[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 29, 2008
No. 07-12622 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-10011-CR-JLK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERT PINA-SUAREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 29, 2008)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Albert Pina-Suarez, following a jury trial, appeals his convictions and
sentences for 24 counts of bringing in aliens at a place other than a designated port
of entry, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii), and one count of failure to
heave to, in violation of 18 U.S.C. § 2237. Pina-Suarez asserts: (1) the evidence
was insufficient to support his convictions under both statutes; (2) the district court
erred in instructing the jury; (3) the district court abused its discretion in allowing
into evidence an altered videotape and testimony regarding a GPS unit he used
during a previous trip; (4) the district court erred in enhancing his sentence for
causing bodily injury and obstruction of justice; and (5) his total 96-month
sentence was unreasonable. We affirm Pina-Suarez’s convictions and sentences.
I. DISCUSSION
A. Sufficiency of the Evidence
1. 18 U.S.C. § 1324(a)(2)(B)(iii)
Generally, a defendant’s presentation of a case after the denial of a motion
for judgment of acquittal, made at the close of the government’s case-in-chief,
operates as a waiver of any objection to the decision on the motion. United States
v. Jones, 32 F.3d 1512, 1516 (11th Cir. 1994). When the defendant fails to
preserve a motion for judgment of acquittal at the close of all the evidence, we
review the sufficiency of the evidence for a manifest injustice, which requires a
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finding the evidence on a key element of the offense is so tenuous that a conviction
would be shocking. United States v. Tapia, 761 F.2d 1488, 1492 (11th Cir. 1985).
We consider all of the evidence produced at trial against the defendant in
evaluating a claim that the evidence was insufficient to convict. United States v.
Thomas, 8 F.3d 1552, 1558 n.12 (11th Cir. 1993). Moreover, when a defendant
chooses to testify at his own trial, the jury is free not only to reject his testimony as
a complete fabrication, but is also free to conclude the opposite of his testimony is
true. See United States v. Vazquez, 53 F.3d 1216, 1225-26 (11th Cir. 1995).
As part of its case in proving a defendant violated 8 U.S.C.
§ 1324(a)(2)(B)(iii), the government must prove “the defendant conducted himself
‘knowing or in reckless disregard of the fact that an alien has not received prior
official authorization to come to, enter, or reside in the United States.’” United
States v. Perez, 443 F.3d 772, 780 (11th Cir. 2006) (citing 8 U.S.C.
§ 1324(a)(2)(B)(iii)). We have interpreted the “reckless disregard” element of
transporting illegal aliens as “to be aware of, but consciously and carelessly ignore,
facts and circumstances clearly indicating that the person transported was an alien
who had entered or remained in the United States in violation of law.” Id. at 781
(quoting Eleventh Circuit Pattern Jury Instructions (Criminal) at 83.2 (2003))
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(emphasis omitted). We have also approved the following definition of the
“reckless disregard” element of transporting illegal aliens:
The phrase “reckless disregard of the fact,” as it has been used from
time to time in these instructions, means deliberate indifference to
facts which, if considered and weighed in a reasonable manner,
indicate the highest probability that the alleged aliens were in fact
aliens and were in the United States unlawfully.
Id. at 781 (quoting United States v. Zlatogur, 271 F.3d 1025, 1029 (11th
Cir.2001)).
A review of the record in this case reflects sufficient evidence for a
conviction under each element of § 1324. The intent under § 1324 requires the
government prove the defendant acted in “knowing or in reckless disregard” of the
fact the individuals he was bringing in were illegal aliens. Testimony at trial
established Pina-Suarez had a boat full of people asking to be transported to the
United States, they did not speak English, he had either picked them up from a raft
in the ocean made out of trees found in Cuba or from Cuba itself, and the Coast
Guard ordered him to stop, which he failed to do. Further, Pina-Suarez stated in
his testimony the people on his boat told him how much they wanted to be
American. It was reasonable, based on this evidence, for a jury to conclude Pina-
Suarez knew, or acted with deliberate indifference to the fact the people on his boat
were in fact illegal aliens. The evidence presented regarding the element of
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“knowing or in reckless disregard” is therefore not “so tenuous that a conviction
would be shocking.” See Tapia, 761 F.2d at 1492.
2. 18 U.S.C. § 2237
Where, as here, a defendant raises an objection for the first time on appeal,
we review for plain error to avoid manifest injustice. United States v. Hunerlach,
197 F.3d 1059, 1068 (11th Cir. 1999). Under this standard, there must be (1) an
error, (2) that is plain, and (3) that affects substantial rights. United States v.
