United States v. Nemias Cintora-Gonzalez

Case: 13-13157 Date Filed: 06/24/2014 Page: 1 of 21

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 13-13157
Non-Argument Calendar
________________________

D.C. Docket No. 1:12-cr-00078-ODE-RGV-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

NEMIAS CINTORA-GONZALEZ,
a.k.a. Diego,
a.k.a. Cristobal Mata Aleman,
JORGE ARMANDO-REYES,
a.k.a. Jose Gusman,
a.k.a. Jose Roberto Gusman Vasquez,
a.k.a. Chapito,

Defendants-Appellants.

________________________

Appeals from the United States District Court
for the Northern District of Georgia
________________________
(June 24, 2014)

Before TJOFLAT, JORDAN and KRAVITCH, Circuit Judges.

PER CURIAM:
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Nemias Cintora-Gonzalez and Jorge Armando-Reyes challenge their

convictions and total sentences for drug, firearm, and counterfeiting offenses. For

the reasons that follow, we affirm.

I.

Cintora-Gonzalez and Armando-Reyes were charged, along with several

others, with conspiracy to distribute at least 500 grams of methamphetamine and at

least 5 kilograms of cocaine, in violation of 21 U.S.C. § 846 (Count 1); possession

with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1)(A) (Count

2); possession with intent to distribute methamphetamine, in violation of 21 U.S.C.

§ 841(a)(1)(A) (Count 3); possession of a firearm in furtherance of a drug-

trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(B)(i) (Count 4); possession

of a firearm by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5), 924(a)(2)

(Count 6); and possession of counterfeit federal reserve notes, in violation of 18

U.S.C. § 472 (Count 8). They were convicted of all the above counts, with the

jury specifically finding that the amount of drugs in Count 1 was at least 500 grams

of methamphetamine and at least 5 kilograms of cocaine.

At a joint sentencing, the district court found that Cintora-Gonzalez’s base

offense level for the drug offenses was 34 given the amount of drugs involved, that

he served as the leader of the charged conspiracy, and that he maintained a

premises for distributing drugs. With respect to the § 922(g) offense, the court

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found that he possessed 17 firearms. His corresponding guidelines range was 292

to 365 months’ imprisonment for the drug offenses, the § 922(g) offense, and the

counterfeiting offense. Count 4, the § 924(c) offense, carried a consecutive

statutory mandatory minimum sentence of 60 months’ imprisonment. The court

sentenced him to a total sentence of 352 months, which resulted from a sentence at

the low end of the guidelines range plus a mandatory 60 month term on Count 4.

The court sentenced Armando-Reyes to a 211-month total sentence based on a

low-end guideline sentence of 151 months because Armando-Reyes was

responsible for a lesser amount of drugs, he did not maintain the premises for drug

distribution, and he did not qualify as a leader of the conspiracy, plus a mandatory

60 month term on Count 4.

The defendants now appeal. Specifically, Cintora-Gonzalez challenges the

admission of certain testimony as prejudicial and his sentence as improperly

calculated for several reasons. Armando-Reyes challenges the admission of voice

identification evidence and the calculation of his sentence. 1 We address each

defendant’s arguments in turn.

II.

A. Cintora-Gonzalez

1 Armando-Reyes indicated in his brief that he was adopting Cintora-Gonzalez’s brief. But
Armando-Reyes was not subject to the enhancement for maintaining a premises or leadership of
the conspiracy, and the district court determined he was responsible for a lesser amount of drugs.
Thus, it is unclear exactly what arguments he intended to adopt.
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1. Admission of testimony

Cintora-Gonzalez argues that the district court erred in admitting a law

enforcement agent’s testimony regarding a series of intercepted calls in which

Cintora-Gonzalez allegedly made serious threats to an individual named “La

Torta,” who owed him a drug debt. He maintains that the testimony was unduly

prejudicial and, therefore, inadmissible under Fed. R. Evid. 403.

