United States v. Nemias Cintora-Gonzalez ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-13157
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cr-00078-ODE-RGV-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NEMIAS CINTORA-GONZALEZ,
a.k.a. Diego,
a.k.a. Cristobal Mata Aleman,
JORGE ARMANDO-REYES,
a.k.a. Jose Gusman,
a.k.a. Jose Roberto Gusman Vasquez,
a.k.a. Chapito,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(June 24, 2014)
Before TJOFLAT, JORDAN and KRAVITCH, Circuit Judges.
PER CURIAM:
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Nemias Cintora-Gonzalez and Jorge Armando-Reyes challenge their
convictions and total sentences for drug, firearm, and counterfeiting offenses. For
the reasons that follow, we affirm.
I.
Cintora-Gonzalez and Armando-Reyes were charged, along with several
others, with conspiracy to distribute at least 500 grams of methamphetamine and at
least 5 kilograms of cocaine, in violation of 21 U.S.C. § 846 (Count 1); possession
with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1)(A) (Count
2); possession with intent to distribute methamphetamine, in violation of 21 U.S.C.
§ 841(a)(1)(A) (Count 3); possession of a firearm in furtherance of a drug-
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(B)(i) (Count 4); possession
of a firearm by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5), 924(a)(2)
(Count 6); and possession of counterfeit federal reserve notes, in violation of 18
U.S.C. § 472 (Count 8). They were convicted of all the above counts, with the
jury specifically finding that the amount of drugs in Count 1 was at least 500 grams
of methamphetamine and at least 5 kilograms of cocaine.
At a joint sentencing, the district court found that Cintora-Gonzalez’s base
offense level for the drug offenses was 34 given the amount of drugs involved, that
he served as the leader of the charged conspiracy, and that he maintained a
premises for distributing drugs. With respect to the § 922(g) offense, the court
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found that he possessed 17 firearms. His corresponding guidelines range was 292
to 365 months’ imprisonment for the drug offenses, the § 922(g) offense, and the
counterfeiting offense. Count 4, the § 924(c) offense, carried a consecutive
statutory mandatory minimum sentence of 60 months’ imprisonment. The court
sentenced him to a total sentence of 352 months, which resulted from a sentence at
the low end of the guidelines range plus a mandatory 60 month term on Count 4.
The court sentenced Armando-Reyes to a 211-month total sentence based on a
low-end guideline sentence of 151 months because Armando-Reyes was
responsible for a lesser amount of drugs, he did not maintain the premises for drug
distribution, and he did not qualify as a leader of the conspiracy, plus a mandatory
60 month term on Count 4.
The defendants now appeal. Specifically, Cintora-Gonzalez challenges the
admission of certain testimony as prejudicial and his sentence as improperly
calculated for several reasons. Armando-Reyes challenges the admission of voice
identification evidence and the calculation of his sentence. 1 We address each
defendant’s arguments in turn.
II.
A. Cintora-Gonzalez
1 Armando-Reyes indicated in his brief that he was adopting Cintora-Gonzalez’s brief. But
Armando-Reyes was not subject to the enhancement for maintaining a premises or leadership of
the conspiracy, and the district court determined he was responsible for a lesser amount of drugs.
Thus, it is unclear exactly what arguments he intended to adopt.
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1. Admission of testimony
Cintora-Gonzalez argues that the district court erred in admitting a law
enforcement agent’s testimony regarding a series of intercepted calls in which
Cintora-Gonzalez allegedly made serious threats to an individual named “La
Torta,” who owed him a drug debt. He maintains that the testimony was unduly
prejudicial and, therefore, inadmissible under Fed. R. Evid. 403.
We review the district court’s evidentiary rulings for an abuse of discretion.
United States v. Brown, 415 F.3d 1257, 1264-65 (11th Cir. 2005). An abuse of
discretion can occur where the district court applies the wrong law, follows the
wrong procedure, bases its decision on clearly erroneous facts, or commits a clear
error in judgment. Id. at 1266.
