United States v. David Lee Berry ( 2022 )

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[DO NOT PUBLISH]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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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”).
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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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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
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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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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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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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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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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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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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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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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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“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.
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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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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
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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
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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.