United States v. Anthony Vikey Omar Price

Case: 14-15337 Date Filed: 02/18/2016 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 14-15337
Non-Argument Calendar
________________________

D.C. Docket No. 5:14-cr-00013-WTH-PRL-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTHONY VIKEY OMAR PRICE,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
________________________

(February 18 2016)

Before TJOFLAT, JILL PRYOR, and EDMONDSON, Circuit Judges.
 Case: 14-15337 Date Filed: 02/18/2016 Page: 2 of 10

PER CURIAM:

Anthony Price appeals his conviction and his 262-month below-guideline

sentence. A jury convicted Price of aiding and abetting an attempt to possess with

intent to distribute cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), b(1)(A)

and 18 U.S.C. § 2. No reversible error has been shown; we affirm.

I.

Price first argues that insufficient evidence exists to support his conviction.

We review de novo the sufficiency of the evidence to sustain a conviction, viewing

the evidence “in the light most favorable to the government” and “resolving all

reasonable inferences in favor of the verdict.” United States v. Farley, 607 F.3d

1294, 1333 (11th Cir. 2010). “We will not reverse unless no reasonable trier of

fact could find guilt beyond a reasonable doubt.” Id. “[W]e assume that the jury

made all credibility choices in support of the verdict.” United States v. Jiminez,

564 F.3d 1280, 1285 (11th Cir. 2009).

To sustain a conviction under an aiding and abetting theory, “the prosecution

must show that ‘the defendant associated himself with a criminal venture,

2
 Case: 14-15337 Date Filed: 02/18/2016 Page: 3 of 10

participated in it as something he wished to bring about, and sought by his actions

to make it succeed.” United States v. Pantoja-Soto, 739 F.2d 1520, 1525 (11th Cir.

1984). The government may satisfy its burden through circumstantial evidence.

Id.

Sufficient evidence exists to support Price’s conviction. Testimony at trial --

when viewed in the light most favorable to the government -- demonstrated that

Price negotiated to purchase five kilograms of cocaine from Delvon Williams,

provided Williams with over $100,000 in cash to buy the cocaine from Josias

Reyes, and followed Williams to two meeting spots as Williams attempted to

complete the drug purchase. This evidence was sufficient to show Price’s intent to

possess and distribute cocaine and, thus, his association with a criminal venture.

See United States v. Madera-Madera, 333 F.3d 1228, 1233 (11th Cir. 2003) (a

defendant’s intent to distribute can be inferred from his possession of a large

quantity of drugs). The evidence also demonstrates that Price took affirmative

steps to make the purchase succeed. On this record, we cannot say that “no

reasonable trier of fact could find guilt beyond a reasonable doubt.”

3
 Case: 14-15337 Date Filed: 02/18/2016 Page: 4 of 10

II.

We next address Price’s argument that the district court erred in denying him

a mistrial. Because the district court “is in the best position to evaluate the

prejudicial effect of a statement or evidence on the jury,” we review the district

court’s denial of a mistrial only for abuse of discretion. United States v. Newsome,

475 F.3d 1221, 1227 (11th Cir. 2007). A mistrial is warranted when “the

defendant’s substantial rights are prejudicially affected.” Id. “This occurs when

there is a reasonable probability that, but for the remarks, the outcome of the trial

would have been different.” Id. “We make this determination in the context of the

entire trial and in light of any curative instruction.” Id.

Price first moved for a mistrial based on remarks made during the

government’s opening statement. Price contends that, by commenting about

Price’s expected theory of defense, the government shifted improperly the burden

of proof onto Price. Nothing evidences that the government’s opening statement

prejudiced Price’s substantial rights. First, the district court twice instructed the

jury that the government had the burden of proving Price’s guilt beyond a

reasonable doubt. We presume that the jurors obeyed the court’s instructions. See

United States v. Stone, 9 F.3d 934, 938 (11th Cir. 1993). Further, after

4
 Case: 14-15337 Date Filed: 02/18/2016 Page: 5 of 10

commenting on Price’s theory of defense, the government reminded the jury

expressly that the government bore the burden of proof.

Price also moved for a mistrial after the government displayed mistakenly an

unredacted list of Price’s convictions during its closing argument. The district

court denied the motion, concluding that the document was unmagnified and

would have been difficult for the jurors to read. Price does not dispute the district

court’s factual determination that the improperly-displayed document was illegible.

Price has failed to show that he was unduly prejudiced; the district court abused no

discretion in denying Price’s motions for a mistrial.

III.

Price next challenges three of the district court’s evidentiary rulings. We

review a district court’s evidentiary rulings under an abuse-of-discretion standard.

United States v. Eckhardt, 466 F.3d 938, 946 (11th Cir. 2006).

First, the district court abused no discretion in admitting two recorded

conversations between Williams and Reyes. For a co-conspirator statement to be

admissible under Fed. R. Evid. 801(d)(2)(E), “the government must prove by a

preponderance of the evidence that: (1) a conspiracy existed; (2) the conspiracy

5
 Case: 14-15337 Date Filed: 02/18/2016 Page: 6 of 10

included the declarant and the defendant against whom the statement is offered;

and (3) the statement was made during the course and in furtherance of the

conspiracy.” United States v. Reeves, 742 F.3d 487, 503 (11th Cir. 2014)

(quotations omitted).