Olano, 113 S. Ct. 1770, 1776 (1993). When these three factors are met, we may
correct the error if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Id. An error is plain if it is “‘obvious’ and ‘clear under
current law.’” United States v. Humphrey, 164 F.3d 585, 588 (11th Cir. 1999).
There can be no plain error, however, where there is no statute or precedent from
the Supreme Court or this Court directly resolving an issue. United States v. Chau,
426 F.3d 1318, 1322 (11th Cir. 2005) (citation omitted).
To support a conviction under 18 U.S.C. § 2237, the government bears the
burden of proving a defendant: (1) knowingly failed to obey (2) an order by a
Federal law enforcement officer (3) to heave to that vessel. 18 U.S.C. § 2237.
There is no case law from this Circuit, nor from the Supreme Court,
regarding the intent required for a conviction under 18 U.S.C. § 2237. Therefore,
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because this claim is reviewed for plain error, it necessarily fails. See Humphrey,
164 F.3d at 588; Chau, 426 F.3d at 1322. Pina-Suarez does not contend the
evidence was insufficient to support a conviction if a § 2237 violation is a general
intent crime, and he admits the court instructed the jury this was the law. Because
no case law exists stating § 2237 violations are specific intent crimes, this Court
need not consider whether the evidence was sufficient to support a finding of
specific intent, because there is no plain error.
B. Jury Instructions
1. 8 U.S.C. § 1324(a)(2)(B)(iii) and 18 U.S.C. § 2237
Where, as here, a defendant challenges a jury instruction for the first time on
appeal, the instruction is reviewed for plain error. United States v. Moore, 253
F.3d 607, 609 (11th Cir. 2001).
To support a conviction under 8 U.S.C. § 1324(a)(2)(B)(iii), the government
must prove “the defendant conducted himself ‘knowing or in reckless disregard of
the fact that an alien has not received prior official authorization to come to, enter,
or reside in the United States.’” Perez, 443 F.3d at 780. With regard to the intent
instruction for 8 U.S.C. § 1324, the district court instructed the jury the
Government had to prove, beyond all reasonable doubt “the defendant acted
knowingly or in reckless disregard of the fact that the alien had not received prior
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official authorization to come to or enter the United States, regardless of whether
the alien was later allowed to remain in the United States.” The court further
clarified to act with reckless disregard means “to be aware of, but consciously and
carelessly ignore, facts and circumstances clearly indicating that the person was an
alien who had entered or remained in the United States in violation of law.”
Because the requisite criminal intent for a conviction under this section is
“knowing or with reckless disregard,” and because the court instructed the jury on
that intent, Pina-Suarez has failed to show error on the part of the district court in
its instructions on this charge.
To support a conviction under 18 U.S.C. § 2237, the government must prove
a defendant (1) knowingly failed to obey (2) an order by a Federal law enforcement
officer (3) to heave to that vessel. 18 U.S.C. § 2237. With regard to intent under
this section, the court instructed the jury the government had to prove beyond all
reasonable doubt “the defendant knowingly failed to obey [the Coast Guard’s order
to heave to].” As noted above, there is no precedent from this Circuit which
identifies the intent required for a conviction under this section. However, the
plain language of § 2237 indicates the requisite mental intent for a conviction
under this section is “knowingly.” Therefore, on its face, the district court
committed no plain error in its instructions on this charge.
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2. Lesser Included Offense
Where a defendant fails to request an instruction on a lesser included
offense, and fails to object to the omission of such an instruction at trial, it is not
error for a district court to fail to give such an instruction sua sponte. See United
States v. Chandler, 996 F.2d 1073, 1099 (11th Cir. 1993) (holding when a
defendant “did not request an instruction or object to the omission of an instruction
for the lesser included offense . . . the district court did not err by failing to give
such an instruction sua sponte”). Thus, because Pina-Suarez did not request a
lesser included offense instruction, or object to the omission of a lesser included
offense instruction, the district court did not err in failing to give such an
instruction sua sponte.
3. Theory of the Defense Instruction
We review a properly preserved claim the district court omitted an
instruction for an abuse of discretion. United States v. Morris, 20 F.3d 1111, 1114
(11th Cir. 1994). The appellant is entitled to relief on the claim only where “the
rejected instruction was substantively correct, the actual charge to the jury did not
substantially cover the proposed instruction, and the failure to give it substantially
impaired the defendant’s ability to present an effective defense.” Zlatogur, 271
F.3d at 1030.