Evidence is admissible if relevant, and evidence is relevant if it has any
tendency to prove or disprove a fact of consequence. Fed. R. Evid. 401, 402. A
district court may exclude relevant evidence under Rule 403 if “its probative value
is substantially outweighed by a danger of . . . unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting of time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403. Relevant evidence is often inherently
prejudicial, so the rule “permits exclusion only when unfair prejudice substantially
outweighs probative value.” United States v. Merrill, 513 F.3d 1293, 1301 (11th
Cir. 2008) (quotation omitted). Thus, we have cautioned that Rule 403 “is an
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extraordinary remedy which the district court should invoke sparingly, and the
balance should be struck in favor of admissibility.” United States v. Lopez, 649
F.3d 1222, 1247 (11th Cir. 2011).
On review, we conclude that the district court did not abuse its discretion in
admitting the agent’s testimony. Cintora-Gonzalez’s drug-debt-related threats to
La Torta evidenced the existence of the charged drug conspiracy, which Cintora-
Gonzalez admits, and the extent of the conspiracy, which he continues to dispute.
In other words, the threats had a tendency to prove, albeit indirectly, the large drug
quantities charged in the indictment. Moreover, the imminent nature of the threats
led agents to end their investigation quickly, before the arrival of some of the drugs
discussed in the intercepted calls. As such, the government had to rely on the calls
to establish the scope of the conspiracy. The testimony concerning the threats
against La Torta thus completed the story and explained why the investigation
ended abruptly.
Although the evidence of his threats may have proved prejudicial to Cintora-
Gonzalez’s defense, that is often the case with relevant evidence. See Merrill, 513
F.3d at 1301. Cintora-Gonzalez has not shown that the risk of misleading the jury
was so great that the court abused its discretion by admitting the testimony. See
id.; Fed. R. Evid. 403.
2. Sentencing
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We review the district court’s interpretation of the Sentencing Guidelines de
novo and accept its factual findings unless clearly erroneous. United States v.
Jordi, 418 F.3d 1212, 1214 (11th Cir. 2005). We will not reverse a sentencing
determination if it proved harmless. United States v. Gallegos-Aguero, 409 F.3d
1274, 1276 (11th Cir. 2005). An error is harmless if, “viewing the proceedings in
their entirety, a court determines that the error did not affect the [sentence], or had
but very slight effect.” United States v. Hornaday, 392 F.3d 1306, 1315 (11th Cir.
2004) (quotations and citation omitted). When a defendant fails to state clearly the
grounds for an objection, however, his objection is reviewed only for plain error.
United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003). Plain error exists
when: (1) there is an error, (2) that is plain, (3) that seriously affects a defendant’s
substantial rights, and (4) seriously affects the fairness, integrity, or public
reputation of judicial proceedings. United States v. Acevedo, 285 F.3d 1010, 1012
(11th Cir. 2002).
a. Quantity of drugs
Cintora-Gonzalez challenges the court’s determination of the drug quantity
for which he was responsible and its alleged failure to make particularized
findings. For sentencing purposes, the government bears the burden of
establishing drug quantity by a preponderance of the evidence. United States v.
Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005). The district court must ensure
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that the government carries this burden by presenting reliable and specific
evidence. United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir. 1995). Where
there is no drug seizure, or the amount seized does not reflect the extent of the
offense, the court should approximate the drug quantity. United States v. Frazier,
89 F.3d 1501, 1506 (11th Cir. 1996). In estimating the drug quantity attributable
to the defendant, the court’s determination “may be based on fair, accurate, and
conservative estimates of the quantity of drugs attributable to a defendant, . . . [but
it] cannot be based on calculations of drug quantities that are merely speculative.”
United States v. Zapata, 139 F.3d 1355, 1359 (11th Cir. 1998).
