United States v. Eliezer Yehudah Neufeld

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
ELEVENTH CIRCUIT
NOVEMBER 16, 2005
THOMAS K. KAHN
No. 04-10386 CLERK

D.C. Docket No. 03-00194-CR-J-25-HTS

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ELIEZER YEHUDAH NEUFELD,

Defendant - Appellant.

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

(November 16, 2005)

Before TJOFLAT and KRAVITCH, Circuit Judges and LIMBAUGH*, District
Judge.

LIMBAUGH, District Judge:

*
Honorable Stephen N. Limbaugh, United States District Judge for the Eastern District of
Missouri, sitting by designation.
 A jury found defendant1 guilty of a conspiracy to distribute 3, 4

methylenedioxymethamphetamine2, commonly known as “MDMA,” or “Ecstasy,”

a Schedule 1 controlled substance, in violation of Title 21, U.S.C., § 841(a)(1) and

(b)(1)(C). After receiving a 135 month sentence, defendant appeals his conviction

and sentence. In the appeal, defendant maintains that the district court erred:

1. In denying defendant’s motion for a new trial by failing to order sua

sponte an evidentiary hearing because of an alleged Brady3 violation;

2. By allowing introduction at trial Rule 404(b) evidence of two four-year

old felony convictions;

3. In imposing sentence under the Federal Sentencing Guidelines and

imposing a forfeiture judgment in violation of Apprendi v. New Jersey, 530 U.S.

466, 120 S. Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542

U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004);

4. In calculating the quantity of MDMA attributable to defendant in

computing his range of punishment;

5. In calculating defendant’s criminal history on two prior convictions

1
Defendant-Appellant will be referred to as defendant.
2
In the indictment, MDMA is spelled methylenedioxymethamphatamine.
3
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

2
adjudicated the same day.

BACKGROUND

During the year 2002 and until April 30, 2003 the defendant, Roobik

Vartanian, Aron Dermer and David Bitton were engaged in the purchase and sale

of MDMA. These parties would buy and sell from and to each other and from and

to other persons.

Vartanian was arrested for trafficking in MDMA on March 7, 2003.

Following his arrest he began cooperating with law enforcement officials as a

confidential source. Illegal drug transactions among the four parties, and others,

were brought to a halt as a result of a sting operation organized by law

enforcement officers with Vartanian’s assistance.

The sting culminated in an attempted purchase on April 30, 2003 by

Vartanian of 5,000 MDMA pills. Defendant, Dermer and Bitton were involved as

the sellers. Vartanian, residing in Jacksonville, Florida, had ordinarily purchased

MDMA pills from Dermer who lived in Miami. Vartanian would travel to Miami

to pay for and pick up the merchandise. Bitton, as a supplier, had also sold to the

defendant and to Dermer and occasionally defendant would act as the middle man

in a sale. The purpose of the sting was to implicate defendant, Dermer and Bitton.

A few weeks before April 30, 2003 defendant called Bitton telling him he

3
had an order for 5,000 pills at the price of $5.25. Although the transactions

usually occurred in Miami, this one was to take place in Jacksonville, Florida so it

would be necessary for the merchandise to be transported there. This increased

the price to $5.75/pill and ultimately to $6.00. Bitton agreed to the transaction

because the intermediate purchaser was identified as Dermer, a known dealer.

Bitton drove the merchandise from Miami to Jacksonville on April 30th to

complete the deal with defendant, Dermer and Vartanian. Pursuant to the sting

arrangements, the transaction was to take place at the Avenues Mall in

Jacksonville.

Dermer and defendant were in one vehicle, and met Vartanian to set up the

purchase. There was some concern about whether the merchandise would be

delivered first and the money then paid over, or the payment of the money first.

After some face-to-face and telephone discussions, the parties agreed to complete

the sale in front of a furniture store across from the mall following which Bitton

arrived in a silver Honda Accord vehicle.

During the process of completing the transaction near the furniture store,

each of the parties was communicating with each other. Vartanian would confer

with Dermer who would, in turn, confer with defendant, and defendant would then

relay the conversation to Bitton. It was disclosed that the pills were located in the

4
trunk of Bitton’s car and Vartanian was allowed to view the merchandise. At that

point, the law enforcement officers converged on the group, and defendant,

Dermer and Bitton were arrested. The evidence revealed that the three persons

arrested were to have divided the profits from the sale absent the completion of the

sting operation.

At the trial, Vartanian, Dermer and Bitton all testified as cooperating

witnesses. Bitton and Dermer had both entered pleas of guilty to drug

conspiracies and each hoped that the Court would be lenient in sentencing them as

a result of their truthful testimony. Vartanian was not charged and had no plea

agreement, but anticipating being indicted, entertained hope of a reduced sentence.

