[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 27, 2008
No. 07-12448 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-20336-CR-DLG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISAAC CASTILLO,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 27, 2008)
Before ANDERSON, BLACK and HULL, Circuit Judges.
PER CURIAM:
Isaac Castillo appeals his conviction and sentence of 235 months’
imprisonment for possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 922(g)(1) and 924(e)(1). Castillo raises three issues on appeal: (1) he
asserts the evidence presented at trial was insufficient for a reasonable jury to
convict him for possession of a firearm; (2) he contends the district court erred by
instructing the jury that both parties had the power to subpoena and call witnesses;
and (3) he asserts the district court erred by imposing a procedurally and
substantively unreasonable sentence. After review, we affirm his conviction and
sentence.
I.
Castillo asserts the evidence at trial was insufficient to support a conviction
because Castillo was not present when the police seized the firearm and there was
no credible evidence that Castillo had actual or constructive possession of the
firearm. Castillo also contends the testimony of certain Government witnesses was
incredible because the witnesses expected to benefit from their testimony, had prior
convictions, or their testimony conflicted with that of another witness.
We review de novo the sufficiency of the evidence supporting a criminal
conviction. United States v. Hasson, 333 F.3d 1264, 1270 (11th Cir. 2003). We
must determine whether “a reasonable fact-finder could conclude that the evidence
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established the defendant’s guilt beyond a reasonable doubt.” United States v.
Pistone, 177 F.3d 957, 958 (11th Cir. 1999). In considering the sufficiency of the
evidence, we view all of the evidence “in the light most favorable to the verdict,
drawing all reasonable inferences and resolving all questions of credibility in favor
of the government.” Hasson, 333 F.3d at 1270. Credibility determinations are for
the jury, and we typically will not review such determinations. United States. v.
Copeland, 20 F.3d 412, 413 (11th Cir. 1994). Where the argument is that the jury
based its conviction on inconsistent testimony or incredible government witnesses,
the appellant must show the testimony was “incredible as a matter of law.” United
States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997). For testimony to be
“incredible as a matter of law,” it must be unbelievable on its face, i.e., “testimony
as to facts that the witness could not have possibly observed or events that could
not have occurred under the laws of nature.” Id. (quotations and alteration
omitted). Moreover, a witness’s testimony is not incredible just because he “has
consistently lied in the past, engaged in various criminal activities, and thought that
his testimony would benefit him.” Id. (quotations and alteration omitted).
In order to convict a defendant of being a felon in possession of a firearm
under 18 U.S.C. § 922(g)(1), the government must prove beyond a reasonable
doubt that (1) the defendant was a convicted felon, (2) the defendant knowingly
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possessed a firearm, and (3) the firearm was in or affected interstate commerce.
United States v. Deleveaux, 205 F.3d 1292, 1296-97 (11th Cir. 2000).1 To
establish “knowing possession,” the government must prove actual or constructive
possession through direct or circumstantial evidence. United States v. Greer, 440
F.3d 1267, 1271 (11th Cir. 2006). “Constructive possession exists when the
defendant exercises ownership, dominion, or control over the item or has the power
and intent to exercise dominion or control.” Id. Mere presence near contraband, or
awareness of its location, is insufficient to establish possession. United States v.
Gardiner, 955 F.2d 1492, 1495 (11th Cir. 1992).
Although the evidence from trial does not support that Castillo was actually
present when the rifle was discovered in his grandmother’s house, the Government
presented evidence that Castillo lived in the grandmother’s house, and specifically
lived in the room in which the rifle was found. Sergeant Robert Perez testified the
room from which he seized the rifle was located at the back of the house and
contained men’s jewelry. Detective Barbara Nelson testified Castillo provided his
grandmother’s address as his own to Nelson before the rifle was discovered and
had referred to the house as his during their conversation after the rifle was
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Castillo only argues the Government failed to prove the issue of “knowing possession”
of the firearm. Castillo stipulated at trial that he was a convicted felon, and he does not dispute
the firearm was in interstate commerce.
