[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 10, 2008
No. 06-10509 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-14051-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAMIRO CORTES-SANCHEZ,
a.k.a. El Indio,
JOSE HERNANDEZ,
a.k.a. Santiago Garcia-Hernandez,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(January 10, 2008)
Before CARNES, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Ramiro Cortes-Sanchez and Jose Hernandez appeal their convictions and
sentences of 188 months and 262 months of imprisonment, respectively, for
conspiracy to import and possess five kilograms or more of cocaine. See 21
U.S.C. §§ 963, 846. Cortes-Sanchez and Hernandez argue that the district court
erred when it admitted evidence of their prior drug importation, under Federal Rule
of Evidence 404(b), and found the drug quantity for sentencing based upon this
evidence. We affirm.
I. BACKGROUND
On July 1, 2005, U.S. Immigration and Customs Enforcement inspectors in
Laredo, Texas, stopped a truck driven by Missahel Palacios-Molina that attempted
to enter the United States from Mexico. Federal agents interviewed Palacios, who
admitted that he had been hired to drive to Mexico, where the truck would be
loaded with cocaine, and then Palacios would drive to Florida where he would call
Cortes-Sanchez and Hernandez so that they could retrieve the truck. Palacios
agreed to make a controlled delivery of the truck and cocaine under federal
supervision.
When Palacios arrived at the truck stop designated for the delivery, he met
with Hernandez and Cortes-Sanchez. Palacios and Cortes-Sanchez discussed
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Palacios’s payment and the amount of cocaine inside the truck. Agents had
installed a “kill switch” in the truck, so that the truck would not start when
Hernandez and Cortes-Sanchez tried to leave. Agents then arrested all three men.
Hernandez made a post-arrest statement that he had been hired by a drug
dealer twice before to drive the same truck from a restaurant in a town in Florida to
a gas station and that he had been hired a few days before the arrest to drive the
truck from Ft. Pierce, Florida, to Okeechobee, Florida. Hernandez was paid $500
each time. He knew that there was cocaine in the truck on the last two trips.
At trial, Palacios testified that he was hired by Cortes-Sanchez twice before
to drive a truck loaded with drugs from Mexico to Florida, first in January 2005
and then in March 2005. Palacios testified that both of the earlier trips involved
the same players, Hernandez and Cortes-Sanchez, in the same roles. Palacios
testified that the group imported ten kilograms of cocaine during the first trip and
eleven kilograms of cocaine during the second trip. The parties stipulated that the
amount of cocaine involved in the third trip was 9.704 kilograms. Cortes-Sanchez
and Hernandez objected to the admission of Palacios’s testimony both before and
during his testimony.
The district court instructed the jury that it had “heard evidence that at a time
other than the time charged in the indictment in this case, the Defendant[s]
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committed acts similar to the acts charged here.” The district court further
instructed the jury that it “may consider such evidence, not to prove that the
Defendant[s] did the acts charged in this case, but only to prove the Defendant[s’]
state[s] of mind; that is, that the Defendant[s] acted as charged in this case with the
necessary intent and not through accident or mistake.”
The jury found both Cortes-Sanchez and Hernandez guilty of conspiracy to
both import and possess cocaine. See 21 U.S.C. §§ 963, 846. The jury returned a
special verdict that found the amount of cocaine involved in both the importation
and possession counts was five kilograms or more as to both defendants. At
sentencing, the district court found that the past offenses were conduct relevant to
the charged offenses, so the drug quantity for purposes of sentencing both
defendants was 29.704 kilograms, which included an average quantity of ten
kilograms for each past offense.
II. STANDARDS OF REVIEW
We review the decision by the district court to admit evidence under Rule
404(b) for abuse of discretion. United States v. Baker, 432 F.3d 1189, 1202 (11th
Cir. 2005), cert. denied, 547 U.S. 1085 (2006). “We review the sufficiency of the
evidence de novo to determine whether a reasonable jury could have concluded
that the evidence established the defendants’ guilt beyond a reasonable doubt,” and
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“we view the evidence in the light most favorable to the government and make all
reasonable inferences and credibility choices in the government’s favor.” United
States v. Brazel, 102 F.3d 1120, 1131 (11th Cir. 1997) (citing United States v.
Lyons, 53 F.3d 1198, 1200 (11th Cir. 1995)). We review de novo the
interpretation and application of the Guidelines, and we review underlying factual
findings, including the drug quantity, for clear error. United States v. McVay, 447
F.3d 1348, 1352–53 (11th Cir. 2006).