Vartanian, Dermer and Bitton all testified as to their prior dealings with

defendant. Vartanian stated that he was involved with MDMA purchases from the

defendant on three earlier occasions. The first involved a purchase from an un-

identified occupant with a silver Honda who gave the pills to defendant, who in

turn sold them to Vartanian. The second incident was at defendant’s condo in

Miami when he purchased pills from the defendant at that location. The third

incident involved the purchase from defendant of 2,000 pills which were those

Vartanian had in his possession at the time of his arrest March 7, 2003.

5
 Dermer began buying drugs from defendant in January 2002. He first

would buy a few 100 pills at a time, and the level increased to 2,000 up to the time

of his arrest. From January 2002 on, he would purchase MDMA from the

defendant every three or four weeks. He estimated from January 2002 to April 30,

2003 he purchased approximately 30,000 pills from the defendant. Frequently,

Bitton was present at the time of the purchases, even though they generally

occurred in defendant’s apartment in Miami.

Bitton testified that he began supplying MDMA to defendant in January or

February of 2002. The transactions began with 500 pills and increased over time

to 2,300 to 2,700 pills per transaction. This would occur every couple of weeks.

He stated they had to stop for a couple of months because of a dry spell. The dry

spell occurred shortly before the April 30th transaction. Most of the purchases

occurred at the defendant’s condo.

Following his arrest, defendant told Robert Garrison, a narcotics detective

with the Jacksonville, Florida sheriff’s office that he would sell pills to Dermer

who, in turn, would sell them to Vartanian, and defendant’s source was Bitton.

Defendant told Garrison that he had been involved in selling multi-thousands of

pills.

6
 Defendant did not testify, but used as a defense the theory of innocent

intent. Defendant, through witnesses, suggested that he believed through a friend,

Judah Holland, that the drug transaction of April 30, 2003 was set up on behalf of

Holland and law enforcement agents. As a result of the transaction, defendant

innocently intended that Holland would receive less prison time for crimes he had

committed.4

DISCUSSION

1. The Alleged Brady Violation:

During the discovery phase of the case, defendant filed “Motion to Compel

Specific Kyles and Brady Information.” The district court’s standing order

required the government to disclose Brady material five days before trial. In

addition to the standing order, the district court required the government to review

individually each of the items requested to determine whether disclosures were

required pursuant to Brady v. Maryland, supra, Giglio v. U.S., 405 U.S. 150, 92

S.Ct. 763, 31 L.Ed.2d 104 (1972) and Kyles v. Whitley, 514 U.S. 419, 115 S.Ct.

1555 (1995).

Portions of the defendant’s request seek information which details the

4
In addition to the defense of innocent intent, defendant also urged that he be allowed to
exercise a “public authority defense” as well. Shortly before trial, the District Court sustained the
government’s motion to prevent the defendant from introducing evidence on a “public authority
defense.”

7
criminal activities of a cooperating witness which were undertaken by the witness

without the authority or approval of the government. Information was also

requested concerning misconduct by a cooperating witness that reflects a lack of

candor, truthfulness or law abiding character of the informant, such as uncharged

criminal conduct or fraud.

The defendant was sentenced January 15, 2004 and on February 4, 2004 he

filed “Motion for New Trial due to Newly Discovered Evidence.” The newly

discovered evidence was that Bitton continued to violate the law by engaging in

illegal sales of drugs two weeks before Bitton testified against defendant. The

documents attached to defendant’s motion allege that on September 24, 20035,

Bitton was arrested in Miami after he sold drugs to a confidential source working

with the Drug Enforcement Administration (DEA) with whom he had previously

discussed the transaction.

In the motion defendant admits that the government had complied with the

district court’s orders by giving the defense copies of Bitton’s grand jury

testimony, DEA Form-6 reports pertaining to the case as well as Bitton’s plea

agreement. Defendant’s argument is that the government knew, or should have

5
Bitton testified on September 23, 2003, the day before the jury returned a verdict against
the defendant here on September 24, 2003.

8
known, of Bitton’s continued drug transactions and should have made this

information available to him before Bitton testified.

Defendant maintains that the disclosure of Bitton’s behavior would have

altered the verdict because Bitton’s credibility would be even more suspect.

Defendant also suggests that the district court should have sua sponte ordered an

evidentiary hearing before denying his motion for a new trial.

While defendant argues, on this appeal, that the government committed a

Brady violation in failing to reveal the Bitton conduct, there was no specific

assertion of a Brady violation in the motion for a new trial, based on newly

discovered evidence. The matter is of consequence because of the standard of

review. If a defendant does not precisely articulate a Brady violation in his motion

for a new trial, the Court need only conduct a plain error review. On the other

hand, the review is for abuse of discretion of a district court’s specific denial of a

motion for a new trial based on a Brady violation. U.S. v. Pettway, 129 Fed.

Appx. 583 (11th Cir. 2005) citing U.S. v. Bender, 290 F.3d 1279, 1284 (11th Cir.

2002).

