment.

At sentencing, the district court adopted the PSI’s guideline calculations.

Ubaldo-Viezca asked the court to consider that he was 50 years old, had several

children, and had no prior criminal history. Ubaldo-Viezca himself addressed the

court, stating that Garcia was desperate and did not want to accept responsibility

for her actions. He stated that, if he was responsible for transporting the cocaine,

he would have pled guilty and admitted his mistake. Ubaldo-Viezca stated that he

had no money and Garcia offered to pay him.

The government responded that Ubaldo-Viezca was a dangerous man and

one of the most important people in the drug business, because, without

transporters such as Ubaldo-Viezca, the drugs would never have arrived in

Alabama. The government asked the court to sentence Ubaldo-Viezca at the high

end of the guideline range, because of the dangerousness of the firearms found in

his home, the drug quantity involved, and Ubaldo-Viezca’s lack of remorse and

denial of guilt.

The court stated that it had considered the sentencing guidelines and the 18

U.S.C. § 3553(a) sentencing factors, and it sentenced Ubaldo-Viezca to a term of

255 months’ imprisonment on Counts 1 and 2, to run concurrently. It stated that

the sentence was “sufficient but not greater than necessary to comply with the

10
statutory purposes of sentencing,” and that the sentence was reasonable in light of

the “nature and circumstances of the offense and the history and characteristics of

the defendant.” It also determined that the sentence was necessary

to reflect the seriousness of the offense, to promote respect for the
law, and to provide just punishment for the offense . . . to afford
adequate deterrence to criminal conduct . . . to protect the public from
further crimes of this defendant . . . to provide the defendant with
needed correctional treatment in the most effective manner and to
avoid the unwarranted sentence . . . to avoid unwarranted sentencing
disparities among defendants.

II.

A. Motion to Suppress

“A district court’s ruling on a motion to suppress presents a mixed question

of law and fact.” United States v. Zapata, 180 F.3d 1237, 1240 (11th Cir. 1999).

We review the district court’s findings of fact for clear error, but review de novo

the application of law to those facts. Id. “[W]hen considering a ruling on a motion

to suppress, all facts are construed in the light most favorable to the prevailing

party below.” United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000).

i. Search of Garcia’s Vehicle and Trailer

A party seeking to challenge a search on Fourth Amendment grounds must

establish that he has a legitimate expectation of privacy in the searched area.

Rakas v. Illinois, 439 U.S. 128, 143-44, 99 S.Ct. 421, 430-31, 58 L.Ed.2d 387

11
(1978). “A person has a legitimate expectation of privacy if (1) he has a subjective

expectation of privacy, and (2) society is prepared to recognize that expectation as

objectively reasonable.” United States v. Harris, 526 F.3d 1334, 1338 (11th Cir.),

cert. denied, 129 S.Ct. 569 (2008). “[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.

2009), cert. denied, 130 S.Ct. 2392 (2010) (quotation omitted).

The district court correctly held that Ubaldo-Viezca lacked standing to

challenge the search of the vehicle and trailer. Because Ubaldo-Viezca was merely

a passenger and did not own or rent the vehicle, he could not raise a Fourth

Amendment challenge to the search of the vehicle. See Lee, 586 F.3d at 864.

Furthermore, since Ubaldo-Viezca did not have a legitimate expectation of privacy

in the vehicle in which he was riding, it follows that he also did not have a

legitimate expectation of privacy in the trailer, owned by Garcia, that was being

pulled behind that vehicle. See id.; Harris, 526 F.3d at 1338. Although

Ubaldo-Viezca appears to argue that the Supreme Court, in Brendlin v. California,

551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007), held that passengers have

standing to challenge vehicle searches, Brendlin addressed a passenger’s standing

12
to challenge the constitutionality of the initial traffic stop, rather than the search of

the vehicle in which he is riding. See Brendlin, 551 U.S. at 254, 256-58, 127 S.Ct.

at 2405-07. Accordingly, the district court did not err in finding that

Ubaldo-Viezca lacked standing to challenge the search of the Expedition and

trailer.

ii. Incriminating Statements Made Prior to Miranda Warnings

To comport with the Fifth Amendment’s prohibition against compelled

self-incrimination, a person taken into custody must be advised of his right to

remain silent and his right to counsel prior to an interrogation. Miranda, 384 U.S.

at 478-79, 86 S.Ct. at 1630. Miranda only applies where “a person in custody is

subjected to either express questioning or its functional equivalent.” Rhode Island

v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980).