We review the district court’s evidentiary rulings for an abuse of discretion.

United States v. Brown, 415 F.3d 1257, 1264-65 (11th Cir. 2005). An abuse of

discretion can occur where the district court applies the wrong law, follows the

wrong procedure, bases its decision on clearly erroneous facts, or commits a clear

error in judgment. Id. at 1266.

Evidence is admissible if relevant, and evidence is relevant if it has any

tendency to prove or disprove a fact of consequence. Fed. R. Evid. 401, 402. A

district court may exclude relevant evidence under Rule 403 if “its probative value

is substantially outweighed by a danger of . . . unfair prejudice, confusing the

issues, misleading the jury, undue delay, wasting of time, or needlessly presenting

cumulative evidence.” Fed. R. Evid. 403. Relevant evidence is often inherently

prejudicial, so the rule “permits exclusion only when unfair prejudice substantially

outweighs probative value.” United States v. Merrill, 513 F.3d 1293, 1301 (11th

Cir. 2008) (quotation omitted). Thus, we have cautioned that Rule 403 “is an

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extraordinary remedy which the district court should invoke sparingly, and the

balance should be struck in favor of admissibility.” United States v. Lopez, 649

F.3d 1222, 1247 (11th Cir. 2011).

On review, we conclude that the district court did not abuse its discretion in

admitting the agent’s testimony. Cintora-Gonzalez’s drug-debt-related threats to

La Torta evidenced the existence of the charged drug conspiracy, which Cintora-

Gonzalez admits, and the extent of the conspiracy, which he continues to dispute.

In other words, the threats had a tendency to prove, albeit indirectly, the large drug

quantities charged in the indictment. Moreover, the imminent nature of the threats

led agents to end their investigation quickly, before the arrival of some of the drugs

discussed in the intercepted calls. As such, the government had to rely on the calls

to establish the scope of the conspiracy. The testimony concerning the threats

against La Torta thus completed the story and explained why the investigation

ended abruptly.

Although the evidence of his threats may have proved prejudicial to Cintora-

Gonzalez’s defense, that is often the case with relevant evidence. See Merrill, 513

F.3d at 1301. Cintora-Gonzalez has not shown that the risk of misleading the jury

was so great that the court abused its discretion by admitting the testimony. See

id.; Fed. R. Evid. 403.

2. Sentencing

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We review the district court’s interpretation of the Sentencing Guidelines de

novo and accept its factual findings unless clearly erroneous. United States v.

Jordi, 418 F.3d 1212, 1214 (11th Cir. 2005). We will not reverse a sentencing

determination if it proved harmless. United States v. Gallegos-Aguero, 409 F.3d

1274, 1276 (11th Cir. 2005). An error is harmless if, “viewing the proceedings in

their entirety, a court determines that the error did not affect the [sentence], or had

but very slight effect.” United States v. Hornaday, 392 F.3d 1306, 1315 (11th Cir.

2004) (quotations and citation omitted). When a defendant fails to state clearly the

grounds for an objection, however, his objection is reviewed only for plain error.

United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003). Plain error exists

when: (1) there is an error, (2) that is plain, (3) that seriously affects a defendant’s

substantial rights, and (4) seriously affects the fairness, integrity, or public

reputation of judicial proceedings. United States v. Acevedo, 285 F.3d 1010, 1012

(11th Cir. 2002).

a. Quantity of drugs

Cintora-Gonzalez challenges the court’s determination of the drug quantity

for which he was responsible and its alleged failure to make particularized

findings. For sentencing purposes, the government bears the burden of

establishing drug quantity by a preponderance of the evidence. United States v.

Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005). The district court must ensure

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that the government carries this burden by presenting reliable and specific

evidence. United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995). Where

there is no drug seizure, or the amount seized does not reflect the extent of the

offense, the court should approximate the drug quantity. United States v. Frazier,

89 F.3d 1501, 1506 (11th Cir. 1996). In estimating the drug quantity attributable

to the defendant, the court’s determination “may be based on fair, accurate, and

conservative estimates of the quantity of drugs attributable to a defendant, . . . [but

it] cannot be based on calculations of drug quantities that are merely speculative.”

