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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-12334
Non-Argument Calendar
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D.C. Docket No. 5:17-cr-00031-JDW-PRL-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TIRSO HERNANDEZ-ASTUDILLO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 13, 2019)
Before WILSON, BRANCH, and HULL, Circuit Judges.
PER CURIAM:
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Tirso Hernandez-Astudillo appeals his total sentence of 240 months’
imprisonment for conspiring to possess, with intent to distribute, 500 grams or
more of a mixture containing methamphetamine, in violation of
21 U.S.C. §§ 841(b)(1)(A) & 846 (Count 1), and possessing, with intent to
distribute, a mixture and substance containing 400 grams or more of fentanyl, in
violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A) (Count 6). Hernandez-Astudillo
argues that the district court improperly applied a two-level enhancement to his
offense level under the Sentencing Guidelines because the government failed to
establish, by a preponderance of the evidence, that the methamphetamine which he
possessed was imported from Mexico.
At his trial, one of Hernandez-Astudillo’s co-conspirators testified that he
and Hernandez-Astudillo were among several “workers” for people in Mexico who
were involved in the drug trade. He further testified about multiple sales of
methamphetamine that he made using supplies of the drug from his boss in
Mexico, who would have the requested quantity of methamphetamine dropped off
at a house shared by Hernandez-Astudillo and Hernandez-Astudillo’s cousin. The
DEA agent who interviewed Hernandez-Astudillo after his arrest also testified. He
recounted that Hernandez-Astudillo admitted to entering the United States illegally
from Mexico and confessed that he and his cousin had been selling cocaine and
methamphetamine for about two months before their arrest. Hernandez-Astudillo
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told the agent that he helped his cousin boil methamphetamine powder with
mineral water to convert it into crystal methamphetamine. He also stated that his
cousin had told him that the methamphetamine powder came from Mexico. The
agent learned in his interview with Hernandez-Astudillo that a co-conspirator
visited “regularly from Mexico”—a fact that evidence found on the cousin’s phone
corroborated.
After the government rested its case, Hernandez-Astudillo testified on his
own behalf. He confirmed that he was working for people in Mexico. When asked
whether he told the DEA agent that the methamphetamine powder originally came
from Mexico, Hernandez-Astudillo responded, “I don’t remember.”
After deliberation, the jury found Hernandez-Astudillo guilty of Counts 1
and 6. At sentencing, he objected to the two-level special offense characteristic
enhancement for committing an offense which involved the manufacture of
methamphetamine from listed chemicals that the defendant knew were imported
unlawfully. See U.S.S.G. § 2D1.1(b)(5).1 The government proffered
circumstantial evidence in the form of text messages and photos recovered from
the cell phones of the conspirators; this evidence showed that the conspirators had
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“If (A) the offense involved the importation of amphetamine or methamphetamine or the
manufacture of amphetamine or methamphetamine from listed chemicals that the defendant
knew were imported unlawfully, and (B) the defendant is not subject to an adjustment under
§3B1.2 (Mitigating Role), increase by 2 levels.” U.S.S.G. § 2D1.1(b)(5)
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been receiving information about bank accounts in Mexico and sending money
there. The district court characterized the issue as “a very close question,” but
ultimately overruled the objection, finding that “the statement attributed to the
Defendant, that his cousin told him [that the methamphetamine powder was
imported from Mexico], indicates that the Defendant was aware” of the
importation.
“We review a sentencing court’s findings of fact for clear error and its
application of the guidelines de novo.” United States v. Victor, 719 F.3d 1288,
1290 (11th Cir. 2013). Where a fact pattern gives rise to two reasonable and
different constructions, “the factfinder’s choice between them cannot be clearly
erroneous.” United States v. Saingerard, 621 F.3d 1341, 1343 (11th Cir. 2010)
(quoting United States v. Izquierdo, 448 F.3d 1269, 1278 (11th Cir. 2006)). “For a
finding to be clearly erroneous, this Court ‘must be left with a definite and firm
conviction that a mistake has been committed.’” United States v. Rothenberg, 610
F.3d 621, 624 (11th Cir. 2010) (quoting United States v. Rodriguez–Lopez, 363
F.3d 1134, 1137 (11th Cir. 2004)). “Although review for clear error is deferential,
a finding of fact must be supported by substantial evidence.” United States v.
Robertson, 493 F.3d 1322, 1330 (11th Cir. 2007).
The government bears the burden of establishing the facts necessary to
support a sentencing enhancement by a preponderance of the evidence using
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reliable and sufficient evidence. United States v. Askew, 193 F.3d 1181, 1183
(11th Cir. 1999). “This burden ‘requires the trier of fact to believe that the
existence of a fact is more probable than its nonexistence.’” United States v.
Almenida, 686 F.3d 1312, 1315 (11th Cir. 2012) (quoting United States v. Trainor,
376 F.3d 1325, 1331 (11th Cir. 2004)).
At sentencing, the district court may consider any relevant information with
no regard to whether the information would have been admissible at trial, so long
as the information has sufficient indicia of reliability to support its probable
accuracy. United States v. Ghertler, 605 F.3d 1256, 1269 (11th Cir. 2010). The
district court may base its factual findings on undisputed statements in the PSI and
on evidence presented at the sentencing hearing. United States v. Wilson, 884 F.2d
1355, 1356 (11th Cir. 1989).
The Guidelines provide for a two-level upward adjustment where (1) an
individual’s offense conduct involved the importation of methamphetamine or the
manufacture of methamphetamine from listed chemicals that the defendant knew
were imported unlawfully, and (2) the individual is not subject to a mitigating role
adjustment. U.S.S.G. § 2D1.1(b)(5).
Here, the district court’s finding that the government had established the
factual basis for Hernandez-Astudillo’s two-level enhancement by a preponderance
of the evidence was supported by: (i) Hernandez-Astudillo’s testimony at trial that
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he worked for people in Mexico; (ii) cell phone text messages showing that a
co-conspirator had been communicating with individuals in Mexico; (iii) evidence
that a co-conspirator regularly traveled to and from Mexico; (iv) photos on
Hernandez-Astudillo’s and a co-conspirator’s phone showing that they had been
sending money to bank accounts in Mexico; and (v) a statement from a Drug
Enforcement Administration agent at trial that Hernandez-Astudillo “told [the
agent] that his cousin told [him] . . . [the methamphetamine powder] comes from
Mexico.” Because the facts of this case support the district court’s conclusion that
it was more probable than not that the methamphetamine was imported from
Mexico and that Hernandez-Astudillo knew of the importation, we affirm.
AFFIRMED.
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