The Sentencing Guidelines create differing base offense levels for drug
offenses depending on the quantity of drugs involved. See U.S.S.G. § 2D1.1(c).
When different types of drugs are involved, the court converts each of the drugs to
its marijuana equivalent and adds the quantities to obtain a single offense level for
a defendant. Id. § 2D1.1, comment. (n.10(B)). Under the 2012 Drug Quantity
Table applied in this case, a base offense level of 34 corresponded to offenses
involving at least 3,000 kilograms, but less than 10,000 kilograms, of marijuana.
Id. § 2D1.1(c)(3).
At sentencing, defense counsel discussed the amount of drugs listed in the
presentence investigation report (PSI), conceding some amounts and challenging
others. The government noted that the jury had specifically found that Cintora-
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Gonzalez was responsible for at least 500 grams of methamphetamine and 5
kilograms of cocaine, which corresponded to a level 32 in the Drug Table. The
court considered the amounts Cintora-Gonzalez conceded distributing, about 1,559
kilograms of marijuana equivalency, and the amounts discussed in various
intercepted phone calls. Specifically, the court relied on: (i) a stipulated recorded
phone call from October 29, 2011, in which Cintora-Gonzalez discussed the sale of
5 kilograms of cocaine (1,000 kilograms of marijuana equivalency); and
(ii) evidence of an October 10, 2011 phone call, wherein Cintora-Gonzalez agreed
to deliver a half pound of methamphetamine (453.6 kilograms of marijuana
equivalency). Although the court agreed with the defense that certain amounts
were not supported by the evidence, the court found that there was reliable
evidence to bring the amount over 3,000 kilograms and an offense level of 34.
U.S.S.G. § 2D1.1(c)(3). Because the district court relied on specific evidence of
the attributable drug quantities involved in the offense conduct—including
admissions by Cintora-Gonzalez—it did not clearly err in assigning him a base
offense level of 34. See Lawrence, 47 F.3d at 1566.
Moreover, we see no plain error in the manner in which the district court
determined the drug quantity. 2 The court meticulously reviewed, and made
findings with respect to, each of the discrete and particularized drug quantity
2 Cintora-Gonzalez raises this argument for the first time on appeal.
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allegations contained in the PSI. See Acevedo, 285 F.3d at 1012. For these
reasons, we affirm the district court’s determination of the drug quantity.
b. Maintaining a premises
Next, Cintora-Gonzalez challenges the district court’s finding that he used
his apartment for drug manufacturing and distribution. Section 2D1.1(b)(12) of the
Guidelines calls for a two-level enhancement “[i]f the defendant maintained a
premises for the purpose of manufacturing or distributing a controlled substance,”
including storage of a controlled substance for the purposes of distribution.
U.S.S.G. § 2D1.1(b)(12) & comment. (n.17). To determine whether the
enhancement is applicable, the court should consider “whether the defendant held a
possessory interest in [] the premises and [] the extent to which the defendant
controlled access to, or activities at, the premises.” Id. § 2D1.1, comment. (n.17).
Manufacturing or distributing a controlled substance need not be the
sole purpose for which the premises was maintained, but must be one
of the defendant’s primary or principal uses for the premises, rather
than one of the defendant’s incidental or collateral uses for the
premises. In making this determination, the court should consider how
frequently the premises was used by the defendant for manufacturing
or distributing a controlled substance and how frequently the premises
was used by the defendant for lawful purposes.
Id.
Few circuits have addressed this guideline, and we have done so only in a
single unpublished opinion. United States v. Vega, 500 F. App’x 889, 891 (11th
Cir. 2012) (unpublished) (concluding that the district court did not plainly err in
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applying the enhancement where the defendant sold cocaine from his home on
multiple occasions). We thus turn to the reasoning of our sister circuits.
