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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11802
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAPARRISH SHAKANE VAILS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 9:20-cr-80093-KAM-1
____________________
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2 Opinion of the Court 22-11802
Before GRANT, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
Taparrish Vails appeals his conviction and sentence for pos-
session with intent to distribute a controlled substance. On appeal,
Vails raises the following five arguments: (1) the government’s ar-
guments and presentation of evidence related to his involvement
in a drug-trafficking organization constructively amended the in-
dictment; (2) the district court abused its discretion by permitting
the government to introduce evidence of his prior convictions un-
der Fed. R. Evid. 404(b); (3) the district court abused its discretion
by admitting a backpack because insufficient evidence connected it
to Vails and it showed indications of tampering; (4) the district
court clearly erred by applying an enhancement pursuant to
U.S.S.G. § 3C1.2; and (5) the district court clearly erred in denying
his request for a minor role reduction under U.S.S.G. § 3B1.2. For
the following reasons, we affirm.
I.
Regarding the first argument. we review an unobjected-to
constructive amendment only for plain error. United States v. Mad-
den, 733 F.3d 1314, 1322 (11th Cir. 2013). Under this review, the
defendant must establish “(1) an error (2) that is plain and (3) that
has affected [his] substantial rights; and if the first three prongs are
satisfied, we may exercise discretion to correct the error if (4) the
error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id.
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22-11802 Opinion of the Court 3
A “fundamental principle” derived from the Fifth Amend-
ment is that “a defendant can only be convicted for a crime charged
in the indictment” because “[i]t would be fundamentally unfair to
convict a defendant on charges of which he had no notice.” United
States v. Keller, 916 F.2d 628, 633 (11th Cir. 1990). The trial court
may not broaden the charges by constructive amendment. Stirone
v. United States, 361 U.S. 212, 215-16 (1960). “A constructive amend-
ment occurs when the essential elements of the offense contained
in the indictment are altered to broaden the possible bases for con-
viction beyond what is contained in the indictment.” United States
v. Holt, 777 F.3d 1234, 1261 (11th Cir. 2015). “In evaluating
whether the indictment was constructively amended,” we review
the jury instructions “in context to determine whether an expan-
sion of the indictment occurred either literally or in effect.” United
States v. Castro, 89 F.3d 1443, 1450, 1453 (11th Cir. 1996) (quotation
marks omitted). However, “evidence that properly was admitted
as intrinsic to the charged offenses does not impermissibly broaden
the indictment to include other crimes.” Holt, 777 F.3d at 1261.
The district court may thus admit evidence that is not part of the
charged offense if such evidence “pertain[s] to the chain of events
explaining the context, motive and set-up of the crime” and is
“linked in time and circumstances with the charged crime, or forms
an integral and natural part of an account of the crime, or is neces-
sary to complete the story of the crime for the jury.” Id. at 1262.
Section 841(a)(1) of Title 21 makes it unlawful for a person
to knowingly or intentionally manufacture, distribute, or possess
with intent to do the same, a controlled substance. 21 U.S.C.
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4 Opinion of the Court 22-11802
§ 841(a). To sustain a conviction for possession with intent to dis-
tribute a controlled substance, the government must prove that the
defendant had (1) knowledge, (2) possession, and (3) intent to dis-
tribute. United States v. Hernandez, 743 F.3d 812, 814 (11th Cir.
2014). “It is well settled that possession of contraband may be con-
structive as well as actual and may be proven by circumstantial ev-
idence.” United States v. Kincade, 714 F.2d 1064, 1066 (11th Cir.
1983); see also United States v. Woodward, 531 F.2d 1352, 1360 (11th
Cir. 2008) (explaining that a defendant’s possession “may be actual
or constructive, joint or sole”) (quotation marks omitted). To es-
tablish constructive possession, the government is required to offer
evidence showing “ownership or dominion and control over the
drugs or over the premises on which the drugs are concealed.”
United States v. Clay, 355 F.3d 1281, 1284 (11th Cir. 2004).
Here, we conclude that the district court did not err, let
alone plainly err, because the indictment was not constructively
amended. The indictment charging Vails with possession with in-
tent to distribute encompassed all forms of possession, and the ev-
idence of Vails’s involvement in a drug-trafficking organization
provided necessary context to the jury. We now turn to the second
argument raised on appeal.
II.
We review the admission of evidence under Rule 404(b) for
abuse of discretion. United States v. Perry, 14 F.4th 1253, 1274 (11th
Cir. 2021). Evidence admitted in violation of Rule 404(b) is consid-
ered to be harmless error where there is other substantial evidence
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22-11802 Opinion of the Court 5
of the defendant’s guilt. See United States v. Chavez, 204 F.3d 1305,
1317 (11th Cir. 2000).
