United States v. David Lee Berry ( 2022 )


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  • USCA11 Case: 21-13352     Date Filed: 10/24/2022   Page: 1 of 17
    [DO NOT PUBLISH]
    In the
    United States Court of Appeals
    For the Eleventh Circuit
    ____________________
    No. 21-13352
    Non-Argument Calendar
    ____________________
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    versus
    DAVID LEE BERRY,
    Defendant-Appellant.
    ____________________
    Appeal from the United States District Court
    for the Northern District of Alabama
    D.C. Docket No. 5:19-cr-00480-LCB-HNJ-18
    ____________________
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    2                      Opinion of the Court                 21-13352
    Before WILSON, BRANCH, and BRASHER, Circuit Judges.
    PER CURIAM:
    David Berry appeals his convictions and 210-month
    sentence for conspiracy to distribute and possess with intent to
    distribute 50 grams or more of methamphetamine, in violation of
    
    21 U.S.C. §§ 846
    , 841(a)(1), (b)(1)(A), (b)(1)(B), and (b)(1)(C), and
    the unlawful use of a communications facility, in violation of 
    21 U.S.C. § 843
    (b). He argues that (1) venue in the Northern District
    of Alabama was improper, and his counsel’s failure to challenge
    venue constituted ineffective assistance of counsel; (2) there was
    insufficient evidence to support his conspiracy conviction; (3) the
    district court abused its discretion in admitting hearsay testimony;
    and (4) the district court erred in finding that he was ineligible for
    safety-valve relief at sentencing. After review, we affirm.
    I.       Background
    Berry and 25 co-conspirators were indicted in the Northern
    District of Alabama on one count of conspiracy to distribute and
    possess with intent to distribute 50 grams or more of
    methamphetamine, in violation of 
    21 U.S.C. §§ 846
    , 841(a)(1) and
    (b)(1)(A), (b)(1)(B), and (b)(1)(C) (“Count One”). Berry was also
    indicted on one count of the unlawful use of a communication
    facility in furtherance of the conspiracy offense, in violation of 
    21 U.S.C. § 843
    (b) (“Count Eleven”).
    USCA11 Case: 21-13352       Date Filed: 10/24/2022     Page: 3 of 17
    21-13352               Opinion of the Court                        3
    At trial, the government presented testimony from multiple
    witnesses, including some of Berry’s co-conspirators. As part of an
    investigation into an influx of methamphetamine in Alabama, law
    enforcement obtained wiretaps on several phones, including two
    of co-conspirator Eric Sanders’s phones. Co-conspirator Anthony
    Skelton, who pleaded guilty to conspiracy to distribute and possess
    with intent to distribute 50 grams or more of methamphetamine,
    testified that he had known Berry for many years, and he saw Berry
    deliver methamphetamine to a mutual friend’s house. Skelton also
    obtained methamphetamine from Berry regularly. Berry obtained
    his methamphetamine from Sanders. Berry gave Skelton a pre-
    paid cell phone with Sanders’s contact information programmed
    into it, so that Skelton could “get meth” from Sanders. Skelton also
    saw Sanders deliver methamphetamine to Berry’s house on at least
    two occasions, and Berry sold Skelton some of the
    methamphetamine for anywhere between $350 to $600 an ounce.
    A recording of a phone call between Skelton and Sanders
    was played for the jury. Skelton testified that in the call, he asked
    Sanders how much a pound of methamphetamine would cost, and
    Sanders stated it would be $5,000. Skelton and another co-
    conspirator, Roger Lay, had a buyer who had agreed to pay $6,200
    for the methamphetamine, netting a total $1,200 profit, which they
    planned to split between the two of them. They met Sanders and
    purchased the pound of methamphetamine, but they were stopped
    and arrested by law enforcement after the sale.
