[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10837 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 24, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 9:09-cr-80094-KLR-1
UNITED STATES OF AMERICA,
llllllllllllllllllll lPlaintiff-Appellee,
versus
GENO ROLLE,
llllllllllllllllllll l Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(June 24, 2011)
Before HULL, PRYOR and BLACK, Circuit Judges.
PER CURIAM:
Geno Rolle appeals his convictions and 135-month sentence after being
found guilty of aiding and assisting aliens to illegally enter the United States, in
violation of 8 U.S.C. § 1327 and 18 U.S.C. § 2, and illegally reentering or
attempting to reenter the United States, in violation of 8 U.S.C. § 1326(a) and
(b)(2). Rolle raises several issues on appeal, which we address in turn. After
review, we affirm Rolle’s convictions and sentence.
I.
Rolle first asserts the district court erred in “numerous instances” by
permitting the Government to introduce inadmissible evidence. He points to three
specific rulings he suggests are emblematic of a broader failure to police the
admission of evidence throughout the trial. First, he argues the court failed to rule
on his objection to the Government’s leading of a witness. Second, he argues the
court erred in overruling his objection to the introduction of a defense witness’s
prior sworn statements because the prejudicial effect of the statements outweighed
their probative value. Third, he contends the court erred in permitting the
Government to question him about two smuggling trips he took in 2005, since the
Government failed to provide prior notice of its intent to do so.1
1
We review a district court’s preserved evidentiary rulings for an abuse of discretion.
United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003). However, evidentiary errors
2
A.
The district court is required to “exercise reasonable control over the mode
and order of interrogating witnesses and presenting evidence so as to . . . make the
interrogation and presentation effective for the ascertainment of the truth.” Fed.
R. Evid. 611(a). The court should generally ensure “[l]eading questions [are] not
used on the direct examination of a witness except as may be necessary to develop
the witness’ testimony.” Fed. R. Evid. 611(c).
Rolle’s contention that he was substantially prejudiced by a leading
question is without merit. The record shows the prosecutor’s question sought only
to clarify prior testimony, not to improperly supply the witness with new
information. Moreover, the prosecutor immediately rephrased the question upon
objection, rendering a ruling from the court unnecessary.
B.
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.” Fed. R. Evid. 403. However, Rule 403 “is an extraordinary
remedy which the district court should invoke sparingly, and the balance . . .
raised for the first time on appeal are reviewed for plain error only. Id. We review the
prejudicial effect of all evidentiary errors, evaluated under both preserved and plain-error
standards, in the aggregate. United States v. Baker, 432 F.3d 1189, 1203 (11th Cir. 2005).
3
should be struck in favor of admissibility.” United States v. Dodds, 347 F.3d 893,
897 (11th Cir. 2003) (quotations and ellipsis omitted).
We review Rolle’s challenge to the admission of the prior sworn statements
for plain error only, since he did not specifically object to their prejudicial value at
trial. After review, we find that contrary to Rolle’s contention on appeal, the
statements were not prejudicial at all, but rather were completely consistent with
the defense’s theory.
C.
Evidence of other crimes, wrongs or acts may be admissible as proof of the
absence of mistake. Fed. R. Evid. 404(b). However, upon the request of the
accused, “the prosecution in a criminal case shall provide reasonable notice in
advance of trial, or during trial if the court excuses pretrial notice on good cause
shown, of the general nature of any such evidence it intends to introduce at trial.”
Id.
Even if the district court erred in permitting the prosecutor to question Rolle
about the two smuggling trips he made in 2005, the error was ultimately harmless.
The evidence of the two additional trips was largely cumulative, and Rolle
undoubtedly would have been convicted even if the Government had provided
prior notice.
4
II.
Next, Rolle argues the district court erred in denying his motion for a
judgment of acquittal. Specifically, he asserts the Government’s evidence was
insufficient to establish that he intentionally sailed toward the United States and
was not merely lost at sea. He also contends the Government failed to establish
that he entered the country while free from Government surveillance, or that he
was aware his passengers were inadmissible.2
To prevail on an insufficient-evidence claim, the defendant must establish
that no “rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789 (1979). Where a criminal indictment charges multiple bases for
conviction under a single statute, a conviction may be upheld so long as sufficient
evidence supports any of the bases. See United States v. Goldsmith, 109 F.3d 714,
716 (11th Cir. 1997).
8 U.S.C. § 1326(a) generally prohibits individuals who have been
previously removed from the United States from reentering, attempting to reenter,
or being “found in” in the United States. See 8 U.S.C. § 1326(a). To sustain an
2
We review insufficient evidence claims de novo, viewing the evidence in the light “most
favorable to the verdict . . . [and making] all inferences and credibility determinations in favor of
the verdict.” United States v. Chirino-Alvarez, 615 F.3d 1344, 1346 (11th Cir. 2010).
