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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14436
Non-Argument Calendar
________________________
D.C. Docket No. 3:15-cr-00019-MCR-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EDDIE CASANOVA,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(January 26, 2017)
Before TJOFLAT, JORDAN, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Eddie Casanova appeals his conviction for conspiracy to distribute, and
possess with the intent to distribute, 5 kilograms or more of cocaine, in violation of
21 U.S.C. §§ 846 & 841(b)(1)(A)(ii). Mr. Casanova argues that there was
insufficient evidence to sustain a conviction for the charged conspiracy because the
government only presented evidence of two unrelated conspiracies, and not a
single unified one.
Mr. Casanova also challenges his 262-month sentence, first arguing that the
district court clearly erred in assigning him a base offense level of 32 under
U.S.S.G. § 2D1.1(c)(4) because the conspiracy did not involve more than 15, but
less than 50, kilograms of cocaine. He asserts that the testimony of a co-defendant
about an amount of additional cocaine was imprecise and uncorroborated, and that
the additional cocaine that was referenced was transported outside of the timeframe
for the conspiracy. Mr. Casanova additionally challenges two sentencing
enhancements. He argues that the district court clearly erred in applying a 2-level
increase under U.S.S.G. § 2D1.1(b)(12) for maintaining premises for the purpose
of manufacturing or distributing a controlled substance. And he argues that the
district court clearly erred in applying a 2-level increase under U.S.S.G.
§ 2D1.1(b)(1) for the presence of a firearm in connection with the conspiracy.
After consideration of the record and both parties’ briefs, we affirm
Mr. Casanova’s conviction and sentence.
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I
Mr. Casanova was charged by superseding indictment with one count of
conspiracy to distribute, and possess with intent to distribute, 5 kilograms or more
of cocaine. Mr. Casanova’s co-defendants, Emilio Zundt, Jr., and Pablo Robledo,
were also charged with conspiring to distribute, and possessing with intent to
distribute, various amounts of cocaine. The indictment alleged that Mr. Zundt was
responsible for 5 kilograms of cocaine or more and that Mr. Robledo was
responsible for more than 500 grams, but less than 5 kilograms, of cocaine.
Mr. Zundt and Mr. Robledo pled guilty and testified against Mr. Casanova at trial.
A
In March of 2015, Mr. Robledo was pulled over for a traffic violation in
Mississippi while transporting cocaine from Texas to Florida for Mr. Casanova.
During the traffic stop he consented to a search of his vehicle. The search led to the
discovery of 3 kilograms of cocaine and 2 cellphones. Mr. Robledo then
cooperated with the government and agreed to execute a controlled delivery.
Mr. Robledo made monitored contact via text messages and phone calls with
“Primo” and “Lolo,” the two individuals he was working with to transport the
cocaine to Florida. At the instruction of the agents, Mr. Robledo continued to plan
the meeting with “Lolo” to give him the cocaine. “Lolo” agreed to meet
Mr. Robledo at a hotel and said he would be driving a black Toyota. At the time of
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the rendezvous, “Lolo” was indeed driving a black Toyota and was arrested in
connection with the cocaine that Mr. Robledo had been transporting. Mr. Robledo
and the agent who had been monitoring the calls between Mr. Robledo and “Lolo”
identified Mr. Casanova as “Lolo.” An analysis of Mr. Casanova’s phone revealed
that he had several conversations with “Primo” and Mr. Robledo.
As the government continued its investigation, it located several vehicles
and storage facilities either owned by or associated with Mr. Casanova in both
Texas and Florida, including two storage units in Fort Walton Beach, Florida. At
those locations they discovered items typically associated with the drug trade, such
as packaging materials, digital scales, and cutting agents. There were also some old
vestiges from Mr. Casanova’s defunct stucco business.
An additional 4.5 kilograms of cocaine and a firearm were found in a black
truck located in a rented parking space that was associated with Mr. Casanova at a
storage unit in Texas. The manager of the storage facility was familiar with
Mr. Casanova and his co-defendant, Mr. Zundt. The government then arrested
Mr. Zundt.
