[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 07-12995 ELEVENTH CIRCUIT
AUG 28, 2008
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 06-20615-CR-RWG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LIVAN ESTEBAN-RIOS,
Defendant-Appellant.
-------------------------------------
Appeal from the United States District Court
for the Southern District of Florida
--------------------------------------
(August 28, 2008)
Before EDMONDSON, Chief Judge, TJOFLAT and BLACK, Circuit Judges.
PER CURIAM:
Defendant-Appellant Livan Esteban Rios appeals his conviction for
conspiracy to possess cocaine with intent to distribute at least 500 grams, in
violation of 21 U.S.C. § 846, and the 235-month sentence imposed. No reversible
error has been shown; we affirm.
Rios claims the admission of evidence of Rios’s participation in drug
transactions that predated the charged conspiracy was highly prejudicial and
constituted reversible error. The challenged evidence included tape-recorded
conversations between the cooperating witness (“CW”) and Rios in which Rios
referenced prior drug transactions he had with the CW and with other members of
the conspiracy. Rios maintains that, although the district court gave the jury a
limiting instruction about uncharged acts, the verdict suggests that the jury
convicted Rios based on the uncharged criminal conduct.
Fed.R.Evid 404(b) governs generally the admission of prior crimes and bad
act evidence. Under Rule 404(b), “[e]vidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show action in
conformity therewith”; such evidence is admissible “for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident...” Id. But not all evidence of criminal activity
other than the charged offense is extrinsic and within the purview of Rule 404(b)
regulation: evidence of an uncharged offense arising out of the same transaction or
series of transactions as the charged offense which is necessary to complete the
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story of the crime or is inextricably intertwined with evidence of the charged
offense is not subject to the admissibility tests imposed by Rule 404(b). United
States v. Veltmann, 6 F.3d 1483, 1498 (11th Cir. 1993). “And evidence is
inextricably intertwined with the evidence regarding the charged offense if it
forms an ‘integral and natural part of the witness’s accounts of the circumstances
surrounding the offenses for which the defendant was indicted.’” United States v.
Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007), quoting United States v. Foster,
889 F.2d 1049, 1053 (11th Cir. 1989). “Evidence, not a part of the crime charged
but pertaining to the chain of events explaining the context, motive and set-up of
the crime, is properly admitted if linked in time and circumstances with the
charged crime, or forms an integral and natural part of an account of the crime, or
is necessary to complete the story of the crime for the jury.” United States v.
McLean, 138 F.3d 1398, 1403 (11th Cir. 1998) (quotation and citation omitted).
That evidence is not subject to Rule 404(b) restriction does not end the
admissibility inquiry; the evidence must still satisfy the requirements of Rule 403.
See Edouard, 485 F.3d at 1344. Under Rule 403, otherwise relevant evidence may
be excluded if “its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues , or misleading the jury....” Fed.R.Evid.
403. But Rule 403 is “an extraordinary remedy which should be used only
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sparingly ... to exclude concededly probative evidence.” United States v.
Betancourt, 734 F.2d 750, 757 (11th Cir. 1984)
We see no error in the district court’s determination that the evidence Rios
challenges was not Rule 404(b) evidence. The prior criminal conduct involved
the same method of concealing and transporting the cocaine and involved the same
people as the charged conspiracy. The recorded conversations that referenced
prior criminal conduct were made largely during discussions about the charged
conspiracy; this evidence established Rios’s earlier dealings with the drug
traffickers and explained why he was in a position to introduce the CW to the
traffickers so that the CW might deliver drugs for them. The probative value of
the evidence was not substantially outweighed by the risk of unfair prejudice or
other factors listed in Rule 403. No abuse of discretion has been shown in the
admission of the challenged evidence.1
We reject also Rios’s claim that insufficient evidence exists to show the
requisite agreement between Rios and the conspirators. Viewing “the evidence in
the light most favorable to the government, with all reasonable inferences and
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Rios’s claim that the jury was confused and held him accountable for unindicted conduct is
speculative and fails to overcome the presumption that the jury followed the district court’s
instructions. See United States v. Brown, 983 F.2d 201, 202 (11th Cir. 1993) (jury presumed to
follow the court’s instructions).
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credibility choices made in the government’s favor,” United States v. Martinez,
83 F.3d 371, 373-74 (11th Cir. 1996), sufficient evidence supports the jury’s
verdict and the denial of Rios’s motion for judgment of acquittal. Rios’s claims to
the contrary notwithstanding, much more than “mere association” with the
conspirators was shown. Based on the testimony of the CW, the recorded
conversations, and Rios’s post-Miranda admissions, the government proved that a
conspiracy existed, that Rios knew of the conspiracy, and that Rios voluntarily
joined it by conspiring with persons not cooperating with the government. No
insufficiency has been shown.
