United States v. Leslie Chin ( 2018 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-14691
________________________
D.C. Docket No. 2:14-cr-00135-SPC-CM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LESLIE CHIN,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 31, 2018)
Before TJOFLAT, ROSENBAUM, and BRANCH, Circuit Judges.
PER CURIAM:
Following a jury trial, Leslie Chin was convicted of cocaine-trafficking
charges. He appeals the denial of his motion for judgment of acquittal and motion
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for a new trial based on newly discovered evidence. Chin also appeals his
sentence, arguing that it is substantively unreasonable and creates a sentencing
disparity between him and one of his co-defendants. For the reasons that follow,
we affirm.
I.
In December 2014, a grand jury charged Chin and two co-defendants with
conspiracy to possess cocaine with the intent to distribute it, in violation of 21
U.S.C. § 846 (Count I), and possession of cocaine with the intent to distribute it, in
violation of 21 U.S.C. § 841(a) and (b) (Count II). Both co-defendants pled guilty
to the conspiracy charge, but Chin pled not guilty and went to trial.
At trial, the Government presented a number of witnesses. Among others,
Harold Coleman, one of Chin’s co-conspirators, testified. Coleman explained that
he knew Chin by his nickname “Bless” and that he introduced him to co-defendant
Jerome Vaughn, who was looking to make some money selling cocaine. He
further recounted a March 2012 trip he took with Vaughn to Atlanta, Georgia, with
$20,000 to $30,000 in tow to buy cocaine from Chin. About a week after that trip,
Coleman stated, he met with Chin and Vaughn in Sumter, South Carolina, and they
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distributed 1 “key” 1—36 ounces—of cocaine Chin had brought with him to sell.
According to Coleman, Chin charged about $1,000 per ounce.
Coleman testified that Chin went to Sumter two or three more times over a
six- to eight-month period, bringing with him two to three keys of cocaine each
time. But Sumter was not the only place Coleman saw Chin. Coleman also
traveled to Atlanta periodically to buy drugs from Chin. In Atlanta, on between 20
and 30 occasions, Coleman bought cocaine at an apartment, and he saw Chin there
about 10 of those times.
Coleman explained that Chin contacted Coleman and Vaughn when he had a
supply of cocaine, and they would arrange a specific time for Coleman to come to
Atlanta to purchase the cocaine, usually two to three times a month. As Coleman
recalled, he received about 20 keys of cocaine from Chin over the period they dealt
in both Atlanta and Sumter. Coleman often pooled money with two or three
people to buy from Chin because Chin would never sell less than one key at a time.
Besides recounting his drug-trading interactions with Chin, Coleman also
testified about two Florida arrests Chin told him about. In the first instance, Chin
said he was driving someone to the airport when police stopped them and found a
1
A kilogram of cocaine is made up of 35.274 ounces. “Key” is generally considered a
reference to “kilogram” when used in the context of discussing cocaine. Kilo (or Key), Urban
Dictionary, https://www.urbandictionary.com/define.php?term=Kilo%20%28or%20Key%29
(last visited May 25, 2018).
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gram of cocaine in his car, which he had forgotten to drop off before going to the
airport. Chin was charged, and the police confiscated about $80,000 to $90,000 he
had with him, which Chin said he was sending to Atlanta through a flight attendant
who was a friend of his.
The second Florida incident occurred when the police stopped Chin on his
way to court. Chin was driving his brother’s car with “stash boxes” in it: the air
bag had been removed and placed under the spare tire in the trunk to accommodate
storage for drugs.
Another witness, Gary Williams, confirmed these two stories. Williams
identified Chin in the courtroom and testified that they met while housed in the
same pod in the Charlotte County Jail. During that time, Chin said he used to hide
cocaine in compartments in cars and while he was in Florida, he was pulled over in
a car with a hidden compartment inside it.
