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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15505
Non-Argument Calendar
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D.C. Docket No. 7:17-cr-00081-LSC-JHE-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SILVERIO CANALES-LICONA,
a.k.a. Silveiio Canales-Licona,
Defendant - Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(November 2, 2018)
Before MARCUS, ROSENBAUM and JULIE CARNES, Circuit Judges.
PER CURIAM:
Silverio Canales-Licona appeals his conviction and 170-month total sentence
imposed after a jury found him guilty of one count of possession of cocaine with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1). On appeal, Canales argues
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that: (1) the district court abused its discretion at trial by permitting a cooperating
individual to testify that he had previously acted as a drug courier, in violation of
Fed. R. Evid. 404(b) and 403; and (2) the district court erred at sentencing by not
applying a minor-role downward adjustment to his offense level, pursuant to
U.S.S.G. § 3B1.2(b). After thorough review, we affirm.
We review a district court’s evidentiary rulings for abuse of discretion. United
States v. Docampo, 573 F.3d 1091, 1096 (2009). We will reverse an erroneous
evidentiary ruling only if the error was not harmless. United States v. Langford, 647
F.3d 1309, 1323 (11th Cir. 2011). An error is harmless unless there is a reasonable
likelihood that it affected the defendant’s substantial rights. Id. We will not reverse
if sufficient evidence uninfected by error supports the verdict, and the error did not
have a substantial influence on the outcome of the case. Id.
We review a district court’s denial of a role reduction for clear error. United
States v. Bernal-Benitez, 594 F.3d 1303, 1320 (11th Cir. 2010). We give great
deference to the court for this factual inquiry, since the court “is in the best position
to weigh and assess both the defendant’s role in [his] relevant conduct and the
relative degrees of culpability of the other participants in that conduct.” United
States v. De Varon, 175 F.3d 930, 938 (11th Cir. 1999) (en banc).
First, we are unpersuaded by Canales’s claim that the district court abused its
discretion by allowing a cooperating individual to testify at trial in violation of
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Federal Rules of Evidence 404(b) and 403. Federal Rule of Evidence 404(b) forbids
the admission of evidence of “a crime, wrong, or other act . . . to prove a person’s
character in order to show that on a particular occasion the person acted in
accordance with the character.” Fed. R. Evid. 404(b). However, this evidence may
be admissible for other purposes, including proof of intent, knowledge, or absence
of mistake. Id. To be admissible, the Rule 404(b) evidence must (1) be relevant to
an issue other than the defendant’s character, (2) be sufficiently proven to allow a
jury to find that the defendant committed the extrinsic act, and (3) possess probative
value that is not substantially outweighed by its undue prejudice under Fed. R. Evid.
403. United States v. Barron-Soto, 820 F.3d 409, 417 (11th Cir. 2016).
Federal Rule of Evidence 403 permits a court to “exclude relevant evidence if
its probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
Rule 403 “is an extraordinary remedy which the district court should invoke
sparingly, and the balance should be struck in favor of admissibility.” United States
v. Lopez, 649 F.3d 1222, 1247 (11th Cir. 2011) (quotation omitted).
In reviewing issues under Rule 403, we “look at the evidence in a light most
favorable to its admission, maximizing its probative value and minimizing its undue
prejudicial impact.” United States v. Edouard, 485 F.3d 1324, 1344 n.8 (11th Cir.
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2007) (quotation omitted). Relevant circumstances for determining if the danger of
unfair prejudice substantially outweighs the probative value of Rule 404(b) evidence
include: whether the defendant would contest the issue of knowledge or intent, the
overall similarity of the extrinsic act and the charged offense, and the temporal
remoteness between the extrinsic act and the charged offense. United States v.
Jernigan, 341 F.3d 1273, 1281-82 (11th Cir. 2003).
