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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-13094
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20096-FAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PATRICE REGINE DUCK,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 1, 2014)
Before TJOFLAT, PRYOR and JORDAN, Circuit Judges.
PER CURIAM:
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Patrice Duck appeals her convictions and sentence of imprisonment for 156
months for importing and possessing with intent to distribute heroin, 21 U.S.C.
§§ 952(a), 841(a). Duck challenges the sufficiency of the evidence to support her
convictions and argues that the district court miscalculated the total offense level
for her sentencing guideline range. The United States concedes that the district
court erred when it miscalculated Duck’s total offense level for sentencing. We
affirm in part, vacate in part, and remand for resentencing.
In February 2013, customs officers at the Miami International Airport
detained Duck and her cousin, who were returning from Venezuela, and discovered
1.96 kilograms of heroin hidden in the lining of Duck’s suitcase. At trial, the
United States offered the testimony of Deniza Nikocevic, an agent of Customs and
Border Protection at the Miami airport, and the testimony of Latoya Gilmer,
Duck’s cousin, to support the charges against Duck of importing and possessing
with intent to distribute heroin. Duck testified in her defense. The jury convicted
Duck on both counts.
At Duck’s sentencing hearing, the district court calculated her base offense
level at 32, U.S.S.G. § 2D1.1(c), applied a two-level enhancement for obstruction
of justice, and a reduction of two levels for mitigating role, id. § 3B1.2, and
calculated a total offense level of 32. The court did not address Duck’s written
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objection that, if the court applied a reduction under section 3B1.2, she was
entitled her to an additional two-level reduction under section 2D1.1(a)(5)(i).
We review both the denial of a motion for judgment of acquittal and a
challenge to the sufficiency of the evidence de novo. United States v. Gamory, 635
F.3d 480, 497 (11th Cir. 2011). We review the evidence in the light most favorable
to the government and interpret all inferences and credibility choices to support the
jury’s verdict. United States v. Williams, 390 F.3d 1319, 1323 (11th Cir. 2004).
We are bound by a jury’s credibility choices so long as the testimony on which the
jury relied was not incredible as a matter of law. United States v. Thompson, 422
F.3d 1285, 1291 (11th Cir. 2005). The government may prove its case through
circumstantial evidence. United States v. Quilca-Carpio, 118 F.3d 719, 721 (11th
Cir. 1997).
Where a defendant charged with drug importation and possession was
caught with luggage containing a significant quantity of hidden drugs, a reasonable
jury may find beyond a reasonable doubt that the defendant knew about the drugs
based on the quantity alone because “a prudent smuggler is not likely to entrust
such valuable cargo to an innocent person without that person’s knowledge.” See
id. at 722. Additional evidence of the defendant’s knowledge of hidden drugs may
include an officer’s testimony that an apparently empty piece of luggage was
unusually heavy or evidence of consciousness of guilt, such as when a defendant
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lies to officers or evinces a lack of surprise when caught. Id. at 720, 722; see
United States v. Almanzar, 634 F.3d 1214, 1222 (11th Cir. 2011) (explaining that
the defendant’s nervous behavior and subsequent lies and implausible stories to
officers regarding the presence of meth discovered in her car proved consciousness
of guilt); United States v. Leonard, 138 F.3d 906, 909 (11th Cir. 1998) (sustaining
firearm and drug possession convictions where officer’s testimony was that none
of the defendants looked surprised when he discovered cocaine and a gun in the car
in which they were riding). And where a jury disbelieves a defendant’s testimony,
it may be considered as substantive evidence of the defendant’s guilt. Williams,
390 F.3d at 1326. “Where some corroborative evidence of guilt exists for the
charged offense and the defendant takes the stand in her own defense, the
Defendant’s testimony, denying guilt, may establish, by itself, elements of the
offense.” Id.
Sufficient evidence supports Duck’s convictions. Duck disputes the
sufficiency of the evidence only as to her knowledge of the heroin hidden in her
suitcase, but the record supports a finding that Duck knew about the heroin.
Duck’s suitcase contained nearly two kilograms—over four pounds—of heroin, an
amount a drug dealer would be unlikely to risk with an unknowing bystander.
Quilca-Carpio, 118 F.3d at 722. And the government presented additional
evidence that she knew about the drugs. For example, although Duck testified that
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she did not notice anything unusual about the suitcase before buying it, the
Customs and Border Patrol agent who searched her suitcase testified that, when the
suitcase was empty of all visible contents, it still had a bulge at the bottom and felt
unusually heavy. See id. Duck also lied to the agent when she told her that she
had owned the suitcase “for a while,” when in fact she had acquired it only 48
hours earlier. See Almanzar, 634 F.3d at 1222. Duck did not act surprised when
the agent discovered the heroin. See Leonard, 138 F.3d at 909. On the contrary, in
text messages she sent to her fiancé and another man while detained, Duck
informed them that she “didn’t make it” past customs. And Duck’s implausible
testimony supports her convictions. She testified that she was on probation, but
did not tell her probation officer about the trip; she bought the heroin-laden
suitcase at a happenstance encounter with a man who sold luggage; that she did so
to transport shopping purchases that she never made; and that she was unaware that
drugs were hidden inside of it. Because the jury necessarily disbelieved her
account, her testimony provided additional substantive evidence of her guilt.
Williams, 390 F.3d at 1326. Ample evidence allowed a reasonable juror to find
beyond a reasonable doubt that Duck knowingly imported and possessed the heroin
in her suitcase. We affirm her convictions.
Duck argues, and the government concedes, that the district court committed
reversible error when it miscalculated her total offense level. The Sentencing
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Guidelines provide for a two-level reduction to a base offense level if a defendant
was a minor participant in the criminal activity. U.S.S.G § 3B1.2(b). And
section 2D1.1(a)(5) provides that, if a court applies that reduction to a base offense
level calculated under the drug quantity tables and the offense level is 32, then the
court shall apply an additional two-level reduction, so that the total offense level is
30. Id. § 2D1.1(a)(5)(i). An offense level of 30 and a criminal history category of
II yields a guideline range of 108–135 months imprisonment. See id. App. G,
sentencing table (Nov. 2012). The district court reduced Duck’s drug-related
offense level to 32 under section 3B1.2, but failed to reduce the level to 30, as
required by section 2D1.1(a)(5)(i). The district court stated its intent to impose a
sentence within the applicable guideline range, and Duck’s sentence is 21 months
above the range that would have applied, but for the error. Accordingly, we vacate
Duck’s sentence and remand to allow the district court to resentence her at the
correct total offense level of 30 and the corresponding advisory guideline range of
108–135 months.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR
RESENTENCING.
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