III. DISCUSSION
Cortes-Sanchez and Hernandez make two arguments on appeal. First, they
argue that the district court abused its discretion when it admitted evidence
regarding their past drug offenses under Rule 404(b). Second, they argue that the
district court erred when it found the drug quantity for sentencing based on this
Rule 404(b) evidence. We address each argument in turn.
A. The District Court Did Not Abuse Its Discretion When It Admitted Evidence
Regarding the Defendants’ Past Drug Offenses under Rule 404(b).
Rule 404(b) evidence “may . . . be admissible . . . as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident . . . .” Fed. R. Evid. 404(b). A three part test governs the admission of
404(b) evidence:
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For evidence of other crimes or acts to be admissible under Rule
404(b), (1) it must be relevant to an issue other than defendant’s
character; (2) there must be sufficient proof to enable a jury to find by
a preponderance of the evidence that the defendant committed the
act(s) in question; and (3) the probative value of the evidence cannot
be substantially outweighed by undue prejudice, and the evidence
must satisfy Rule 403.
United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007) (citing United
States v. Chavez, 204 F.3d 1305, 1317 (11th Cir. 2000)) (footnote omitted). The
record supports the admission of the evidence of earlier trips to transport cocaine
under each part of this test.
First, the evidence was relevant to the intent of Cortes-Sanchez and
Hernandez to commit the charged offense. When a criminal defendant pleads not
guilty, he “makes intent a material issue” and “imposes a substantial burden on the
government to prove intent, which it may prove by qualifying Rule 404(b)
evidence absent affirmative steps by the defendant to remove intent as an issue.”
Id. at 1345 (quoting United States v. Zapata, 138 F.3d 1355, 1358 (11th Cir.
1998)). Extrinsic evidence of past crimes is relevant to show intent, and satisfies
the first part of the Rule 404(b) test, if “the state of mind required for the charged
and extrinsic offenses is the same.” Id. (citing United States v. Dorsey, 819 F.2d
1055, 1059 (11th Cir. 1987); United States v. Dickerson, 248 F.3d 1036, 1047
(11th Cir. 2001)). It is undisputed that both Cortes-Sanchez and Hernandez
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pleaded not guilty to the charged offenses, which placed their intent at issue, and
the state of mind required for the charged offenses is identical to the extrinsic
offenses.
Second, Palacios’s testimony provided a sufficient basis for the jury to find
that Cortes-Sanchez and Hernandez committed the extrinsic offenses by a
preponderance of the evidence. “[T]he uncorroborated word of an accomplice . . .
provides a sufficient basis for concluding that the defendant committed extrinsic
acts admissible under Rule 404(b).” Dickerson, 248 F.3d at 1047 (quoting United
States v. Bowe, 221 F.3d 1183, 1192 (11th Cir. 2000)) (internal quotation marks
omitted). Even if it were uncorroborated, Palacios’s testimony was sufficient to
prove the involvement of Cortes-Sanchez and Hernandez in the past offenses, but
Palacios’s testimony was corroborated by Hernandez’s post-arrest statement and
Palacios’s recorded conversations with Cortes-Sanchez about money that Cortes-
Sanchez owed Palacios for past importation.
Third, the evidence was more probative than prejudicial because the past and
charged offenses were substantially similar. “‘[W]hether the probative value of
Rule 404(b) evidence outweighs its prejudicial effect depends upon the
circumstances of the extrinsic offense.’” Edouard, 485 F.3d at 1345 (quoting
Dorsey, 819 F.2d at 1061) (internal quotation marks omitted) (alteration in
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original). Relevant circumstances include the “overall similarity between the
extrinsic act and the charged offense, as well as temporal remoteness.” United
States v. Jernigan, 341 F.3d 1273, 1282 (11th Cir. 2003) (United Stats v. Calderon,
127 F.3d 1314, 1332 (11th Cir. 1997)) (internal quotation marks omitted). We
have stated that “a not guilty plea in a drug conspiracy case . . . opens the door to
admission of prior drug-related offenses as highly probative, and not overly
prejudicial, evidence of a defendant’s intent.” Calderon, 127 F.3d at 1332 (citing
United States v. Diaz-Lizaraza, 981 F.2d 1216, 1225 (11th Cir. 1993)), modified
on other grounds by United States v. Toler, 144 F.3d 1423 (11th Cir. 1998). The
charged offenses involved the same people performing the same conduct as the
past crimes, and all of the incidents occurred within a six-month time period. The
district court also gave a limiting instruction to the jury regarding the Rule 404(b)
evidence that reduced the risk of undue prejudice to the defendants. See Edouard,
485 F.3d at 1346 (citing Diaz-Lizaraza, 981 F.2d at 1225). The district court did
not abuse its discretion when it admitted the evidence of prior drug offenses to
prove intent.
