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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13553
Non-Argument Calendar
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D.C. Docket No. 2:14-cr-00048-JES-MRM-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TITUS LAMAR BELLOT,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(January 5, 2017)
Before HULL, MARCUS, and FAY, Circuit Judges.
PER CURIAM:
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After a jury trial, the Defendant, Titus Lamar Bellot, appeals his conviction
for conspiracy to possess with intent to distribute methylone and his 60-month,
below-guidelines sentence. Upon review of the record and the parties’ briefs, we
affirm.
I. BACKGROUND
In April 2014, a federal Customers Enforcement officer in New York
intercepted a package containing a little over one kilogram of methylone. The
package was sent from China and was addressed to “Deen Perkins”1 at an address
in Lehigh Acres, Florida. The officer seized the methylone and sent the package to
Homeland Security Investigations (“HSI”) in Fort Myers, Florida. HSI agents
arranged for a controlled delivery of the package to the address in Lehigh Acres.
Meanwhile, on April 23, 2014, Defendant Bellot and Deena Williams
exchanged text messages discussing the delivery of a package to her home. Bellot
told Williams: “Don’t forget [you] gotta sign for the package I’ll be to get later.”
Williams responded, “I will not sign for no package not my John Handcock! [sic]”
She also told Bellot: “Do not have no more packages coming to my address. Have
your mail going to your address[.] [Y]ou is not going to have me fucked up.”
Bellot told her, “Lol I wouldn’t get [you] fucked up sis.” Bellot and Williams also
1
Bellot was indicted with Deena Williams, whose maiden name was Deena Perkins.
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discussed how the package would be arriving, and Bellot confirmed that the
package would come via regular mail.
On April 25, 2014, a postal inspector posing as a mail carrier delivered the
package to Williams’s home, and she accepted the package from him. Soon after,
a tracking device that HSI agents had installed notified the agents that the package
had been opened. Agents entered the house and found the package opened and the
bag of drugs on the kitchen counter. While the agents were there, Williams
answered a phone call from her husband, who told her, “[m]ake sure he pays you,”
and “[c]all me if it doesn’t go right.” Williams also received a phone call from
Bellot, but she did not answer. At the agents’ direction, Williams called Bellot
back and told him the package was at her house. Bellot said he would be there in
five minutes. The agents hid to await Bellot’s arrival.
Once Bellot arrived and he and Williams entered the house, Bellot “ran []
very quickly” toward the bag of drugs on the counter. The agents arrested Bellot
and found $1,000 in cash in his pocket. Officers searched the BMW that Bellot
drove to Williams’s house and found an additional $1,100. Bellot also had his cell
phone in his pocket, which he had used earlier to text and call Williams.
The day of his arrest, Bellot called his girlfriend from jail. Bellot said
Williams had opened the package: “The bitch opened that shit. The bitch so
stupid. She the only reason we in this shit. Her dumb ass.” Bellot said he was
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“still acting like” he didn’t know what was in the package. Bellot asked his
girlfriend to “cover [his] tracks” by wiping his cell phone and sending a pair of
sneakers to Williams’s house so it would look like he was just picking up shoes
instead of drugs.
At trial, Bellot unsuccessfully moved for a judgment of acquittal, arguing
that the evidence did not show an agreement between himself and Williams. The
jury convicted him. The district court sentenced Bellot to 60 months’
imprisonment.
II. DISCUSSION
A. Claims of Trial Error
On appeal, Defendant Bellot argues that the district court erred in denying
his motion for judgment of acquittal because the government presented no
evidence of an agreement between him and Williams, no evidence from which the
jury could have inferred any agreement, and no evidence that he and Williams
agreed on the object of the conspiracy. Bellot submits his mere presence at the
house is insufficient to prove a conspiracy.
We review de novo the denial of a motion for judgment of acquittal and the
sufficiency of the evidence. United States v. Hunt, 526 F.3d 739, 744 (11th Cir.
2008). In determining whether the evidence presented was sufficient, we view the
evidence in the light most favorable to, and draw all reasonable inferences in favor
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of, the government. Id. We will affirm the conviction “if, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.”
Id. at 745 (quotation and internal quotation marks omitted).
It is unlawful for any person to knowingly or intentionally possess with
intent to manufacture, distribute, or dispense a controlled substance. 21 U.S.C.
§ 841(a)(1). To prove participation in a conspiracy to distribute controlled
substances in violation of 21 U.S.C. § 846, the government must prove that a
conspiracy existed and that the defendant knowingly and voluntarily joined the
conspiracy. United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005). To
obtain a conspiracy conviction, the government must prove: (1) an agreement
between the defendant and one or more persons, (2) the object of which is to do
either an unlawful act or a lawful act by unlawful means. Id. The government
need not demonstrate that a formal agreement exists; rather, it may demonstrate a
meeting of the minds to commit an unlawful act by circumstantial evidence.