United States v. Zapata, 139 F.3d 1355, 1359 (11th Cir. 1998).

The Sentencing Guidelines create differing base offense levels for drug

offenses depending on the quantity of drugs involved. See U.S.S.G. § 2D1.1(c).

When different types of drugs are involved, the court converts each of the drugs to

its marijuana equivalent and adds the quantities to obtain a single offense level for

a defendant. Id. § 2D1.1, comment. (n.10(B)). Under the 2012 Drug Quantity

Table applied in this case, a base offense level of 34 corresponded to offenses

involving at least 3,000 kilograms, but less than 10,000 kilograms, of marijuana.

Id. § 2D1.1(c)(3).

At sentencing, defense counsel discussed the amount of drugs listed in the

presentence investigation report (PSI), conceding some amounts and challenging

others. The government noted that the jury had specifically found that Cintora-

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Gonzalez was responsible for at least 500 grams of methamphetamine and 5

kilograms of cocaine, which corresponded to a level 32 in the Drug Table. The

court considered the amounts Cintora-Gonzalez conceded distributing, about 1,559

kilograms of marijuana equivalency, and the amounts discussed in various

intercepted phone calls. Specifically, the court relied on: (i) a stipulated recorded

phone call from October 29, 2011, in which Cintora-Gonzalez discussed the sale of

5 kilograms of cocaine (1,000 kilograms of marijuana equivalency); and

(ii) evidence of an October 10, 2011 phone call, wherein Cintora-Gonzalez agreed

to deliver a half pound of methamphetamine (453.6 kilograms of marijuana

equivalency). Although the court agreed with the defense that certain amounts

were not supported by the evidence, the court found that there was reliable

evidence to bring the amount over 3,000 kilograms and an offense level of 34.

U.S.S.G. § 2D1.1(c)(3). Because the district court relied on specific evidence of

the attributable drug quantities involved in the offense conduct—including

admissions by Cintora-Gonzalez—it did not clearly err in assigning him a base

offense level of 34. See Lawrence, 47 F.3d at 1566.

Moreover, we see no plain error in the manner in which the district court

determined the drug quantity. 2 The court meticulously reviewed, and made

findings with respect to, each of the discrete and particularized drug quantity

2 Cintora-Gonzalez raises this argument for the first time on appeal.
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allegations contained in the PSI. See Acevedo, 285 F.3d at 1012. For these

reasons, we affirm the district court’s determination of the drug quantity.

b. Maintaining a premises

Next, Cintora-Gonzalez challenges the district court’s finding that he used

his apartment for drug manufacturing and distribution. Section 2D1.1(b)(12) of the

Guidelines calls for a two-level enhancement “[i]f the defendant maintained a

premises for the purpose of manufacturing or distributing a controlled substance,”

including storage of a controlled substance for the purposes of distribution.

U.S.S.G. § 2D1.1(b)(12) & comment. (n.17). To determine whether the

enhancement is applicable, the court should consider “whether the defendant held a

possessory interest in [] the premises and [] the extent to which the defendant

controlled access to, or activities at, the premises.” Id. § 2D1.1, comment. (n.17).

Manufacturing or distributing a controlled substance need not be the
sole purpose for which the premises was maintained, but must be one
of the defendant’s primary or principal uses for the premises, rather
than one of the defendant’s incidental or collateral uses for the
premises. In making this determination, the court should consider how
frequently the premises was used by the defendant for manufacturing
or distributing a controlled substance and how frequently the premises
was used by the defendant for lawful purposes.
Id.

Few circuits have addressed this guideline, and we have done so only in a

single unpublished opinion. United States v. Vega, 500 F. App’x 889, 891 (11th

Cir. 2012) (unpublished) (concluding that the district court did not plainly err in

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applying the enhancement where the defendant sold cocaine from his home on

multiple occasions). We thus turn to the reasoning of our sister circuits.