The evidence presented at trial was sufficient for the district court to find by

a preponderance of the evidence that a conspiracy existed between Price, Williams,

and Reyes. Among other things, the evidence demonstrated that Price and

Williams attempted to purchase a large quantity of cocaine from Reyes, that Price

gave Williams over $100,000 to buy the cocaine, and that Williams agreed to sell

Price two kilograms of cocaine on credit. See United States v. Burroughs, 830

F.2d 1574, 1581 (11th Cir. 1987) (affirming a conspiracy conviction when

evidence showed that a co-conspirator sold drugs on credit and, thus, that the co-

conspirators were not involved in “mere isolated sales”). Price contends that the

recorded statements were inadmissible because nothing evidenced that Price was

involved in the conspiracy when the March 4 and March 14 conversations took

place. This argument is without merit: our law is clear that a co-conspirator’s

statement “is admissible against a co-conspirator, even one who may have joined

the conspiracy after the statement was made.” See Reeves, 742 F.3d at 503.

6
 Case: 14-15337 Date Filed: 02/18/2016 Page: 7 of 10

Price next contends that the district court erred in admitting evidence of his

other drug purchases. For evidence to be admissible under Fed. R. Evid. 404(b),

(1) “the evidence must be relevant to an issue other than the defendant’s

character;” (2) “the act must be established by sufficient proof to permit a jury

finding that the defendant committed the extrinsic act;” and (3) “the probative

value of the evidence must not be substantially outweighed by its undue

prejudice.” United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1995).

The evidence of Price’s earlier drug purchases satisfies each of these

elements; the district court abused no discretion. First, evidence of Price’s earlier

drug purchases was pertinent to prove Price’s knowledge and intent, particularly

because Price put his intent at issue by pleading not guilty and by presenting a

“mere presence” defense. See id.

Second, the evidence presented at trial was sufficient for the jury to find that

Price had in fact been involved in other drug purchases. Leonel Ruiz testified that,

on five separate occasions, he sold Price one kilogram of cocaine. “[T]he

uncorroborated word of an accomplice provides a sufficient basis for concluding

that the defendant committed extrinsic acts admissible under Rule 404(b).” United

States v. Dickerson, 248 F.3d 1036, 1047 (11th Cir. 2001) (alteration omitted).

7
 Case: 14-15337 Date Filed: 02/18/2016 Page: 8 of 10

Here, Ruiz’s testimony was further corroborated by phone records, showing

repeated calls between Ruiz and Price during the time of the alleged drug sales.

About the third element, evidence of Price’s other drug purchases was

highly probative given that Price’s intent was a central issue in the case, and given

the similarities between the charged offense and Price’s other drug purchases. And

nothing evidences that Price suffered undue prejudice. See Delgado, 56 F.3d at

1366 (“extrinsic drug offenses do not tend to incite a jury to an irrational

decision.”).

The district court also abused no discretion in refusing to allow testimony to

impeach Ruiz’s credibility. Because Ruiz had already said on cross-examination

that he hoped to receive a lower sentence in exchange for his testimony, Price’s

proposed witness testimony would have been needlessly cumulative. See Fed. R.

Evid. 403.

IV.

We reject Price’s argument that the district court erred in denying his motion

for a new trial. Sufficient evidence existed to sustain the jury’s guilty verdict. And

Price suffered no undue prejudice as a result of the government’s opening

8
 Case: 14-15337 Date Filed: 02/18/2016 Page: 9 of 10

statement or closing argument. Thus, Price has failed to demonstrate that this is an

“exceptional case” warranting a new trial. See United States v. Hernandez, 433

F.3d 1328, 1336-37 (11th Cir. 2005) (because motions for new trial are not

favored, “[c]ourts are to grant them sparingly and with caution, doing so only in

those really ‘exceptional cases.’”).

V.

Price contends that his 262-month sentence is substantively unreasonable

because it created unwarranted sentencing disparities. We evaluate the substantive

reasonableness of a sentence under a deferential abuse-of-discretion standard. Gall

v. United States, 128 S.Ct. 586, 597 (2007). The defendant bears the burden of

establishing that his sentence is unreasonable in the light of both the record and the

section 3553(a) factors. See United States v. Talley, 431 F.3d 784, 788 (11th Cir.

2005).

As an initial matter, Price was sentenced well-below his guidelines range of

360 months to life imprisonment. We ordinarily expect a guidelines sentence to be

reasonable. See id.

9
 Case: 14-15337 Date Filed: 02/18/2016 Page: 10 of 10

Price has also failed to demonstrate that he is similarly situated to his fellow

co-conspirators who received lesser sentences. First, Price was sentenced as a

career offender; and nothing evidences that his co-conspirators qualified as career

offenders. In addition, unlike his co-conspirators, Price pleaded not guilty,

proceeded to trial, and provided no assistance to the government. Defendants who

cooperate with the government are not similarly situated to those defendants who

do not. United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009).

Price’s below-guidelines sentence was within “the range of reasonable

sentences dictated by the facts of the case.” United States v. Pugh, 515 F.3d 1179,

1191 (11th Cir. 2008).

AFFIRMED.

10