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“A criminal defendant has the right to have the jury instructed on [his]
theory of defense, separate and apart from instructions given on the elements of the
charged offense.” United States v. Ruiz, 59 F.3d 1151, 1154 (11th Cir. 1995). The
defendant's burden of presenting evidence to obtain the instruction is “extremely
low” and the district court must view the evidence in a light most favorable to the
defendant. Id. “[A] defendant is not automatically entitled to a theory of the
defense instruction if that argument is adequately covered in another instruction, if
it would be confusing, if it is not a legally cognizable defense, or if it merely
emphasizes a certain phase of the evidence.” United States v. Blanton, 793 F.2d
1553, 1561 (11th Cir. 1986).
Pina-Suarez testified on his own behalf regarding his belief he could not stop
his boat as ordered by the Coast Guard for fear of death or serious bodily injury,
namely, that two individuals on his boat would throw him overboard if he tried to
stop, and he feared being thrown off of the boat at 50 or 60 miles per hour and
being run over by the prop. Further, Pina-Suarez introduced two witnesses, both of
whom corroborated his story that a man on his boat would not allow him to stop
when ordered by the Coast Guard. Pina-Suarez also testified that, due to the
behavior of the Coast Guard, shutting off his boat and getting thrown overboard
could have resulted in him being run over by the Coast Guard.
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This testimony was countered by witnesses for the Government, who
testified that, after ordering Pina-Suarez to stop his boat, Pina-Suarez instead
gestured as if they were going to land, gave the Coast Guard the middle finger, and
began driving erratically, trying to impact the Coast Guard’s boat. Further,
witnesses testified they could see Pina-Suarez driving, and no one else was near
him during the chase.
Because a defendant’s burden of presenting evidence to obtain the
instruction is “extremely low” and must be viewed in the light most favorable to
the defendant, the evidence presented by Pina-Suarez in this case was arguably
sufficient to meet the evidentiary burden for the requested instruction of duress.1
See Ruiz, 59 F.3d at 1154. However, even assuming the instructions proposed by
Pina-Suarez were correct and were not substantially covered by other instructions
given to the jury, the district court’s failure to give the requested instruction did not
substantially impair Pina-Suarez’s ability to present an effective defense. See
Zlatogur, 271 F.3d at 1030. As noted above, throughout the trial, Pina-Suarez’s
defense was that he had acted involuntarily, which he was allowed to present
unfettered by the district court. Further, the entire thrust of defense counsel’s
1
To establish a defense of duress, a defendant must show (1) he acted under an
immediate threat of death or serious bodily injury, (2) he had a well-grounded fear the threat
would be carried out, and (3) he had no reasonable opportunity to escape or inform authorities.
United States v. Alzate, 47 F.3d 1103, 1104 (11th Cir. 1995).
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closing argument was that, although Pina-Suarez failed to stop when commanded
by the Coast Guard, his actions were not willful or voluntary, but were due to the
fact he was being threatened by the people on his boat. The record shows Pina-
Suarez was able to present, throughout this case, evidence of intimidation or
coercion. Therefore, because the district court’s failure to give the requested
instruction did not substantially impair Pina-Suarez’s ability to present an effective
defense, the failure to give the instruction does not constitute reversible error.
C. Evidentiary Rulings
1. Videotape
Where, as here, a party claims evidentiary errors for the first time on appeal,
we will not reverse unless they constitute plain error. United States v. Hawkins,
905 F.2d 1489, 1493 (11th Cir. 1990). Even if the evidence was admitted or
excluded improperly, we will not vacate unless the defendant’s substantial rights
were affected. Id. Further, the Supreme Court has held “unless a criminal
defendant can show bad faith on the part of the police, failure to preserve
potentially useful evidence does not constitute a denial of due process of law.”
Arizona v. Youngblood, 109 S. Ct. 333, 337 (1988).
Pina-Suarez has failed to demonstrate plain error with respect to the
videotape. Testimony at trial revealed the Coast Guard began taping the chase,
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stopped, rewound, and started the tape over due to profanity used by one of the
crew on the tape. Pina-Suarez has failed to demonstrate this was done for any
purpose other than the one stated at trial. Therefore, he has failed to show bad faith
on the part of the Coast Guard, and the rewinding of the tape does not constitute a
denial of due process. See id. As such, the district court did not err in admitting
the videotape into evidence.
2. Testimony
When a party properly preserves its claim, we review the district court’s
rulings on admission of evidence for an abuse of discretion. United States v.
Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000). Even if the evidence was admitted
or excluded improperly, we will not vacate unless the defendant’s substantial rights
were affected. Hawkins, 905 F.2d at 1493. We determine whether an error had
substantial influence on the outcome by weighing the record as a whole, see United
States v. Montalvo-Murillo, 110 S. Ct. 2072, 2080 (1990), and examining “the
facts, the trial context of the error, and the prejudice created thereby as juxtaposed
against the strength of the evidence of defendant’s guilt.” United States v. Reed,
700 F.2d 638, 646 (11th Cir. 1983) (quotation omitted).
Because there was sufficient evidence to convict Pina-Suarez on counts 1-24
absent the agent’s testimony regarding the GPS, and because the testimony
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regarding the GPS was not admitted to prove any elements of the charged offenses,
but was introduced solely for the purposes of impeachment on a collateral issue,
any potential error on the part of the district court in admitting the rebuttal
testimony regarding Pina-Suarez’s handheld GPS is did not affect Pina-Suzarez’s
substantial rights and is harmless.
D. Sentencing Guidelines
“The sentencing guidelines make clear that where a guidelines range falls
entirely below a mandatory minimum sentence, the court must follow the
mandatory statutory minimum sentence.” United States v. Clark, 274 F.3d 1325,
1328 (11th Cir. 2001). As such, any possible error in the Guidelines calculations is
harmless and need not be addressed. United States v. Raad, 406 F.3d 1322, 1323
n.1 (11th Cir. 2005).
Here, the applicable Guidelines range was 46 to 57 months’ imprisonment.
However, due to the number of aliens Pina-Suarez was convicted of smuggling
into the United States, the statute under which he was convicted, 8 U.S.C.
§ 1324(a)(2)(B)(iii), carried a mandatory minimum sentence of 5 years, or 60
months. Therefore, any potential error on the part of the district court in enhancing
Pina-Suarez’s sentence for bodily injury and obstruction of justice is harmless. See
Raad, 406 F.3d at 1323 n.1.
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E. Reasonableness
We review Pina-Suarez’s sentence for reasonableness. See United States v.
Booker, 125 S. Ct. 738, 767 (2005). “Regardless of whether the sentence imposed
is inside or outside the Guidelines range, the appellate court must review the
sentence under an abuse-of-discretion standard.” Gall v. United States, 128 S. Ct.
586, 597 (2007). Pina-Suarez bears the burden of showing his sentence is
unreasonable. See United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
After Booker, sentencing review requires two steps: first, we must ensure
the district court committed no significant procedural error, and second, we must
consider the substantive reasonableness of the sentence imposed. See Gall, 128 S.
Ct. at 597. In reviewing the ultimate sentence for reasonableness, we consider the
final sentence imposed in light of the § 3553(a) factors. United States v. Martin,
455 F.3d 1227, 1237 (11th Cir. 2006). Our reasonableness review is deferential,
and requires us to “evaluate whether the sentence imposed by the district court fails
to achieve the purposes of sentencing as stated in [§] 3553(a).” Talley, 431 F.3d at
788.
In arriving at a reasonable sentence, the district court is required to consider
the factors set out in 18 U.S.C. 3553(a): “(1) the nature and circumstances of the
offense and the history and characteristics of the defendant; (2) the need to reflect
14
the seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to protect the
public; (5) the need to provide the defendant with needed educational or vocational
training or medical care; (6) the kinds of sentences available; (7) the Sentencing
Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.” Talley, 431 F.3d at 786 (citing 18 U.S.C. § 3553(a)).
It is sufficient for the district court to acknowledge that it has considered
these factors; it need not explicitly consider or discuss each of them. United States
v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005). Further, “[t]he weight to be
accorded any given § 3553(a) factor is a matter committed to the sound discretion
of the district court.” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007)
(quotation omitted).
For adequate appellate review, when a district court varies a sentence under
18 U.S.C. § 3553(a), subsection (c) requires a judge to state his reasons for such a
variance. “Congress has specifically proclaimed that a sentencing court shall state
the reason for imposing a sentence [exceeding 24 months] at a particular point
within the range. When a sentencing court fails to comply with this requirement,
the sentence is imposed in violation of law.” United States v. Williams, 438 F.3d
15
1272, 1274 (11th Cir. 2006) (quotations and alterations omitted). The brevity or
length of such a statement depends upon the circumstances of each particular case.
