[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 07-12164 ELEVENTH CIRCUIT
November 14, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 06-00460-CR-3-MCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BETTY SYLVESTER,
a.k.a. Betty Sanders, etc.
DASHANE LAUREL,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(November 14, 2008)
Before BLACK, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Dashane Laurel appeals his convictions for conspiracy to possess with intent
to distribute five kilograms or more of a mixture containing cocaine, in violation of
21 U.S.C. § 846, and possession with intent to distribute 500 grams or more of a
mixture containing cocaine, in violation of 21 U.S.C. § 841(a)(1),(b)(1)(B)(ii) and
18 U.S.C. § 2, and aggregate sentence of 292 months’ imprisonment.1 Laurel
asserts several issues on appeal, which we address in turn. After review, we affirm
Laurel’s convictions and aggregate sentence.
I.
Laurel asserts the evidence at trial was insufficient to support his
convictions. Normally, we review the sufficiency of the evidence de novo,
drawing all reasonable inferences in favor of the government. United States
v. Hernandez, 433 F.3d 1328, 1332 (11th Cir. 2005). “It is not necessary that the
evidence exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt.” United States v. Harris,
20 F.3d 445, 452 (11th Cir. 1994) (quotations omitted). Additionally, when a
defendant chooses to testify, the jury is free to reject his testimony as false and to
1
This opinion does not concern Laurel’s co-appellant, Betty Sylvester, whose
convictions and aggregate 294-month sentence were affirmed after we granted her counsel’s
motion to withdraw pursuant to Anders v. California, 87 S. Ct. 1396 (1967) on May 13, 2008.
Further, we do not consider Laurel to have adopted any brief filed in Sylvester’s appeal,
particularly because he did not describe the portions he wished to adopt. See 11th Cir. R. 28-1
(requiring a detailed description of the portions desired to be adopted).
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conclude that the opposite of his testimony is true. United States v. Vazquez, 53
F.3d 1216, 1226 (11th Cir. 1995).
In this Circuit, a presentation of a defense 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). Further, when the defendant fails to
move for a judgment of acquittal at the close of the evidence, he shoulders a
heavier burden, and his conviction will only be reversed “where doing so is
necessary to prevent a manifest miscarriage of justice.” United States v. Greer,
440 F.3d 1267, 1271 (11th Cir. 2006). This standard requires the conviction to be
shocking in light of the evidence. Id. In this case, because Laurel failed to move
for judgment of acquittal on the conspiracy charge at any point, or as to the
possession count at the close of the evidence, the latter showing is required.
Section 841 of Title 21 of the United States Code makes it a crime to
knowingly possess cocaine with the intent to distribute it. In order to obtain a
conviction under § 841, the government must “prove three elements:
(1) knowledge; (2) possession; and (3) intent to distribute.” United States v. Poole,
878 F.2d 1389, 1391 (11th Cir. 1989). These elements may be proved by either
direct or circumstantial evidence. Id. at 1391-92.
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Section 846 of Title 21 of the United States Code punishes a person who
conspires to do something which if carried out would violate § 841. In order to
obtain a conspiracy conviction under § 846, the government must prove: “1) the
existence of an agreement among two or more persons; 2) that the defendant knew
of the general purpose of the agreement; and 3) that the defendant knowingly and
voluntarily participated in the agreement.” United States v. Simpson, 228 F.3d
1294, 1298 (11th Cir. 2000). Participation in a conspiracy may be inferred from a
collocation and development of circumstances with presence at the scene of the
crime being of probative value. United States v. McDowell, 250 F.3d 1354, 1365
(11th Cir. 2001).
The evidence supports the jury’s guilty verdict on each count. First, Laurel
chose to testify that he did not conspire to distribute cocaine, did not actually
possess the cocaine, and did not know that Sylvester possessed cocaine or that it
was in the vehicle. Therefore, the jury was entitled to conclude that the opposite
was true and convict him of both conspiracy and possession. See Vazquez, 53 F.3d
at 1226. Even without his testimony, the evidence showed Laurel was arrested
during a controlled purchase and Byron Washington purchased at least 100
kilograms of cocaine from Sylvester, with Laurel present during their transactions,
from September through November. Further, Laurel played an active role in the
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transactions because he explained to Washington the purpose of the rod in the
cocaine blocks, connected Washington with another within the conspiracy to
negotiate the price, and personally exchanged drugs for money with Washington.
Viewing the evidence in the light most favorable to the Government and
drawing all reasonable inferences in favor of the verdict, the evidence supported
the jury’s conclusion that Laurel entered into an agreement to distribute at least 5
kilograms of a mixture containing cocaine and actually possessed at least
500 grams of a mixture containing cocaine with intent to distribute it.
See McDowell, 250 F.3d at 1365; Poole, 878 F.2d at 1391. Therefore, sufficient
evidence supported adjudication of guilt, and we affirm Laurel’s convictions for
conspiracy to possess with intent to distribute five kilograms or more of a mixture
containing cocaine, in violation of 21 U.S.C. § 846, and possession with intent to
distribute 500 grams or more of a mixture containing cocaine, in violation of
21 U.S.C. § 841(a)(1),(b)(1)(B)(ii) and 18 U.S.C. § 2.
II.