To further corroborate the story about the first traffic stop, the Government
called Florida Highway Patrol Officer Christopher Adkinson to testify. Adkinson
recalled that on September 21, 2011, when he conducted the traffic stop on Chin,
Chin stepped out of the vehicle upon the Officer’s request, gave him his driver’s
license, and told him he was headed to Fort Myers airport. When the Officer went
to get the registration documents from the car, the passenger seated inside, Brian
Dicks, jumped out unrequested. Dicks donned a blue flight-attendant uniform and
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identification patch, and Adkinson testified that the passenger was “a little nervous
and began to fidget with the outer coat jacket, at which point I observed a large
bundle of cash in the left pocket of the passenger’s jacket.” Dicks had $7,000 in
cash on him. And Adkinson became more suspicious when Chin reached for his
registration papers and placed them on the floorboard instead of on the passenger’s
seat.
At that point, Adkinson called for back-up. Once the additional officers
arrived, a police K-9 sniffed around the car and alerted Adkinson to the presence of
drugs. He and another officer then searched the car and found a small, clear,
plastic bag containing three smaller bags of cocaine on the passenger-side
floorboard, in plain view, under some registration papers. In the trunk, Adkinson
also found luggage with clothes, a flight manual, and a little over $50,000 in cash
in bundles. The car was registered to Chin and his then-girlfriend.
Adkinson added that at the time of the stop, he was not aware that either
Chin or his passenger was suspected of having any involvement in a drug
conspiracy, and he found no drugs or money on Chin’s person. Finally, Adkinson
agreed he had no reason to believe the passenger was not a real flight attendant.
The Government also entered into evidence a video taken from the patrol car
in which Chin and his passenger were placed while the officers conducted their
search of Chin’s car. In the video, Chin made a call to his brother Andrew, a co-
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defendant, and told him that he had “it” in his pocket and that he never would have
had that “coke” on him and would have thrown it out the window. He later stated
in the video that he was worried the K-9 would smell “the bread” and
paraphernalia. Then Chin said he had it in his pocket and threw it to Dicks to get
rid of, but Dicks did not touch it. Chin asked his brother for advice on what they
should say about the money found in Dicks’s bag in the truck.
Turning to the second traffic stop, the Government called Florida Highway
Patrol Lieutenant Michael Joseph Gideons, who explained that on April 17, 2012,
he pulled Chin’s car over for speeding. Chin stepped out the car, nervous and
shaking, and gave permission for a search of the vehicle. After a drug dog alerted
to the presence of drugs, two back-up officers conducted a search, and Gideons
discovered an air bag hidden under the carpeting of the trunk. Gideons then
located a panel behind the stereo system, by the dashboard, that lifted off to reveal
a hidden compartment where the air bag should have been. Traces of marijuana
were found in the compartment, and traces of cocaine were found in the vehicle.
Drug Enforcement Agency Agent Adam Heinlein testified that he had been
conducting surveillance on a house Dicks was renting. He had seen various
vehicles frequenting the house, moving duffel bags. When Heinlein conducted
traffic stops of some of these cars, he discovered they had similar hidden
compartments where the air bags should have been, and these compartments were
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stuffed with large sums of cash. One such vehicle was registered to Chin’s brother
Andrew.
In addition to the evidence corroborating Coleman’s and Williams’s
testimony about Chin’s prior law-enforcement stops, the Government called co-
conspirator Antonio Hill to the stand to testify about the conspiracy. Hill described
two occasions when he traveled with Vaughn to meet Vaughn’s new source of
cocaine. The first occurred in a mobile home in Sumter, South Carolina. Hill
testified he knew that the person bringing the cocaine used the nickname “Bless.”
According to Hill, Bless brought about nine ounces of cocaine to the house with
another man, Vaughn tested it out, and then Vaughn paid Bless. The second
occasion occurred about a week later and lasted maybe 30 minutes. This time,
Vaughn did not test the cocaine and just paid Bless for it.
Hill was specifically asked whether he recognized the man known as “Bless”
as anyone in the courtroom, and he said “no.” He added that he met Bless only
twice about five years prior.
Finally, the Government produced numerous photographs taken from Chin’s
cell phone. These pictures depicted bundles of money in vacuum-sealed bags, as
well as Chin and others, including Vaughn, holding large sums of money. They
also showed Chin at residences where the conspirators stored and distributed
drugs. Besides this physical evidence, the Government presented hotel receipts
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from Sumter, text messages between Chin and his co-conspirators with meeting
and money-transfer instructions, and a handwritten note from Chin indicating that
Chin left a $100 cash deposit for Vaughn at a hotel.
