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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14086
Non-Argument Calendar
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D.C. Docket No. 8:16-cr-00319-SDM-JSS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FAYEZ ABU-AISH,
NEDAL ABU-AISH,
Defendants-Appellants.
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Appeals from the United States District Court
for the Middle District of Florida
________________________
(December 21, 2018)
Before NEWSOM, BRANCH, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Fayez Abu-Aish and Nedal Abu-Aish appeal their convictions and sentences
of imprisonment for conspiring to possess with intent to distribute a mixture
containing XLR-11, a synthetic cannabinoid, in violation of 21 U.S.C. § 846 (count
one), and for intentionally distributing that mixture, in violation of 21 U.S.C.
§ 841(a)(1), § 841(b)(1)(C), and 18 U.S.C. § 2 (counts two and three). The
brothers raise four issues on appeal. First, they argue that insufficient evidence
supports the jury’s finding that the Abu-Aishes knowingly or intentionally
committed crimes involving XLR-11 in particular. Second, they contend that the
district court erred in permitting a witness to testify that substantial quantities of
acetone could be used to manufacture explosives; in particular, the brothers assert
that explosives had no bearing on the alleged crimes and that given their Middle
Eastern descent such testimony was likely to prejudice the jury. Third, the Abu-
Aishes maintain that the district court abused its discretion in granting the
government’s motion in limine to exclude evidence showing that the government
had returned money to the brothers that it had originally seized as suspected drug
proceeds. Finally, they argue that the district court abused its discretion during
sentencing: first, by favoring the conclusion of the government’s expert witness
that, pursuant to the sentencing guidelines, XLR-11 should be treated as if it were
THC, and second, by determining the amount of marijuana equivalency by
combining the weight of pure XLR-11 with the weight of the combination of XLR-
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11, acetone, and inert plant material that comprised the finished product. We
address each contention in turn.
I
We review challenges to the sufficiency of evidence for conviction de novo,
viewing the evidence in the light most favorable to the government, United States
v. Acosta, 421 F.3d 1195, 1197 (11th Cir. 2005), and drawing all reasonable
inferences in favor of the jury’s verdict. United States v. Hunt, 526 F.3d 739, 744
(11th Cir. 2008). “A factual finding will be sufficient to sustain a conviction if . . .
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Mintmire, 507 F.3d 1273, 1289 (11th
Cir. 2007) (internal quotation marks omitted). This standard does not require the
evidence to be “inconsistent with every reasonable hypothesis other than guilt.”
Hunt, 526 F.3d at 745. Instead, we permit the jury to choose among the reasonable
conclusions that can be drawn from the evidence. Id.
The Abu-Aishes center their argument on this Court’s holding in United
States v. Narog, 372 F.3d 1243 (11th Cir. 2004). The indictment in Narog charged
the defendants with having possessed and distributed pseudoephedrine, having
known that it would be used to manufacture a controlled substance, “that is,
methamphetamine.” Id. at 1247. During deliberations, the jury asked whether the
defendant had “to have knowledge or reasonable cause to believe the
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pseudoephedrine would be used to make specifically methamphetamine to be
guilty?” Id. The courted responded, “The answer to your question is no.”
Notwithstanding the indictment’s specific reference to methamphetamine, the
district court instructed that “the government need not prove that a Defendant
knew or had reasonable cause to believe the exact nature of the controlled
substance to be manufactured.” Id. We reversed, holding that the district court
had constructively amended the indictment, broadening it beyond the narrowing
language of “that is, methamphetamine.” Id. at 1248–49. The Abu-Aishes argue
that in Narog, as here, the indictment identified a specific substance; and therefore
here, as in Narog, the government must prove its allegations with reference to
XLR-11 in particular.