Rule 404(b) of the Federal Rules of Evidence prohibits the
introduction of evidence of a crime, wrong, or other act to “prove
a person’s character in order to show that on a particular occasion
the person acted in accordance with the character.” Fed. R. Evid.
404(b)(1). It does, however, allow such evidence for other pur-
poses, “such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.”
Fed. R. Evid. 404(b)(2). “Rule 404(b) is a rule of inclusion,
and . . . accordingly 404(b) evidence, like other relevant evidence,
should not be lightly excluded when it is central to the prosecu-
tion’s case.” United States v. Kapordelis, 569 F.3d 1291, 1313 (11th
Cir. 2009) (quotation marks omitted, alteration in original).
We recognize a three-part test to determine whether evi-
dence is admissible under Rule 404(b): (1) the evidence must be rel-
evant to an issue other than the defendant’s character; (2) there
must be sufficient proof that a jury could find by a preponderance
of the evidence that the defendant committed the act; and (3) the
probative value of the evidence must not be substantially out-
weighed by undue prejudice, as established in Rule 403. United
States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007); see also Fed.
R. Evid. 403. The risk of undue prejudice can be reduced by an
appropriate limiting instruction. United States v. Ramirez, 426 F.3d
1344, 1354 (11th Cir. 2005); see also United States v. Diaz-Lizaraza,
981 F.2d 1216, 1225 (11th Cir. 1993) (noting that, where the district
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6 Opinion of the Court 22-11802
court issued a limiting instruction, “any unfair prejudice possibly
caused by [the evidence’s] introduction was mitigated”).
The first prong of the Rule 404(b) test can be satisfied “where
the state of mind required for the charged and extrinsic offenses is
the same.” Edouard, 485 F.3d at 1345. “[B]y pleading not guilty, [a
defendant] place[s] th[e] [knowledge] element of the § 922(g) of-
fense in issue.” United States v. Jernigan, 341 F.3d 1279, 1281, 1282
n.7 (11th Cir. 2003). We have held that a prior conviction in which
the defendant possessed a gun provides a “logical connection be-
tween a convicted felon’s knowing possession of a firearm at one
time and his knowledge that a firearm is present at a subsequent
time (or, put differently, that his possession at the subsequent time
is not mistaken or accidental).” Id. at 1281.
Under Federal Rule of Evidence 403, a district court may ex-
clude relevant evidence if its probative value is substantially out-
weighed by a danger of, inter alia, unfair prejudice. Fed. R. Evid.
403. In reviewing the third prong of Rule 404(b) admissibility un-
der Rule 403, we “look at the evidence in a light most favorable to
its admission, maximizing its probative value and minimizing its
undue prejudicial impact.” Edouard, 485 F.3d at 1344 n.8 (quotation
marks omitted). When determining whether the danger of unfair
prejudice substantially outweighs the probative value of extrinsic
act evidence, we consider: (1) the government’s incremental need
for the evidence to prove guilt beyond a reasonable doubt; (2) the
similarity of the extrinsic act and the charged offense; and (3) the
closeness or remoteness in time between the extrinsic act and the
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22-11802 Opinion of the Court 7
charged offense. United States v. Ellisor, 522 F.3d 1255, 1268 (11th
Cir. 2008). As to the third prong, we “ha[ve] refrained from adopt-
ing a bright-line rule with respect to temporal proximity.” United
States v. Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005); see also
United States v. Lampley, 68 F.3d 1296, 1300 (11th Cir. 1995) (uphold-
ing the admission of Rule 404(b) evidence where the other acts oc-
curred 15 years earlier than the charged offense).
Section 922(g) of Title 18 governs offenses for unlawful pos-
session of a firearm and ammunition and “entails three distinct el-
ements: (1) that the defendant was a convicted felon; (2) that the
defendant was in knowing possession of a firearm; and (3) that the
firearm was in or affecting interstate commerce.” Jernigan,
341 F.3d at 1279; 18 U.S.C. § 922(g)(1). In addition, the Supreme
Court has held that, “in a prosecution under 18 U.S.C. § 922(g) and
§ 924(a)(2), the Government must prove both that the defendant
knew he possessed a firearm and that he knew he belonged to the
relevant category of persons barred from possessing a firearm.” Re-
haif v. United States, 139 S. Ct. 2191, 2200 (2019).