The Eighth Circuit considered the application of § 2D1.1(b)(12) to a
premises that served both as the defendants’ home and a stash house. United
States v. Miller, 698 F.3d 699, 706-07 (8th Cir. 2012). There, the court looked at
numerous factors, such as quantities of drugs involved, storage of “tools of the
trade,” maintenance of business records, and customer interactions, to determine
whether the principal use of the residence was drug distribution. The court had
little difficulty applying the enhancement to Mr. Miller, the primary drug trafficker
involved. But as to his wife, the court found the enhancement applicable as well,
despite her more limited role in the distribution, because she was specifically
involved in at least three transactions at the home, she used her son to deliver drugs
to one of the buyers, and she collected payment for drugs on several occasions.
Moreover, the court determined that under 21 U.S.C. § 856 and § 2D1.1(b)(12),
Congress intended to deter the use of primary residences as stash houses. In light
of all of these factors, the court found that the enhancement would apply to a
defendant who used her primary residence to distribute drugs. Id. at 705-07.
Relying on Miller, the Seventh Circuit considered and applied the
enhancement to a defendant who sold drugs out of his home. See United States v.
Flores-Olague, 717 F.3d 526, 531-32 (7th Cir.), cert. denied, 134 S. Ct. 211
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(2013).3 The court explained that a defendant “maintained” a premises for drug
distribution if “he owns or rents premises, or exercises control over them, and for a
sustained period of time, uses those premises to manufacture, store, or sell drugs,
or directs others to those premises to obtain drugs.” Id. at 532 (citing United States
v. Acosta, 534 F.3d 574, 591 (7th Cir. 2008)). The court also considered the
number of drug transactions that occurred on the premises. Because the defendant
in Flores-Olague had stored cocaine on the premises for several years, sold it to at
least ten regular customers, and had firearms in the home, the court concluded that
the enhancement applied.
The Sixth Circuit upheld the application of § 2D1.1(b)(12) where the
defendant had both a possessory interest in the residence and controlled the access
to the home. See United States v. Johnson, 737 F.3d 444, 447 (6th Cir. 2013). In
reaching this conclusion, the Sixth Circuit explained that “[T]he more
characteristics of a business that are present” in the home—such as “tools of the
trade (e.g., laboratory equipment, scales, guns and ammunition to protect the
inventory and profits),” “profits,” including large quantities of cash, and “multiple
employees or customers”—“the more likely it is that the property is being used ‘for
3 The Seventh Circuit first addressed § 2D1.1(b)(12) in United States v. Sanchez, 710 F.3d 724
(7th Cir. 2013), vacated by, 134 S. Ct. 146 (2013). Because Sanchez has been vacated, albeit on
other grounds, we rely on the analysis in Flores-Olague.
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the purpose of’ [prohibited] drug activities.” Id. at 447-48 (quoting United States
v. Verners, 53 F.3d 291, 295-97 (10th Cir. 1995) (discussing 21 U.S.C. § 856)).
Relying on this persuasive authority, we conclude that the district court
properly applied § 2D1.1(b)(12) to Cintora-Gonzalez’s guidelines calculations.
The evidence at trial showed that Cintora-Gonzalez used his apartment for the
purpose of manufacturing or distributing drugs. Cintora-Gonzalez concedes his
proprietary interest in the premises. And the evidence showed Cintora-Gonzalez
controlled access to and activities at the apartment.
Cintora-Gonzalez’s former girlfriend, Brenda Perez, testified that she leased
the apartment on his behalf. Additionally, Perez observed drugs in the apartment
“[e]very time” she visited; she observed Cintora-Gonzalez chop up and mix a
block of cocaine in the kitchen; there were boxes of baggies in the apartment; and
Cintora-Gonzalez “always” had a gun in the bedroom. Perez’s observations were
consistent with the drugs, multiple firearms, ammunition, plastic baggies, digital
scale, acetone, and counterfeit currency recovered by law enforcement agents after
they searched the apartment. The presence of these “tools of the trade” supports
the district court’s conclusion that Cintora-Gonzalez maintained this residence for
the purpose of drug distribution. Additionally, the evidence showed that Cintora-
Gonzalez directed others to weigh and distribute drugs when he was out. Although
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we do not know the number of transactions that occurred at the apartment, under
these facts, we conclude that the application of § 2D1.1(b)(12) was proper.