The Abu-Aishes’ argument is equal parts true and irrelevant. The jury did
not convict them for possessing or distributing a generic substance but rather XLR-
11. The district court never broadened their indictment in a manner analogous to
that in Narog. The question is thus whether—viewing the evidence in the light
most favorable to the government and drawing all reasonable inferences in favor of
the jury’s verdict—a rational trier of fact could have found that the Abu-Aishes
knew they were working with XLR-11. The evidence presented indicated that
Fayez and Nedal manufactured and packaged significant quantities of product in a
clandestine lab, sold it out of trash bags on the street, and had suggested to a buyer
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(an undercover officer) that he should avoid being caught with the product. This
evidence supported the jury’s finding that the brothers knowingly dealt with a
controlled substance.
The government also had to show, of course, that the brothers knowingly
dealt with the controlled substance of XLR-11. In United States v. Clay, we noted
that although “the government’s evidence of [the requisite mens rea] was
circumstantial . . . guilty knowledge can rarely be established by direct evidence.”
832 F.3d 1259, 1309 (11th Cir. 2016) (internal quotation marks omitted), cert.
denied, 137 S. Ct. 1814 (2017). Thus, “[m]ens rea elements such as knowledge or
intent may be proven by circumstantial evidence.” Id. We find that a reasonable
juror could infer from the substantial circumstantial evidence presented that Fayez
and Nedal knew that the mixture that they possessed and distributed contained
XLR-11.
II
We ordinarily review a district court’s decision to admit evidence for abuse
of discretion. United States v. Jernigan, 341 F.3d 1273, 1284 (11th Cir. 2003).
But where the defendants do not contemporaneously object to the introduction of
the challenged evidence, “it is well-settled” that we review only for plain error.
United States v. Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). In United States v.
Olano, 507 U.S. 725, 734 (1993), the Supreme Court identified three limitations on
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an appellate court’s plain-error review under Rule 52 of the Federal Rules of
Criminal Procedure. “The first limitation on appellate authority under Rule 52(b)
is that there indeed be an ‘error,’” id. at 733, which generally entails deviation
from a legal rule. Second, the error must be “plain,” meaning “clear” or
“obvious.” Id. at 734. The error must be so clear and obvious that the trial court
should not have permitted it, even without the defendant’s timely assistance in
detection. United States v. Hesser, 800 F.3d 1310, 1325 (11th Cir. 2015) (per
curiam). Finally, the error must “affect substantial rights,”—that is, the error
“must have been prejudicial: It must have affected the outcome of the district court
proceedings.” Olano, 507 U.S. at 734; see also Molina-Martinez v. United States,
136 S. Ct. 1338, 1339 (2016) (requiring the defendant to show “a reasonable
probability that, but for the error, the outcome of the proceeding would have been
different”) (internal quotation marks omitted).
The Olano Court summarized, “[t]he Court of Appeals should correct a
plain forfeited error affecting substantial rights if the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.” 507 U.S. at 736
(internal quotations and modifications omitted). We do not find any error here,
much less one seriously affecting the proceedings in such a manner. The witness’s
passing reference to explosives did not inject ethnicity, terrorism, or any other
inflammatory content into the case. He mentioned explosives in the context of
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explaining why the purchase of hundreds of gallons of acetone might warrant
further investigation. The district court therefore did not plainly err by failing to
sua sponte exclude this testimony.
III
We review a district court’s grant of a motion in limine submitted by the
government for abuse of discretion. United States v. Thompson, 25 F.3d 1558,
1563 (11th Cir. 1994). “An abuse of discretion arises when the district court’s
decision rests upon a clearly erroneous finding of fact, an errant conclusion of law,
or an improper application of law to fact.” United States v. Merrill, 513 F.3d 1293,
1301 (11th Cir. 2008) (quoting United States v. Baker, 432 F.3d 1189, 1202 (11th
Cir. 2005). Although courts generally should not prohibit defendants from
presenting a theory of defense to the jury, Thompson, 25 F.3d at 1564, a relevant
factual basis for the defense must exist under Federal Rules of Evidence 401 and
402. Evidence is relevant under Rule 401 if it “has any tendency to make a fact
more or less probable than it would be without the evidence” and “the fact is of
consequence in determining the action.” Fed. R. Evid. 401. 1
The indictment charged the Abu-Aishes with possessing and distributing
XLR-11. The evidence that the government sought to exclude indicated that the
1
Rule 402 states that “[r]elevant evidence is admissible unless” a list of authorities (e.g. the
United States Constitution) provides otherwise. Fed. R. Evid. 402. None of the listed authorities
excludes the evidence at issue here.