Mr. Zundt had met Mr. Casanova two years earlier, when he was working as
a handyman for Mr. Casanova. Mr. Casanova offered Mr. Zundt the opportunity to
transport cocaine from Texas to Florida for him. Mr. Zundt testified at trial that he
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had made numerous trips by bus and car transporting various amounts of cocaine
for Mr. Casanova.
Mr. Zundt had been traveling with Mr. Casanova before he was arrested.
They had journeyed from Texas to Florida together carrying between 4 and 5
kilograms of cocaine with them on the trip, though Mr. Casanova had anticipated
that 8 kilograms would be transported from Texas to Florida. Mr. Casanova left
Mr. Zundt at a hotel but failed to return from his meeting with Mr. Robledo. When
Mr. Casanova did not return, Mr. Zundt took the cocaine back to Texas. He
stopped at one of the storage facilities, changed cars, and removed a firearm that
had been stored in the facility in order to hide it. Mr. Zundt testified that on a
previous occasion Mr. Casanova had stored cocaine at one of the storage facilities,
and that another time Mr. Casanova had prepared and packaged cocaine at one of
the facilities.
Mr. Casanova did not present any witnesses at trial. He did, however,
introduce evidence that his stucco business had received an award from the Deep
Water Horizon oil spill. He then moved for a judgement of acquittal, which the
district court denied.
Before deliberations began the district court gave the jury several
instructions regarding conspiracy. One set out the basic concepts of a conspiracy,
and explained that a person does not need to be aware of the entirety of the scheme
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or all parties involved to be convicted of being a member of a conspiracy. The
district court also provided an instruction concerning multiple conspiracies. The
government, the district court explained, was required to prove that Mr. Casanova
was guilty of the charged conspiracy with Mr. Robledo and Mr. Zundt. The
government would not meet its burden if it only proved separate conspiracies
between the men, with no overall connection between them.
The jury found Mr. Casanova guilty as charged. Mr. Casanova again moved
for a judgment of acquittal, arguing that the evidence presented by the government
was insufficient to prove the charged conspiracy. The district court denied the
motion. Mr. Casanova also filed a motion for new trial, but it too was denied.
B
According to the PSI, Mr. Casanova had a base level offense of 32 under
U.S.S.G. § 2D1 because his offense involved between 15 and 50 kilograms of
cocaine. Mr. Casanova received a 2-level enhancement for maintaining premises
for the purpose of manufacturing or distributing a controlled substance pursuant to
U.S.S.G. § 2D1.1(b)(12), an additional 2-level enhancement under U.S.S.G.
§ 2D1.1(b)(1) for possessing a firearm, and another 2-level enhancement for being
the organizer or leader under U.S.S.G. § 3B1.1(c). This resulted in a total offense
level of 38. Due to his prior criminal history, Mr. Casanova was assigned a
criminal history category of II. An offense level of 38 and criminal history
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category of II resulted in an advisory guideline range of 262 to 327 months’
imprisonment. Mr. Casanova objected to his base level offense being 32, and to the
2-level enhancements for possession of a firearm and maintaining premises for the
purposes of manufacturing or distributing a controlled substance.
The district court overruled all of Mr. Casanova’s objections. It found that
there was sufficient evidence presented to support a total offense level of 38. The
district court added up the total amount of cocaine for all of the trips taken by
Mr. Robledo and Mr. Zundt at the direction of Mr. Casanova, and conservatively
estimated that 16.5 kilograms of cocaine had been transported in relation to this
conspiracy.
The district court also found sufficient evidence to support the enhancement
for maintaining premises for the purpose of manufacturing or distributing a
controlled substance. The evidence showed that Mr. Casanova’s stucco business
had closed years earlier, and the only testimony concerning the storage facilities
was that they had been used to store or prepare drugs, that a gun was kept at one
facility, and that they contained various items associated with drug distribution.
Finally, the district court found sufficient evidence to support the
enhancement for possession of a firearm. It found that the gun belonged to Mr.