5
illegal attempted reentry conviction under § 1326(a), the Government must prove
the defendant: (1) was an alien at the time of the offense; (2) had previously been
removed; (3) had not received the express consent of the Attorney General to
apply for readmission; and (4) attempted to enter the United States. United States
v. Marte, 356 F.3d 1336, 1345 (11th Cir. 2004). To sustain a conviction under §
1327 for aiding or assisting aliens to illegally enter the United States, the
Government must prove: (1) the defendant aided and assisted an alien to enter the
United States; (2) the alien was inadmissible under 8 U.S.C. § 1182(a)(2) due to a
prior felony conviction; and (3) the defendant engaged in his act of aiding or
assisting knowing that the alien was inadmissible. See 8 U.S.C. § 1327. Section
1327 allows for conviction if the defendant knew that the alien was inadmissible
for any reason; it does not require the defendant specifically knew about the
alien’s prior felony conviction. United States v. Lopez, 590 F.3d 1238, 1254 (11th
Cir. 2009), cert. denied, 131 S.Ct. 413 (2010).
Rolle’s convictions are supported by sufficient evidence. As to his
conviction under § 1326(a), the superseding indictment charged both reentry and
attempted reentry, and the conviction can be upheld on the basis of attempted
reentry. The first three elements of attempted reentry are undisputed. As to the
fourth element, the Government introduced overwhelming evidence Rolle
6
attempted to reenter the United States, including a videotape that showed him
sailing directly toward the coast of Florida at high speed.
As to § 1327, the same evidence that established Rolle’s attempt to reenter
the country also established his effort to assist his passengers in doing likewise.
Further, the evidence at trial showed his passengers were inadmissible under
8 U.S.C. § 1182(a)(2), and Rolle was aware they were not carrying valid reentry
documents. Accordingly, the district court did not err in denying Rolle’s motion
for a judgment of acquittal.
III.
Rolle argues the district court abused its discretion by denying his motion
for a new trial. He argues the alleged evidentiary errors discussed above
prejudicially affected his trial. He further contends prejudice is evident because
the jury inconsistently convicted him of assisting two of his passengers in illegally
entering the United States, but acquitted him of identical conduct with respect to
the three other passengers.3
Here, the district court did not abuse its discretion in denying Rolle’s
motion. Rolle’s theory as to why he deserves a new trial is based primarily upon
3
We review a district court’s denial of a motion for a new trial for an abuse of discretion.
United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc).
7
the previously discussed claims of evidentiary error, which do not warrant relief.
Further, to the extent Rolle argues “the interest of justice” requires a new trial
where the jury reaches an inconsistent verdict, that argument is foreclosed by
precedent. See United States v. Odom, 252 F.3d 1289, 1298 (11th Cir. 2001)
(stating inconsistencies in a jury’s verdict do not open a defendant’s convictions to
attack).
IV.
Rolle argues his trial counsel was ineffective during trial and at sentencing,
and he should therefore be granted a new trial. “[A] claim of ineffective assistance
of counsel may not be raised on direct appeal where the claim has not been heard
by the district court nor a factual record developed.” United States v. Khoury, 901
F.2d 948, 969 (11th Cir. 1990), modified on other grounds, 910 F.2d 713 (11th
Cir. 1990). The preferred method of raising the issue of ineffective assistance of
counsel is not on direct appeal, but instead in a 28 U.S.C. § 2255 motion to vacate.
Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 1694 (2003).
Only when the record is sufficiently developed will we consider an ineffective-
assistance claim on direct appeal. United States v. Bender, 290 F.3d 1279, 1284
(11th Cir. 2002).
8
Roll’s trial counsel has not had an opportunity to develop the record
regarding his alleged deficiencies. Without a factual record revealing the reasons
for counsel’s choices, we cannot effectively decide Rolle’s claims. Accordingly,
we dismiss the claims without prejudice to Rolle’s remedy under 28 U.S.C.
§ 2255.
V.
Finally, Rolle challenges his 135-month total sentence on a number of
grounds. We address each in turn.
A.
First, Roll argues the sentence violates his rights under the Fifth and Sixth
Amendments because it was increased based on facts that were not charged in the
indictment or presented to the jury. “When the district court applies the
Guidelines in an advisory manner, nothing in Booker prohibits district courts from
making, under a preponderance-of-the-evidence standard, additional factual
findings that go beyond a defendant’s admissions.” United States v. Smith, 480
F.3d 1277, 1281 (11th Cir. 2007). We have held that there is no constitutional
right to have all sentence-enhancing facts found by a grand jury and charged in the
indictment. United States v. Thomas, 446 F.3d 1348, 1355 (11th Cir. 2006).
The district court imposed Rolle’s 135-month sentence while treating the
9
Guidelines as advisory, and the total sentence did not exceed the statutory
maximum. Accordingly, Rolle’s constitutional challenges to his sentence are
foreclosed by precedent.4
B.