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discovered. Juan Carlos Crespo and Mario Davis both testified Castillo referred to
the house as his own when he talked to them about the discovery and seizure of the
rifle. Crespo also testified Castillo described his bedroom as being located at the
back of his grandmother’s house. Castillo’s probation officer, Jose Peralta, had
visited Castillo at his grandmother’s house before the discovery of the rifle, and
testified Castillo had lived in the back bedroom and had not notified him of a
change in address before the discovery of the rifle, as required before a probationer
moves. The only evidence Castillo no longer lived at his grandmother’s house
came from Castillo’s own statements to Peralta after the rifle was discovered. The
evidence presented by the Government was sufficient for the jury to have
reasonably drawn a conclusion that Castillo was living in his grandmother’s house
when the rifle was discovered and that the rifle was located in Castillo’s bedroom.
See Pistone, 177 F.3d at 958.
The Government also presented evidence that Castillo had knowing and
constructive possession of the rifle. Detective Nelson testified Castillo told her he
was storing the rifle for a friend and he was present when his friend delivered the
rifle. Crespo also testified Castillo told him the rifle belonged to a friend. Crespo
and Davis both testified Castillo told them he had the rifle and had handled it.
Davis also testified Castillo described the firearm as a .30-06 rifle and described
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the bullets as being the size of a pen. The Government’s expert witness, Greene,
verified the rifle seized from Castillo’s grandmother’s house was a .30-06 rifle and
the bullets for the rifle were about three and a half inches long with a pointed tip.
This is sufficient evidence from which a reasonable jury could infer Castillo
actually exercised control over the rifle. See Greer, 440 F.3d at 1271. Therefore,
the evidence is sufficient to support the jury’s finding that Castillo knowingly
possessed the rifle. See id.
Castillo’s assertion that the Government’s witnesses provided incredible
testimony is unpersuasive. First, a witness’s prior convictions and lies and
possible benefit from testifying does not make that testimony incredible.
Calderon, 127 F.3d at 1325. Here, the jury had the opportunity to view first-hand
the individuals presenting the evidence and to weigh their credibility. Both parties
thoroughly elicited the witnesses’ capacity for truthfulness, prior convictions, and
status as cooperating witnesses through direct and cross-examination. The district
court fully instructed the jury about the credibility of witnesses. The jury, by its
verdict, impliedly found the testimony of these witnesses to be credible. Second,
even if one witness’s testimony contradicts that of another, the jury decides which
witness to believe and how much of that witness’s testimony to believe. Moreover,
in this case, contrary to Castillo’s argument on appeal, Detective Nelson’s
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testimony that Castillo was present when the gun was delivered was not in direct
contradiction of Peralta’s statements, but rather contradicted Castillo’s statements
to Peralta. Castillo has failed to show the testimony is “incredible as a matter of
law,” as required by this Court to review the credibility determinations of the jury.
See id. The record does not show any evidence the testimony was unbelievable on
its face or contained facts or events that could not possibly have occurred. See id.
Therefore, the testimony was sufficient to allow the jury to find Castillo guilty
beyond a reasonable doubt.
II.
Castillo next argues the district court erred when it instructed the jury that
both parties have equal subpoena power, because this jury instruction
unconstitutionally shifted the burden of proof to the defense.
Although Castillo objected to the jury instruction with the specific grounds
of “shifting the burden of proof,” he did not object until after the jury retired to
deliberate. Where a party makes no specific objection to the jury charge at trial
before the jury retires to deliberate, we review the claim for plain error. United
States v. Eckhardt, 466 F.3d 938, 948 (11th Cir. 2006), cert. denied, 127 S. Ct.
1305 (2007). Plain error is found only where the defendant demonstrates: (1) there
is an error; (2) the error is plain; (3) the error affects the defendant’s substantial
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rights; and (4) the error “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Olano, 113 S. Ct. 1770, 1777-
78 (1993).
“[I]t is not improper for a prosecutor to note that the defendant has the same
subpoena powers as the government.” United States v. Hernandez, 145 F.3d 1433,
1439 (11th Cir. 1998). In Hernandez, we rejected the defendant’s burden-shifting
argument, noting any potential prejudice caused by the prosecutor’s statement
about subpoena powers was diminished by the trial court’s explicit jury instruction
that the prosecution had the burden of proof. Id.
Although the district court instructed the jury that both parties could call
witnesses at trial, the district court’s instructions also made clear the burden of
proof rested only with the Government. By instructing the jury of the
Government’s burden of proof, the district court removed any possible prejudicial
effect of its jury instruction regarding Castillo’s subpoena powers and thus did not
shift the burden to the defense. See Hernandez, 145 F.3d at 1439. Therefore, the
court did not plainly err.