United States v. Toler, 144 F.3d 1423, 1426 (11th Cir. 1998). This circumstantial
evidence may include inferences from the alleged participants’ conduct. Garcia,
405 F.3d at 1270.
Here, the district court did not err in denying Bellot’s motion for a judgment
of acquittal because there was abundant circumstantial evidence that he conspired
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with Williams to possess with intent to distribute methylone. Specifically, the
government presented evidence of the text messages between Bellot and Williams
prior to the package being delivered (including his inquiries as to when it would be
delivered and her reluctance to accept delivery), his possession of $1,000 cash
when retrieving the methylone, and his attempts to cover up his involvement in the
conspiracy. This evidence, viewed in the light most favorable to the prosecution,
amply supports a jury finding beyond a reasonable doubt that Bellot agreed to the
conspiracy with Williams. See Hunt, 526 F.3d at 745. And while Bellot is correct
that something more than “mere presence” is required to sustain a conviction for
conspiracy to possess and distribute drugs, the government here showed not only
Bellot’s presence at Williams’s house, but also his knowing participation in the
drug scheme. See United States v. Lyons, 53 F.3d 1198, 1201 (11th Cir. 1995).
Accordingly, the district court did not err in denying Bellot’s motion for a
judgment of acquittal.
Bellot’s other arguments on appeal merit only brief mention. He argues that
(1) the district court erred in allowing a special agent from the Department of
Homeland Security to testify about typical methylone dosage, prices, and the
estimated street value of the methylone at issue; and (2) the government’s
statements during closing arguments improperly shifted the burden of proof to him.
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Because Bellot did not object to either of these alleged errors before the
district court, we will review them only for plain error. United States v. Edouard,
485 F.3d 1324, 1343 (11th Cir. 2007) (explaining that where a defendant fails to
preserve his challenge to an evidentiary ruling before the district court, this Court
reviews only for plain error). Under that standard, the defendant must show (1) an
error (2) that was plain and (3) that affected his substantial rights. Id. at 1343 n.7.
The district court did not plainly err in admitting the special agent’s
testimony because it is unclear, under this Court’s precedent, whether that
testimony fell within the proper bounds of lay testimony. See United States v.
Pantle, 637 F.3d 1172, 1174-75 (11th Cir. 2011) (holding that an error is plain if it
is clear from either the plain meaning of a statute or constitutional provision, or
from a holding of the Supreme Court or this Court); Fed. R. Evid. 701 (explaining
the circumstances under which lay witnesses may give opinion testimony). Indeed,
this testimony likely falls within the bounds of Rule 701 because it was based upon
the special agent’s particularized knowledge of methylone sales and use, which
was garnered through his experience in the field. See United States v. Hill, 643
F.3d 807, 841 (11th Cir. 2011) (concluding that Rule 701 does not prohibit lay
witnesses from testifying based on particularized knowledge gained from their
personal experiences). In the absence of clear precedent showing the special
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agent’s testimony was impermissible as a lay opinion, Bellot cannot show plain
error. Pantle, 637 F.3d at 1174-75.
The government’s statements during rebuttal closing argument—that Bellot
had the same subpoena power as the government—do not constitute reversible
error, either. Any potential prejudice regarding this alleged burden-shifting was
diminished by the prosecutor’s statement that the burden of proof is the
government’s and the district court’s explicit instructions regarding the burden of
proof in the jury charge. See United States v. Hernandez, 145 F.3d 1433, 1439
(11th Cir. 1998) (concluding that “it is not improper for a prosecutor to note that
the defendant has the same subpoena powers as the government”); see also Hill,
643 F.3d at 829 (noting that this Court generally presumes that jurors follow the
instructions given to them by the district court). Bellot has also failed to show that
the comments affected his substantial rights or the fairness of the proceedings
because they were not extensive, they did not tend to prejudice him, and there was
strong proof establishing Bellot’s guilt. See United States v. Lopez, 590 F.3d
1238, 1256 (11th Cir. 2009) (setting forth the factors this Court uses to determine
whether a prosecutor’s conduct had a reasonable probability of changing a trial’s
outcome); Edouard, 485 F.3d at 1343.
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B. Claims of Sentencing Error
At sentencing, Bellot requested that the district court reduce his criminal
history category from a Category III to a Category I, arguing that a Category III
designation significantly over-represented the seriousness of his criminal history.
The district court denied this request, finding that:
Under Section 4A1.3 of the sentencing guidelines, the [c]ourt clearly
has the authority to depart downward if the Defendant’s criminal
history is significantly over-represented. We’ve just gone through the
felony and misdemeanor convictions. I don’t need to repeat that.
At Criminal History Category III, the [c]ourt finds that [Bellot] is
properly[] scored and that a Criminal History Category III does not
significantly over-represent [Bellot’s] criminal record. Therefore, the
request under Section 4A1.3 will be denied. 2
Before pronouncing the sentence, the district court stated that it had
considered all of the factors listed in 18 U.S.C. § 3553. The district court
specifically mentioned Bellot’s criminal history, noted Bellot’s “involvement in
this case” and his lawyer’s belief that Bellot had “some potential,” and admonished
Bellot to use his time in prison well as he would still be a young man when
released. The district court then imposed a 60-month sentence, 3 months below the
bottom of the advisory guidelines range of 63 to 78 months.