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    4                     Opinion of the Court                21-13352
    Sanders, who also pleaded guilty to conspiracy to distribute
    and to possess with intent to distribute 50 grams or more of
    methamphetamine, testified as follows. Since 2017, Sanders has
    made his living selling methamphetamine, and he kept the drugs at
    his house in Town Creek, Alabama. Sanders sold Berry
    methamphetamine “a bunch of times.” Sanders would drive from
    Alabama to a market in Tennessee near Berry’s home to make the
    exchange—later, they began meeting at Berry’s home. He sold
    Berry two to four ounces of methamphetamine about twice a
    week.      Sometimes, Sanders would also “front” Berry
    methamphetamine if Berry did not have the money to pay for the
    drugs at the time of delivery.
    The government then presented several recorded phone
    calls between Berry and Sanders. In one phone call, Berry asked
    Sanders for two ounces of methamphetamine. On the call, Berry
    stated that his sales had slowed down and people were
    “undercutting him” and selling methamphetamine for less. Two
    other calls in which Berry asked Sanders for four and then three
    ounces of methamphetamine, respectively, were played for the
    jury. Sanders confirmed that Berry introduced Skelton to him so
    that Skelton could buy methamphetamine from Sanders.
    When Sanders learned that Skelton and Lay had been
    arrested after he sold them a pound of methamphetamine in
    February 2019, he called Berry. Berry advised Sanders to not sell
    any more methamphetamine to Skelton. A few days later, Berry
    sent a text message to Sanders asking for a half pound of marijuana
    USCA11 Case: 21-13352       Date Filed: 10/24/2022     Page: 5 of 17
    21-13352               Opinion of the Court                        5
    and four ounces of meth. Sanders called Berry in response to the
    text, and they arranged for Sanders to drop off the drugs in the back
    of an old abandoned house in Tennessee near where Berry lived.
    Berry expressed concern that the police might be watching him. In
    a phone call on the day that Sanders was to deliver the drugs to the
    house, Berry explained that he did not have the money for the
    marijuana and he had left Sanders money for the
    methamphetamine only. Sanders agreed to leave the marijuana
    because of his relationship with Berry, and Berry assured Sanders
    that he would send Sanders money for the marijuana.
    Sanders continued to sell approximately two to four ounces
    of methamphetamine a week to Berry until Sanders’s arrest in
    October 2019. Sanders confirmed that one person could not have
    personally consumed the amount of methamphetamine he sold to
    Berry on a regular basis, and he noted that Berry talked about his
    customers during their calls and introduced Sanders to other
    customers.
    Finally, Captain Timothy Beckham with the Wayne
    County, Tennessee, Sheriff’s Office testified. In February 2019,
    Beckham and other officers conducted surveillance on an old house
    where a suspected delivery of drugs was to be made. He observed
    Berry arrive at the house and pick up the drugs. The officers left
    after they observed Berry pick up the drugs. On their route back
    to the office, they observed Berry in a bank parking lot pulled up
    next to another truck which had its hood open. The other truck
    belonged to Kyle Haggard. Beckham pulled into the lot and
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    6                         Opinion of the Court                    21-13352
    Haggard indicated that he was having car trouble, but it was fixed
    now. Beckham then left, but, shortly thereafter, Haggard called
    one of the officers in Beckham’s car. The call was audible over the
    car’s Bluetooth device. Beckham testified that Haggard said:
    “that’s not what it looked like.” 1
    Following Beckham’s testimony, the government rested, as
    did Berry. Berry did not move for a judgment of acquittal. The
    jury found Berry guilty as charged. Berry then moved for a new
    trial and a post-verdict judgment of acquittal, arguing that the
    jury’s verdict was against the great weight of the evidence and that
    the district court committed reversible error in admitting the
    hearsay testimony of Haggard. The district court denied his
    motion.