III.
Castillo contends the district court imposed a procedurally and substantively
unreasonable sentence. Castillo asserts that, based on the facts shown, the sentence
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of 235 months’ imprisonment is “unreasonably harsh” and “far in excess of what
was necessary in order to meet the statutory goals for sentencing.”
We review the final sentence imposed by the district court for
reasonableness. United States v. Booker, 125 S. Ct. 738, 767 (2005).
Reasonableness review is akin to an abuse-of-discretion standard. Gall v. United
States, 128 S. Ct. 586, 594 (2007). A sentence must be both procedurally and
substantively reasonable. Id. at 597. A sentence may be procedurally
unreasonable if the district court improperly calculates the Guidelines range, treats
the Sentencing Guidelines as mandatory rather than advisory, fails to consider the
appropriate statutory factors, selects a sentence based on clearly erroneous facts, or
fails to adequately explain the chosen sentence. Id. After reviewing the procedural
reasonableness of a sentence, we then review the substantive reasonableness of a
sentence under an abuse-of-discretion standard. Id. The review for substantive
reasonableness involves examining the totality of the circumstances, including an
inquiry into whether the statutory factors in 18 U.S.C. § 3553(a) support the
sentence in question. Id. at 597-600.
Pursuant to § 3553(a), the sentencing court shall impose a sentence
“sufficient, but not greater than necessary” to reflect the seriousness of the offense,
promote respect for the law, provide just punishment for the offense, deter criminal
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conduct, protect the public from future crimes of the defendant, and provide the
defendant with needed educational or vocational training or medical care. See 18
U.S.C. § 3553(a)(2). The sentencing court must also consider the following factors
in determining a particular sentence: the nature and circumstances of the offense
and the history and characteristics of the defendant, the kinds of sentences
available, the Guidelines range, the pertinent policy statements of the Sentencing
Commission, the need to avoid unwanted sentencing disparities, and the need to
provide restitution to victims. See 18 U.S.C. § 3553(a)(1), (3)-(7).
Although this Court does not apply a presumption of reasonableness to a
sentence that is within the properly calculated Guidelines range, see United States
v. Campbell, 491 F.3d 1306, 1313 (11th Cir. 2007), we ordinarily expect a
sentence within the Guidelines range to be reasonable, United States v. Talley, 431
F.3d 784, 788 (11th Cir. 2005). The party challenging the sentencet has the burden
of establishing that the sentence is unreasonable in light of the record and the
§ 3553(a) factors. Id.
The district court imposed a procedurally reasonable sentence. The district
court correctly calculated Castillo’s Guidelines range, and heard the arguments of
Castillo’s counsel and Castillo himself. The court acknowledged it had considered
these statements, the PSI, the advisory Guidelines, and the § 3553(a) factors. In
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explaining its sentencing decision, the court specifically addressed the § 3553(a)
factors of the nature and circumstances of the offense, the history and
circumstances of the defendant, and the need for the sentence imposed, especially
to promote respect for the law and provide just punishment.
The district court also imposed a substantively reasonable sentence, as the
sentence was supported by the § 3553(a) factors. In explaining its sentencing
decision, the district court expressly discussed Castillo’s failure to accept
responsibility for his actions, his extensive criminal history, and his refusal to
abide by the law, as indicated by his previous convictions related to firearms and
his commission of the instant offense while on probation for another offense.
Therefore, the court found it appropriate to impose a sentence within the
Guidelines range. In imposing the sentence, the district court relied on the
§ 3553(a)(2) purposes of deterrence, promoting respect for the law, and providing
just punishment. Given that Castillo’s sentence was within the Guidelines range,
he had prior convictions, he denied any responsibility for his actions, and the
district court was influenced by the § 3553(a) factors, the sentence is substantively
reasonable.
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IV.
The evidence was sufficient to establish Castillo’s guilt of possession of a
firearm by a convicted felon. Additionally, the district court committed no plain
error in giving a jury instruction regarding the subpoena power of each party.
Lastly, Castillo’s sentence was reasonable. Accordingly, we affirm Castillo’s
conviction and sentence.
AFFIRMED.
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