Under the plain error rule “[t]here must be an ‘error’ that is ‘plain’ and that

‘affect(s) substantial rights.’ Moreover, Rule 52(b) leaves the decision to correct

the forfeited error within the sound discretion of the court of appeals, and the court

9
should not exercise that discretion unless the error ‘seriously affect(s) the fairness,

integrity or public reputation of judicial proceedings.’” United States v. Olano,

507 U.S. 725, 732 (1993), citing, U.S. v. Young, 470 U.S. 1, 15 (1985) (quoting

U.S. Atkinson, 297 U.S. 157, 160 (1936)).

Although defendant did not specifically allege a Brady violation, in the

motion for a new trial this Court, nonetheless, will consider the claim as a Brady

violation and will conduct a “plain error” review.

It is undisputed that in keeping with the district court’s discovery orders, the

prosecution, prior to trial, provided Bitton’s name, transcripts of his grand jury

testimony, DEA form-6 reports regarding Bitton and Bitton’s plea agreement.

Thus, the only thing not produced were facts setting out Bitton’s alleged

continuing criminal activity up to the time the jury reached its verdict.

The prosecution is required, under Brady, to disclose evidence material to

guilt or punishment that is favorable to an accused. Brady, 373 U.S. at 87. In

order to establish a Brady violation, one must prove:

“(1) that the Government possessed evidence favorable to the defense,

(2) that the defendant did not possess the evidence and could not
obtain it with any reasonable diligence,

(3) that the prosecution suppressed the evidence, and

(4) that a reasonable probability exists that the outcome of the

10
 proceeding would have been different had the evidence been
disclosed to the defense.” (citation omitted).

Moon v. Head, 285 F.3d 1301, 1308 (11th Cir. 2002), cert. denied 537 U.S. 1124

(2003) (citation omitted).

Bitton testified at defendant’s trial on September 23, 2003 and the jury

returned a verdict the next day. On that day, September 24, 2003, Bitton was

arrested while attempting to sell MDMA pills to a Miami DEA confidential

informant. For two weeks prior to that time, Bitton had been assisting DEA agents

but his continued illegal criminal activity was unknown to those agents until the

time of his arrest. Defendant has failed to meet the third and fourth prong of the

Moon criteria and perhaps even the first. Bitton’s drug arrest occurred at the same

time the jury returned a verdict. Even if the prosecution was aware of that arrest,

it could not have been used for impeachment purposes as Bitton had testified the

day before. In addition, there is nothing to suggest that the outcome of the

proceeding would have been different had the evidence of the arrest as well as

Bitton’s prior and continuing cooperation with DEA agents been made available to

the defense. Johnson v. Alabama, 256 F.3d 1156, 1190 (11th Cir. 2000) (No

Brady violation where petitioner (defendant) failed to show prejudice from the

allegedly supressed items).

11
 Contemporaneous with the “plain error test” defendant has failed to show

how the non-disclosure of the evidence involved affected his substantial rights.

Possession of the evidence by the defendant that Bitton continued to cooperate

with DEA agents, and even continued to deal illegally in drugs, would simply

have been cumulative. The jury was aware that Bitton had bought and sold drugs

and had entered a plea of guilty for the drug conspiracy involved here. Bitton

obviously was a drug dealer. The jury was aware that Bitton had agreed to testify

against defendant in exchange for the prospect of a reduced sentence. In addition,

even if the additional evidence had been made known to the jury and had caused

the jury to disbelieve the testimony of Bitton, there was still ample other evidence

upon which the jury could have based its finding of guilt as to the defendant.

There is nothing to suggest that the error of omission, if there was one, seriously

affected the fairness, integrity or public reputation of the judicial proceeding here.

Olano, 507 U.S. at 732. It certainly was not plain error to deny defendant’s

motion for a new trial without an evidentiary hearing.6

6
The defendant alleges in his reply brief that the government suborned perjury by allowing
Bitton to testify that he was cooperating with the government while simultaneously remaining a
known drug trafficker. Actually, Bitton’s illegal dealing in drugs was unknown until the day of his
arrest, but since this argument was raised for the first time in defendant’s reply brief, it will not be
considered. U.S. v. Levy, 379 F.3d 1241, 1244 (11th Cir. 2004)

12
 2. Alleged Violation of Rule 404(b):

On September 8, 2003, fifteen days before trial, the government filed notice

of intent to use evidence of other crimes, wrongs or acts pursuant to Rule 404(b).

The notice refers to evidence relating to defendant’s arrest on April 1, 1998 “by

Davie, Florida police for possession of marijuana with intent to sell, and his

subsequent conviction therefore.” Also, evidence relating to defendant’s “arrest

on June 7, 1998 by Hallandale Beach, Florida police for delivery of MDMA, and

his subsequent conviction therefore.” Copies of the police reports were attached.