2
If reliable information indicates that a defendant’s criminal history category substantially
over-represents the seriousness of the defendant’s criminal history or the likelihood that the
defendant will commit other crimes, a downward departure may be warranted. U.S.S.G.
§ 4A1.3(b)(1).
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On appeal, Bellot argues that his 60-month, below-guidelines sentence is
procedurally and substantively unreasonable. 3 He claims that his sentence was
procedurally unreasonable because (1) the district court’s statement that it had “the
authority to depart downward if the Defendant’s criminal history is significantly
over-represented” reflects that the district court was treating the Sentencing
Guidelines as presumptively reasonable; and (2) the district court failed to
effectively consider the § 3553(a) factors. Bellot also argues that his sentence is
substantively unreasonable because the district court gave too much weight to his
criminal history and not enough weight to his youthful age.
The sentence the district court imposes must be both procedurally and
substantively reasonable. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586,
597 (2007). A district court commits a procedural error if it improperly calculates
the guidelines range, treats the guidelines as mandatory, fails to consider the
relevant § 3553(a) factors, chooses a sentence based on clearly erroneous facts, or
fails to explain the given sentence. United States v. Pugh, 515 F.3d 1179, 1190
(11th Cir. 2008).
A sentencing court may not presume that a sentence within the applicable
guidelines range is reasonable. Nelson v. United States, 555 U.S. 350, 352, 129 S.
3
While the parties agree that the standard of review for Bellot’s substantive-
reasonableness claim is abuse of discretion, they disagree as to whether we must review his
procedural-reasonableness claim for abuse of discretion or plain error. Because Bellot’s
arguments fail regardless of the standard of review, we need not decide which is the correct
standard in this case.
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Ct. 890, 892 (2009). Additionally, although the district court must consider the
§ 3553(a) sentencing factors and provide “some explanation for the sentence,” it is
not required “to state on the record that it has explicitly considered each of the
§ 3553(a) factors or to discuss each of the § 3553(a) factors.” United States v.
Docampo, 573 F.3d 1091, 1100 (11th Cir. 2009) (quotation omitted). The
Supreme Court has held that “[t]he sentencing judge should set forth enough to
satisfy the appellate court that he has considered the parties’ arguments and has a
reasoned basis for exercising his own legal decisionmaking authority.” Rita v.
United States, 551 U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007).
We examine whether the sentence was substantively reasonable in light of
the totality of the circumstances, including the extent of any variance. Gall, 552
U.S. at 51, 128 S. Ct. at 597. The party challenging the sentence has the burden of
demonstrating that a sentence is unreasonable in light of the record and the factors
outlined in 18 U.S.C. § 3553(a). United States v. Tome, 611 F.3d 1371, 1378
(11th Cir. 2010). The district court must impose a sentence sufficient, but not
greater than necessary, to comply with the purposes listed in 18 U.S.C.
§ 3553(a)(2), including the need to reflect the seriousness of the offense, promote
respect for the law, provide just punishment for the offense, deter criminal conduct,
protect the public from the defendant’s future criminal conduct, and provide the
defendant with needed training or medical care. See 18 U.S.C. § 3553(a)(2). The
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court must also consider the nature and circumstances of the offense, the history
and characteristics of the defendant, the kinds of sentences available, the applicable
guideline range, the pertinent policy statements of the Sentencing Commission,
and the need to avoid unwarranted sentencing disparities among defendants with
similar records who have been found guilty of similar conduct. See § 3553(a)(1),
(3)-(7). The weight given to any specific § 3553(a) factor is committed to the
sound discretion of the district court. United States v. Clay, 483 F.3d 739, 743
(11th Cir. 2007).
Here, the district court’s statement that it “clearly [had] the authority to
depart downward” if Bellot’s criminal history was over-represented did not suggest
that it presumed that Bellot’s guidelines sentence was reasonable—rather, it was
merely a restatement of the standard for downward departure provided in U.S.S.G.
§ 4A1.3(b)(1). Further, the district court determined the applicable guidelines
range and stated that it had considered all of the § 3553(a) factors. The district
court’s downward variance to impose a sentence that was three months below the
guidelines range minimum also suggests that it did not presume a guidelines
sentence, even at the low end, was reasonable.
Additionally, Bellot has failed to meet his burden to show that his sentence
is substantively unreasonable in light of the record and the § 3553(a) factors.
Tome, 611 F.3d at 1378. The court explicitly stated that it had considered the
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§ 3553(a) factors in sentencing Bellot, whether it had discussed them or not. The
court examined Bellot’s criminal history, personal characteristics, and the nature
and circumstances of his offense, which were all permissible factors for the court
to consider in arriving at Bellot’s sentence. See 18 U.S.C. § 3553(a)(2). Even if
the court gave significant weight to Bellot’s criminal history, giving greater weight
to a defendant’s history and characteristics than to any other § 3553(a) factor is not
an abuse of discretion, especially where, as here, the defendant had a criminal
history spanning many years. See Clay, 483 F.3d at 743.
We conclude that Bellot has not demonstrated that his sentence was
procedurally or substantively unreasonable. For the foregoing reasons, we affirm
Bellot’s conviction and 60-month sentence.
AFFIRMED.
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