Rita v. United States, 127 S. Ct. 2456, 2468 (2007). “The law leaves much, in this
respect, to the judge’s own professional judgment. . . . The sentencing judge should
set forth enough to satisfy the appellate court that he has considered the parties’
arguments and has a reasoned basis for exercising his own legal decisionmaking
authority.” Id.
To determine whether a sentence was imposed due to a Guidelines departure
or a § 3553(a) variance, we look to the process taken by the district court in
making its determination. See United States v. Irizarry, 458 F.3d 1208, 1211-12
(11th Cir. 2006), cert. granted, 128 S. Ct. 828, No. 06-7517 (Jan. 4, 2008). In
Irizarry, we found the sentence imposed was a variance due to the following
factors:
The district court correctly calculated to advisory guidelines range.
The court then considered the adequacy of this range in the light of
the sentencing factors listed in 18 U.S.C. section 3553(a) and the
evidence presented at the sentencing hearing. After concluding that
the guidelines range did not adequately address the future risk
Defendant posed to the public, the court exercised its post-Booker
discretion to impose a reasonable sentence outside the sentencing
guidelines range.
Id. (internal citation omitted).
16
Both parties discussed at length the appropriate Guidelines calculations, with
the district court ultimately determining the appropriate Guidelines range to be 46
to 57 months’ imprisonment, with a statutory mandatory minimum of 60 months.
The court then turned to a consideration of what the sentence ought to be,
recognizing the advisory nature of the Guidelines and its discretion to impose a
reasonable sentence based on the severity and nature of the offense, and the facts
of the record. The court then heard testimony from Pina-Suarez’s mother, and
argument from both parties regarding sentencing and the § 3553(a) factors. The
court then imposed a sentence of 96 months’ imprisonment. Given the steps taken
by the district court in this case, which follow those taken in Irizarry, the sentence
imposed in this case appears to be the result of a variance under 18 U.S.C. § 3553,
not a Guidelines departure.
In reviewing the reasonableness of a sentence, this Court must first
determine whether the district court committed any significant procedural error,
such as incorrectly calculating the Guidelines range or treating the Guidelines as
mandatory. See Gall, 128 S. Ct. at 597. Part of the procedural accuracy includes a
statement by the court of reasons for imposing a sentence outside of the
recommended Guidelines range. Rita, 127 S. Ct. at 2467; Williams, 438 F.3d at
1274. Here, although the court followed the correct procedure in determining the
17
Guidelines range, gave notice to the parties that it could vary above the Guidelines,
and heard arguments regarding the parties’ determination of an appropriate
sentence, it did not explicitly state its reasons for a variance as required by
§ 3553(c). However, it appears the district court accepted the Government’s
position regarding sentencing, which satisfies the requirements of Rita and allows
for meaningful appellate review. Therefore, the district court committed no
procedural error in determining Pina-Suarez’s sentence.
The Government argued for an increased sentence on the basis that the
mandatory minimum applies regardless whether a defendant accepts responsibility,
obstructs justice, commits perjury, or injures people. Pina-Suarez never accepted
responsibility, lied to law enforcement and at trial, put those on his boat and
members of the Coast Guard in harms way, and injured three of the people on his
boat. Because someone who had done none of those things would still receive the
mandatory minimum sentence, the Government felt that a sentence above the
statutory minimum would be appropriate.
These reasons take into account various § 3553(a) factors, including the
nature and circumstances of the offense, the need to provide just punishment, and
the need to avoid unwanted sentencing disparities. Although Pina-Suarez argues
the court violated Booker in failing to account for the mitigating § 3553(a) factors,
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because the weight to be accorded to any given § 3553(a) factor is a matter
committed to the sound discretion of the district court, the district court did not err
in sentencing Pina-Suarez above the mandatory minimum. See Clay, 483 F.3d at
743. Based on these facts, the district court did not abuse its discretion in
sentencing Pina-Suarez above the mandatory minimum sentence, and the ultimate
sentences imposed are reasonable in light of the facts and circumstances of this
case.
II. CONCLUSION
The evidence was sufficient to support convictions under both statutes and
there was no reversible error in the district court’s jury instructions. Additionally,
the district court did not plainly err or abuse its discretion in the challenged
evidentiary rulings. Accordingly, we affirm Pina-Suarez’s conviction.2 We also
conclude Pina Suarez’s sentence is reasonable.
AFFIRMED.
2
As Pina-Suarez has failed to demonstrate any serious errors on the part of the district
court, his claim that the cumulative prejudicial effect of the many serious errors committed at
trial requires reversal is meritless.
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