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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-11224
Non-Argument Calendar
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D.C. Docket No. 1:09-cr-20964-JAG-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERTO GRAJALES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 27, 2014)
Before PRYOR, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
Alberto Grajales appeals his conviction and sentence of 220 months of
imprisonment for conspiring and attempting to interfere with commerce by
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robbery, in violation of 18 U.S.C. § 1951(a); conspiring and attempting to possess
with intent to distribute five or more kilograms of cocaine, in violation of 21
U.S.C. § 846; and possessing a firearm in furtherance of a crime of violence and a
drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). 1 We affirm.
I. BACKGROUND
When a confidential informant (“CI”) met with the Bureau of Alcohol,
Tobacco, Firearm and Explosives agents to discuss information he had obtained
regarding Grajales, an undercover reverse sting operation was initiated. The CI
and an undercover law enforcement officer solicited Grajales’s assistance in
planning an armed robbery of 30 kilograms of cocaine from a “stash house.” R at
2699. During Grajales’ trial, the government presented video and audio recordings
of several meetings and telephone calls in which Grajales, the CI, the undercover
officer, and several of Grajales’s co-conspirators planned the robbery over the
course of approximately three weeks. During these conversations, Grajales asked
the CI and the undercover officer numerous questions about the drugs and the stash
house, discussed the need for weapons on several occasions, 2 and discussed how
1
A jury previously had convicted Grajales of the same crimes. See United States v.
Grajales, 450 F. App’x 893, 894 (11th Cir. 2012) (unpublished). In January 2012, we reversed
Grajales’s convictions, because the district judge erred when she (1) failed to give the jury
Grajales’s requested entrapment instruction; (2) instructed the jury Grajales’s mistaken belief
that he was helping law enforcement had to be reasonable; and (3) excluded Grajales’s testimony
regarding a confidential informant’s statements. Id. at 899, 901-02.
2
Some of these conversations included (1) Grajales’s discussing six crewmembers who
2
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the stolen drugs would be divided and sold. On November 4, 2009, the night of the
planned robbery, Grajales and his co-conspirators were arrested, when they arrived
at the final meeting location before they proceeded to the stash house. A loaded
semi-automatic gun was found hidden in a car driven to the scene by one of
Grajales’s co-conspirators.
At the close of the government’s case-in-chief, Grajales moved for a
judgment of acquittal, because (1) there was no proof he actively participated in
drug-dealing, (2) law enforcement was incapable of being robbed, and (3) the
government had not established he was predisposed to commit the charged crimes.
The district judge denied Grajales’s motion. The public defender then presented
testimony of an investigator that, between May and November 2009, the CI had
telephoned Grajales 56 times, and Grajales had telephoned the CI 21 times.
During cross-examination, the investigator testified 31 of those calls occurred
before the government’s investigation began. Grajales renewed his motion for
judgment of acquittal; the district judge denied the motion. At Grajales’s request,
the district judge provided the jury with an entrapment instruction. The jury
convicted Grajales on all charged counts.
would all have guns, (2) Grajales’s telling the CI that one crewmember had a .22 caliber firearm
and a shotgun, and (3) Grajales’s telling the CI, on the night of planned robbery, the crew was
armed.
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The presentence investigation report assigned a base offense level of 34 and
added two levels for Grajales’s role as an organizer, leader, manager, or
supervisor, under U.S.S.G. § 3B1.1(c). The public defender objected and argued
the facts did not support an aggravating-role enhancement. The district judge
overruled Grajales’s role-enhancement objections and adopted the PSI’s factual
findings and Sentencing Guidelines calculations. The judge sentenced Grajales to
a total of 220 months of imprisonment and 5 years of supervised release. On
appeal, Grajales raises three arguments: (1) the evidence was insufficient for the
jury to find Grajales was predisposed to commit the charged offenses; (2) the
evidence was insufficient to support Grajales’s conviction for possession of a
firearm in furtherance of a crime of violence and a drug-trafficking crime; and
(3) the district judge clearly erred in imposing a two-level sentencing enhancement
for Grajales’s role as an organizer, leader, manager, or supervisor in the crimes.
II. DISCUSSION
A. Entrapment Defense
We review de novo a jury’s rejection of an entrapment defense; we view the
evidence in the light most favorable to the government and resolve all reasonable
inferences and credibility evaluations in favor of the jury verdict. United States v.
Haile, 685 F.3d 1211, 1218-19 (11th Cir.) (per curiam), cert. denied, 133 S. Ct.
1723 (2012). An affirmative defense of entrapment requires two elements:
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(1) government inducement of the crime; and (2) the defendant’s lack of
predisposition to commit the crime before the inducement. Id. at 1219. The
defendant bears the burden of proving inducement; after he meets this burden, the
government must prove beyond a reasonable doubt the defendant was predisposed
to commit the crime. United States v. Demarest, 570 F.3d 1232, 1240 (11th Cir.
2009). Where the jury has rejected an entrapment defense and government
inducement is not at issue, our review is limited to deciding whether the evidence
was sufficient for a reasonable jury to find the defendant was predisposed to take
part in the illicit acts. Haile, 685 F.3d at 1219.