Casanova, was kept at storage facility where he sent Mr. Zundt to store cocaine,
and was transported in the same car as the cocaine was when it was taken back to
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Texas. The district court found that, based on these factors and Mr. Casanova’s
criminal history of drug dealing, the firearm was sufficiently related to the offense
to allow the enhancement.
After overruling all of his objections, the district court sentenced Mr.
Casanova to 262 months’ imprisonment at the bottom of his advisory guideline
range.
II
Mr. Casanova first argues that there was insufficient evidence to support his
conviction. He contends that the government did not prove an overarching
conspiracy between himself and his two co-defendants, and instead only proved
two separate conspiracies, one between himself and Mr. Robledo, and another
between himself and Mr. Zundt. Mr. Casanova argues that the proof of these two
purported schemes is insufficient to prove that the three men were all part of the
same conspiracy. We disagree.
We review a sufficiency of the evidence claim de novo. See United States v.
Pacchioli, 718 F.3d 1294, 1299 (11th Cir. 2013). We view the evidence in the light
most favorable to the verdict and draw all reasonable inferences and credibility
choices in its favor. See id. Credibility determinations are the province of the jury,
and we typically do not invade that province and make our own credibility
determinations. See United States v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994).
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Mr. Casanova’s sufficiency of the evidence claim has taken the form of a
variance claim. “A variance occurs when the evidence at trial establishes facts
materially different from those alleged in the indictment.” United States v.
Caporale, 806 F.2d 1487, 1499 (11th Cir. 1986). In a conspiracy case where a
variance is being alleged, we look to see if “a reasonable juror could have found
the existence of a single conspiracy beyond a reasonable doubt.” United States v.
Huff, 609 F.3d 1240, 1243 (11th Cir. 2010). As an initial matter we conclude that,
although Mr. Casanova did not use the term variance in the district court, his
argument—that the government had proved two unrelated conspiracies and that he
was being convicted of a different crime than what he was indicted for—was
sufficient to preserve the claim for appeal. Thus we will review his claim de novo
and not for plain error. See United States v. Dennis, 237 F.3d 1295, 1300 (11th Cir.
2001).
When a defendant claims a material variance between the indictment and the
evidence presented at trial, we consider “[f]irst whether a material variance did
occur, and second, whether the defendant suffered substantial prejudice as a
result.” United States v. Chastain, 198 F.3d 1338, 1349 (11th Cir. 1999). We look
at the evidence in the light most favorable to the government to determine whether
there was a material variance. See United States v. Seher, 562 F.3d 1344, 1366
(11th Cir. 2009).
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In order to convict a defendant of conspiracy under 21 U.S.C. § 846, the
government must show that (1) a conspiracy existed, (2) that the defendant knew
of it, and (3) that the defendant, with knowledge, voluntarily joined it. See United
States v. Perez-Tosta, 36 F.3d 1152, 1157 (11th Cir. 1994). “[T]here is no material
variance from an indictment charging a single conspiracy if a reasonable trier of
fact could have found beyond a reasonable doubt the existence of the single
conspiracy charged in the indictment.” Caporale, 806 F.2d at 1499–1500. In order
to make that determination, we consider (1) whether a common goal existed,
(2) the nature of the underlying scheme, and (3) the overlap of participants. See
Huff, 609 F.3d at 1243.
There was sufficient evidence for the jury to find the existence of one
overreaching conspiracy, as charged in the indictment, beyond a reasonable doubt.
The evidence demonstrated that Mr. Casanova was involved in one unified
singular conspiracy with Mr. Robledo and Mr. Zundt. The three men were active
participants in the transportation of cocaine from Texas to Florida for the purposes
of sale and distribution. The jury could have found beyond a reasonable doubt that
there was sufficient evidence all three men were involved in that particular goal
based upon the testimony of Mr. Zundt and Mr. Robledo. Although aspects of their
testimony may have been uncorroborated, that testimony was sufficient to sustain
Mr. Casanova’s conviction. See United States v. Broadwell, 870 F.2d 594, 601
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(11th Cir. 1989). The methodical nature and elaborate manner in which
Mr. Casanova utilized multiple parties, multiple vehicles, and multiple facilities in
order to transport his cocaine across state lines illustrates the underlying
framework Mr. Casanova was using to run the cocaine scheme.