The Eighth Circuit considered the application of § 2D1.1(b)(12) to a

premises that served both as the defendants’ home and a stash house. United

States v. Miller, 698 F.3d 699, 706-07 (8th Cir. 2012). There, the court looked at

numerous factors, such as quantities of drugs involved, storage of “tools of the

trade,” maintenance of business records, and customer interactions, to determine

whether the principal use of the residence was drug distribution. The court had

little difficulty applying the enhancement to Mr. Miller, the primary drug trafficker

involved. But as to his wife, the court found the enhancement applicable as well,

despite her more limited role in the distribution, because she was specifically

involved in at least three transactions at the home, she used her son to deliver drugs

to one of the buyers, and she collected payment for drugs on several occasions.

Moreover, the court determined that under 21 U.S.C. § 856 and § 2D1.1(b)(12),

Congress intended to deter the use of primary residences as stash houses. In light

of all of these factors, the court found that the enhancement would apply to a

defendant who used her primary residence to distribute drugs. Id. at 705-07.

Relying on Miller, the Seventh Circuit considered and applied the

enhancement to a defendant who sold drugs out of his home. See United States v.

Flores-Olague, 717 F.3d 526, 531-32 (7th Cir.), cert. denied, 134 S.Ct. 211

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(2013).3 The court explained that a defendant “maintained” a premises for drug

distribution if “he owns or rents premises, or exercises control over them, and for a

sustained period of time, uses those premises to manufacture, store, or sell drugs,

or directs others to those premises to obtain drugs.” Id. at 532 (citing United States

v. Acosta, 534 F.3d 574, 591 (7th Cir. 2008)). The court also considered the

number of drug transactions that occurred on the premises. Because the defendant

in Flores-Olague had stored cocaine on the premises for several years, sold it to at

least ten regular customers, and had firearms in the home, the court concluded that

the enhancement applied.

The Sixth Circuit upheld the application of § 2D1.1(b)(12) where the

defendant had both a possessory interest in the residence and controlled the access

to the home. See United States v. Johnson, 737 F.3d 444, 447 (6th Cir. 2013). In

reaching this conclusion, the Sixth Circuit explained that “[T]he more

characteristics of a business that are present” in the home—such as “tools of the

trade (e.g., laboratory equipment, scales, guns and ammunition to protect the

inventory and profits),” “profits,” including large quantities of cash, and “multiple

employees or customers”—“the more likely it is that the property is being used ‘for

3 The Seventh Circuit first addressed § 2D1.1(b)(12) in United States v. Sanchez, 710 F.3d 724
(7th Cir. 2013), vacated by, 134 S.Ct. 146 (2013). Because Sanchez has been vacated, albeit on
other grounds, we rely on the analysis in Flores-Olague.
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the purpose of’ [prohibited] drug activities.” Id. at 447-48 (quoting United States

v. Verners, 53 F.3d 291, 295-97 (10th Cir. 1995) (discussing 21 U.S.C. § 856)).

Relying on this persuasive authority, we conclude that the district court

properly applied § 2D1.1(b)(12) to Cintora-Gonzalez’s guidelines calculations.

The evidence at trial showed that Cintora-Gonzalez used his apartment for the

purpose of manufacturing or distributing drugs. Cintora-Gonzalez concedes his

proprietary interest in the premises. And the evidence showed Cintora-Gonzalez

controlled access to and activities at the apartment.