After the Government’s case-in-chief, Chin filed a motion for judgment of
acquittal, and the court denied it.
In his defense, Chin called only one witness, Agent Heinlein, and showed
him photographs taken from Chin’s phone, including pictures of Chin wearing
flashy jewelry. These photographs also showed pictures of fancy cars, scantily
clad women, and rappers. Defense counsel sought to bolster his theory that Chin
was an aspiring rap artist and that rap music is associated with “bling.”
II.
After a seven-day trial, on March 1, 2016, the jury found Chin guilty of both
conspiracy and possession with intent to distribute cocaine. Under Count I, the
jury found Chin guilty of the first object of the conspiracy involving the intended
distribution of “five or more kilograms of a mixture or substance containing a
detectable amount of cocaine” but not guilty of the second and third objects of the
conspiracy, respectively, involving the intended distribution of “28 or more grams
of a mixture of substance containing a detectable amount of cocaine base, ‘crack
cocaine’” and “a quantity of a mixture or substance containing a detectable amount
of marijuana.”
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At the sentencing hearing, Chin’s counsel specifically requested that the
court determine a base offense level of 32 and a criminal-history category of V,
which would result in an advisory sentencing guideline range of 188 to 235
months. The Government agreed to both. The court adopted these standards and
noted that supervised release would be five years for Count I and three years for
Count II.
Defense counsel then requested a downward variance of 120 to 188 months
based on the abuse Chin endured as a child and on the sentence his co-defendant
Vaughn, who had pled guilty, had received. Counsel told the court that if it
rejected the downward variance, then “a sentence of 188 months would result in a .
. . reasonable and not greater than necessary sentence, given the fact that I think a
sentence higher than that would result in a [disparate] sentence with the previous
defendant [Vaughn] this Court just sentenced.”
After hearing argument from both sides, on June 27, 2016, the court
sentenced Chin to 188 months in prison for both counts, to run concurrently, with
five years of supervised release for Count I and three years for Count II to run
concurrently.
III.
On September 22, 2016, Chin filed a motion for a new trial based on newly
discovered evidence. He argued that on June 22, 2016, five days before
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sentencing, Vaughn’s attorney forwarded to Chin’s counsel two original letters he
had received before the start of Chin’s trial in February 2016. Chin’s counsel was
allegedly not aware of the letters until after June 22 and verified that the letters
were written by Antonio Hill, who had testified against Chin at trial.
In the first letter, Hill wrote that he “didn’t know the guy Chin (Bless),” that
he mistook him for a different guy, and that in 2011, he never saw Vaughn with
“Chin AKA Bless. I don’t even know him.” In the second letter, Hill said, “I don’t
know the guy Lesli[e] Chin AKA Bless. . . . I know Jerome Vaughn but, I can’t say
that he has ties with Chin.”
Chin argued that the letters show Hill perjured himself at Chin’s trial, and
the letters “exculpated the Defendant.” In Chin’s view, had the letters been
available at trial, they would have resulted in a not-guilty verdict.
The court denied Chin’s motion, noting the “substantial” incriminating
evidence presented at trial. The court further explained that Chin had the
opportunity to attack Hill’s credibility on the stand, particularly by showing that
Hill could not identify Chin in the courtroom, and by eliciting testimony about
Hill’s hope that testifying would reduce his own sentence. Ultimately, the district
court concluded that the result would have been the same without Hill’s testimony
at all.
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IV.
Chin argues on appeal that the district court wrongfully denied his motion
for judgment of acquittal and wrongfully denied his motion for a new trial. He
further asserts that his sentence is substantively unreasonable and creates an
unwarranted sentencing disparity between himself and his co-defendant Vaughn.
We consider each argument in turn.
A. The Motion for Judgment of Acquittal
We review de novo the denial of a motion for judgment of acquittal, viewing
the evidence “in the light most favorable to the government, with all reasonable
inferences and credibility choices made in the government’s favor.” United States
v. Barsoum, 763 F.3d 1321, 1329-30 (11th Cir. 2014). After applying this standard
to the considerable evidence against Chin, we find that for both Counts I and II, the
district court did not err in denying the motion for acquittal.