Mr. Robledo and Mr. Zundt did not know about each other, but that was not
fatal because the conspiracy here was a “hub-and-spoke” conspiracy. See Huff, 609
F.3d at 1243–44. This kind of conspiracy occurs when one conspirator
(Mr. Casanova) recruits a separate group of co-conspirators (Mr. Robledo and
Mr. Zundt) to carry out various functions of the illegal enterprise. See id. In this
case the evidence showed that Mr. Casanova was the hub moving along the
spokes—Mr. Robledo and Mr. Zundt. As a general matter, spokes in such a
conspiracy do not need to know each other, as long as they are aware of the
common aim. See Pacchioli, 718 F.3d at 1303.
There was sufficient evidence to show that Mr. Robledo and Mr. Zundt were
both generally aware that other parties were involved in transporting cocaine from
Texas to Florida. Mr. Robledo was in constant communication with Mr. Casanova
and “Primo” during his trip from Texas to Florida, demonstrating his knowledge
that other people besides himself and Mr. Casanova were involved in transporting
the cocaine across state lines. Mr. Zundt was also aware of the existence of other
parties. He had transported cocaine multiple times for Mr. Casanova. He also
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testified that on the last trip Mr. Casanova was expecting about 8 kilograms of
cocaine, but he and Mr. Casanova only had between 4 and 5 kilograms. The
additional 3 to 4 kilograms would have had to come from an additional party.
We note, as well, that the jury was given an instruction on the existence of
multiple conspiracies, and expressly told that in order to convict Mr. Casanova,
they had to agree that he was a member of the conspiracy charged in the indictment
and not a member of some other conspiracy. That instruction gives us further
confidence that the jury could reasonably find Mr. Casanova guilty beyond a
reasonable doubt.
III
Mr. Casanova challenges his base level offense of 32, which was based on
more than 15, but less than 50, kilograms of cocaine. He asserts that the district
court erred in its approximation and consideration of the weight of the cocaine of
the previous trips taken by Mr. Zundt. We are not persuaded.
We review a district court’s factual findings on the quantity of narcotics for
clear error. See United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005).
Absent a “definite and firm conviction that a mistake has been committed,” we will
not overturn a district court’s factual findings. United States v. Crawford, 407 F.3d
1174, 1177 (11th Cir. 2005).
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The Sentencing Guidelines provide that the base offense level for a drug
offense is to be calculated by determining the quantity of drugs attributable to a
defendant. See generally U.S.S.G. § 2D1.1(a). When a conviction stems from a
conspiracy charge, the defendant may be found responsible for the amount of drugs
involved in all reasonably foreseeable acts done in furtherance of the conspiracy.
See U.S.S.G. § 1B1.3(a)(1)(B). In addition, a defendant “may be held accountable
at sentencing for illegal conduct not in furtherance of the offense of conviction if
that conduct was part of the same course of conduct or common scheme or plan as
the offense of conviction.” United States v. Gomez, 164 F.3d 1354, 1356 (11th Cir.
1999) (internal quotation marks and citation omitted). In examining extrinsic
conduct we evaluate the similarity, regularity, and temporal proximity between the
count of conviction and the extrinsic offense in order to determine if they were part
of the same course of conduct. See United States v. Maxwell, 34 F.3d 1006, 1011
(11th Cir. 1994).
“When a defendant objects to a factual finding that is used in calculating his
guideline sentence, such as drug amount, the government bears the burden of
establishing the disputed fact by a preponderance of the evidence.” Rodriguez, 398
F.3d at 1296. Although the preponderance burden is less than that of a beyond a
reasonable doubt, “it does not grant the court a license to sentence a defendant in
the absence of sufficient evidence.” Id.
