[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
____________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 02-13256 May 12, 2004
____________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 01-00377 CR-NCR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL GUNN,
ROLANDO RODRIGUEZ,
GILBERTO RIVERO,
ROBERTO FERNANDEZ CUESTA,
a.k.a. Roberto Fernandez Cuerto,
LAZARO CANTILLO,
Defendants-Appellants.
______________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(May 12, 2004)
Before EDMONDSON, Chief Judge, CARNES and DUHE*, Circuit Judges.
_______________
* Honorable John M. Duhe, Jr., United States Circuit Judge for the Fifth Circuit, sitting by
designation.
PER CURIAM:
Defendant-Appellants Lazaro Cantillo, Roberto Fernandez Cuesta, Manuel
Gunn, Gilberto Rivero, and Rolando Rodriguez were convicted of (1) conspiracy
to possess cocaine with intent to distribute five kilograms or more under 21 U.S.C.
§ 846; (2) attempted possession of cocaine with intent to distribute five kilograms
or more under § 846; (3) conspiracy to use and carry a firearm during and in
relation to a drug trafficking crime under 18 U.S.C. § 924(o); and (4) using and
carrying a firearm during and in relation to a drug trafficking crime under §
924(c). Cantillo, Fernandez-Cuesta, and Rivero were also convicted of possession
of a firearm by a convicted felon under § 922(g)(1).
All defendants appeal their convictions. Fernandez-Cuesta and Rivero
appeal their sentences. We affirm the convictions and sentences of Cantillo,
Fernandez-Cuesta, Gunn, and Rodriguez. We affirm all of Rivero’s convictions
except for his conviction for possession of a firearm by a convicted felon, which
we vacate.
2
BACKGROUND
In March 2001, after Cantillo asked a government informant about robbery
targets, the informant arranged a meeting between Cantillo and Agent Carlos
Canino, who pretended to be a drug courier wanting to rob his source. On 16
March, Cantillo met with Agent Canino to plan the armed robbery of no less than
10 kilograms of cocaine. Cantillo brought Fernandez-Cuesta and Gunn to the
meeting, but Gunn stayed in the car.
At the meeting, Agent Canino commented on Cantillo’s Latin Kings (a
gang) tattoo. The tattoo displayed a crown, an AK-47, and the words “100%
Killer.” Cantillo then introduced Fernandez-Cuesta, and the three men discussed
the robbery. Defendants agreed they would split 7 kilograms of the cocaine, and
Agent Canino would keep the other 3 kilograms. Agent Canino promised to
provide a car with a hidden compartment to stash the drugs, and he told Cantillo
and Fernandez-Cuesta that armed people would be at the stash house.
On 21 March, Agent Canino met again with Cantillo and Gunn. The three
discussed the cocaine and the possible gunfire at the robbery. Agent Canino also
spoke with Cantillo and Fernandez-Cuesta by telephone several times to discuss
details of the robbery. During one call, Agent Canino told Fernandez-Cuesta that
3
Gustavo, an informant, would tell defendants where the stash house was. On 5
April, Agent Canino called Cantillo to tell him the cocaine was arriving that day.
That day, Gustavo told Cantillo to meet him at a certain gas station.
Cantillo and the other defendants met Gustavo at the station and followed
him to a warehouse. Cantillo and Rivero arrived at the warehouse in a Buick, and
Gunn, Fernandez-Cuesta, and Rodriguez arrived in a Mitsubishi with a tag
registered to Gunn. After defendants entered the warehouse, Agent Canino
telephoned with the address of the stash house, which Cantillo started writing
down.
Thereafter, the police arrested defendants. Fernandez-Cuesta and Gunn
were placed in one police car and Cantillo, Rivero, and Rodriguez in another.
Both cars had recording devices. In the car, Fernandez-Cuesta and Gunn lamented
their bad luck and how they had been fooled by Agent Canino. The two also
discussed the firearms and their legal liabilities. In the other police car, Cantillo
begged Rivero and Rodriguez to keep quiet. Rivero and Rodriguez compared
their cover stories for the police. The three defendants also discussed the firearms,
expressing relief that the guns were clean of fingerprints and found in the car
rather than on defendants.
4
The district court admitted the police-car recordings and the gang-related
testimony but denied jury instructions on entrapment. The jury convicted
defendants on all counts charged.