Second, Rolle contends the district court abused its discretion by applying
enhancements for obstructing justice, U.S.S.G. § 3C1.1, endangering others,
U.S.S.G. § 2L1.1(b)(6), and using a special skill in the commission of a crime,
U.S.S.G. § 3B1.3. The Guidelines provide for a two-level increase in the offense
level where “the defendant willfully obstructed or impeded, or attempted to
obstruct or impede, the administration of justice with respect to the investigation,
prosecution, or sentencing of the instant offense of conviction, and . . . the
obstructive conduct related to . . . the defendant’s offense of conviction and any
relevant conduct.” U.S.S.G. § 3C1.1. A defendant is subject to a two-level
increase in his offense level if his conduct involved “intentionally or recklessly
creating a substantial risk of death or serious bodily injury to another person.”
U.S.S.G. § 2L1.1(b)(6). Finally, U.S.S.G. § 3B1.3 provides for a two-level
enhancement if the defendant “used a special skill, in a manner that significantly
4
Where, as here, a party fails to object to an error before the district court, we review for
plain error only. United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005).
10
facilitated the commission or concealment of the offense.” U.S.S.G. § 3B1.3. The
term “‘special skill’ refers to a skill not possessed by members of the general
public and usually requiring substantial education, training or licensing.” Id.
comment. (n.4).
The district court did not abuse its discretion in applying the disputed
guideline enhancements.5 First, Rolle’s testimony at trial was irreconcilable with
the Government’s evidence; therefore, the district court reasonably concluded
Rolle committed perjury. See United States v. Singh, 291 F.3d 756, 763 (11th Cir.
2002) (stating a § 3C1.1 enhancement may be applied when a defendant commits
perjury, defined as “false testimony concerning a material matter with the willful
intent to provide false testimony, rather than as a result of confusion, mistake, or
faulty memory”). Second, the district court reasonably concluded Rolle
endangered his passengers because the facts showed his boat was ill-equipped
with safety equipment and he operated it at a high speed without navigation lights.
See United States v. Caraballo, 595 F.3d 1214, 1230-31 (11th Cir. 2010)
(upholding a § 2L1.1(b)(6) enhancement because the defendant smuggled eleven
aliens from the Bahamas to Florida on a 25-foot fishing boat that was equipped
5
We review the district court’s findings of fact for clear error and its application of the
Sentencing Guidelines de novo. United States v. Lopez-Garcia, 565 F.3d 1306, 1323 (11th Cir.
2009).
11
with only three life jackets). Third, the application of the “special skill”
enhancement was warranted because, as we have previously recognized, a member
of the general public is incapable of captaining a voyage from the Bahamas to
Florida without a compass. See United States v. Calderon, 127 F.3d 1314, 1339-
40 (11th Cir. 1997) (holding the ability to navigate a 38-foot boat from the
Bahamas to Florida in the dark without navigation lights qualifies as a “special
skill”).
C.
Finally, Rolle argues these guideline errors, as well as the court’s failure to
properly consider the statutory sentencing factors, rendered his total sentence both
procedurally and substantively unreasonable. In reviewing the reasonableness of a
sentence, we conduct a two-step review. First, we ensure the sentence was
procedurally reasonable, meaning the district court properly calculated the
guideline range, treated the guidelines as advisory, considered the 18 U.S.C
§ 3553(a) factors, did not select a sentence based on clearly erroneous facts, and
adequately explained the chosen sentence. Gall v. United States, 552 U.S. 38, 51,
128 S. Ct. 586, 597 (2007). Then, we examine whether the sentence was
substantively reasonable in light of the record and the § 3553(a) factors. Id. at 56,
128 S.Ct. at 600. Although we do not apply a presumption of reasonableness,
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“when the district court imposes a sentence within the advisory Guidelines range,
we ordinarily will expect that choice to be a reasonable one.” United States v.
Talley, 431 F.3d 784, 788 (11th Cir. 2005).
Rolle’s total sentence of 135 months was both procedurally and
substantively reasonable.6 Procedurally, the district court correctly calculated
Rolle’s guideline range and adequately discussed the reasoning behind its chosen
sentence. Substantively, the district court reasonably concluded that a low-end
guideline sentence was appropriate, relying on § 3553(a) factors such as Rolle’s
history of recidivism.
Based on a review of the record and consideration of the parties’ briefs on
appeal, we affirm Rolle’s convictions and sentences.
AFFIRMED IN PART, DISMISSED IN PART.
6
We ordinarily review the reasonableness of a district court’s sentence under a deferential
abuse-of-discretion standard. Gall, 552 U.S. at 41, 128 S. Ct. at 591. When a party fails to
object to an error before the district court, however, we review for plain error only. Raad, 406
F.3d at 1323.
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