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The district court did not clearly err in finding that sufficient evidence was
presented to assign Mr. Casanova a base level of 32 for possessing more than 15,
but less than 50, kilograms of cocaine. The district court was permitted to use the
evidence it heard during trial, undisputed statements in the PSI, and evidence
presented at the sentencing hearing in making its determination. See United States
v. Wilson, 884 F.2d 1355, 1356 (11th Cir. 1989).
We afford great deference to a district court’s assessment of the credibility
of witnesses and the evidentiary content of testimony. See United States v. Lee, 68
F.3d 1267, 1276 (1995). The district court relied upon the testimony of Mr. Zundt
and Mr. Robledo to determine that Mr. Casanova was responsible for more than
15, but less than 50, kilograms of cocaine. When the amount of drugs seized does
not match the scale of the offense, the district court is permitted to approximate the
quantity of the controlled substance. See United States v. Frazier, 89 F.3d 1501,
1506 (11th Cir. 1996). When a district court approximates a quantity of drugs, the
approximation must be fair, accurate, and conservative. See United States v.
Zapata, 139 F.3d 1355, 1359 (11th Cir. 1998).
The evidence showed that 7.5 kilograms of cocaine were seized from
Mr. Zundt and Mr. Robledo. The district court relied upon the testimony of
Mr. Zundt about his other previous trips to approximate the remaining kilograms.
Mr. Zundt testified that he had made 10 trips by bus carrying between 1/2 a
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kilogram and 1 kilogram of cocaine, and had made four trips by car carrying
between 1 and 2 kilograms of cocaine. He also testified that the amount of cocaine
Mr. Casanova had him transporting had been increasing, and on this trip they
expected to transport about 8 kilograms of cocaine total. The district court assumed
that the 8 kilograms he was referring to was the cocaine recovered from
Mr. Robledo. The district court then assumed the lowest weight possible for all of
the various trips by bus and car. At 10 bus trips with a 1/2 kilogram each trip,
Mr. Zundt transported approximately 5 kilograms of cocaine at the behest of
Mr. Casanova. At four trips by car, carrying at least 1 kilogram of cocaine per trip,
Mr. Zundt transported approximately 4 kilograms of cocaine by car. The 9
kilograms from those trips, combined with the 7.5 recovered kilograms of cocaine
recovered, results in a total weight of at least 16.5 kilograms of cocaine. The
methodology used by the district court in assuming the lowest weight for the bus
and car trips was fair, accurate, and conservative. See Zapata, 139 F.3d at 1359. In
addition, there were the 3 kilograms recovered from Mr. Robledo and the extra 3 to
4 kilograms that Mr. Casanova and Mr. Zundt were going to acquire on their last
trip.
We note that the conspiracy Mr. Casanova was charged with began on or
around January 1, 2014, and that Mr. Zundt testified that he believed that he had
transported cocaine for Mr. Casanova prior to that date. This possibility did not
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cause the district court to err. Mr. Zundt testified that he had only known
Mr. Casanova for two years (or less) prior to the trial in July of 2015, and that he
had worked for him as a handyman prior to transporting drugs for him. Assuming
that Mr. Casanova and Mr. Zundt met on July 1, 2013, two years before trial, that
was only five months prior to the start of the charged conspiracy. And during that
time frame Mr. Casanova and Mr. Zundt were still engaging in the exact same
conduct as what was charged in the conspiracy. We conclude that the district court
did not err in including the weight of the cocaine from possible trips prior to the
start date of January 1, 2014, due to the similarity, regularity, and temporal
proximity of the crimes. See United States v. Simpson, 228 F.3d 1294, 1301-02
(11th Cir. 2000).
IV
Mr. Casanova next challenges the district court’s application of a 2-level
increase to his base level offense for being in possession of a firearm in relation
with a drug trafficking offense pursuant to U.S.S.G. § 2D1.1(b)(1). He argues that
the firearm that was found at one of his storage units was not sufficiently related to
him and the crime he was charged with. We disagree.