To the extent the defendants also argue that the evidence regarding the
charged offenses was insufficient for the jury to convict them, we disagree.
Palacios participated in a controlled delivery of a truck containing about ten
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kilograms of cocaine, Palacios talked to Cortes-Sanchez and Hernandez to arrange
the delivery, Cortes-Sanchez and Hernandez arrived to take the truck with the
cocaine, and Cortes-Sanchez discussed how he would pay Palacios. Hernandez
gave a post-arrest statement admitting his involvement in two previous shipments.
Based on the evidence regarding the charged offenses and the 404(b) evidence
regarding intent, the jury could have found beyond a reasonable doubt that Cortes-
Sanchez and Hernandez knowingly participated in the charged conspiracies.
B. The District Court Did Not Err When It Found the Drug Quantity for
Sentencing Based on the Rule 404(b) Evidence.
In drug offenses where the base offense level is determined largely by the
drug quantity, such as the offenses in this appeal, the district court must consider
all relevant conduct “that w[as] part of the same course of conduct or common
scheme or plan as the offense of conviction.” U.S.S.G. §§ 1B1.3(a)(2), 3D1.2(d).
We have held that evidence of relevant conduct may include extrinsic evidence that
the district court admitted under Rule 404(b). United States v. Bennett, 368 F.3d
1343, 1356–57 (11th Cir. 2004), vacated on other grounds, 543 U.S. 1110, 125 S.
Ct. 1044 (2005). To determine what conduct is relevant for the purposes of section
1B1.3, we evaluate the “similarity, regularity, and temporal proximity” between
the convicted offense and extrinsic offenses. United States v. Maxwell, 34 F.3d
1006, 1011 (11th Cir. 1994). We also “consider ‘whether there are distinctive
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similarities between the offense of conviction and the remote conduct that signal
that they are part of a single course of conduct rather than isolated, unrelated
events that happen only to be similar in kind.’” Bennett, 368 F.3d at 1356 (quoting
Maxwell, 34 F.3d at 1011). In Bennett, we held that the drug quantities involved
in the extrinsic conduct “were properly considered to be relevant conduct for the
purpose of calculating [the defendant’s] base offense level,” and we found
significant that all of the offenses involved the same drug and the defendant’s role
in each offense was the same. Id. at 1356–57.
We conclude that the extrinsic offenses were sufficiently similar to the
charged offenses to be relevant conduct under section 1B1.3 of the Guidelines.
The record established that the charged and prior offenses were only a few months
apart, involved the same drug, and involved Cortes-Sanchez and Hernandez
performing the same roles in each of the offenses. The charged and prior offenses
contained “distinctive similarities” such that they were “part of a single course of
conduct.” Id. There was sufficient evidence to determine by a preponderance of
the evidence that the drug quantity attributable to each defendant included the
amounts from the past offenses. See United States v. Rodriguez, 398 F.3d 1291,
1296 (11th Cir. 2005). The district court properly considered the drug quantities
involved in the past offenses when it calculated Cortes-Sanchez’s and Hernandez’s
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base offense levels, and the finding of the district court regarding the drug quantity
attributable to each defendant was not clearly erroneous. See Bennett, 368 F.3d at
1357; U.S.S.G. § 1B1.3(a)(2).
In his reply brief, Hernandez argues that, if the government’s contention that
the evidence admitted under Rule 404(b) was intrinsic, instead of extrinsic, is
correct, then there was an amendment or variance to the indictment, which was
reversible error. Cortes-Sanchez adopted Hernandez’s reply brief with respect to
this issue. Neither Hernandez nor Cortes-Sanchez raised this issue in their initial
appellate briefs. They abandoned this argument. United States v. Magluta, 418
F.3d 1166, 1185 (11th Cir. 2005).
IV. CONCLUSION
The convictions and sentences of Cortes-Sanchez and Hernandez are
AFFIRMED.
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