    Prior to sentencing, the United States Probation Office
    prepared a presentence investigation report (PSI), in which it
    determined that Berry did not satisfy the safety-valve provision of
    1 Berry raised a hearsay objection to Beckham testifying as to what Haggard
    said on the call. The government explained that the statement was being
    offered to show Haggard’s state of mind only, not for the truth of the matter
    asserted. Berry argued that Haggard’s state of mind was not relevant, and,
    even it was, it was unduly prejudicial and should be excluded under Federal
    Rule of Evidence 403. The court overruled the objection, but it agreed to
    provide a limiting instruction. The district court instructed the jury that
    “[y]ou are about to hear the statement from the witness, and you can use as
    evidence of Kyle Haggard’s state of mind, but not that Kyle Haggard’s
    statement was true.”
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    21-13352                 Opinion of the Court                             7
    U.S.S.G. § 5C1.2(a) 2 because, although he had made two proffers
    to the government, he had not truthfully provided all information
    and evidence that he had related to the unlawful use of a
    communications facility count. Berry filed a motion for safety-
    valve relief under 
    18 U.S.C. § 3553
    (f), asserting in relevant part that
    he satisfied all of the criteria and that he had “told all he knows
    about the crime through two proffers.”
    At sentencing, the district court adopted the PSI and
    determined that Berry’s advisory guidelines range was 188 to 235
    months’ imprisonment. Berry renewed his request for safety-valve
    relief under § 3553(f). Counsel also read a statement that Berry had
    prepared in which he stated that he was a “drug user and an addict”
    and that the “only reason [he] got caught up in this trade was [his]
    personal need for drugs.” He emphasized that he had no criminal
    history and had been a “law-abiding citizen” for most of his life. He
    stated that he was “full of regret” and apologized to his family for
    his actions.
    2 U.S.S.G. § 5C1.2(a) permits a district court to disregard an applicable
    statutory minimum sentence when imposing a sentence if the defendant
    meets certain criteria. This guidelines provision cross-references 
    18 U.S.C. § 3553
    (f), which is the statutory safety-valve provision. One of the
    requirements a defendant must satisfy is that he “has truthfully provided to
    the Government all information and evidence the defendant has concerning
    the offense or offenses that were part of the same course of conduct or of a
    common scheme or plan.” 
    18 U.S.C. § 3553
    (f)(5). As relevant here, Berry
    faced a ten-year statutory minimum sentence for the conspiracy count and a
    maximum of life imprisonment.
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    8                     Opinion of the Court               21-13352
    The government opposed Berry’s safety-valve request,
    arguing that:
    [Berry] certainly did not tell us everything he knew
    about the crimes in this case. [He] [d]idn’t ever
    mention anything about the events on Count Eleven,
    which he was convicted of.
    If you will recall, that involved the phone call where
    he asked Eric Sanders to come to his house and go
    across the street to the little abandoned house from
    their property and put the methamphetamine inside
    the house.
    And there was some discussion about his customer
    had not left the money for the marijuana, and so did
    Eric Sanders want to bring the marijuana, or, you
    know, did he not want to travel back to Hunstville
    with it in there, because it’s dangerous to drive with
    it in the car. And Eric said, no, I will go ahead and
    bring it to you. And [Berry] said, Well, I will make
    sure you . . . get paid for it. [He] [n]ever told us
    anything about that in the proffers.
    The government also emphasized that, even in his statement to the
    court, Berry failed to be truthful about his conduct and denied
    being a dealer. The government requested a within-guidelines
    sentence.
    The district court then sentenced Berry to total term of 210
    months’ imprisonment, implicitly denying his request for safety
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    21-13352               Opinion of the Court                         9
    valve relief. The district court emphasized that “the evidence at
    trial was overwhelming that [Berry was] a drug dealer,” and that a
    210-month sentence was appropriate in light of the § 3553(a)
    sentencing factors. This appeal followed.
    II.    Discussion
    A. Whether venue was proper in the Northern District of
    Alabama
    Berry argues that venue in the Northern District of Alabama
    was improper because he lived in Tennessee, and the drug
    transactions he participated in occurred in Tennessee. He
    maintains that the government proffered no evidence that he
    committed any overt act in Alabama, and his counsel rendered
    constitutionally ineffective assistance by failing to object to venue.
