[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-11776 ELEVENTH CIRCUIT
Non-Argument Calendar December 18, 2008
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 07-00348-CR-IPJ-PWG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID MONTERA-BELTRAN,
a.k.a. David Montero-Beltran,
JULIO CESAR SANCHEZ-MORENA
a.k.a. Julio Martinez-Hernandez,
a.k.a. JoJo,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(December 18, 2008)
Before BIRCH, HULL and MARCUS, Circuit Judges.
PER CURIAM:
David Montera-Beltran and Julio Cesar Sanchez-Morena appeal from their
convictions and sentences for conspiracy to possess with intent to distribute five
kilograms or more of cocaine hydrochloride, in violation of 21 U.S.C. §§
841(a)(1) and 846. On appeal, Montera-Beltran argues that the district court
abused its discretion in failing to give his requested jury charge, and Sanchez-
Morena argues that the district court erroneously enhanced his sentence: (1) from
an offense level of 32 to 36, pursuant to U.S.S.G. § 2D1.1(c)(2); and (2) by an
additional two points, pursuant to U.S.S.G. § 2D1.1(b)(1). After careful review,
we affirm.
We review a district court’s refusal to give a requested jury instruction for
abuse of discretion. United States v. Richardson, 532 F.3d 1279, 1289 (11th Cir.
2008). We review the district court’s interpretation of the sentencing guidelines
de novo and its factual findings, such as determinations of drug quantities or
firearm possession, for clear error. United States v. Jordi, 418 F.3d 1212, 1214
(11th Cir. 2005); United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir.
2005); United States v. Geffrard, 87 F.3d 448, 452 (11th Cir. 1996). We will not
find clear error unless we have a “definite and firm conviction that a mistake has
been committed.” United States v. Crawford, 407 F.3d 1174, 1177 (11th Cir.
2005) (quotation marks omitted).
First, we are not persuaded by Montera-Beltran’s argument that the district
court abused its discretion in failing to give his requested jury charge. “A criminal
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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.
However, “[a] trial court is not bound to use the exact words and phrasing
requested by defense counsel in its jury charge . . . .” United States v. Gonzalez,
975 F.2d 1514, 1517 (11th Cir. 1992). We will find reversible error in a district
court’s refusal to give a requested jury charge only if “(1) the requested instruction
correctly stated the law; (2) the actual charge to the jury did not substantially cover
the proposed instruction; and (3) the failure to give the instruction substantially
impaired the defendant’s ability to present an effective defense.” Richardson, 532
F.3d at 1289 (quotation marks omitted). In deciding whether a defendant’s
requested instruction was substantially covered in the actual charge given to the
jury, we “need only ascertain whether the charge, when viewed as a whole, fairly
and correctly states the issues and the law.” Gonzalez, 975 F.2d at 1517. Further,
“a defendant is not automatically entitled to a theory of the defense instruction if
that argument is adequately covered in another instruction . . . .” United States v.
Blanton, 793 F.2d 1553, 1561 (11th Cir. 1986).
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Here, the district court did not abuse its discretion in refusing to give
Montera-Beltran’s requested jury instruction because the actual charge given
substantially covered his proposed jury instruction. See Richardson, 532 F.3d at
1289. Montera-Beltran’s proposed instruction emphasized that knowledge of the
conspiracy, presence during the commission of overt acts, and flight from police
alone are not sufficient to sustain a conviction. While the district court did not use
Montera-Beltran’s proposed language, it did instruct the jury, inter alia, that a
conspirator must willfully join the conspiracy while “knowing the unlawful
purpose of the plan,” and that the act must have been done “voluntarily and
intentionally and not because of mistake or accident.” The district court also stated
that a “person who has no knowledge of a conspiracy but who happens to act in a
way which advances some purpose . . . does not thereby become a conspirator.” In
regard to “presence,” the court instructed that “mere presence at the scene of the
transaction or event . . . does not standing alone establish proof of conspiracy.”
With respect to “flight,” the court stated that “intentional flight by a person
immediately after a crime has been committed or after that person has been
accused of a crime that has been committed is not sufficient in itself to establish
the guilt of that person.” The court stated, “There may be reasons for a person to
be unwilling to be interviewed by law enforcement agents that are perfectly
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innocent that in no way show any consciousness of guilt . . . .” Thus, the jury
instructions given substantially covered Montera-Beltran’s proposed instruction.
Accordingly, we affirm Montera-Beltran’s conviction.
Next, we reject Sanchez-Morena’s claim that the district court clearly erred
in calculating the drug quantity attributable to him for purposes of determining his
base offense level. Section 2D1.1 of the Sentencing Guidelines provides that the
base offense level for a possession or a conspiracy drug offense is ordinarily
calculated by determining the quantity of drugs attributable to a defendant. See
generally U.S.S.G. § 2D1.1. When a conviction stems from conspiracy charge, the
defendant is responsible for the amount of drugs in all reasonably foreseeable acts
done in furtherance of the conspiracy. U.S.S.G. § 1B1.3(a)(1)(B).
In determining the drug quantity, the sentencing court may use the evidence
heard during trial, facts admitted by the defendant’s plea of guilty, undisputed
statements in the presentence investigation report (“PSI”), or evidence presented at
the sentencing hearing. United States v. Wilson, 884 F.2d 1355, 1356 (11th Cir.