“Information to establish prior convictions” was also filed by the

government on September 15, 2003 showing that on September 3, 1998 in

Broward County, Florida, defendant was convicted of possession of Cannabis, a

Florida law felony, and on September 3, 1998 in Broward County, Florida a record

of the defendant’s conviction of possession and delivery of MDMA, Florida

felony violations.

Over defendant’s objection, at trial, the district court allowed evidence to be

introduced as to defendant’s conviction of delivery of MDMA in 1998. The

conviction was based on defendant’s plea of nolo contendre. Immediately before

the evidence was introduced the district court properly instructed the jury on how

to consider 404(b) evidence.

13
 Officer Raphael, of the City of Hallandale Beach police department in

Broward County, Florida testified that while he was working in an undercover

capacity, defendant sold him several pills of MDMA in June of 1998. The

defendant identified the pills “as Ecstasy.” When defendant was arrested, he

possessed a baggie containing 16 other pills. The officer conducted a field test on

the pills and on the basis of his experience determined that they tested positive for

“opium alkaloids.” The officer further stated that opium alkaloid is a controlled

substance as an opium derivative and that at the time of the purchase from the

defendant, the pills were identified as Ecstasy.

The jury was further allowed to hear evidence of the April 1, 1998 arrest

and later conviction of defendant for possession of Cannabis with intent to sell.

That conviction, also, was based on a nolo contendre plea.

The district court in the final charge to the jury also repeated the 404(b)

instruction given to the jury immediately before the evidence was introduced.

Defendant argues that there was insufficient evidence to prove the 1998 sale

of MDMA pills because the plea was nolo contendre only, and the officer lacked

sufficient credentials to identify the content of the pills allegedly sold. In addition,

defendant contends that Cannabis is a different drug than Ecstasy, and the

conviction is too remote to be admissible. Finally, defendant argues that the

14
prejudice to defendant by the admission of this evidence far exceeds its probative

value.

Rule 404(b) provides that:

“(b) Other crimes, wrongs, or acts. Evidence of other
crimes, wrongs or acts is not admissible to prove the
character of a person in order to show action in conformity
therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of
mistake or accident, provided that upon request by 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.”

“We review the district court’s ruling on admission of evidence for abuse of

discretion.” U.S. v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000), U.S. v.

Chavez, 204 F.3d 1305, 1316 (11th Cir. 2000).

“To be admissible, 404(b) evidence must: (1) be relevant to one of the

enumerated issues and not to the defendant’s character; (2) the prior act must be

proved sufficiently to permit a jury determination that the defendant committed the

act; and (3) the evidence’s probative value cannot be substantially outweighed by

its undue prejudice and the evidence must satisfy Rule 403.” Chavez, 204 F.3d at

15
1317.7

Applying the first prong of the Chavez test, we hold that both of defendant’s

1998 convictions were directly related to a material issue in this case and not to his

character. The convictions and the evidence supporting them were proffered by

the government on the issue of intent. Even though each conviction involved a

single act, and although one involved a drug different than MDMA, such evidence

is directly relevant to the question of intent concerning the charged crime of

conspiracy to distribute MDMA. Defendant entered a plea of not guilty and

therefore intent becomes a material factor. U.S. v. Calderon, 127 F.3d 1314, 1332

(11th Cir. 1997). (“Ample precedent exists in this circuit finding that a not guilty

plea in a drug conspiracy case, such as we have here, makes intent a material issue

and opens the door to admission of prior drug-related offenses as highly probative,

and not overly prejudicial, evidence of a defendant’s intent.”)

In applying the second prong of the Chavez test, the evidence of defendant’s

prior 1998 convictions must be sufficient to support a finding that he actually

committed the acts in question. As to the Cannabis conviction, the evidence

consisted of a transcript of the plea, conviction and sentence. Certainly, the

7
Although 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, or by
considerations of undue delay, waste of time or needless presentation of cumulative evidence.” Fed.
R. Evid 403, Chavez, 204 F.3d at 1317, n. 9.

16
conviction itself is sufficient proof that he committed the prior act. “The fact that

the conviction was based on a guilty plea is inconsequential. See United States v.

Edwards, 696 F.2d 1277, 1280 (11th Cir.), cert. denied, 461 U.S. 909, 103 S.Ct.

1884, 76 L.Ed.2d 813 (1983) (holding that appellant’s own statement admitting

act, even if mere puffery, is sufficient to justify a jury finding that he committed

the act for purposes of Rule 404(b).)” Calderon, 127 F.3d 1332.

The evidence as to the MDMA 1998 conviction deserves further comment.

In addition to the transcript of the plea, verdict and sentence, evidence was

introduced of the illegal transaction itself. A police officer testified that while

acting under cover, he purchased MDMA pills from the defendant. Following an

arrest and search, it was discovered that defendant had additional pills on his

person. The officer conducted a field test of the pills and on the basis of his

training and experience, determined that they contained opium alkaloids. In

addition, the officer testified that the defendant admitted the pills were “Ecstasy”

or MDMA.