The application of an enhancement for possession a firearm is a factual
determination which we review for clear error. United States v. Stallings, 463 F.3d
1218, 1220 (11th Cir. 2006). “The enhancement for weapon possession reflects the
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increased danger of violence when drug traffickers possess weapons. The
adjustment should be applied if the weapon was present, unless it is clearly
improbable that that the weapon was connected with the offense.” U.S.S.G.
§ 2D1.1, comment. (n.3). The government must show “by a preponderance of
evidence that the firearm was present at the site of the charged conduct or prove
that the defendant possessed a firearm during conduct associated with the offense
of conviction.” Stallings, 463 F.3d at 1220. The government must demonstrate that
the firearm had some actual connection with the trafficking crime; it cannot be a
mere accident or coincidence or simple possession. See id. at 1220–21. Once that
burden is met, the defendant must establish that a connection between the weapon
and the offense is clearly improbable. See id. at 1220.
The district court did not clearly err in finding that the 2-level enhancement
applied to Mr. Casanova. Mr. Zundt testified that, after learning that Mr. Casanova
had been arrested, he went back to one of the storage facilities and removed the
firearm. He testified that he transported the firearm back to Texas in order to hide
it. Mr. Zundt’s actions as co-conspirator are attributable to Mr. Casanova. See
United States v. Fuentes, 991 F.2d 700, 701 (11th Cir. 1993). In addition, Mr.
Zundt also testified that the firearm was stored at a storage facility where he and
Mr. Casanova had previously stored cocaine. The amount of cocaine, the number
of trips, the presence of the firearm at a storage facility where cocaine had been
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stored, and the attempted cover-up by Mr. Zundt permitted the district court to
apply the enhancement.
V
Mr. Casanova also appeals the 2-level enhancement he received for
maintaining premises for the purpose of manufacturing or distributing a controlled
substance. He argues that the district court erred in finding that his storage
facilities were used primarily for the purposes of manufacturing or distributing a
controlled substance. We are not convinced.
We review the district court’s finding that Mr. Casanova maintained
premises for the manufacture or distribution of drugs for clear error. See United
States v. Barrington, 648 F.3d 1178, 1195 (11th Cir. 2011). The government was
required to prove the enhancement by a preponderance of evidence. See id.
The district court did not clearly err when it found that the government had
met its burden and applied the two-level enhancement for maintaining premises for
the purpose of manufacturing or distributing a controlled substance pursuant to
U.S.S.G. § 2D1.1(b)(12). The enhancement may be applied when the premise is a
“building, room, or enclosure” used for “storage of a controlled substance for the
purpose of distribution.” § 2D1.1, comment. (n.17). Application Note 17 also
indicates that the district court properly considered Mr. Casanova’s possessory
interest in the property and to what extent he controlled access and the activities on
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the premises. See id. The manufacture and distribution of controlled substance does
not need to be the sole use of the premises, but it must be a principal one as
opposed to a collateral one. See id.
Mr. Zundt testified at trial and at the sentencing hearing about the numerous
rental facilities that he and Mr. Casanova utilized when transporting the cocaine
from Texas to Florida. Mr. Casanova had unlimited access to the facilities and
controlled when the duo went there. The evidence presented at trial concerning the
use of the units showed that they were only used to aid Mr. Zundt and
Mr. Casanova when they were transporting cocaine. Mr. Casanova even prepared
cocaine for distribution at one of the units in one instance. Drug distribution
materials were also present in the facilities, and Mr. Zundt testified that the
facilities in Fort Walton Beach were only used to store drugs. There was some
evidence presented that one of the units contained the remnants of Mr. Casanova’s
stucco business, and a claim relating to the Deep Water Horizon oil spill, but those
items did not demonstrate any recent use of the units for those purposes.
In sum, we conclude that there was sufficient evidence to sustain the
enhancement for maintaining premises for the purpose of manufacturing or
distributing a controlled substance.
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VI
Upon review of the record and consideration of the parties’ briefs, we affirm
Mr. Casanova’s conviction and sentence.
AFFIRMED.
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