1. Count I
Under Count I, Chin was charged with knowingly and willfully conspiring
to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(A)(ii)(II), and 21 U.S.C. § 846. To sustain a conviction under
these provisions, the United States must establish beyond a reasonable doubt the
following elements: (1) an agreement among two or more persons existed; (2) “the
defendant knew of the general purpose of the agreement”; and (3) “the defendant
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knowingly and voluntarily participated in the agreement.” United States v. Capers,
708 F.3d 1286, 1299 (11th Cir. 2013) (quoting United States v. Simpson, 228 F.3d
1294, 1298 (11th Cir. 2000)). Chin challenges only the third element—that he
knowingly and voluntarily participated in the agreement.
To prove knowing and voluntary participation, the United States “must
prove beyond a reasonable doubt that [Chin] had a specific intent to join the
conspiracy.” United States v. Calderon, 127 F.3d 1314, 1326 (11th Cir. 1997),
modified on other grounds, United States v. Toler, 144 F.3d 1423 (11th Cir. 1998).
But once the Government has established the existence of the underlying
conspiracy, “it only needs to come forward with slight evidence to connect a
particular defendant to the conspiracy.” Id. (emphasis added). Indeed, we have
described the level of necessary proof as a “minimal threshold” and explained that
“the conclusion that appellants had a common purpose and plan with the other
coconspirators may be inferred from a ‘development and collocation of
circumstances.’” Id.
Among other such circumstances, we have recognized “repeated presence at
the scene of the drug trafficking.” Id. In fact, we have noted “[t]hat circumstance
standing alone can give rise to a permissible inference of participation in the
conspiracy. While not sufficient in and of itself to convict, the inference is ‘a
material and probative factor that the jury may consider in reaching its verdict.’”
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Id. (internal citations omitted). Finally, we have acknowledged that even where a
defendant’s “role is minor in the overall scheme,” he may still be convicted of
conspiracy. Id. (internal citations omitted).
Here, far more than “slight evidence” linked Chin to the conspiracy. First,
Chin’s co-conspirator Coleman testified that Chin sold him thousands of dollars’
worth of cocaine both in Atlanta and Sumter. This testimony, in turn, was
corroborated by photographs taken from Chin’s cell phone depicting Chin and
Vaughn holding large sums of money, photographs showing Chin with co-
conspirators at residences where they stored and distributed drugs, text messages
with meeting and wire-transfer instructions, and hotel receipts.
But that is not all. Law-enforcement officers testified about their traffic
stops of Chin. In one traffic stop, Chin’s passenger was found with cocaine and
$7,000 on his person as well as $50,000 in his trunk. And in the video of Chin in
the back of the patrol car, Chin admitted to possessing the cocaine but then
throwing it to his passenger Dicks. He also expressed his concern about what story
to concoct about the money in the trunk.
In the second traffic stop, the police discovered a secret compartment in
Chin’s car where the air bag was supposed to be. That compartment linked Chin’s
car to a string of other vehicles with the same missing compartment that had
frequented a house Dicks was renting.
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This evidence certainly suffices for the jury to have rejected Chin’s theory
that he merely associated himself with the wrong people and that he was an
aspiring rap artist. Indeed, the jury reasonably inferred that Chin was a voluntary
participant in the conspiracy.
For these reasons, the district court did not err in denying the motion for
acquittal as it related to Count I.
2. Count II
Under Count II, Chin was charged with knowingly possessing with intent to
distribute cocaine, a Schedule II substance, in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(C) and 18 U.S.C. § 2. To sustain a conviction under § 841(a), the
Government must establish the defendant’s (1) knowledge, (2) possession of the
cocaine, and (3) intent to distribute. United States v. Mercer, 541 F.3d 1070, 1076
(11th Cir. 2008) (citing 21 U.S.C. § 841(a)(1)). The Government may prove these
three elements by circumstantial or direct evidence. United States v. Poole, 878
F.2d 1389, 1391-92 (11th Cir. 1989). Chin argues that the government failed to
prove element two—that he was in actual possession of the cocaine found in his
vehicle on September 21, 2011.