Finally, as to each of the 1998 convictions, while a plea of nolo contendre is

not a plea of guilty, it is a plea of no contest; that is, a defendant admits that the

government has sufficient evidence to take the case to a jury. We conclude,

therefore, that as to the 1998 convictions there was sufficient evidence to satisfy

17
the second prong that a jury was able to determine that the defendant committed

the prior acts.

We also conclude that under the third prong of the Chavez test, the

probative value of the 1998 convictions was not substantially outweighed by

unfair prejudice. The facts in U.S. v. Calderon, supra are not dissimilar from those

here. In both cases, the testimony against the accused came from co-conspirators

who had either entered into cooperation agreements providing for reduced

sentences or who anticipated that their truthful testimony would bring about

leniency in sentencing. Since the testimony of such witnesses here and in

Calderon was subject to heavy attack as to believability, obviously in each case it

is difficult to prove the negative that the government had no need to introduce

evidence of the accused’s prior drug activity to establish his intent. Calderon, 127

F.3d at 1332.

Defendant suggests that the two 1998 convictions are too remote to be

admissible as 404(b) evidence. At the time of the trial in 2003, the 1998

convictions were five years old. Our holdings do not support this argument. U.S.

v. Pollock, 926 F.2d 1044, 1047, 1048 (11th Cir. 1991) (holding a five-year old

drug conviction is probative of a defendant’s state of mind in a drug conspiracy

case.) Calderon, 127 F.3d at 1332 (a six-year span between the prior convictions

18
and the conduct upon which the present charges are based does not render the

earlier convictions too remote for proper consideration).

Defendant also argues that as one of the 1998 convictions involved a drug

different than MDMA for which he is charged here, and as there is not a similarity

between the extrinsic act and the charged offense, it was error to admit that

evidence. To support his position, defendant relies principally on U.S. v. Young,

39 F.3d 1561 (11th Cir. 1994). In Young, the government introduced 404(b)

evidence showing that the defendant was involved in illegal production of alcohol

in an attempt to prove his intent to conspire to distribute marijuana. The court in

Young found that alcohol is not a controlled substance and the illegality of its

production is distinct both in fact and law from that involved in growing and

selling marijuana. Accordingly, the court ruled that it was error to admit evidence

of the prior illegal production of alcohol because it was not probative of an intent

to conspire to possess and distribute marijuana. Young, 39 F.3d at 1573.

The facts in Young can be distinguished from those here. We have

determined in this case that evidence of a prior distribution of a controlled

substance is probative of intent to distribute another controlled substance. In

Young, it was error to admit evidence of a non-controlled substance as it is not

19
probative of an intent to distribute a controlled substance.8

We conclude, therefore, that the district judge did not abuse his discretion in

admitting the 404(b) evidence. All of the circumstances surrounding the extrinsic

offenses, including prosecutorial need, overall similarity between the extrinsic acts

and the charged offense as well as temporal remoteness lead to this conclusion. If

in fact there was unfair prejudice, it was mitigated by the district judge’s limiting

instructions, both before the evidence was adduced and as a part of the final

charge. In addition, the error, if any, was harmless as there was substantial other

evidence to support the verdict. U.S. v. Chavez, 204 F.3d at 1317 quoting U.S. v.

Hubert, 138 F.3d 912, 914 (11th Cir. 1998).

3. The Apprendi and Blakely Challenge:

At sentencing, the district court violated the defendant’s Sixth Amendment

right to a trial by jury when, treating the Federal Sentencing Guidelines as

mandatory, it enhanced his sentence based on facts that were neither admitted by

the defendant nor found by the jury. Because the defendant has raised this issue

for the first time on appeal, our review is for plain error only. “We have discretion

to correct an error under the plain error standard where (1) an error occurred, (2)

8
Nevertheless in Young we pointed to our holding in U.S. v. Diaz-Lizaraza, 981 F.2d 1216,
1224 (11th Cir 1993) (evidence of a defendant’s arrest for possessing marijuana with intent to
distribute was relevant to the issue of his intent to conspire to possess and distribute cocaine).

20
the error was plain, (3) the error affected substantial rights, and (4) the error

seriously affects the fairness, integrity or public reputation of judicial

proceedings.” United States v. Duncan, 400 F.3d 1297, 1301 (11th Cir. 2005)

(citing United States v. Olano, 507 U.S. 725, 732-36, 113 S. Ct. 1770, 1777-79,

123 L.Ed.2d 508 (1993)). There is no dispute that there was error in this case that

was plain. U.S. v. Rodriguez, 398 F.3d 1291, (11th Cir. 2005), reh’g en banc

denied, 406 F.3d 1261 (11th Cir. 2005), cert denied, Rodriguez v. U.S., 125 S.Ct.