DISCUSSION
I. Sufficiency of the Evidence.1
This Court reviews de novo whether sufficient evidence supports a
conviction. United States v. Tarkoff, 242 F.3d 991, 993 (11th Cir. 2001). On
review, the Court views the evidence in the light most favorable to the
government, reversing only if no reasonable trier of fact could have found guilt
beyond a reasonable doubt. Id.
A. Use, Carrying, or Possession of Firearms.
All defendants challenge the sufficiency of the evidence for their § 924(c)
convictions. To sustain a conviction under § 924(c), the government must show
1
All defendants challenge the sufficiency of the evidence for their convictions of conspiracy and
attempted possession. We conclude the evidence was sufficient to support their convictions.
5
that, during and in relation to their conspiracy to rob cocaine, defendants used,
carried, or possessed a firearm in furtherance of that conspiracy. See 18 U.S.C. §
924(c). Possession may be actual or constructive, joint or sole. United States v.
Crawford, 906 F.2d 1531, 1535 (11th Cir. 1990).
To establish constructive possession, the government must show that the
defendant exercised ownership, dominion, or control over the firearm or the
vehicle concealing the firearm. Id. The government must also establish some
nexus between the firearm and the drug trafficking offense to show possession
was in furtherance of the crime. United States v. Timmons, 283 F.3d 1246, 1252-
53 (11th Cir. 2002). And under § 924(c), a defendant may be liable for a co-
conspirator’s possession if possession was reasonably foreseeable. United States
v. Bell, 137 F.3d 1274, 1274-75 (11th Cir. 1998).
In this case, the loaded firearms were found in the Mitsubishi automobile in
the warehouse where defendants were waiting for the address of the stash house.
As occupant of the Mitsubishi and owner of the tags on the vehicle, Gunn,
controlled the vehicle and, therefore, had -- at least -- constructive possession of
the firearms. Because defendants conspired to commit armed robbery of cocaine,
possession of firearms by their co-conspirator Gunn was reasonably foreseeable.
And the conspiracy satisfies the nexus requirement between the firearms and the
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drug trafficking offense. Therefore, we conclude the evidence was sufficient to
convict defendants of firearms possession.
B. Felon-in-Possession.
Cantillo, Fernandez-Cuesta, and Rivero also challenge the sufficiency of the
evidence for their § 922(g)(1) convictions of being a felon-in-possession of a
firearm. Although Cantillo, Fernandez-Cuesta, and Rivero were found guilty of
firearms violations under § 924(c), it does not necessarily follow that they are
guilty of being felons-in-possession under § 922(g)(1). Sections 924(c) and
922(g)(1) are separate statutes with separate and distinct elements, and evidence
sufficient to support a conviction under one statute may not be sufficient for
conviction under the other.
More important, under § 924(c), a defendant may be found guilty based
upon the acts of a co-conspirator. While co-conspirator liability may be available
under § 922(g)(1), we need not decide that question today because at oral
argument the government expressly disavowed reliance upon that theory of
liability. Therefore, we consider only whether the evidence was sufficient to
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convict defendants of being felons-in-possession based upon their own acts,
without regard to co-conspirator liability.
At trial, the district court properly charged the jury that a defendant could be
found guilty of violating § 922(g)(1) if the government proved beyond a
reasonable doubt that the defendant knowingly possessed a firearm and had been
previously convicted of a felony. On possession specifically, the district court
used these words:
A person who knowingly has direct physical control of something is
then in actual possession of it. A person who is not in actual possession, but
who has both the power and the intention to later take control over
something either alone or together with someone else, is in constructive
possession of it.
The jury instructions were not challenged on appeal and are consistent with the
law of this Circuit.
A defendant has constructive possession if he exercises ownership,
dominion, or control over the firearm. Crawford, 906 F.2d at 1535. A defendant
also has constructive possession if he has the power and intention to exercise
dominion or control. United States v. Smith, 591 F.2d 1105, 1107 (5th Cir. 1979).
The defendant may exercise that dominion and control either directly or through
others. See, e.g., United States v. Thomas, 321 F.3d 627, 636 (7th Cir. 2003);
8
United States v. Van Horn, 277 F.3d 48, 55 (1st Cir. 2002); United States v.
Hardin, 248 F.3d 489, 498 (6th Cir. 2001).
We conclude that the evidence was sufficient to sustain the convictions of
Cantillo and Fernandez-Cuesta. But we conclude, based on the evidence
presented, that an objectively reasonable jury could not have made the same
finding about Rivero.