“Possession may be actual or constructive, joint or sole.” United States v.
Woodard, 531 F.3d 1352, 1360 (11th Cir. 2008) (quoting United States v. Gunn,
369 F.3d 1229, 1234 (11th Cir. 2004)). “A defendant has actual possession of a
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substance when he has direct physical control over the contraband.” Id. (quoting
United States v. Edwards, 166 F.3d 1362, 1363 (11th Cir. 1999)). “A defendant’s
constructive possession of a substance can be proven by a showing of ‘ownership
or dominion and control over the drugs or over the premises on which the drugs are
concealed.’” Id. (quoting United States v. Clay, 355 F.3d 1281, 1284 (11th Cir.
2004)); Poole, 878 F.2d at 1392 (when drugs were found in defendant’s house,
possession element was met when defendant exercised dominion and control over
the house, even though she did not maintain exclusive control over the premises).
Chin’s admission in the video is strong enough evidence that he had actual
possession of the cocaine. But additional evidence also shows that Chin at least
had constructive possession of the cocaine. As the driver and co-registrant of the
vehicle, Chin exercised dominion and control over the car, which supports a
finding of constructive possession. See Poole, 878 F.2d at 1392.
For these reasons, the district court correctly denied the motion for acquittal
as it pertained to Count II.
B. The Motion for a New Trial
Federal Rule of Criminal Procedure 33 permits a district court to grant a new
trial “if the interest of justice so requires.” Fed. R. Crim. P. 33(a). A motion for a
new trial based on newly discovered evidence “is committed to the sound
discretion of the trial court and will not be overturned absent abuse of discretion.”
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United States v. Garcia, 13 F.3d 1464, 1472 (11th Cir. 1994). “Motions for a new
trial based on newly discovered evidence are highly disfavored in the Eleventh
Circuit and should be granted only with great caution.” United States v. Campa,
459 F.3d 1121, 1151 (11th Cir. 2006) (internal citation omitted). On such a
motion, the defendant bears the burden of justifying a new trial. Id.
To succeed on a motion for new trial based on newly discovered evidence,
the movant must establish that “(1) the evidence was discovered after trial, (2) the
failure of the defendant to discover the evidence was not due to a lack of due
diligence, (3) the evidence is not merely cumulative or impeaching, (4) the
evidence is material to issues before the court, and (5) the evidence is such that a
new trial would probably produce a different result.” United States v. Schlei, 122
F.3d 944, 991 (11th Cir. 1997). “The failure to satisfy any one of these elements is
fatal to a motion for new trial.” Id. (quoting United States v. Lee, 68 F.3d 1267,
1274 (11th Cir. 1995)). Newly discovered evidence need not relate directly to the
issue of guilt or innocence to justify a new trial “but may be probative of another
issue of law.” Id.
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As we have noted, Chin bases his argument for a new trial on the discovery
of the evidence relating to Hill’s written statements. But because Chin cannot
establish the third and fifth elements, he is not entitled to a new trial.2
Beginning with the fifth element, a new trial would not produce a different
result. As we have explained, the evidence against Chin was substantial and came
from different types of physical evidence and several witnesses. As a result, Chin
likely would have been convicted even if Hill had not testified at all. Plus, the
Government on direct examination elicited testimony from Hill about his criminal
history and his desire to receive a reduced sentence, and the defense spent a large
portion of its cross-examination attempting to attack Hill’s credibility by
reemphasizing his incentive to please the Government with his testimony—a
chance to get out of jail sooner. Hill was also unable to identify Chin as “Bless” in
the courtroom.
The jury heard all of this evidence, determined Hill’s credibility, weighed it
against the remaining evidence, and still convicted Chin. Hill’s new letters would
not have made a difference, given the enormity of the remaining evidence against
Chin. See Garcia, 13 F.3d at 1472 (finding new evidence would not have
produced a different result where the witness was not a critical witness and another
witness had provided incriminating testimony); United States v. Lee, 68 F.3d 1267,
2
Because we find that Chin cannot establish the third and fifth elements, we do not
review the remaining elements.