2935 (2005).

This case turns on the third prong of the test, which in this circuit requires

the defendants to show that “there is a reasonable probability of a different result

if the guidelines had been applied in an advisory instead of binding fashion by the

sentencing judge in this case.” Rodriguez, 398 F.3d at 1301. “[I]f it is uncertain

whether the error affected the result, if the effect is indeterminate, if we simply

cannot tell from the appellate record, then the defendant loses.” Id. at 1306.

Although the Rodriguez standard is exacting, it does not require the defendant to

persuade us that a lower sentence would more likely than not be the result of a

remand, Rodriguez, 406 F.3d at 1275 (Carnes, J., concurring in the denial of

rehearing en banc) (stating that the Rodriguez standard is “not a preponderance

standard”); rather, a “reasonable probability” is simply “a probability ‘sufficient to

21
undermine confidence in the outcome,’” id. at 1274 (quoting United States v.

Dominguez Benitez, 542 U.S. 74, , 124 S.Ct. 2333, 2340, 159 L.Ed.2d 157

(2004)).

In this case, the defendant’s mandatory guideline range was 135 to 168

months. The district judge sentenced him to 135 months.9 After recognizing that

the defendant was “locked into a position of receiving a sentence from 135 months

to 168 months,” the judge, operating under a mandatory guidelines system, stated

that a 135 month sentence would be “more than adequate for the conduct and to

deter any future conduct.” Under this scenario, it appears there is a reasonable

probability that the district judge would impose a merely adequate sentence.

The first sentence of the federal sentencing statute commands the district

judge to “impose a sentence sufficient, but not greater than necessary, to comply

with the purposes” of the statute, such as “to provide just punishment for the

offense” and “to afford adequate deterrents to criminal conduct.” 18 U.S.C. §

3553(a) (emphasis added).

Under the new advisory-guidelines system, a more-than-adequate sentence

9
“We agree with the First, Fourth, Fifth and Eighth Circuits that the fact that the
district court sentenced the defendant to the bottom of the applicable guidelines range establishes
only that the court felt that sentence was appropriate under the mandatory guidelines system. It does
not establish a reasonable probability that the court would have imposed a lesser sentence under an
advisory regime.” United States v. Fields, 408 F.3d 1356, 1360-61 (11th Cir. 2005).

22
would conflict with § 3553(a)’s injunction against greater-than-necessary

sentences. As a matter of logic and common sense, the judge’s comment

establishes at least a “reasonable probability of a different result if the guidelines

had been applied in an advisory instead of binding fashion by the sentencing judge

in this case,” Rodriguez, 398 F.3d at 1301, if not a substantial likelihood. Because

all that the defendant is required to create is a doubt sufficient to undermine our

confidence in the outcome, we vacate his sentence and remand for a new

sentencing hearing pursuant to the sentencing model set out in United States v.

Booker, 543 U.S. , 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).10

4. Calculation of the Quantity of MDMA Attributable to Defendant:

Although defendant’s point of error as to the method of calculation of the

drug quantity attributable to the defendant is actually a part of his Apprendi-

Blakely-Booker assignment of error we will treat it as a separate assignment for

our discussion.

In calculating the total offense level pursuant to the Sentencing Guidelines,

10
In some cases a defendant may establish an effect on his substantial rights and yet still
be unable to satisfy the fourth prong of the plain-error test. See, e.g., United states v. Gonzalez-
Huerta, 403 F.3d 727, 736 (10th Cir. 2005); Rodriguez, 406 F.3d at 1294 n. 15 (Tjoflat, J., dissenting
from the denial of rehearing en banc). But see Rodriguez, 406 F.3d at 1265-66 (Carnes, J.,
concurring in the denial of rehearing en banc). In this case, however, we deal with a sentence
imposed in violation of the Constitution, and there is a reasonable probability that correction of the
error would result in a lower sentence. Under these circumstances, the error affects the fairness,
integrity, and public reputation of the criminal justice system.

23
the Probation Officer prepared a pre-sentence investigation report which began

with a base offense level of 34. This was calculated on the basis of some evidence

that indicated defendant was responsible for at least 30,000 tablets of MDMA.

The dialogue between the court and counsel set out that each tablet weighed .206

grams with 3,000 tablets resulting in 6,180 grams. Pursuant to 2B1.1(C)(3) a level

34 is based on a calculation of 3,000 kilograms of marijuana, but less than 10,000

kilograms. 6,180 grams of MDMA converts to 3,090 kilograms of marijuana. (Tr.

Vol 10, p. 10). During the discussion, counsel for the defendant objected to the

conclusion that there were 3,000 pills of MDMA attributable to the defendant.