    A defendant has a Sixth Amendment right “to be tried in the
    district in which the crime was committed.” United States v. Little,
    
    864 F.3d 1283
    , 1287 (11th Cir. 2017) (quotations omitted).
    “However, a defendant waives an objection to venue by failing to
    raise it before trial, subject to the exception that objecting at the
    close of evidence is soon enough if the indictment alleges an
    incorrect venue and the defendant was not aware of that defect
    until the government presented its case.” United States v. Greer,
    
    440 F.3d 1267
    , 1271 (11th Cir. 2006).
    Berry did not object to venue at any point prior to, or during,
    the trial. Therefore, he waived any venue challenge. But, even if
    the issue was not waived, venue in the Northern District of
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    10                       Opinion of the Court                    21-13352
    Alabama was proper. When an offense is committed in more than
    one district, the offense can be prosecuted “in any district in which
    such offense was begun, continued, or completed.” 
    18 U.S.C. § 3237
    (a). “In a conspiracy case, venue is proper in any district
    where an overt act was committed in furtherance of the
    conspiracy.” United States v. Smith, 
    918 F.2d 1551
    , 1557 (11th Cir.
    1990). Here, the crime of conspiracy to distribute and possess with
    intent to distribute 50 grams or more of methamphetamine
    occurred in both the Northern District of Alabama and parts of
    Tennessee. Sanders stored the drugs in his home in the Northern
    District of Alabama, and then he transported them to Tennessee to
    sell to Berry and other members of the conspiracy. Thus, venue
    was proper in either district. See United States v. Lewis, 
    676 F.2d 508
    , 511 (11th Cir. 1982) (“[W]here a criminal conspirator commits
    an act in one district which is intended to further a conspiracy by
    virtue of its effect in another district, the act has been committed
    in both districts and venue is properly laid in either.”).3
    Accordingly, Berry is not entitled to relief.
    B. Whether sufficient evidence supports Berry’s conspiracy
    conviction
    Berry argues that his conspiracy conviction amounts to a
    manifest injustice because the evidence was insufficient to support
    his conviction. He maintains that he purchased drugs for personal
    3 Because we conclude that venue was proper, Berry’s claim that his counsel
    was ineffective for failing to object to venue necessarily fails.
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    21-13352               Opinion of the Court                       11
    use from Sanders and the government did not present any evidence
    of an agreement to distribute drugs. Additionally, he argues that
    there was no evidence that he knew of, participated in, or
    otherwise benefitted from the drug transaction between Sanders
    and Lay and Skelton, such that this transaction could not serve as
    the basis for his conspiracy conviction.
    Generally, “[w]e review the sufficiency of the evidence de
    novo, viewing the evidence in the light most favorable to the
    government and accepting all reasonable inferences in favor of the
    verdict.” United States v. Tagg, 
    572 F.3d 1320
    , 1323 (11th Cir. 2009)
    (quotations omitted). However, where, as here, the defendant fails
    to challenge the sufficiency of the evidence by moving for a
    judgment of acquittal at trial, “we may reverse the conviction only
    to prevent a manifest miscarriage of justice. This standard requires
    the appellate court to find that the evidence on a key element of
    the offense is so tenuous that a conviction would be shocking.” 
    Id.
    (quotations omitted).
    A conspiracy conviction requires the government to
    prove the following: (1) [an] agreement between two
    or more persons to achieve an unlawful objective;
    (2) knowing and voluntary participation in that
    agreement by the defendant; and (3) an overt act in
    furtherance of the agreement. The existence of an
    agreement may be established by proof of an
    understanding between the participants to engage in
    illicit conduct, and the typical proof required to prove
    legitimate contracts is not required. This proof may
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    12                      Opinion of the Court                  21-13352
    be provided through circumstantial evidence, such as
    inferences from the conduct of the alleged
    participants or from circumstantial evidence of a
    scheme.
    United States v. Achey, 
    943 F.3d 909
    , 916 (11th Cir. 2019)
    (quotations and internal citations omitted). “[A] simple buyer-
    seller controlled substance transaction does not, by itself, form a
    conspiracy.” 