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1274 (11th Cir. 1995) (new recantation evidence would not have produced a
different result because the government could have used trial testimony as
impeachment).
As to the third element, the new evidence was both merely impeachment
evidence and cumulative. When read literally, as the district court correctly found,
the letters say that Hill never saw Chin with Vaughn, but they do not say that he
never saw someone by the name of “Bless” with Vaughn. This is actually
consistent with Hill’s testimony at trial: Hill was unable to identify Chin as
“Bless.” Nor do these letters show that Chin had no ties to Vaughn, just because
Hill personally did not see them together.
Accordingly, this new evidence would have served only to impeach Hill.
But Hill had already been impeached on multiple grounds. As a result, the new
evidence would also have been cumulative. See United States v. Diaz, 190 F.3d
1247, 1255 (11th Cir. 1999) (newly discovered sworn statement of co-conspirator
contradicting his testimony at trial was merely impeaching evidence); United
States v. Champion, 813 F.2d 1154, 1171 (11th Cir. 1987) (new evidence was
merely impeaching and cumulative where the defense had already impeached the
witness at trial).
Because Chin failed to establish the third and fifth elements, the district
court did not abuse its discretion in denying Chin’s motion for a new trial.
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C. Sentencing
We review the reasonableness of a sentence for abuse of discretion, using a
two-step process. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).
We look first at whether the district court committed any significant procedural
error, such as miscalculating the advisory guidelines range, treating the guidelines
as mandatory, failing to consider the 18 U.S.C. § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to explain adequately the
chosen sentence. Id. Second, we examine whether the sentence is substantively
unreasonable under the totality of the circumstances. Id.
Chin argues only that his sentence of 188 months’ imprisonment with 60
months of supervised release is substantively unreasonable. Primarily, he contends
that his sentence creates a sentencing disparity between himself and his co-
defendant Vaughn, who entered a plea deal and received a sentence of 151 months
of imprisonment with 60 months of supervised release. We are not persuaded.
In considering the 18 U.S.C. § 3553(a) factors, the district court should
“avoid unwarranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6). “A well-
founded claim of disparity, however, assumes that apples are being compared to
apples.” United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009) (quoting
United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st Cir. 2005)). So as an initial
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matter, a defendant claiming substantive unreasonableness based on a sentencing
disparity must establish that he is “similarly situated” to those who received lesser
sentences. Id.
We have held that defendants like Vaughn, who cooperate with the United
States and enter a plea agreement are not similarly situated to defendants like Chin,
who provide no assistance to the United States and proceed to trial. See United
States v. Williams, 526 F.3d 1312, 1323–24 (11th Cir. 2008). As we have
explained,
There is no unwarranted disparity even when the sentence the
cooperating defendant receives is “substantially shorter.” “On a
practical level, it would seem patently unreasonable to endorse a
regime in which a defendant could steadfastly withhold cooperation
from the authorities and then cry foul when a coconspirator benefits
from rendering substantial assistance to the government.”
Docampo, 573 F.3d at 1101 (internal citations omitted).
Here, Chin and Vaughn were not similarly situated. Chin went to trial,
while Vaughn took responsibility for his crimes by pleading guilty and received a
corresponding reduction in sentencing. And even more significantly, Chin had a
higher criminal-history level of V, while Vaughn’s criminal-history level was III.
Finally, defense counsel specifically asked the court to adopt a base offense
level of 32 and a criminal-history category of V, which led to an advisory
sentencing guideline range of 188 to 235 months. Later, defense counsel requested
a downward variance of 120 to 188 months and argued that if the district court
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chose not to vary downward, then a 188-month sentence “‘would result in a
reasonable and not greater than necessary sentence.”
The district court agreed with and adopted the initial base level offense set
forth by the defense of the 188 to 235 months. It expressly considered Chin’s
abusive upbringing, the negative influences from his time in prison, the love from
his family, and his apology during sentencing. And after accounting for all of
those considerations, it chose to sentence Chin to the low end of the guideline
range: 188 months—precisely what defense counsel agreed “‘would result in a
reasonable and not greater than necessary sentence.’” We find no abuse of
discretion.
V.
For the foregoing reasons, we affirm on all issues.
AFFIRMED.
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