The evidence as to the quantity of the pills attributable to the defendant

came principally from Bitton and Dermer. Defendant’s counsel suggested that that

testimony was totally unreliable. Dermer testified that his first contact with

defendant was in January 2002 and he would buy a few pills at a time, but the

level increased to 2,000 at the time of his arrest. He stated he would purchase

MDMA pills from defendant every three to four weeks from January 2002 on. He

estimated that during the period of January 2002 to April 30, 2003 he purchased

approximately 30,000 pills from defendant.

Bitton testified similarly that he began an involvement with drug sales to

defendant in January or February of 2002. The early transactions started with 500

24
pills per occurrence and increased, over time, from 2,300 to 2,700 pills per

transaction. He stated there would be a transaction every couple of weeks but

there were a couple of months in which there were no transactions prior to April

30th because of a “dry spell.”

Following his arrest, defendant told Garrison, a narcotics detective, that he

was involved in selling multi-thousands of pills.

In the colloquy between the district court and counsel, grand jury testimony

of Dermer was also brought into play. In Dermer’s grand jury testimony he

indicated that he was buying perhaps 2,000 pills twice a month for 14 months, or a

total of 56,000 MDMA pills. During the “dry spell” the total would only be

reduced to 52,000 pills. Tr. Vol. 10, p. 12-16.

Although the testimony of Bitton and Dermer at trial and before the Grand

Jury varied as to the quantities, it appeared there was sufficient evidence to

support 30,000 pills attributable to defendant, which would result in a base offense

level of 34. Counsel for the defendant argued that if there was just a 1,000 pill

adjustment downward from the 30,000 pills the calculation would result in a base

offense level of 32.

In concluding the discussions, the district court elected to accept

defendant’s argument, and determined there was sufficient evidence to support a

25
finding that there were 29,000 MDMA tablets accountable to defendant. The

court then found that the base offense level was 32. As there were no other

applicable provisions of the Sentencing Guidelines to be considered, 32 became

the total offense level. With a total offense level of 32 and a criminal history

category of II, the range of punishment as to imprisonment was 135-168 months as

found by the district court.

Ordinarily, when reviewing a district court’s drug quantity determination,

the review is for clear error. U.S. v. Ryan, 289 F.3d 1339, 1347, 1348 (11th Cir.

2002), U.S. v. Zapata, 139 F.3d 1355, 1357 (11th Cir. 1998) “However, if a party

fails to raise objections to an issue before the district court, this court should

review this issue only for plain error.” Id.

As stated, initially, defendant objected to the probation officer’s finding in

the presentence investigation report that the base offense level was 34 based on a

quantity of 30,000 or more MDMA pills. Counsel successfully persuaded the

district court to reduce the quantity by 1,000 pills, thereby making the base offense

level a 32. As the district court granted defendant’s request in making the

calculation it would appear there was no error, clear or plain. Nonetheless, we

will review for clear error.

Defendant’s sole argument is that the testimony of the two witnesses on

26
which the district court based its findings was unreliable.

Ordinarily, a determination of credibility of a witness is made exclusively

by the finders of fact. U.S. v. Mesa, 247 F.3d 1165, 1169 (11th Cir. 2001).

Here, the district court obviously found the testimony of Bitton and Dermer

to be reliable as to the quantity of drugs involved and accordingly, we should not

disturb that finding.11

5. Calculation of Criminal History:

In the presentence investigation report, the probation officer calculated a

criminal history category of II on the basis of two felony convictions previously

referred to in discussing the admission of 404(b) evidence. The report revealed

that on September 3, 1998 in the 17th Judicial Circuit Court in Broward County,

Florida, No. 98-6645-CF-10A, defendant was convicted of possession of

Cannabis, under Florida law. Defendant was arrested for this offense on April

1,1998. In calculating the criminal history category, one point was assessed for

this offense.

Defendant was arrested on June 7, 1998 for a sale of MDMA pills to Officer

Raphael as recounted earlier and for possession of MDNA, both felonies under

11
It is somewhat disingenuous for defendant to argue that testimony concerning the quantity
of drugs attributable to him was not credible when the district court granted defendant’s request in
determining the quantity.

27
Florida law. That case was filed also in the 17th Judicial Circuit for Broward

County, Florida, Case No. 98-11428-CF-10A. In that case, defendant was also

sentenced on September 3, 1998 and one point was assessed in calculating the

criminal history category.12

At the time of sentencing, the trial judge accepted the probation officer’s

finding and determined that the criminal history category was II. No objection

was made by the defendant as to that conclusion.

On appeal for the first time, defendant challenges this finding, urging that

the two cases were related under U.S.S.G. § 4A1.2, n. 3, as they were consolidated

for sentencing and not separated by an intervening arrest. Defendant suggests,

therefore, that only one point should have been assessed and that defendant’s

criminal history category should have been a one (1), rather than two (2).

Defendant’s position is not accurate or persuasive.