Canales challenges the district court’s admission of testimony from Epifanio
Acosta, an individual who had cooperated with the government and who testified
about Canales’s prior involvement in transporting drugs, and claims that Acosta’s
testimony was not probative of Canales’s knowing possession of the drugs, and was
prejudicial. But, as the record reveals, the district court did not abuse its discretion
in admitting Acosta’s testimony under Rule 404(b). For starters, Canales disputed
his intent and knowledge in the drug smuggling. Id. at 1282. As for temporal
proximity, Acosta testified that he used Canales to transport drugs in the summer of
2016 and Canales was arrested for the instant offense shortly thereafter, in December
2016. As for the offenses’ similarities, in both occasions: (1) Canales was
transporting cocaine; (2) Canales was using his legitimate employment as a trucker
in order to conceal his transportation of quantities of cocaine; and (3) Canales was
using refrigerated trailers to transport the drugs. Even though the drugs were
concealed in the truck trailer this time and the truck cab last time, the knowledge
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element of Canales’s offense of conviction, 21 U.S.C. § 841(a)(1), requires only that
Canales knew he was possessing a controlled substance, not that he knew every
detail of the contraband. Cf. United States v. Sanders, 668 F.3d 1298, 1310-13 (11th
Cir. 2012). On this record, the district court neither violated Rule 404(b) nor Rule
403 in concluding that the probative value of the evidence substantially outweighed
any danger of unfair prejudice. Edouard, 485 F.3d at 1344 n.8; Lopez, 649 F.3d at
1247.
We also find no merit to Canales’s claim that the district court clearly erred at
sentencing by not applying a minor-role reduction. The Sentencing Guidelines
provide for a two-level decrease to a base offense level if a defendant was a minor
participant in the criminal activity. U.S.S.G § 3B1.2(b). A minor participant is one
who is less culpable than most other participants, “but whose role could not be
described as minimal.” Id., comment. (n.5). In determining whether a role
adjustment is applicable, the district court: (1) must compare the defendant’s role
against the relevant conduct for which he was held accountable, and (2) may also
measure the defendant’s role against the other discernable participants in that
relevant conduct. De Varon, 175 F.3d at 945. However, “[t]he fact that a
defendant’s role may be less than that of other participants engaged in the relevant
conduct may not be dispositive of role in the offense, since it is possible that none
are minor or minimal participants.” Id. at 944.
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The determination of whether to apply a mitigating-role adjustment “is
heavily dependent upon the facts of the particular case.” U.S.S.G. § 3B1.2,
comment. (n.3(C)). Among other things, the district court may consider the degree
to which the defendant understood the scope and structure of the criminal activity,
participated in planning or organizing the criminal activity, exercised decision-
making authority, and stood to gain from the transaction, as well as the nature and
extent of the defendant’s participation in the commission of the criminal activity,
including the acts the defendant performed, and the defendant’s responsibility and
discretion in performing them. Id.; see also De Varon, 175 F.3d at 945 (instructing
courts to consider similar factors in drug courier context).
We’ve recognized that “when a drug courier’s relevant conduct is limited to
her own act of importation, a district court may legitimately conclude that the courier
played an important or essential role in the importation of those drugs.” De Varon,
175 F.3d at 942-43; U.S.S.G. § 3B1.2, comment. (n.3(A)) (“[A] defendant who is
convicted of a drug trafficking offense, whose participation in that offense was
limited to transporting or storing drugs and who is accountable under [U.S.S.G.] §
1B1.3 only for the quantity of drugs the defendant personally transported or stored
may receive an adjustment under this guideline). However, we’ve declined to
“create a presumption that drug couriers are never minor or minimal participants,
any more than that they are always minor or minimal”; rather, “the district court
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must assess all of the facts probative of the defendant’s role in [his] relevant conduct
in evaluating the defendant’s role in the offense.” De Varon, 175 F.3d at 943; see
id. at 942 (“[C]ourier status in and of itself is not dispositive of whether a defendant
is entitled to or precluded from receiving a downward adjustment for role in the
offense”). The defendant bears the burden of establishing his minor role in the
offense by a preponderance of the evidence. Bernal-Benitez, 594 F.3d at 1320.
Here, the district court did not clearly err in denying Canales the minor role
adjustment. As the record reflects, the relevant conduct attributable to Canales was
the transportation of more than 70 kilograms of cocaine, which means that his base
offense level accounted for the actual amount of drugs involved in his offense, and
that the relevant conduct attributed to him is identical to his actual conduct. Thus,
under De Varon, Canales was involved with the full amount of drugs for which he
was held accountable. The record further reveals that Canales had leeway and
discretion in transporting the drugs -- he essentially acted as an “independent
contractor,” obtaining the truck, developing an alibi, and preparing the paperwork to
make his trip seem legitimate. There was no evidence that his truck or trailer was
equipped with a GPS or other monitoring apparatus, so the source of the cocaine
placed a great deal of trust in him. Finally, Canales has failed to prove that he played
a lesser role in his offense than the conduct attributed to him in calculating his base
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offense level. Thus, it was not clear error for the district court to weigh Canales’s
culpability in the scheme of his own conduct, and we affirm.
AFFIRMED.
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