Ordinary traffic stops do not involve custody for purposes of Miranda,

unless the stopped motorist is subjected to treatment during the traffic stop that

amounts to a restriction of freedom to a degree associated with a formal arrest.

Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317

(1984). In determining whether a defendant’s freedom was curtailed “to a degree

associated with formal arrest,” we consider the totality of the circumstances,

including whether the officers brandished weapons or touched the defendant,

13
whether the officers used a language or tone indicating that compliance with their

orders could be compelled, and the location and length of the detention. United

States v. Luna-Encincas, 603 F.3d 876, 881 (11th Cir. 2010).

The “functional equivalent” of interrogation refers “to any words or actions

on the part of the police (other than those normally attendant to arrest and custody)

that the police should know are reasonably likely to elicit an incriminating

response from the suspect.” Innis, 446 U.S. at 301-02, 100 S.Ct. at 1689-90.

“Volunteered statements of any kind are not barred by the Fifth Amendment and

their admissibility is not affected by [the holding in Miranda].” Miranda, 384 U.S.

at 478, 86 S.Ct. at 1630.

The district court correctly found that Ubaldo-Viezca’s initial statement to

Barnes, at the scene of the traffic stop, was admissible, because it was made

spontaneously. Ubaldo-Viezca summoned Barnes, stating that he needed to speak

with him, and voluntarily informed him that he was working as an agent for the

DEA. Thus, Miranda warnings were not required. See id.

With respect to Ubaldo-Viezca’s statements to Barnes at the trooper shop,

his initial statement that he was currently working undercover for the DEA was

admissible, because it was also made voluntarily. See id. The record reflects that

Ubaldo-Viezca summoned Barnes and voluntarily made this statement. However,

14
after Ubaldo-Viezca made this statement, Barnes stated “let me guess. There’s

dope in the axles.” Barnes also asked a follow-up question concerning the amount

of cocaine in the trailer. These statements are the “functional equivalent of

interrogation,” because they are “reasonably likely to elicit an incriminating

response.” Innis, 446 U.S. at 301-02, 100 S.Ct. at 1689-90. Nevertheless, for

Miranda to apply, Ubaldo-Viezca must have been “in custody” at the time that he

made the statements. Id. at 300-01, 100 S.Ct. at 1689.

The totality of the circumstances indicate that Ubaldo-Viezca was not “in

custody” when he made the statements to Barnes at the trooper shop, because his

freedom was not restricted to a degree associated with a formal arrest. Berkemer,

468 U.S. at 440, 104 S.Ct. at 3150; Luna-Encinas, 603 F.3d at 881. First, although

the traffic stop had lasted for over an hour by the time Ubaldo-Viezca made the

statement, the stop had been extended based on Garcia’s consent to search the

vehicle. Furthermore, there is no evidence that Ubaldo-Viezca objected to the

length of the stop or indicated that he wished to leave. In fact, he voluntarily

complied with Barnes’s request for him to drive the Expedition to the trooper shop.