Cintora-Gonzalez’s former girlfriend, Brenda Perez, testified that she leased

the apartment on his behalf. Additionally, Perez observed drugs in the apartment

“[e]very time” she visited; she observed Cintora-Gonzalez chop up and mix a

block of cocaine in the kitchen; there were boxes of baggies in the apartment; and

Cintora-Gonzalez “always” had a gun in the bedroom. Perez’s observations were

consistent with the drugs, multiple firearms, ammunition, plastic baggies, digital

scale, acetone, and counterfeit currency recovered by law enforcement agents after

they searched the apartment. The presence of these “tools of the trade” supports

the district court’s conclusion that Cintora-Gonzalez maintained this residence for

the purpose of drug distribution. Additionally, the evidence showed that Cintora-

Gonzalez directed others to weigh and distribute drugs when he was out. Although

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we do not know the number of transactions that occurred at the apartment, under

these facts, we conclude that the application of § 2D1.1(b)(12) was proper.

c. Number of firearms

Cintora-Gonzalez also challenges the district court’s finding that his

§ 922(g) offense involved between 8 and 24 firearms because there was no

evidence he knew of the guns in his codefendant’s car. He concedes there were

five firearms involved, and thus a two-level increase would be appropriate.

Under § 2K2.1(b)(1), a four-level increase applies if an offense involved 8 to

24 firearms, and a two-level increase applies if an offense involved 3 to 7 firearms.

U.S.S.G. § 2K2.1(b)(1)(A), (B). “[O]nly those firearms that were unlawfully

sought to be obtained, unlawfully possessed, or unlawfully distributed” are to be

counted under § 2K2.1(b)(1). Id. § 2K2.1, comment. (n.5).

In this instance, the district court did not clearly err in its application of the

§ 2K2.1(b)(1)(B) enhancement with respect to his firearm conviction. Cintora-

Gonzalez does not dispute that the title and the keys to the car in which the

additional firearms were discovered were found in his apartment, or that the

vehicle itself was located in the parking lot. But even if the court erred in this

respect, any such error was harmless because Cintora-Gonzalez’s combined total

guideline range was determined by the offense level corresponding to the drug-

trafficking offenses, not his firearm conviction. Thus, any reduction in the

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guideline range applicable to the firearm offense would prove inconsequential. See

Hornaday, 392 F.3d at 1315.

d. Acceptance of responsibility

Next, Cintora-Gonzalez challenges the district court’s decision not to award

any reduction for acceptance of responsibility under § 3E1.1. We review a denial

of a reduction of sentence for an acceptance of responsibility for clear error.

United States v. Knight, 562 F.3d 1314, 1322 (11th Cir. 2009). “Because

demonstration of whether or not the defendant has personally accepted

responsibility for his criminal conduct requires a consideration of both objective

factors and subjective considerations of the defendant’s demeanor and sincerity,

the district court’s determination will not be overturned unless it is without

foundation.” United States v. Castillo-Valencia, 917 F.2d 494, 500 (11th Cir.

1990).

Section 3E1.1 provides that the defendant’s offense level should be

decreased by two points if he “clearly demonstrates acceptance of responsibility

for his offense.” U.S.S.G § 3E1.1(a). But the commentary to § 3E1.1 explains

that the adjustment “is not intended to apply to a defendant who puts the

government to its burden of proof at trial by denying the essential factual elements

of guilt, is convicted, and only then admits guilt and expresses remorse.” Id. §

3E1.1, comment. (n.2). In determining whether a defendant has accepted

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responsibility under § 3E1.1, the district court may not refuse to find an acceptance

of responsibility per se simply because the defendant has elected to go to trial.

Castillo-Valencia, 917 F.2d at 500. On the other hand, “the entry of a not guilty

plea and insistence upon a trial are factors that may be considered in deciding

whether or not a defendant has in fact accepted responsibility for wrongful

conduct.” Id. at 501. Ultimately, § 3E1.1 “is intended to reward those defendants

who affirmatively acknowledge their crimes and express genuine remorse for the

harm caused by their actions.” United States v. Carroll, 6 F.3d 735, 740 (11th Cir.

1993).