c. Number of firearms
Cintora-Gonzalez also challenges the district court’s finding that his
§ 922(g) offense involved between 8 and 24 firearms because there was no
evidence he knew of the guns in his codefendant’s car. He concedes there were
five firearms involved, and thus a two-level increase would be appropriate.
Under § 2K2.1(b)(1), a four-level increase applies if an offense involved 8 to
24 firearms, and a two-level increase applies if an offense involved 3 to 7 firearms.
U.S.S.G. § 2K2.1(b)(1)(A), (B). “[O]nly those firearms that were unlawfully
sought to be obtained, unlawfully possessed, or unlawfully distributed” are to be
counted under § 2K2.1(b)(1). Id. § 2K2.1, comment. (n.5).
In this instance, the district court did not clearly err in its application of the
§ 2K2.1(b)(1)(B) enhancement with respect to his firearm conviction. Cintora-
Gonzalez does not dispute that the title and the keys to the car in which the
additional firearms were discovered were found in his apartment, or that the
vehicle itself was located in the parking lot. But even if the court erred in this
respect, any such error was harmless because Cintora-Gonzalez’s combined total
guideline range was determined by the offense level corresponding to the drug-
trafficking offenses, not his firearm conviction. Thus, any reduction in the
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guideline range applicable to the firearm offense would prove inconsequential. See
Hornaday, 392 F.3d at 1315.
d. Acceptance of responsibility
Next, Cintora-Gonzalez challenges the district court’s decision not to award
any reduction for acceptance of responsibility under § 3E1.1. We review a denial
of a reduction of sentence for an acceptance of responsibility for clear error.
United States v. Knight, 562 F.3d 1314, 1322 (11th Cir. 2009). “Because
demonstration of whether or not the defendant has personally accepted
responsibility for his criminal conduct requires a consideration of both objective
factors and subjective considerations of the defendant’s demeanor and sincerity,
the district court’s determination will not be overturned unless it is without
foundation.” United States v. Castillo-Valencia, 917 F.2d 494, 500 (11th Cir.
1990).
Section 3E1.1 provides that the defendant’s offense level should be
decreased by two points if he “clearly demonstrates acceptance of responsibility
for his offense.” U.S.S.G § 3E1.1(a). But the commentary to § 3E1.1 explains
that the adjustment “is not intended to apply to a defendant who puts the
government to its burden of proof at trial by denying the essential factual elements
of guilt, is convicted, and only then admits guilt and expresses remorse.” Id. §
3E1.1, comment. (n.2). In determining whether a defendant has accepted
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responsibility under § 3E1.1, the district court may not refuse to find an acceptance
of responsibility per se simply because the defendant has elected to go to trial.
Castillo-Valencia, 917 F.2d at 500. On the other hand, “the entry of a not guilty
plea and insistence upon a trial are factors that may be considered in deciding
whether or not a defendant has in fact accepted responsibility for wrongful
conduct.” Id. at 501. Ultimately, § 3E1.1 “is intended to reward those defendants
who affirmatively acknowledge their crimes and express genuine remorse for the
harm caused by their actions.” United States v. Carroll, 6 F.3d 735, 740 (11th Cir.
1993).