The evidence showed that Cantillo was the leader of the conspiracy. Briefly
stated, he solicited the opportunity to steal narcotics; he organized the attempted
robbery; and he recruited his co-defendants. During one conversation about the
robbery, Cantillo stressed his leadership by telling Agent Canino: “I’m ready; my
warriors, my soldiers are ready.”
Because Cantillo led the conspiracy, a rational jury could have inferred that
he, directly or through others, controlled -- or at least had the power and intention
to control -- the firearms even though he did not arrive in the Mitsubishi, the car in
which the guns were found. See United States v. Hernandez, 995 F.2d 307, 313
(1st Cir. 1993) (upholding defendant’s § 922(g)(1) conviction because jury could
reasonably infer that defendant, as the conspiracy leader, controlled his co-
conspirators and their firearms); United States v. Aiello, 864 F.2d 257, 263 (2d
Cir. 1988) (stating that a jury could reasonable infer defendant’s constructive
9
possession of drugs in part because defendant “instituted and controlled the drug
activity”).
For Fernandez-Cuesta, the evidence showed that, next to Cantillo,
Fernandez-Cuesta was the key player in organizing the conspiracy to commit
armed robbery. Cantillo introduced Fernandez-Cuesta as his “partner” at the their
initial meeting with Agent Canino. Several times after that meeting, Fernandez-
Cuesta dealt alone with Agent Canino about the details of the robbery. During one
telephone conversation, Agent Canino told Fernandez-Cuesta that the cocaine
would be in soon; and Fernandez-Cuesta replied, “Just give me a ring at the
moment . . . . I’ll get going, I’ll go get the personnel that we will all be there (sic).”
The evidence also showed Fernandez-Cuesta was a passenger in the
Mitsubishi and had knowledge of the firearms in the Mitsubishi. Fernandez-
Cuesta’s knowledge of the firearms coupled with his leadership role and his
proximity to the firearms provide sufficient evidence for a reasonable jury to
conclude that Fernandez-Cuesta had the power and intention to exercise control
over the firearms. Therefore, we conclude that sufficient evidence supported
Cantillo’s and Fernandez-Cuesta’s § 922(g)(1) convictions.
Unlike Cantillo and Fernandez-Cuesta, Rivero was not a principal player in
the conspiracy. He never met with or spoke to Agent Canino to help plan the
10
robbery. In the record, Rivero comes into the picture only once before the day of
the robbery. And, unlike Fernandez-Cuesta, he did not arrive at the warehouse in
the Mitsubishi; he arrived in a car containing no guns. The evidence did show that
Rivero had knowledge of the firearms, but knowledge alone is insufficient to
prove constructive possession. Because the record shows only that Rivero knew
about the firearms, we conclude that the evidence is insufficient to prove Rivero
had actual or constructive possession of the firearms. For that reason, we vacate
his § 922(g)(1) conviction.
II. Admission of Evidence.
Cantillo, Fernandez-Cuesta, Gunn, and Rivero challenge the admission of
gang-related evidence at their trial. This Court reviews evidentiary rulings for
abuse of discretion. United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir.
1990). We will not reverse if an error had no substantial influence on the
outcome. Id. Under Fed. R. Evid. 404(b), evidence of bad acts is inadmissible “to
prove the character of a person to show action in conformity therewith.” And,
under Rule 403, evidence is inadmissible if “its probative value is substantially
outweighed by the danger of unfair prejudice.”
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For Fernandez-Cuesta, Gunn, and Rivero, any error in admitting the
evidence was harmless error because the government did not argue that they were
gang members or that the gang was related to the crime and because the district
court gave the jury a limiting instruction on the proper use of the gang-related
evidence. Thus, for those three defendants, the district court did not abuse its
discretion in admitting the evidence.
For Cantillo, we need not determine whether the evidence was inadmissible
under Rule 403 or 404(b) because any error was harmless -- other convincing
evidence supports the verdict and any error had no substantial influence on the
jury’s verdict. See United States v. Harriston, 329 F.3d 779, 789 (11th Cir. 2003)
(stating that error is harmless “where there is overwhelming evidence of guilt” or
“the error had no substantial influence on the outcome and [other] sufficient
evidence . . . supports the verdict” ). The facts recounted above show Cantillo’s
extensive participation in all offenses. Therefore, the admission did not affect
Cantillo’s substantial rights.
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III. Jury Instructions.
Cantillo, Fernandez-Cuesta, and Gunn argue the district court erred in
denying a jury instruction on entrapment and sentencing entrapment.2 Rivero also
argues the district court erred in denying a sentencing-entrapment instruction.