    Id. at 917
    . However, “a conspiracy can be found if
    the evidence allows an inference that the buyer and seller knew the
    drugs were for distribution instead of merely understanding their
    transactions to do no more than support the buyer’s personal drug
    habit.” 
    Id.
     (quotations omitted). An agreement may also be
    inferred “when the evidence shows a continuing relationship that
    results in the repeated transfer of illegal drugs to the purchaser” or
    “where the amount of drugs allows an inference of a conspiracy to
    distribute drugs.” 
    Id.
     (quotations omitted); see also United States
    v. Brown, 
    587 F.3d 1082
    , 1089 (11th Cir. 2009) (“[A]s is well-
    established in this Circuit, where there are repeated transactions
    buying and selling large quantities of illegal drugs, that is sufficient
    evidence that the participants were involved in a conspiracy to
    distribute those drugs in the market.”).
    Here, the evidence was more than sufficient for a jury to
    infer that a conspiracy existed based on the repeated drug
    transactions between Berry and Sanders, the amount of drugs
    transferred, and the recorded phone calls, in which Berry
    occasionally referred to his customers and competitors who were
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    21-13352                  Opinion of the Court                              13
    “undercutting him” and selling methamphetamine for less.
    Additionally, a jury could have inferred that a distribution
    conspiracy existed based on the fact that Sanders occasionally
    fronted Berry drugs without payment. See United States v.
    Beasley, 
    2 F.3d 1551
    , 1560 (11th Cir. 1993) (noting that evidence
    established more than a simple buyer-seller relationship where
    evidence showed that the co-conspirator sometimes fronted drugs
    to the defendant). The fact that Berry did not participate in the
    drug transaction between Skelton, Lay, and Sanders is not relevant
    because Berry is “liable for any act done by a co-conspirator in
    furtherance of the conspiracy.” United States v. Grady, 
    18 F.4th 1275
    , 1283 n.4 (11th Cir. 2021) (quotations omitted). Accordingly,
    Berry cannot show that his conspiracy conviction resulted in a
    manifest miscarriage of justice.
    C. Whether the district court erroneously admitted
    hearsay testimony
    Berry argues that the district court improperly admitted
    Captain Beckham’s testimony regarding Haggard’s hearsay
    statement “that’s not what it looked like.” 4 He maintains that,
    although the government offered it to prove Haggard’s state of
    mind, his state of mind was not relevant and the statement should
    4 Berry indicates in his brief that Haggard said “[t]hat’s not what it appeared
    to be.” However, at trial, Captain Beckham testified that Haggard said “that’s
    not what it looked like.” For purposes of this opinion, we rely on the
    statement as it appears in the record.
    USCA11 Case: 21-13352       Date Filed: 10/24/2022     Page: 14 of 17
    14                     Opinion of the Court                 21-13352
    have been excluded as unduly prejudicial. He maintains that the
    district court’s limiting instruction did not cure any error because
    Haggard’s statement suggested that Berry had a reputation as a
    drug dealer, and the prejudice from such a comment affected his
    substantial rights and constituted reversible error.
    “We review a district court’s evidentiary rulings under an
    abuse of discretion standard.” United States v. Green, 
    873 F.3d 846
    ,
    854 (11th Cir. 2017). “To the extent that the district court based its
    determination on an interpretation of the Federal Rules of
    Evidence, our review is de novo.” 
    Id.
    Hearsay is a statement, other than one made by the
    declarant while testifying at trial, offered in evidence to prove the
    truth of the matter asserted. Fed. R. Evid. 801(c). “Hearsay is
    inadmissible unless the statement is not hearsay as provided by
    Rule 801(d) or falls into one of the hearsay exceptions.” United
    States v. Caraballo, 
    595 F.3d 1214
    , 1226 (11th Cir. 2010) (quotations
    omitted). The state-of-mind hearsay exception provides that “[a]
    statement of the declarant’s then-existing state of mind” is
    admissible. Fed. R. Evid. 803(3). For a statement to be admissible
    under this rule, however, the declarant’s statement of mind must
    be relevant to an issue in the case. United States v. Jeri, 
    869 F.3d 1247
    , 1261 (11th Cir. 2017).