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government had returned money that it seized from the Abu-Aishes, originally
taken on the suspicion that the money derived from sales of illegal drugs.
Although the district court may have exaggerated in suggesting that such evidence
had “not one thing in this world to do” with the charges—the money would not
have been seized but for the government’s suspicions, after all—it did not abuse its
discretion in concluding that the decision to return this money did not make it more
or less probable that the Abu-Aishes had possessed or distributed XLR-11. The
government’s decision to return this money could be explained by various
rationales, but none would lead to an inference that is probative of the charges
here. Thus, we do not find the district court’s determination to be “clearly
erroneous,” “errant,” or “improper.”
IV
When reviewing the district court’s findings with respect to the sentencing
guidelines, we consider legal issues de novo, factual findings for clear error, and
the district court’s application of the guidelines to the facts with due deference,
which we have found is “tantamount to clear error review.” United States v.
Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). To be clearly erroneous, the
conclusion of the district court must leave us with a “definite and firm conviction
that a mistake has been committed.” Id. (internal quotation marks omitted).
Consequently, “[w]here there are two permissible views of the evidence, the
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factfinder’s choice between them cannot be clearly erroneous.” Anderson v. City of
Bessemer City, 470 U.S. 564, 574 (1985).
We review the district court’s assessment of the reliability of an expert
opinion for abuse of discretion. United States v. Abreu, 406 F.3d 1304, 1305–06
(11th Cir. 2005) (per curiam). “The district court’s decision concerning the
competency of, and the weight to be accorded to, the testimony of an expert is a
highly discretionary one.” United States v. Chastain, 198 F.3d 1338, 1348 (11th
Cir. 1999).
Where a controlled substance analogue is not specifically listed in the
sentencing guidelines, the base offense level is determined by using the converted
drug weight of the most closely related controlled substance that appears in the
guidelines. U.S.S.G. § 2d1.1, comment. (n.6). In determining the most closely
related controlled substance, the guidelines instruct the courts to consider several
factors:
(A) Whether the controlled substance not referenced in this guideline
has a chemical structure that is substantially similar to a controlled
substance reference in this guideline.
(B) Whether the controlled substance not referenced in this guideline
has a stimulant, depressant, or hallucinogenic effect on the central
nervous system that is substantially similar to the stimulant,
depressant, or hallucinogenic effect on the central nervous system of a
controlled substance referenced in this guideline.
(C) Whether a lesser or greater quantity of the controlled substance
not referenced in this guideline is needed to produce a substantially
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similar effect on the central nervous system as a controlled substance
referenced in this guideline.
Id.
The district court also had to determine the weight of the “mixture or
substance” containing the controlled substance. When doing so, courts must use a
“market-oriented” approach, Chapman v. United States, 500 U.S. 453, 461 (1991),
under which “[t]he entire weight of drug mixtures which are usable in the chain of
distribution should be considered in determining the defendant’s sentence.”
Griffith v. United States, 871 F.3d 1321, 1335 (11th Cir. 2017). Only “unusable
parts [that] must be separated and waste products are not to be considered in the
calculations.” Id.
The district court followed these rules to the letter. Because XLR-11 is not
listed in the sentencing guidelines, the district court had to consider expert
testimony concerning its most closely related substance. During the evidentiary
hearing addressing this question, the parties offered expert witnesses who
presented “two permissible views of the evidence” under the factors detailed in the
guidelines. The district court found the testimony of the government’s expert
witness that XLR-11 most closely resembled THC to be more persuasive. That
decision “cannot be clearly erroneous.” Anderson, 470 U.S. at 574.2 Then, in
2
We also note that it finds support in an unpublished decision from this Court, United States v.