Generally, a defendant who pleads guilty but contests the drug quantity is

not entitled to a reduction under § 3E1.1, and Cintora-Gonzalez has pointed to no

authority otherwise. See, e.g., United States v. Garrasteguy, 559 F.3d 34, 39-40

(1st Cir. 2009) (concluding that the defendant was not entitled to a reduction under

§ 3E1.1 where the defendant went to trial to contest the amount of drugs for which

he was responsible); United States v. Acosta, 534 F.3d 574, 580 (7th Cir. 2008)

(denying an acceptance-of-responsibility reduction where defendant pleaded guilty

but challenged certain factual assertions in PSI); United States v. Annis, 446 F.3d

852, 857-58 (8th Cir. 2006) (denying acceptance-of-responsibility reduction where

defendant pleaded guilty but refused to admit to any drug quantity and challenged

reliability of prior statement to authorities).

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Therefore, we conclude that the district court did not clearly err in refusing

to award Cintora-Gonzalez a reduction for acceptance of responsibility under

§ 3E1.1(a). Although his decision to proceed to trial did not preclude the

adjustment, see Castillo-Valencia, 917 F.2d at 500, this is not one of the “rare

situations” in which the reduction is still applicable, see § 3E1.1, comment. (n.2).

Cintora-Gonzalez did not go to trial to challenge the constitutionality of the statute

under which he was charged. Rather, he contested factual allegations of the

offense conduct.

Moreover, the court did not rely solely on the fact that he went to trial in

denying the reduction. The court also noted the lack of documentation related to

the purported plea negotiations or a written statement in which he formally

accepted responsibility for the offense conduct. Although Cintora-Gonzalez

conceded his guilt, the record in this case appears to lack any indication that he

was genuinely remorseful for his conduct. Accordingly, the court properly denied

the reduction.

e. Reasonableness

In his last argument on appeal, Cintora-Gonzalez contests the substantive

reasonableness of his 292-month sentence. We review the substantive

reasonableness of a sentence for abuse of discretion. Gall v. United States, 552

U.S. 38, 51 (2007).

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“The review for substantive unreasonableness involves examining the

totality of the circumstances, including an inquiry into whether the statutory factors

in § 3553(a) support the sentence in question.” United States v. Gonzalez, 550

F.3d 1319, 1324 (11th Cir. 2008). The court must consider several factors,

including the nature and circumstances of the offense, the history and

characteristics of the defendant, the need to protect the public from further crimes

of the defendant, the applicable guideline range, and the need to avoid unwarranted

sentencing disparities between similarly situated defendants. See 18 U.S.C. §

3553(a). Notably, the “weight to be accorded any given § 3553(a) factor is a

matter committed to the sound discretion of the district court.” United States v.

Clay, 483 F.3d 739, 743 (11th Cir. 2007) (quotations omitted).

Although we do not automatically presume that a sentence within the

guidelines range is reasonable, we ordinarily expect that to be the case. United

States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). A sentence well below the

statutory maximum sentence also signals reasonableness. See Gonzalez, 550 F.3d

at 1324. Moreover, we have held that a defendant’s sentence was reasonable in

light of the command to avoid unwarranted sentencing disparities where, due to a

defendant’s leadership role, he received a sentence greater than the sentences of his

codefendants. See, e.g., United States v. Thomas, 446 F.3d 1348, 1350, 1357 (11th

Cir. 2006) (holding that the defendant’s 121-month sentence was reasonable even

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though his codefendants’ sentences ranged from 41 to 53 months’ imprisonment

because the defendant had coordinated the offense). Ultimately, we will vacate a

sentence only if “left with the definite and firm conviction that the district court

committed a clear error of judgment in weighing the § 3553(a) factors by arriving

at a sentence that lies outside the range of reasonable sentences dictated by the

facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en

banc) (quotation omitted). “[T]he party who challenges the sentence bears the

burden of establishing that the sentence is unreasonable in the light of both [the]

record and the factors in section 3553(a).” United States v. Talley, 431 F.3d 784,

788 (11th Cir. 2005).