1989).1 Where the district court’s determination of the drug quantity is based on
1
A defendant’s failure to object to the facts stated in a PSI or PSI Addendum constitutes
an admission of those facts. United States v. Bennett, 472 F.3d 825, 833-34 (11th Cir. 2006).
We have held that “challenges to the PSI must assert with specificity and clarity each factual
mistake of which [the] defendant complains.” United States v. Aleman, 832 F.2d 142, 145 (11th
Cir. 1987). The district court is entitled to rely on statements in the PSI when they are not
contested, even in the absence of supporting evidence. United States v. Hedges, 175 F.3d 1312,
1315 (11th Cir. 1999).
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testimony of witnesses who appear before the court, great deference is given to the
court’s assessment of the credibility of witnesses and evidentiary content of the
testimony. United States v. Lee, 68 F.3d 1267, 1276 (11th Cir. 1995). If a district
court does not make individualized findings regarding the scope of criminal
activity undertaken by a particular defendant in a drug conspiracy, “the sentence
may nevertheless be upheld if the record supports the amount of drugs attributed to
a defendant.” United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993).
“‘Where there is no drug seizure or the amount seized does not reflect the
scale of the offense, the court shall approximate the quantity of the controlled
substance.’” United States v. Frazier, 89 F.3d 1501, 1506 (11th Cir. 1996)
(quoting U.S.S.G. § 2D1.1, cmt. n.12). “In estimating the quantity of drugs
attributable to a defendant, a court may base its computation on evidence showing
the average frequency and amount of a defendant’s drug sales over a given period
of time.” Id. A defendant’s sentence cannot be based on mere speculation, but
must “be based on fair, accurate, and conservative estimates of the quantity of
drugs attributable to a defendant . . . .” United States v. Zapata, 139 F.3d 1355,
1359 (11th Cir. 1998).
“When a defendant objects to a factual finding that is used in calculating his
guideline sentence, such as drug amount, the government bears the burden of
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establishing the disputed fact by a preponderance of the evidence.” Rodriguez, 398
F.3d at 1296. Although the preponderance standard is a relaxed evidentiary
standard, “it does not grant the court a license to sentence a defendant in the
absence of sufficient evidence.” Id. (quotations marks omitted).
The record here shows that the district court did not clearly err in sentencing
Sanchez-Morena pursuant to U.S.S.G. § 2D1.1(c)(2) based on its finding that the
conspiracy involved more than 50 kilograms of cocaine hydrochloride, because
there was sufficient evidence in the record to support the finding. Law
enforcement seized 25 kilograms of cocaine hydrochloride that was en route to
Sanchez-Morena’s house. Witnesses testified to delivering three to six shipments
of cocaine to Sanchez-Morena on prior occasions. The PSI contained undisputed
statements from a cooperating defendant that each of these prior shipments
contained between 10 and 25 kilograms of cocaine hydrochloride. Therefore, the
district court did not clearly err by attributing at least 50 kilograms of cocaine
hydrochloride to Sanchez-Morena.
Finally, we find no merit to Sanchez-Morena’s argument that the district
court clearly erred in finding that he possessed a dangerous weapon for purposes of
enhancing his sentence. Guidelines Section 2D1.1 provides that a defendant’s
offense level should increase two points “[i]f a dangerous weapon (including a
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firearm) was possessed.” U.S.S.G. § 2D1.1(b)(1). The Sentencing Commission
has noted that “[t]he enhancement for weapon possession reflects the increased
danger of violence when drug traffickers possess weapons. The adjustment should
be applied if the weapon was present, unless it is clearly improbable that the
weapon was connected with the offense.” U.S.S.G. § 2D1.1, cmt. n.3.
To justify the dangerous weapon enhancement, the government must show
by a preponderance of the evidence that either the firearm was present at the site of
the charged conduct or prove that the defendant possessed a firearm during conduct
associated with the offense. United States v. Stallings, 463 F.3d 1218, 1220 (11th
Cir. 2006). If the government meets its burden, the burden shifts to the defendant
to demonstrate that a connection between the weapon and the offense was “clearly
improbable.” Id. (quotation marks omitted).
The defendant does not have to use the firearm to facilitate the commission
of the offense. United States v. Audain, 254 F.3d 1286, 1289 (11th Cir. 2001). In
establishing a connection between the firearm and a drug conspiracy, we have held
that the firearm enhancement “is to be applied whenever a firearm is possessed
during conduct relevant to the offense of conviction.” United States v. Pham, 463
F.3d 1239, 1246 (11th Cir. 2006) (quotation marks omitted). “Relevant conduct
includes acts ‘that were part of the same course of conduct or common scheme or
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plan as the offense of conviction . . . .’” Id. (quoting U.S.S.G. § 1B1.3(a)(2)). In
Pham, we concluded that a firearm was possessed during conduct relevant to the
offense of conviction in a drug conspiracy case when the firearm was located in a
safe containing drugs and drug paraphernalia. Id.
The district court did not clearly err in applying the two-point dangerous
weapon enhancement because the firearm was present at the site of the charged
conduct, and Sanchez-Morena failed to show that a connection between the firearm
and offense was clearly improbable. Furthermore, police found the weapon in the
same house where they discovered digital scales, a heat sealer for sealing bags,
plastic bags, rubber bands, money wrappers, a money counter, and duct tape used
to package money and drugs, and a money counter. Thus, the firearm was
possessed during conduct relevant to the offense of conviction. See id.
Accordingly, we affirm Sanchez-Morena’s conviction and 180-month sentence.
AFFIRMED.
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