Generally, a defendant who pleads guilty but contests the drug quantity is
not entitled to a reduction under § 3E1.1, and Cintora-Gonzalez has pointed to no
authority otherwise. See, e.g., United States v. Garrasteguy, 559 F.3d 34, 39-40
(1st Cir. 2009) (concluding that the defendant was not entitled to a reduction under
§ 3E1.1 where the defendant went to trial to contest the amount of drugs for which
he was responsible); United States v. Acosta, 534 F.3d 574, 580 (7th Cir. 2008)
(denying an acceptance-of-responsibility reduction where defendant pleaded guilty
but challenged certain factual assertions in PSI); United States v. Annis, 446 F.3d
852, 857-58 (8th Cir. 2006) (denying acceptance-of-responsibility reduction where
defendant pleaded guilty but refused to admit to any drug quantity and challenged
reliability of prior statement to authorities).
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Therefore, we conclude that the district court did not clearly err in refusing
to award Cintora-Gonzalez a reduction for acceptance of responsibility under
§ 3E1.1(a). Although his decision to proceed to trial did not preclude the
adjustment, see Castillo-Valencia, 917 F.2d at 500, this is not one of the “rare
situations” in which the reduction is still applicable, see § 3E1.1, comment. (n.2).
Cintora-Gonzalez did not go to trial to challenge the constitutionality of the statute
under which he was charged. Rather, he contested factual allegations of the
offense conduct.
Moreover, the court did not rely solely on the fact that he went to trial in
denying the reduction. The court also noted the lack of documentation related to
the purported plea negotiations or a written statement in which he formally
accepted responsibility for the offense conduct. Although Cintora-Gonzalez
conceded his guilt, the record in this case appears to lack any indication that he
was genuinely remorseful for his conduct. Accordingly, the court properly denied
the reduction.
e. Reasonableness
In his last argument on appeal, Cintora-Gonzalez contests the substantive
reasonableness of his 292-month sentence. We review the substantive
reasonableness of a sentence for abuse of discretion. Gall v. United States, 552
U.S. 38, 51 (2007).
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“The review for substantive unreasonableness involves examining the
totality of the circumstances, including an inquiry into whether the statutory factors
in § 3553(a) support the sentence in question.” United States v. Gonzalez, 550
F.3d 1319, 1324 (11th Cir. 2008). The court must consider several factors,
including the nature and circumstances of the offense, the history and
characteristics of the defendant, the need to protect the public from further crimes
of the defendant, the applicable guideline range, and the need to avoid unwarranted
sentencing disparities between similarly situated defendants. See 18 U.S.C. §
3553(a). Notably, the “weight to be accorded any given § 3553(a) factor is a
matter committed to the sound discretion of the district court.” United States v.
Clay, 483 F.3d 739, 743 (11th Cir. 2007) (quotations omitted).
Although we do not automatically presume that a sentence within the
guidelines range is reasonable, we ordinarily expect that to be the case. United
States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). A sentence well below the
statutory maximum sentence also signals reasonableness. See Gonzalez, 550 F.3d
at 1324. Moreover, we have held that a defendant’s sentence was reasonable in
light of the command to avoid unwarranted sentencing disparities where, due to a
defendant’s leadership role, he received a sentence greater than the sentences of his
codefendants. See, e.g., United States v. Thomas, 446 F.3d 1348, 1350, 1357 (11th
Cir. 2006) (holding that the defendant’s 121-month sentence was reasonable even
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though his codefendants’ sentences ranged from 41 to 53 months’ imprisonment
because the defendant had coordinated the offense). Ultimately, we will vacate a
sentence only if “left with the definite and firm conviction that the district court
committed a clear error of judgment in weighing the § 3553(a) factors by arriving
at a sentence that lies outside the range of reasonable sentences dictated by the
facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en
banc) (quotation omitted). “[T]he party who challenges the sentence bears the
burden of establishing that the sentence is unreasonable in the light of both [the]
record and the factors in section 3553(a).” United States v. Talley, 431 F.3d 784,
788 (11th Cir. 2005).