Cintora-Gonzalez has not met his burden. Cintora-Gonzalez’s sentence on

the drug offenses fell within the guideline range and well below the statutory

maximum sentence of life imprisonment as to the conspiracy count, both of which

signal reasonableness. See 21 U.S.C. § 841(b)(1)(A); Hunt, 526 F.3d at 746;

Gonzalez, 550 F.3d at 1324. Moreover, his offense conduct included a leadership

role and threats of personal injury in a heavily armed conspiracy involving large

amounts of drugs. The dangerousness of that conduct and the public’s interest in

safety support the court’s sentencing determination. And although Cintora-

Gonzalez’s co-conspirators received lighter sentences, his leadership role in the

conspiracy warranted the disparity. See Thomas, 446 F.3d at 1350, 1357.

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Cintora-Gonzalez points in part to his clean criminal history as a factor

weighing in favor of a lighter sentence, but even though the history of the

defendant is certainly a consideration, the court also considered the guideline

range, the nature and circumstances of the offense, and the need to protect the

public from further crimes. See 18 U.S.C. § 3553(a). Under these facts, Cintora-

Gonzalez cannot show his sentence is substantively unreasonable.

B. Armando-Reyes

1. Voice identification

Armando-Reyes first challenges the district court’s admission of testimony

from the government’s voice expert. Generally, we review evidentiary rulings for

an abuse of discretion. United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir.

2005). When a defendant fails to make an objection or argument in the district

court, however, review is limited to plain error.4 See United States v. Duncan, 381

F.3d 1070, 1073 (11th Cir. 2004).

Voice identification testimony can be admitted only after it is determined

sufficient evidence supports a finding that “the item is what the proponent claims it

is.” Fed. R. Evid. 901(a). A speaker’s voice may be identified by opinion

testimony “based on hearing the voice at any time under circumstances that

4 Although Armando-Reyes objected at trial to the testimony as improper expert testimony, he
did not challenge the evidence on the ground raised on appeal. Thus, he has abandoned the
arguments made in the district court, Holland v. Gee, 677 F.3d 1047, 1066 (11th Cir. 2012), and
we review his new arguments for plain error.
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connect it with the alleged speaker.” Id. 901(b)(5). “Once a witness establishes

familiarity with an identified voice, it is up to the jury to determine the weight to

place on the witness’s voice identification.” Brown v. City of Hialeah, 30 F.3d

1433, 1437 (11th Cir. 1994). Credibility determinations will not be disturbed on

appeal unless the testimony is “incredible as a matter of law,” meaning that it

relates to “facts that the witness could not have possibly observed or events that

could not have occurred under the laws of nature.” United States v. Flores, 572

F.3d 1254, 1263 (11th Cir. 2009).

Here, the district court did not err, plainly or otherwise, in admitting the

voice-identification testimony. Although Armando-Reyes argues to the contrary,

the record of the expert’s testimony shows that she familiarized herself with his

voice through a phone call with him while he was in federal custody awaiting trial.

Rule 901(b)(5) requires no more foundation than that. See Fed. R. Evid. 901(b)(5).

Moreover, it does not matter that the expert could not specifically identify which of

the 20 to 30 recorded calls she used to voice-identify him, because, importantly,

she was able to voice-identify him in each of the recorded calls introduced into

evidence. With a proper foundation in place under Rule 901(b)(5), it then fell to

the jury to determine the credibility of her identification testimony, Brown, 30 F.3d

at 1437, and, there being nothing “incredible” in her testimony, the jury’s

determination in that regard will not be disturbed, Flores, 572 F.3d at 1263.

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 Case: 13-13157 Date Filed: 06/24/2014 Page: 21 of 21

2. Sentencing

Armando-Reyes argues, like Cintora-Gonzalez, that the district court clearly

erred in refusing to award him a § 3E1.1 reduction. We conclude the court

properly denied the reduction for the reasons discussed previously.

III.

For the above reasons, we affirm the convictions and sentences for both

Cintora-Gonzalez and Armando-Reyes.

AFFIRMED.

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