In addition, although Ubaldo-Viezca made his statements about the cocaine in

response to Barnes’s remarks and questions, Ubaldo-Viezca initiated the

conversation by asking to speak with Barnes. The nature of Barnes’s

15
comment—“let me guess. There’s dope in the axles”—also indicates that the tone

and nature of the interaction was casual, rather than serious. See Luna-Encinas,

603 F.3d at 881. Finally, there is no evidence that Barnes brandished a weapon,

touched Ubaldo-Viezca, or otherwise restricted Ubaldo-Viezca’s freedom of

movement at the time that he made the statements. See id. Accordingly, because

Ubaldo-Viezca was not “in custody” at the time that he made the incriminating

statements to Barnes at the trooper shop, the district court did not err in admitting

the statements.

iii. Duration of the Stop

Generally, a traffic stop “must last no longer than is necessary to effectuate

the purpose of the stop.” United States v. Pruitt, 174 F.3d 1215, 1220 (11th Cir.

1999). “[P]olice officers conducting a traffic stop may prolong the detention to

investigate the driver’s license and the vehicle registration, and may do so by

requesting a computer check.” United States v. Boyce, 351 F.3d 1102, 1106 (11th

Cir. 2003). An officer also may lengthen a stop for “further questioning beyond

that related to the initial stop” in two circumstances. Pruitt, 174 F.3d at 1220.

“First, the officer may detain the driver for questioning unrelated to the initial stop

if he has an objectively reasonable and articulable suspicion [that] illegal activity

has occurred or is occurring.” Id. “Second, further questioning unrelated to the

16
initial stop is permissible if the initial detention has become a consensual

encounter.” Id.

The evidence presented at the suppression hearing established that, after

obtaining Garcia’s and Ubaldo-Viezca’s driver’s licenses and determining that

Garcia had no valid registration for the vehicle, Barnes called BLOC to verify the

information he was provided. Although it took 20 to 25 minutes for this

information to be verified through BLOC, Barnes was permitted to prolong the

detention during this time, because he was investigating the driver’s license and

vehicle registration. See Boyce, 351 F.3d at 1106. Furthermore, by the time

Barnes had completed the BLOC check, he had a reasonable, articulable suspicion

to believe that illegal activity was occurring, based on (1) Ubaldo-Viezca’s attempt

to “take over” the traffic stop and speak for Garcia, who was the driver, (2)

Garcia’s conflicting statements as to whether she purchased the Expedition or was

given the Expedition as payment for a debt, (3) Garcia’s and Ubaldo-Viezca’s

conflicting statements regarding their destination, (4) Garcia’s and

Ubaldo-Viezca’s conflicting statements regarding how they would pay for the

vehicles they intended to purchase, (5) Garcia’s statement that she sometimes still

smuggled people into the United States, (6) Garcia’s statement that Ubaldo-Viezca

was her boyfriend and business partner, even though she did not know his name,

17
(7) Garcia’s inconsistent statements regarding who owned the trailer, and (8) the

fact that Ubaldo-Viezca was a suspect in an ongoing narcotics investigation. See

Pruitt, 174 F.3d at 1220 (“A variety of factors may contribute to the formation of

an objectively reasonable suspicion of illegal activity. Among those factors . . . are

having no proof of ownership of the vehicle, having no proof of authority to

operate the vehicle, and inconsistent statements about destination”).

In addition to the reasonable suspicion justification, Barnes was permitted to

prolong the stop because it had become a consensual encounter. See id. While

Barnes was waiting to hear from BLOC, he gave Garcia the warnings he had

issued, and returned the vehicle title and Ubaldo-Viezca’s and Garcia’s licenses.

After hearing from BLOC, Barnes asked Garcia for consent to search her vehicle,

which Garcia granted. At this point, the stop transformed into a consensual

encounter. See id. Accordingly, the district court did not err in finding that the

duration of the stop was constitutionally permissible.

iv. District Court’s Failure to Hold a Hearing

Ubaldo-Viezca asserts in his appellate brief that the district court erred by

“failing to conduct an independent hearing” in connection with his motion to

suppress. However, he cites no case law and makes no arguments in support of

this claim. Accordingly, we do not address this issue, because Ubaldo-Viezca has

18
abandoned it on appeal. See United States v. Cunningham, 161 F.3d 1343, 1344

(11th Cir. 1998) (holding that a defendant abandons an issue for which no

argument is offered on appeal).