Here, we conclude that the district court did not abuse its
discretion by admitting Vails’s previous convictions because, by
pleading guilty, Vails made his knowledge as to his possession of
the firearm an issue in the case and his prior felonies were relevant
to establish that Vails knew he belonged to a category of persons
prohibited from possessing a firearm. Moreover, his prior convic-
tions were not so prejudicial as to outweigh their probative value,
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8 Opinion of the Court 22-11802
and the district court issued a limiting instruction to minimize any
prejudice. We now turn to the third argument raised on appeal.
III.
We review all evidentiary rulings for an abuse of discretion
and will “defer to the district court’s decisions to a considerable ex-
tent.” United States v. Akwuba, 7 F.4th 1299, 1313 (11th Cir. 2021)
(alteration adopted, quotation marks omitted).
A proponent of evidence “must produce evidence sufficient
to support a finding that the item is what the proponent claims it
is.” Fed. R. Evid. 901(a). The government only needs to present
some competent evidence to support authentication, and such ev-
idence can be purely circumstantial. United States v. Hawkins, 905
F.2d 1489, 1493 (11th Cir. 1990). This process generally involves
submitting proof from which a reasonable inference can be drawn
of the evidence’s original acquisition and later custody, in addition
to its connection to the accused and the charged offense. United
States v. Sarmiento-Perez, 724 F.2d 898, 900 (11th Cir. 1984); United
States v. Garcia, 718 F.2d 1528, 1534 (11th Cir. 1983). Proof of the
connection of physical evidence with a defendant and gaps in the
chain of custody go to the weight, not the admissibility, of evi-
dence. Sarmiento-Perez, 724 F.2d at 900. Likewise, “any doubts
raised concerning the possibility of alteration of contamination of
the evidence go to the weight and not the admissibility of the evi-
dence.” Ballou v. Henri Studios, Inc., 656 F.2d 1147, 1155 (5th Cir.
1981). “A district court has discretion to determine authenticity,
and that determination should not be disturbed on appeal absent a
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22-11802 Opinion of the Court 9
showing that there is no competent evidence in the record to sup-
port it.” United States v. Lanzon, 639 F.3d 1293, 1301 (11th Cir. 2011)
(quotation marks omitted).
Additionally, “the mere fact that it is conceivable that tam-
pering has occurred is not sufficient to require the exclusion of the
evidence” and a court “need only be satisfied that in reasonable
probability the [evidence] has not been changed in important re-
spects” to properly admit it. United States v. Daughtry, 502 F.2d
1019, 1022 n.3 (5th Cir. 1974).
We conclude that the district court did not abuse its discre-
tion in admitting the backpack and its contents into evidence be-
cause the government presented sufficient evidence to connect the
bag and its contents to Vails. To the extent that Vails asserts issues
in the bag’s chain-of-custody, these go to the evidence’s weight ra-
ther than admissibility. Lastly, Vails does not point to any evidence
to substantiate his allegations of tampering.
IV.
With regards to the fourth argument, Vails argues that the
district court clearly erred by applying an enhancement pursuant
to U.S.S.G. § 3C1.2. When reviewing a challenge to the applicabil-
ity of the Guidelines, we consider legal issues de novo, reviews fac-
tual findings for clear error, and applies the Guidelines to the facts
with due deference, which is akin to clear-error review. United
States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010). “For a fac-
tual finding to be clearly erroneous, this Court, after reviewing all
of the evidence, must be left with a definite and firm conviction
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10 Opinion of the Court 22-11802
that a mistake has been committed.” United States v. Matchett, 802
F.3d 1185, 1191 (11th Cir. 2015) (quotation marks and brackets
omitted). We may affirm a sentencing enhancement “for any rea-
son supported by the record, even if not relied upon by the district
court.” United States v. Chitwood, 676 F.3d 971, 975 (11th Cir. 2012)
(quotation marks omitted).
Under § 3C1.2, a defendant is eligible for a two-level increase
to his offense level if he “recklessly created a substantial risk of
death or serious bodily injury to another person in the course of
fleeing from a law enforcement officer.” U.S.S.G. § 3C1.2. This
enhancement applies to a defendant based on his “own conduct
and for conduct that [he] aided or abetted, counseled, commanded,
induced, procured, or willfully caused.” U.S.S.G. § 3C1.2, com-
ment. (n.5). This application note to § 3C1.2 specifies an exception
to the generally applicable relevant conduct rule under
§ 1B1.3(a)(1)(B). United States v. Cook, 181 F.3d 1232, 1235-36 (11th
Cir. 1999). According to the commentary, reckless “means a situa-
tion in which the defendant was aware of the risk created by his
conduct and the risk was of such a nature and degree that to disre-
gard that risk constituted a gross deviation from the standard of
care that a reasonable person would exercise in such a situation.”