Cintora-Gonzalez has not met his burden. Cintora-Gonzalez’s sentence on
the drug offenses fell within the guideline range and well below the statutory
maximum sentence of life imprisonment as to the conspiracy count, both of which
signal reasonableness. See 21 U.S.C. § 841(b)(1)(A); Hunt, 526 F.3d at 746;
Gonzalez, 550 F.3d at 1324. Moreover, his offense conduct included a leadership
role and threats of personal injury in a heavily armed conspiracy involving large
amounts of drugs. The dangerousness of that conduct and the public’s interest in
safety support the court’s sentencing determination. And although Cintora-
Gonzalez’s co-conspirators received lighter sentences, his leadership role in the
conspiracy warranted the disparity. See Thomas, 446 F.3d at 1350, 1357.
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Cintora-Gonzalez points in part to his clean criminal history as a factor
weighing in favor of a lighter sentence, but even though the history of the
defendant is certainly a consideration, the court also considered the guideline
range, the nature and circumstances of the offense, and the need to protect the
public from further crimes. See 18 U.S.C. § 3553(a). Under these facts, Cintora-
Gonzalez cannot show his sentence is substantively unreasonable.
B. Armando-Reyes
1. Voice identification
Armando-Reyes first challenges the district court’s admission of testimony
from the government’s voice expert. Generally, we review evidentiary rulings for
an abuse of discretion. United States v. Henderson, 409 F.3d 1293, 1297 (11th Cir.
2005). When a defendant fails to make an objection or argument in the district
court, however, review is limited to plain error.4 See United States v. Duncan, 381
F.3d 1070, 1073 (11th Cir. 2004).
Voice identification testimony can be admitted only after it is determined
sufficient evidence supports a finding that “the item is what the proponent claims it
is.” Fed. R. Evid. 901(a). A speaker’s voice may be identified by opinion
testimony “based on hearing the voice at any time under circumstances that
4 Although Armando-Reyes objected at trial to the testimony as improper expert testimony, he
did not challenge the evidence on the ground raised on appeal. Thus, he has abandoned the
arguments made in the district court, Holland v. Gee, 677 F.3d 1047, 1066 (11th Cir. 2012), and
we review his new arguments for plain error.
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connect it with the alleged speaker.” Id. 901(b)(5). “Once a witness establishes
familiarity with an identified voice, it is up to the jury to determine the weight to
place on the witness’s voice identification.” Brown v. City of Hialeah, 30 F.3d
1433, 1437 (11th Cir. 1994). Credibility determinations will not be disturbed on
appeal unless the testimony is “incredible as a matter of law,” meaning that it
relates to “facts that the witness could not have possibly observed or events that
could not have occurred under the laws of nature.” United States v. Flores, 572
F.3d 1254, 1263 (11th Cir. 2009).
Here, the district court did not err, plainly or otherwise, in admitting the
voice-identification testimony. Although Armando-Reyes argues to the contrary,
the record of the expert’s testimony shows that she familiarized herself with his
voice through a phone call with him while he was in federal custody awaiting trial.
Rule 901(b)(5) requires no more foundation than that. See Fed. R. Evid. 901(b)(5).
Moreover, it does not matter that the expert could not specifically identify which of
the 20 to 30 recorded calls she used to voice-identify him, because, importantly,
she was able to voice-identify him in each of the recorded calls introduced into
evidence. With a proper foundation in place under Rule 901(b)(5), it then fell to
the jury to determine the credibility of her identification testimony, Brown, 30 F.3d
at 1437, and, there being nothing “incredible” in her testimony, the jury’s
determination in that regard will not be disturbed, Flores, 572 F.3d at 1263.
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Case: 13-13157 Date Filed: 06/24/2014 Page: 21 of 21
2. Sentencing
Armando-Reyes argues, like Cintora-Gonzalez, that the district court clearly
erred in refusing to award him a § 3E1.1 reduction. We conclude the court
properly denied the reduction for the reasons discussed previously.
III.
For the above reasons, we affirm the convictions and sentences for both
Cintora-Gonzalez and Armando-Reyes.
AFFIRMED.
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