B. Admission of Firearms

We review a district court’s ruling on a motion in limine for abuse of

discretion. United States v. Thompson, 25 F.3d 1558, 1563 (11th Cir. 1994). We

also review for abuse of discretion the district court’s decision to admit or exclude

evidence. United States v. Smith, 122 F.3d 1355, 1357 (11th Cir. 1997). The

harmless error doctrine applies to evidentiary rulings. United States v. Henderson,

409 F.3d 1293, 1300 (11th Cir. 2005); Fed.R.Evid. 103(a); Fed.R.Crim.P. 52(a)

(providing that, under the harmless error standard, “[a]ny error . . . that does not

affect substantial rights must be disregarded”). We review the record de novo

when conducting harmless error analysis. Henderson, 409 F.3d at 1301 n.4.

“Overwhelming evidence of guilt is one factor that may be considered in finding

harmless error.” United States v. Guzman, 167 F.3d 1350, 1353 (11th Cir. 1999);

see United States v. Chavez, 204 F.3d 1305, 1317 (11th Cir. 2000) (finding that

admission of evidence in violation of Fed.R.Evid. 404(b) was harmless error

because the evidence presented at trial was “substantial” and the defendant’s rights

were not affected).

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 The Federal Rules of Evidence provide that

[e]vidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident . . .

Fed.R.Evid. 404(b). “Rule 404(b) does not exclude evidence that is ‘inextricably

intertwined’ with evidence of the charged offense” or “evidence that is ‘linked in

time and circumstances with the charged crime.’” United States v. McNair, 605

F.3d 1152, 1203 (11th Cir. 2010). “Although relevant, evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence.”

Fed.R.Evid. 403.

The government does not assert that the firearms tended to prove motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or

accident. See Fed.R.Evid. 404(b). Instead, it appears to argue, and the district

court appears to have found, that the firearms were “inextricably intertwined” or

“linked in time and circumstances” to the charged offenses. Although we have

recognized that firearms are “tools of the [drug] trade,” see United States v.

Terzado-Madruga, 897 F.2d 1099, 1120 (11th Cir. 1990), there is no evidence that

20
the firearms found at Ubaldo-Viezca’s home were used or possessed in connection

with the charged offenses. Ubaldo-Viezca was charged only with respect to the

fifth trip he and Garcia made to Mexico. At trial, although Garcia testified that she

left the truck containing the cocaine at Ubaldo-Viezca’s house after making the

first four trips to Mexico, there was no evidence that the truck containing the

cocaine was anywhere near Ubaldo-Viezca’s house during the fifth trip.

Furthermore, when Garcia and Ubaldo-Viezca were stopped in Alabama, no

firearms were found in the vehicle or trailer, or on Ubaldo-Viezca’s or Garcia’s

person. There was also no testimony that Ubaldo-Viezca was in possession of a

firearm when he and Garcia crossed into the United States on the fifth trip. Thus,

although the firearms found at Ubaldo-Viezca’s home were linked in time to the

charged offenses—since they were discovered the day after Ubaldo-Viezca was

arrested—there is no evidence that they were linked in “circumstances” or

“inextricably intertwined” with the charged offenses. See McNair, 605 F.3d at

1203.

The government relies on United States v. Ramsdale, 61 F.3d 825 (11th Cir.

1995), for the proposition that weapons are tools of the drug trade and, therefore,

the weapons at Ubaldo-Viezca’s home were properly admissible as circumstantial

evidence that he was involved in drug trafficking. However, the weapons in

21
Ramsdale were found inside a vehicle that also contained methamphetamine. See

id. at 829-30. Thus, unlike in the instant case, the firearms were linked both in

time and circumstances to the underlying drug offense, because the defendant

possessed the narcotics and the firearm simultaneously. Furthermore, the

prejudicial effect of admitting such a large number of weapons, which included

several assault rifles and grenade launchers, likely outweighed any limited

probative value the firearms had. See Fed.R.Evid. 403.