This Court reviews the denial of jury instructions for an abuse of discretion.
United States v. Morales, 978 F.2d 650, 652 (11th Cir. 1992).
To have a traditional entrapment defense, a defendant must present evidence
that “government’s conduct created a substantial risk that the offense would be
committed by a person other than one ready to commit it.” United States v.
Andrews, 765 F.2d 1491, 1499 (11th Cir. 1985). Before Apprendi v. New Jersey,
120 S.Ct. 2348 (2000), this Court had refused to recognize sentencing entrapment
as a defense. See United States v. Williams, 954 F.2d 668, 673 (11th Cir. 1992).
But we need not decide whether sentencing entrapment is a valid defense because
defendants have not presented evidence sufficient to raise such a defense.
Neither Cantillo, Fernandez-Cuesta, Gunn nor Rivero presented sufficient
evidence to raise an entrapment defense. All three defendants willingly sought to
2
The sentencing-entrapment defense relates to the amount of cocaine involved. Defendants argue
the government chose 10 kilograms as the amount to be the subject of a robbery to subject them to
a longer sentence.
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participate in the robbery and willingly agreed to steal 10 kilograms of cocaine.
Although the government may have suggested the amount, defendants did not
object to stealing 10 kilograms. And the amount to be stolen remained constant
right from the start and throughout the conspiracy. No evidence suggests that the
government coerced defendants into agreeing to 10 kilograms or that defendants
were reluctant to steal that amount. Indeed, no evidence indicates the government
pushed any part of the conspiracy upon defendants. Therefore, the district court
did not abuse its discretion by denying the jury instructions.3
IV. Sixth Amendment Right to Counsel.
Fernandez-Cuesta, Gunn, and Rodriguez argue that the district court erred
in admitting the recordings of defendants’ conversations because the statements
were obtained in violation of the Sixth Amendment. Because defendants raise this
issue first on appeal, we review for plain error. See United States v. Harness, 180
F.3d 1232, 1234 (11th Cir. 1999).
3
Cantillo also argued that the district court erred in denying a continuance for him to call an
additional witness for his entrapment defense. That argument is without merit.
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The Sixth Amendment prohibits admission of statements deliberately
elicited by the government from the defendant after adversary criminal
proceedings have begun, unless the defendant’s counsel is present or the defendant
waives his right to counsel.4 Massiah v. United States, 84 S.Ct. 1199, 1203
(1964). Elicitation is more than mere listening. Kuhlmann v. Wilson, 106 S.Ct.
2616, 2630 (1986). Because the police only listened to defendants’ conversations,
admission of defendants’ statements did not violate the Sixth Amendment.
Therefore, the district court did not commit plain error by admitting the recorded
conversations.
V. Sentencing.
Rivero also challenges his sentence.5 We review de novo a district court’s
interpretation of the sentencing guidelines and its application of the guidelines to
the facts. United States v. Pinion, 4 F.3d 941, 943 (11th Cir. 1993).
4
This discussion assumes, without deciding, that defendants’ right to counsel had attached.
5
Fernandez-Cuesta challenges his sentence too. We conclude that his arguments are without
merit.
15
Rivero argues that the district court improperly classified him as a career
offender by interpreting a “crime of violence” to include attempted burglary.6
Section 4B1.2(a)(2) defines a “crime of violence” in relevant part as a felony
offense that “is burglary of a dwelling, . . . or otherwise involves conduct that
presents a serious potential risk of physical injury to another.”
Attempted burglary presents a serious potential risk of physical injury to
another. An uncompleted burglary does not diminish the potential risk of physical
injury. E.g., United States v. O’Brien, 972 F.2d 47, 50-53 (3d Cir. 1992)
(interpreting parallel language of 18 U.S.C. § 924(e)(2)). Therefore, the district
court properly classified Rivero as a career offender.
For the reasons stated above, we AFFIRM the convictions and sentences of
Cantillo, Fernandez-Cuesta, Gunn, and Rodriguez. We affirm all of Rivero’s
convictions except for his § 922(g)(1) conviction, which we VACATE. We see no
merit in Rivero’s objections to his sentencing, but because we vacate his §
922(g)(1) conviction, we VACATE his sentence and REMAND for resentencing
in the light of our vacatur of his § 922(g)(1) conviction.
AFFIRMED IN PART; VACATED IN PART AND REMANDED.
6
Although Cantillo adopted Rivero’s argument, the argument is particularly without merit for
Cantillo because he was convicted of burglary rather than attempted burglary.
16