Nahmani, 696 F. App’x 457, 478–79 & n.26 (11th Cir. 2017), and published case law from our
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determining the weight of the controlled substance, the district court combined the
weight of the pure XLR-11 that the government had recovered with that of the
finished product composed of XLR-11, acetone, and inert plant material. The
combination of the pure and composite material amounted to the “[t]he entire
weight of drug mixtures,” as mandated by the market-oriented approach.
The Abu-Aishes protest that the district court combined apples and oranges.
And not without some reason: the Sentencing Commission’s November 2018
amendments to the sentencing guidelines support the brothers’ objection, to an
extent. Because of these amendments’ relevance to this appeal, we cite the
Commission’s prior comments concerning them at length:
The Commission learned that synthetic cannabinoids are manufactured as a
powder or crystalline substance and are typically sprayed on or mixed with
inert material (such as plant matter) before retail sale. As a result, a
synthetic cannabinoid seized after it has been prepared for retail sale will
typically weigh significantly more than the undiluted form of the same
controlled substance.
Given the central role of drug quantity in setting the base offense level, an
individual convicted of an offense involving a synthetic cannabinoid mixture
would likely be subject to a guideline penalty range significantly higher than
another individual convicted of an offense involving an undiluted synthetic
cannabinoid (but who could nevertheless produce an equivalent amount of
consumable product). In a case involving undiluted synthetic cannabinoid,
an upward departure may be appropriate for that reason. By contrast, in a
case where the mixture containing synthetic cannabinoids contained a high
quantity of inert material, a downward departure may be warranted.3
sister circuits. See, e.g., United States v. Novak, 841 F.3d 721, 730 (7th Cir. 2016).
3
Application Note 27(E)(i) now states: “[T]here may be cases in which the substance involved
in the offense is a synthetic cannabinoid not combined with any other substance. In such a case,
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Amendments to the Sentencing Guidelines 16 (April 30, 2018).
The recent amendments to the sentencing guidelines are unavailing for the
Abu-Aishes for several reasons. First, the amendments had not even been
proposed at the time of their sentencing. The district court’s failure to abide by the
Commission’s recommendation was therefore not clearly erroneous. Second, it is
not clear that the amended text calls for decreasing their sentence. The
Commission only suggests a downward departure “where the mixture containing
synthetic cannabinoids contained a high quantity of inert material.” Id. We cannot
say whether the inert plant material that the brothers combined with XLR-11
would cross this “high” threshold—nor, conversely, whether “an upward departure
[might have been] appropriate,” given that the district court’s calculation also
included several kilograms of pure XLR-11. Finally, regarding retroactivity, the
Commission’s policy statement on retroactive reduction of sentences provides, in
relevant part:
(a)(2) Exclusions.—A reduction in the defendant’s term of imprisonment is
not consistent with this policy statement and therefore is not authorized
under 18 U.S.C. § 3582(c)(2) if—(A) None of the amendments listed in
subsection (d) is applicable to the defendant . . .
(d) Amendments covered by this policy statement are listed in Appendix C
as follows: 126, 130, 156, 176, 269, 329, 341, 371, 379, 380, 433, 454, 461,
an upward departure would be warranted. There also may be cases in which the substance
involved in the offense is a mixture containing a synthetic cannabinoid diluted with an unusually
high quantity of base material. In such a case, a downward departure may be warranted.”
U.S.S.G. § 2D1.1, comment. (n.27(E)(i)).
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484, 488, 490, 499, 505, 506, 516, 591, 599, 606, 657, 702, 706 as amended
by 711, 715 (parts A and C only), and 782 (subject to subsection (e)(1)).
U.S.S.G. § 1B1.10. The Abu-Aishes rely on amendments to the guidelines
introduced by Amendment 807. Because this amendment does not appear in the
list provided in the Commission’s policy statement, it cannot afford the brothers
retroactive relief.
V
The Abu-Aishes raised four arguments. After careful review, we find that
none merits overturning the jury’s decision, the district court’s evidentiary
determinations at trial, or the district court’s conclusions during sentencing.
Accordingly, we affirm.
AFFIRMED.
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