Nevertheless, we affirm Ubaldo-Viezca’s convictions under the harmless

error doctrine, because the evidence presented at trial overwhelmingly

demonstrated his guilt. See Fed.R.Evid. 103(a) (providing that an erroneous

evidentiary ruling does not constitute reversible error unless the error affects a

party’s substantial rights); Henderson, 409 F.3d at 1300; Guzman, 167 F.3d at

1353. Specifically, the evidence showed that Ubaldo-Viezca was a passenger in a

vehicle that was pulling a trailer containing eight kilograms of cocaine.

Ubaldo-Viezca lied to officers, telling them that he was currently working as a

confidential informant in connection with a DEA investigation. Before the cocaine

was discovered, Ubaldo-Viezca admitted that eight kilograms of cocaine were

hidden in the trailer’s axles. According to Herman, Ubaldo-Viezca also admitted

to being present in Garcia’s vehicle when the trailer was brought into the United

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States from Mexico. Herman testified that Garcia told him that she and

Ubaldo-Viezca drove the trailer into Mexico on Saturday, June 23, 2007, and drove

the trailer back into the United States the following Monday. These dates were

corroborated by border crossing documents. Furthermore, Garcia testified that,

during the fifth trip to Mexico, she watched Ubaldo-Viezca place the cocaine in the

trailer. She specifically noted that Ubaldo-Viezca attached a rope to the packages.

Barnes testified that straps were attached to the packages of cocaine when they

were found inside the trailer. Accordingly, because the evidence against

Ubaldo-Viezca was overwhelming, the admission of the firearms into evidence

was harmless error. See Fed.R.Evid. 103(a); Henderson, 409 F.3d at 1300;

Guzman, 167 F.3d at 1353.

C. Substantive Reasonableness of Sentence

We may review a sentence for procedural or substantive reasonableness.

Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 597, 169 L.Ed.2d 445

(2007). In considering the substantive reasonableness of a sentence, we consider

the totality of the circumstances and apply an abuse of discretion standard, under

which we reverse only if we find “that the district court has made a clear error of

judgment.” United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). The

party challenging the sentence “bears the burden of establishing that the sentence is

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unreasonable in the light of both th[e] record and the factors in section 3553(a).”

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

The factors in § 3553(a) that the court must consider are:

(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwa[rra]nted sentencing disparities; and (10) the need to
provide restitution to victims.

Id. at 786 (citing 18 U.S.C. § 3553(a)).

“We may find that a district court has abused its considerable discretion if it

has weighed the factors in a manner that demonstrably yields an unreasonable

sentence.” Pugh, 515 F.3d at 1191. Normally, however, the decision of how much

weight to accord particular factors in devising a sentence is within the discretion of

the district court. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).

Ubaldo-Viezca contends that the district court only considered his applicable

guideline range in determining a reasonable sentence. This argument is belied by

the record, as the district court specifically mentioned several § 3553(a) factors and

stated that it had considered the § 3553(a) factors. Furthermore, the district court

did not abuse its discretion in determining that the § 3553(a) factors warranted a

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255-month sentence. Although Ubaldo-Viezca had no criminal history, Garcia

testified that she and Ubaldo-Viezca had imported and delivered cocaine on four

prior occasions. These additional trips, as well as the significant amount of

cocaine involved and the multitude of weapons found at Ubaldo-Viezca’s

residence, indicate that a sentence in the middle of the applicable guideline range

was warranted by the seriousness of the offense and the need to protect the public.

See 18 U.S.C. § 3553(a)(2)(A), (C). In addition, the fact that Ubaldo-Viezca made

multiple trips and failed to accept responsibility for his role in the offense indicates

that a mid-range sentence was needed for deterrence purposes and to promote

respect for the law. See 18 U.S.C. § 3553(a)(2)(A)-(B). Accordingly, the district

court did not abuse its discretion in imposing a mid-range sentence, and we affirm

Ubaldo-Viezca’s convictions and 255-month sentence.

AFFIRMED.

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