[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12604 APRIL 11, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-00240-KD-N-4
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff - Appellee,
versus
JUAN RAMON SABINA,
lllllllllllllllllllll Defendant - Appellant.
______________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(April 11, 2012)
Before TJOFLAT and CARNES, Circuit Judges, and MICKLE,* District Judge.
PER CURIAM:
Juan Sabina appeals his conviction for conspiracy to possess marijuana with
*
Honorable Stephan P. Mickle, United States District Judge for the Northern District of
Florida, sitting by designation.
intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 846, contending that the
evidence was insufficient to support the jury’s verdict.
I.
An anonymous tipster called a drug task force in Mobile County, Alabama,
reporting that people were growing marijuana at three properties in Eight Mile,
Alabama. The properties are within three miles of each other, and the tipster said
that on each property there was not only a house but also an outbuilding equipped
with large air conditioners.
Police officers obtained search warrants for the three properties mentioned
in the tip. The first property the officers searched was located on Jib Road and
was owned by Sabina, although he had leased it to Omar Huezo. Just as the tipster
said, Sabina’s property had a house and an outbuilding. Inside the house, the
officers found a marijuana growing operation, which included high-intensity
lighting equipment, voltage-boosting ballasts used to power that lighting
equipment, timers, and 119 marijuana plants. Two cars were parked in the
driveway, and one of them was registered to Sabina. The outbuilding contained
remnants of a marijuana growing operation, including two 5-ton air conditioners
used to counteract the heat from the high-intensity lighting equipment, which
might otherwise burn the marijuana plants.
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The second property mentioned in the anonymous tip was owned by Jose
Noriega and was located on Chutney Drive. When officers arrived at that
property, they encountered Sabina, Huezo, and Noriega drinking beer on the back
porch. Inside the property’s outbuilding, officers found “[a] very large and
elaborate marijuana grow[ing] operation,” including “identical wiring and ballasts
and lights as at the Jib Road address” and 245 marijuana plants. And there were
two 5-ton air conditioners attached to the outbuilding. Inside the Chutney Drive
house, officers found more high-intensity lighting equipment and ballasts.
The third property mentioned in the tip was located on Kushla McLeod
Road. There the officers uncovered a marijuana growing operation similar to
those at the Jib Road and Chutney Drive properties, including high-intensity
lighting equipment, ballasts, timers, an outbuilding with one 5-ton air conditioner
attached to it, a garage with another 5-ton air conditioner attached to it, and 160
marijuana plants.
A federal grand jury issued a superseding indictment charging Sabina,
Huezo, Noriega, and four other defendants with conspiracy to possess marijuana
with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 846, and
possession of marijuana with intent to distribute in violation of 21 U.S.C. §
841(a)(1). It also charged Noriega and Huezo with knowingly possessing a
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firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §
924(c)(1). In addition, it included a forfeiture count. See 21 U.S.C. § 853.1
A jury found Sabina guilty of conspiracy, but the court declared a mistrial
on the possession charge after the jury deadlocked on it. The presentence
investigation report advised that the guidelines range for his conviction on the
conspiracy count would have been 41 to 51 months but that the mandatory
minimum prison sentence is 60 months for the quantity of marijuana that Sabina
was convicted of conspiring to possess. See 21 U.S.C. §§ 841(b)(1)(B), 846. The
court sentenced him to 60 months imprisonment and imposed a 5-year term of
supervised release.
II.
“We review de novo the sufficiency of the evidence presented at trial, and
we will not disturb a guilty verdict unless, given the evidence in the record, no
trier of fact could have found guilt beyond a reasonable doubt.” United States v.
White, 663 F.3d 1207, 1213 (11th Cir. 2011) (quotation marks omitted). “In
1
One defendant remains a fugitive. Huezo pleaded guilty to the conspiracy charge and to
the charge of possessing a firearm in furtherance of a drug trafficking crime, and two other
defendants pleaded guilty to the conspiracy charge. Noriega, Sabina, and one other defendant
went to trial, but the district court granted that other defendant’s motion for a judgment of
acquittal after the government’s case-in-chief. Noriega was convicted of conspiracy and
possession of marijuana with intent to distribute and he appealed his convictions. In a separate
opinion issued today, we are entering a limited remand in Noriega’s case. See United States v.
Noriega, — F.3d —, No. 10-12480 (11th Cir. April 11, 2012).
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reviewing the sufficiency of the evidence, we look at the record in the light most
favorable to the verdict and draw all reasonable inferences and resolve all
questions of credibility in its favor.” Id. (quotation marks omitted).
To prove that Sabina committed the crime of conspiracy to possess
marijuana with intent to distribute, the government had to establish: (1) the
existence of an agreement between two or more persons for someone to possess
marijuana with intent to distribute; (2) “that [Sabina] knew of the conspiratorial
goal”; and (3) “that he knowingly joined or participated in the illegal venture.”
United States v. Brown, 587 F.3d 1082, 1089 (11th Cir. 2009). “Because
conspiracies are secretive by nature, the existence of an agreement and [Sabina’s]
participation in the conspiracy may be proven entirely from circumstantial
evidence.” White, 663 F.3d at 1214 (quotation marks omitted).
Sabina contends that there was not enough evidence to convict him of
conspiracy, arguing that “[t]he government’s evidence shows only [his] presence
at a location, where marijuana was found on the property.” It is true that “mere
presence is insufficient to support a conviction for conspiracy, [but] the jury is
permitted to consider presence as a probative factor in determining whether the
defendant knowingly and intentionally participated in a criminal scheme.” United
States v. Bacon, 598 F.3d 772, 777 (11th Cir. 2010). In addition to Sabina’s
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presence at the Chutney Drive property, the record contains other evidence of his
guilt. Sabina owned the Jib Road property where officers found a marijuana
growing operation and found his vehicle parked in the driveway. He also leased
that property to one of his codefendants, whom officers found drinking beer with
Sabina at the Chutney Drive property, where there was an almost identical
marijuana growing operation to the one at the Jib Road property. Sabina was
living at that Chutney Drive property, according to what he told an Immigration
and Customs Enforcement agent on the day he was arrested.
The government also introduced evidence that the three properties at which
officers found marijuana growing operations were part of one drug conspiracy. At
each marijuana growing operation there were two 5-ton air conditioners; an
invoice showed that someone in Miami, Florida, had bought three of those air
conditioners on a single order form; and at each of the three marijuana growing
operations, officers found one of the three 5-ton air conditioners that were listed
on that order form. In light of all that evidence, a reasonable jury could have
found that the government had established more than “mere presence” and proved
beyond a reasonable doubt that Sabina was guilty of conspiracy to possess
marijuana with intent to distribute.
AFFIRMED.
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