Section 4A1.2, n. 3, provides that:

“Related Cases. Prior sentences are not considered related if they
were for offenses that were separated by an intervening arrest (i.e., the
defendant is arrested for the first offense prior to committing the second
offense). Otherwise, prior sentences are considered related if they
resulted from offenses that (A) occurred on the same occasion, (B) were
part of a single common scheme or plan, or (C) were consolidated for

12
These convictions were substantiated by the filing of “U.S. Notice of Intent to use
evidence of ‘other crimes, wrongs, or acts’ pursuant to Rule 404(b)” and “Information to establish
prior convictions.” The convictions themselves are not disputed.

28
 trial or sentencing.”

Here, defendant committed the first offense, to which he entered a plea of

nolo contendre, and later committed the second offense to which he entered the

same plea. Thus, they were separated by intervening arrests, one on April 1, 1998

and the other on June 7, 1998. In any event, the two sentences are not considered

related because they were for separate offenses, were not part of a single common

scheme or plan, and were not consolidated for trial or sentencing. The cases had

different numbers and although the sentence for each occurred on the same date,

there is nothing in the record to show that they were consolidated. It is

unnecessary to give further attention to this assignment as counsel for defendant,

during oral argument, admitted the two sentences were not consolidated for trial or

at sentencing.

Accordingly, we conclude that the district court here did not commit clear

error in concluding that defendant’s 1998 felony convictions were separate and

warranted the calculation of a criminal history category of II.

In the consideration of this issue, we have not overlooked defendant’s

Apprendi, Blakely and Booker argument that defendants’ prior convictions must

be found by the jury beyond a reasonable doubt, or admitted by the defendant.

In Almendarez-Torres v. U.S., 523 U.S. 224, 228, 118 S.Ct. 1219, 140

29
L.Ed.2d 350 (1998), the Supreme Court determined that the government is not

required to allege in its indictment nor is it required to prove beyond a reasonable

doubt that a defendant had prior convictions for a district court to use those

convictions for purposes of enhancing a sentence. We refused to interpret the

rationale of the Supreme Court in Apprendi as overruling its holding in

Almendreaz-Torres. U.S. v. Marseille, 377 F.3d 1249, 1257 (11th Cir. 2004), cert.

denied, 125 S.Ct. 637 (2004). As stated in Marseille, we concluded that Blakely

“does not take such fact-finding out of the hands of the courts.” Marseille, 377

F.3d at 1257-58, n. 14. 13

We find nothing in Apprendi, Blakely, or Booker that overrules

Almendreaz-Torres. Prior convictions may be considered in enhancing sentences.

Thus, the finding of the district court here in determining that defendant’s criminal

history category was a Category II does not run afoul of Apprendi, Blakely, and

Booker.

6. Personal Money Judgment - Forfeiture:

After the jury verdict in this case, the district court, on motion of the

13
For recent cases supporting our holding in Marseille, see U.S. v. Styles, 2005 WL 1586483
(11th Cir. July 7, 2005), U.S. v. Hurtado, 2005 WL 1367359 (11th Cir. June 10, 2005), U.S. v.
Burge, 407 F.3d 1183, 1188 (11th Cir. May 2, 2005) U.S. v. Lewis, 129 Fed. Appx. 573 (11th Cir.
April 29, 2003).

30
government, entered a personal money judgment and forfeiture against the

defendant pursuant to 21 U.S.C. § 853(a)(1) and (2) in the sum of $174,000.

As asserted in his brief filed in this appeal, defendant stated:

“The court erred in imposing sentence under the Federal Sentencing
Guidelines and imposing the forfeiture judgment in violation of
Apprendi v. New Jersey and Blakely v. Washington.”
App. brief, p. 49.

Other than the assignment of error in the caption, there is no argument in the

brief concerning the forfeiture judgment. More than a heading is required to

preserve an argument raised on appeal; further discussion is required. The issues

must be plainly and unambiguously raised. See e.g., United States v. Jernigan,

341 F.3d 1273, 1284 n. 8 (11th Cir. 2003) (collecting cases). Although briefs are

to be read liberally to determine the issues raised on appeal, see, e.g., Allstate Ins.

Co. v. Swann, 27 F.3d 1539, 1542 (11th Cir. 1994), some discussion of the merits

of the issue must be proffered, see, e.g., Greenbriar Ltd. v. City of Alabaster, 881

F.2d 1570, 1573 n. 6 (11th Cir. 1989). Accordingly, there is no need to address

the issue as it has been waived. See, e.g., Marek v. Singletary, 62 F.3d 1295, 1298

n. 2 (11th Cir. 1995) (“Issues not clearly raised in the briefs are considered

abandoned.”); McFarlin v. Conseco Services, LLC, 381 F.3d 1251, 1263 (11th

Cir. 2004) (“A party is not allowed to raise at oral argument a new issue for

review.”).

31
 Accordingly, we vacate Neufeld’s sentence and remand for re-sentencing

consistent with Booker. In all other respects, the judgment of the district court is

AFFIRMED.

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