Rios also claims error in the district court holding him responsible for 519.2
kilograms of cocaine. In support of this claim, Rios relies on the jury verdict that
indicated only that the jury held him responsible for at least 500 grams; an option
to hold Rios responsible for at least 5 kilograms was not exercised.2
“We review the district court’s factual findings at sentencing for clear
error.” United States v. Bailey, 123 F.3d 1381, 1403 (11th Cir. 1997). No
2
The perceived discrepancy between the jury’s verdict and the amount of cocaine for which Rios
was held accountable at sentencing was a recurring theme at the sentencing hearing and again in
Rios’s brief on appeal. We can not and do not say what the jury intended on the verdict form; we
can and do say that the jury’s verdict form does not limit the inquiry at sentencing. Relevant conduct
shown by a preponderance of the evidence informs correctly the sentence imposed so long as that
sentence does not exceed the maximum sentence authorized by the jury verdict. See United States
v. Faust, 456 F.3d 1342, 1348 (11th Cir. 2006).
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argument is made that the cocaine seized weighed less 519.2 kilograms. Because
the government showed by a preponderance of the evidence that the relevant
quantity of cocaine attributable to Rios was 519.2 kilograms, no clear error is
shown in holding Rios accountable for that amount. See United States v. Faust,
456 F.3d 1342, 1348 (11th Cir. 2006) (post-Booker courts can continue to
consider relevant acquitted conduct proved by a preponderance of the evidence).
Rios also asserts error in the district court’s failure to award him a role
reduction under U.S.S.G. § 3B1.2. According to Rios, a role reduction was
warranted because he -- unlike co-conspirators Junior and Valdes (the CW) -- had
no role in planning the drug run, he had no decision-making authority or control,
he engaged in no negotiation of price or terms, and he -- unlike like co-conspirator
Valdes -- did not go to Texas to pick up the drug load. And Rios argues further
that the amount of cocaine seized was not indicative of his role in the enterprise.
We review a district court’s determination of whether a defendant qualifies
for a role reduction for clear error; and the proponent of a mitigating-role
reduction always carries the burden of proving entitlement by a preponderance of
the evidence. United States v. De Varon, 175 F.3d 930, 937; 939 (11th Cir.
1999). The district court expressly rejected Rios’s argument: it concluded that
Rios acted as “a liaison broker between the participant[s] in this scheme and
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helped find a driver for the drug shipment from Texas.” Also rejected was Rios’s
argument that the amount of drugs seized should not apply: that amount -- 519.2
kilograms -- had been proved by the government by a preponderance of the
evidence. Rios’s actual conduct and the relevant conduct for which he was held
accountable were one and the same. See id. at 944 (“[o]nly if the defendant can
establish that [he] played a relatively minor role in the conduct for which [he] has
already been held accountable -- not a minor role in any larger criminal conspiracy
-- should the district court grant a downward adjustment for minor role in the
offense”). Rios failed to carry his burden; no clear error has been shown in the
district courts failure to award him a mitigation-of-offense adjustment.
Rios also challenges the reasonableness of his sentence under the section
3553(a) factors. Rios complains that the district court considered inadequately the
nature and circumstances of the offense, his history and characteristics, and the
need for deterrence and protection of the public; he says a lower sentence would
have been adequate.
Appellate review of the substantive reasonableness of a sentence -- whether
inside or outside the guidelines range -- is under an abuse-of-discretion standard.
Gall v. United States, 128 S.Ct. 586, 597 (2007). This review is deferential.
United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Even if an appellate
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court disagrees with the weight the district court afforded the section 3553(a)
factors, we will reverse only if the final sentence imposed lies outside the range of
reasonable sentences. See United States v. McBride, 511 F.3d 1293, 1297-98 (11th
Cir. 2007).
The district court acknowledged that it had considered the section 3553(a)
factors, stated that a sentence within the advisory guidelines range of 235 to 293
months was reasonable, and imposed a sentence at the low end -- 235 months -- of
that range. No requirement exists that the district court mention all of the section
3553(a) factors. See United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
As the party challenging the reasonableness of the sentence, Rios bears the burden
of establishing that the sentence imposed was unreasonable in the light of the
record and the section 3553(a) factors, see Talley, 431 F.3d at 788; he fails to do
so.
AFFIRMED.
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