Laurel also raises two sentencing issues. He contends the district court
erroneously determined the drug quantity for which he was accountable under
U.S.S.G. § 2D1.1. He further asserts the district court erred in enhancing his
offense level for obstruction of justice under U.S.S.G. § 3C1.1.
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We review the district court’s interpretation and application of the
Guidelines to the facts de novo and its factual determinations for clear error.
United States v. Zapata, 139 F.3d 1355, 1357 (11th Cir. 1998). Clear error is
present if we are “left with a definite and firm conviction that a mistake has been
committed” by the district court. United States v. Crawford, 407 F.3d 1174,
1177 (11th Cir. 2005) (quotation and citation omitted).
Proper calculation of the Guidelines requires consideration of all relevant
conduct. United States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir. 2006).
Relevant conduct should include: (1) all acts committed, aided, abetted, procured,
or willfully caused by a defendant; and (2) all reasonably foreseeable acts of others
in furtherance of a jointly undertaken criminal activity that occurred during the
commission of the offense. U.S.S.G. § 1B1.3(a)(1). The commentary clarifies
that, in the case of contraband, a conspirator's relevant conduct includes amounts
directly attributable to the conspirator and “all reasonably foreseeable quantities of
contraband that were within the scope of the criminal activity that [the conspirator]
jointly undertook.” Id. comment. (n.2).
Under the Guidelines, if a defendant is held accountable for at least 50 but
less than 150 kilograms of cocaine, the base offense level is 36.
U.S.S.G. § 2D1.1(a)(3),(c)(2). The determination of the quantity of drugs may be
6
based on non-speculative, fair, accurate, and conservative estimates of the quantity.
United States v. Zapata, 139 F.3d 1355, 1359 (11th Cir. 1998).
Laurel was convicted of conspiring with Sylvester to distribute drugs from
April through December 2005. At sentencing, the district court specifically
recalled Washington’s testimony that Sylvester delivered a minimum of 100
kilograms of cocaine to him in Florida with Laurel accompanying her except on
two occasions. Because Laurel participated in these transactions, he personally
aided in the delivery of the 100 kilograms of cocaine. Thus, the district court did
not err in including 100 kilograms as part of Laurel’s relevant conduct. U.S.S.G.
§ 1B1.3(a)(1)(A).
Likewise, the record supported that court’s finding of the quantity of cocaine
to be 100 kilograms based on Washington’s testimony. See Zapata, 139 F.3d at
1359. Even if 20 kilograms of cocaine is subtracted from the total 100 kilograms
in order to account for the two times Washington recalled that Sylvester was
accompanied by someone other than Laurel, the drug weight exceeds 50 kilograms,
which still places Laurel in the 50 to 150 kilograms of cocaine category and
warrants a base offense level of 36 under § 2D1.1’s table. U.S.S.G.
§ 2D1.1(a)(3),(c)(2). Therefore, the district court did not clearly err in applying 36
as the base offense level.
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Section 3C1.1 of the Guidelines provides that, if a defendant willfully
obstructs or impedes, or attempts to obstruct or impede, the administration of
justice with respect to the investigation, prosecution, or sentencing of his offense
of conviction, the offense level is increased by 2 levels. The commentary
specifically cites perjury as an example of conduct supporting application of this
sentencing enhancement. U.S.S.G. § 3C1.1 comment. (n.4(b)). Perjury, for
purposes of obstruction of justice, is defined as giving, under oath, “false testimony
concerning a material matter with the willful intent to provide false testimony,
rather than as a result of confusion, mistake, or faulty memory.” See United States
v. Dunnigan, 113 S. Ct. 1111, 1116 (1993), abrogated on other grounds, United
States v. Wells, 117 S. Ct. 921 (1997).
At trial, two officers testified that Laurel admitted: (1) he and Sylvester
delivered three blocks of cocaine to a man in Fort Walton Beach prior to driving to
DeFuniak Springs; (2) Sylvester paid him $1,000.00 for the trip; and (3) he and
Sylvester previously had traveled to Fort Walton and to meet with Washington to
deliver cocaine. These admissions were corroborated by the testimony of
Washington and Roulhac that Laurel actively participated in several drug
transactions. However, Laurel testified he knew nothing of the drugs or the
purpose in going to Florida and he was just holding $1,000.00 for Sylvester. Such
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dramatic differences between his testimony and his inculpatory statement and the
evidence corroborating the content of his statement could not result from simply
confusion, mistake, or faulty memory. In light of this evidence, the court did not
clearly err in finding Laurel offered perjured testimony to warrant enhancement his
offense level for obstruction of justice pursuant to U.S.S.G. § 3C1.1. Accordingly,
we affirm Laurel’s aggregate 292-month sentence.2
AFFIRMED
2
Laurel does not challenge the reasonableness of his low-end, Guidelines range sentence
on appeal.
9