Predisposition may be shown by a defendant’s ready commission of the
charged crimes and by evidence the defendant had opportunities to withdraw from
the illegal acts but did not. Demarest, 570 F.3d at 1241. Because an entrapment
defense is fact-intensive, a jury’s consideration of demeanor and credibility can be
pivotal. Id. The jury verdict cannot be overturned if any reasonable construction
of the evidence would allow the jury to find the defendant guilty beyond a
reasonable doubt. United States v. Padron, 527 F.3d 1156, 1159 (11th Cir. 2008).
Grajales’s numerous questions concerning the details of the robbery and his
discussions with the CI and others regarding the need for guns showed he actively
was engaged in planning the robbery. Grajales had several chances to withdraw
from the operation, but he did not. See Demarest, 570 F.3d at 1241. Moreover,
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Grajales designated his home as a meeting place to be used immediately before and
after the robbery; the jury repeatedly heard Grajales was neither hesitant nor
nervous throughout the planning. This evidence was sufficient for the jury to
conclude Grajales readily participated in planning and executing the attempted
armed drug robbery, showing him predisposed to commit the charged crimes. See
Haile, 685 F.3d at 1219; Demarest, 570 F.3d at 1241.
B. Sufficiency of the Evidence
We review whether the evidence was sufficient to support a conviction de
novo, view the evidence in the light most favorable to the government, and draw
all reasonable inferences and credibility choices in the government’s favor. See
United States v. Joseph, 709 F.3d 1082, 1093 (11th Cir.), petition for cert. filed,
No. 13-5319 (U.S. July 10, 2013). Possession of a firearm may be actual or
constructive. United States v. Perez, 661 F.3d 568, 576 (11th Cir. 2011) (per
curiam). A defendant’s knowing participation in a joint criminal venture in which
a particular firearm is intended to play a central part permits the jury to conclude
reasonably the defendant constructively possessed that gun. Id. This is true even
if the defendant never intended to use the gun, because he shares his co-
participants’ intent and jointly possesses the gun as part of the criminal enterprise
surrounding its possession. Id. at 577.
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Grajales does not contest the terms “crime of violence” and “drug trafficking
crime” in § 924(c) include the robbery and drug crimes charged, see 18 U.S.C.
§ 924(c)(2), (3), or that the gun recovered during his arrest was possessed “in
furtherance” of the offenses, see United States v. Woodard, 531 F.3d 1352, 1362
(11th Cir. 2008). Grajales challenges only the jury’s finding he possessed a gun in
this case. The jury heard: (1) while riding in a car on the night of the planned
robbery, Grajales told the CI guns were “inside the hood” and others were armed,
R at 2968; and (2) Grajales helped a co-conspirator hide a gun in one of the cars.
Based on the numerous discussions between Grajales and other co-conspirators
regarding the need for weapons during the robbery, the jury also was entitled to
find Grajales knowingly participated in crimes in which the recovered handgun
was intended to play a central part. See Perez, 661 F.3d at 576-77. We conclude
there was sufficient evidence to support Grajales’s § 924(c)(1)(A) conviction,
because the jury could have determined Grajales knew about the recovered gun. 3
C. Sentencing Enhancement
We review the application of the Sentencing Guidelines de novo and the
district judge’s factual determinations for clear error. United States v. Campa, 529
3
Although Grajales’s indictment charged him with possessing a firearm in furtherance of
a crime of violence and a drug-trafficking crime, it was necessary for the jury only to find
Grajales possessed a firearm in furtherance of a crime of violence or a drug-trafficking crime.
See United States v. Simpson, 228 F.3d 1294, 1300 (11th Cir. 2000) (explaining, where an
indictment charges in the conjunctive several means of violating a statute, a conviction may be
obtained on proof of only one of the means).
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F.3d 980, 992 (11th Cir. 2008). Where a defendant is an organizer, leader,
manager, or supervisor over one or more co-conspirators in a criminal activity, a
two-level sentencing enhancement applies. U.S.S.G. § 3B1.1(c) & cmt. n.2. The
enhancement requires evidence the defendant exerted some control, influence, or
decisionmaking authority over another participant in the criminal activity. United
States v. Martinez, 584 F.3d 1022, 1026 (11th Cir. 2009). The assertion of control
or influence over only one individual is enough to support a § 3B1.1(c)
enhancement. United States v. Perry, 340 F.3d 1216, 1217 (11th Cir. 2003) (per
curiam).
Witnesses testified Grajales recruited at least two other co-conspirators, one
of whom provided protection for Grajales against his remaining co-participants,
which supports finding Grajales exerted some control or influence over one or both
of them. See id. Testimony that Grajales’s co-conspirators met at his home before
the robbery, where Grajales explained the plan to the group, and planned to meet
there again after the robbery, similarly supported finding Grajales exerted some
decisionmaking authority over his co-conspirators. See Martinez, 584 F.3d at
1026. Consequently, there was sufficient evidence to support the enhancement,
and the district judge did not clearly err when he imposed a two-level § 3B1.1(c)
role enhancement.
AFFIRMED.
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