    We will reverse an erroneous evidentiary ruling only if the
    resulting error was not harmless. 
    Id.
     In other words, “[e]videntiary
    and other nonconstitutional errors do not constitute grounds for
    reversal unless there is a reasonable likelihood that they affected
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    21-13352               Opinion of the Court                       15
    the defendant’s substantial rights; where an error had no
    substantial influence on the outcome, and sufficient evidence
    uninfected by error supports the verdict, reversal is not
    warranted.” United States v. Arbolaez, 
    450 F.3d 1283
    , 1290 (11th
    Cir. 2006) (quotations omitted).
    Even assuming arguendo that the district court erroneously
    admitted Haggard’s statement, the error was harmless and does
    not merit reversal. As detailed previously, the evidence against
    Berry was significant. The jury heard recorded calls in which Berry
    solicited and planned drug transactions, and it heard corroborating
    testimony from some of his co-conspirators. Therefore, there is no
    reasonable likelihood that the admission of Haggard’s lone
    statement—“that’s not what it looked like”—had a substantial
    influence on the jury’s verdict. Accordingly, Berry is not entitled
    to relief on this claim.
    D. Whether the district court erred in finding that Berry
    was ineligible for safety-valve relief at sentencing
    Berry argues that he met all of the criteria for eligibility
    under the safety-valve provision in 
    18 U.S.C. § 3553
    (f), and that he
    provided full disclosure of all he knew regarding the offenses in his
    two proffers to the government.
    “When reviewing the denial of safety-valve relief, we review
    for clear error a district court’s factual determinations. We review
    de novo the court’s legal interpretation of the statutes and
    USCA11 Case: 21-13352        Date Filed: 10/24/2022     Page: 16 of 17
    16                      Opinion of the Court                 21-13352
    sentencing guidelines.” United States v. Johnson, 
    375 F.3d 1300
    ,
    1301 (11th Cir. 2004) (internal citation omitted).
    The safety-valve provision provides that, for an offense
    under 21 U.S.C. 841, “the court shall impose a sentence pursuant
    to [the Guidelines] . . . without regard to any statutory minimum
    sentence, if the court finds at sentencing” that the defendant
    satisfies five criteria. See 
    18 U.S.C. § 3553
    (f). One criterion is that
    “not later than the time of the sentencing hearing, the defendant
    has truthfully provided to the Government all information and
    evidence the defendant has concerning the offense or offenses that
    were part of the same course of conduct or of a common scheme
    or plan.” 
    Id.
     § 3553(f)(5). This factor is known as the “‘tell-all ’
    provision: to meet its requirements, the defendant has an
    affirmative responsibility to truthfully disclose to the government
    all information and evidence that he has about the offense and all
    relevant conduct.” Johnson, 
    375 F.3d at 1302
     (quotations omitted).
    The defendant bears the burden to demonstrate by a
    preponderance of the evidence that he has met all the safety-valve
    criteria. United States v. Carillo-Ayala, 
    713 F.3d 82
    , 90 (11th Cir.
    2013).
    Here, the district court did not clearly err in concluding that
    Berry did not qualify for safety-valve relief. The government
    asserted that Berry had not truthfully provided all of the
    information he knew about the offenses to the government.
    Although Berry disputed this contention, he did not present any
    information that would have established by a preponderance of the
    USCA11 Case: 21-13352       Date Filed: 10/24/2022    Page: 17 of 17
    21-13352               Opinion of the Court                       17
    evidence that he in fact satisfied the tell-all provision. Thus, he
    failed to meet his burden of establishing his eligibility for safety-
    valve relief. 
    Id. at 90
    .
    III.   Conclusion
    Because Berry is not entitled to relief on any of his claims,
    we affirm his convictions and sentence.
    AFFIRMED.