See U.S.S.G. § 3C1.2, comment. (n.2) (cross-referencing U.S.S.G.
§ 2A1.4, comment. (n.1)). The commentary to § 3C1.2 also ex-
plains that “‘during flight’ is “to be construed broadly and includes
preparation for flight.” U.S.S.G. § 3C1.2, comment. (n.3).
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22-11802 Opinion of the Court 11
We have held that “flight alone is insufficient to warrant an
enhancement under section 3C1.2” and that it is the defendant’s
conduct, not that of the pursuing officers, that must recklessly cre-
ate the substantial risk of death or serious bodily injury to others.
United States v. Wilson, 392 F.3d 1243, 1247 (11th Cir. 2004). We
have also explained that this enhancement “requires only that there
was a substantial risk that something could have gone wrong and
someone could have died or been seriously injured.” Matchett, 802
F.3d at 1198.
Here, we conclude that the district court did not clearly err
in applying the enhancement under U.S.S.G. § 3C1.2 because the
evidence adduced at trial showed that Vails had accelerated away
from the officers while McGillicuddy was within arms’ reach of the
vehicle, thus placing McGillicuddy at risk of serious bodily harm.
We now turn to the final argument raised on appeal.
V.
Vails argues on appeal that the district court clearly erred in
denying his request for a minor role reduction under U.S.S.G.
§ 3B1.2. We review the district court’s determination of a defend-
ant’s role for clear error. United States v. De Varon, 175 F.3d 930, 937
(11th Cir. 1999) (en banc). The district court has “considerable dis-
cretion in making this fact-intensive determination.” United States
v. Boyd, 291 F.3d 1274, 1277-78 (11th Cir. 2002). As long as the
“court’s decision is supported by the record and does not involve a
misapplication of law,” the “choice between two permissible views
of the evidence as to the defendant’s role in the offense will rarely
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12 Opinion of the Court 22-11802
constitute clear error.” United States v. Cruickshank, 837 F.3d 1182,
1192 (11th Cir. 2016) (internal quotation marks omitted).
Section 3B1.2 of the U.S. Sentencing Guidelines directs the
sentencing court to decrease a defendant’s offense level by two lev-
els “[i]f the defendant was a minor participant in any criminal ac-
tivity.” U.S.S.G. § 3B1.2. A minor participant is one “who is less
culpable than most other participants in the criminal activity, but
whose role could not be described as minimal.” Id., comment.
(n.5).
In determining whether to apply an adjustment, courts con-
sider the totality of the circumstances and the following non-ex-
haustive factors:
(i) the degree to which the defendant understood
the scope and structure of the criminal activity;
(ii) the degree to which the defendant participated
in planning or organizing the criminal activity;
(iii) the degree to which the defendant exercised
decision-making authority or influenced the
exercise of decision-making authority;
(iv) the nature and extent of the defendant’s partic-
ipation in the commission of the criminal ac-
tivity, including the acts the defendant per-
formed and the responsibility and discretion
the defendant had in performing those acts;
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22-11802 Opinion of the Court 13
(v) the degree to which the defendant stood to
benefit from the criminal activity.
Id., comment. (n.3(C)). Additionally, the district court must con-
sider: (1) the defendant’s role in the relevant conduct for which he
has been held accountable for at sentencing; and (2) his role com-
pared to that of the other participants in the relevant conduct.
Cruickshank, 837 F.3d at 1192. “[W]here the relevant conduct at-
tributed to a defendant is identical to [his] actual conduct, []he can-
not prove that []he is entitled to a minor role adjustment simply by
pointing to some broader criminal scheme in which []he was a mi-
nor participant but for which []he was not held accountable.” De
Varon, 175 F.3d at 941.
The defendant has the burden of proving his mitigating role
in the offense by a preponderance of the evidence. Id. at 939. De-
termining if a defendant played a minor role in the offense is a
fact-intensive inquiry “where no one factor is more important than
another.” Cruickshank, 837 F.3d at 1195 (internal quotation marks
omitted). “[A] district court is not required to make any specific
findings other than the ultimate determination of the defendant’s
role in the offense.” De Varon, 175 F.3d at 940.
Here, we conclude that the district court did not clearly err
in declining to grant Vails a minor role reduction because his base
offense level was calculated using the drugs found in the backpack,
thus only attributing to him is actual conduct. Moreover, Vails
cannot point to a broader criminal scheme and assert that he was a
minor participant in that scheme to qualify for the reduction.
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14 Opinion of the Court 22-11802
****
For the foregoing reasons, we affirm the conviction and sen-
tence.
AFFIRMED.