United States v. Kelly Cineus ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 31, 2007
No. 05-15580 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-60050-CR-AJ
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KELLY CINEUS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 31, 2007)
Before TJOFLAT, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
Kelly Cineus appeals his conviction and 108-month term of imprisonment
and $2,000 fine for importation of 500 grams or more of cocaine, in violation of 21
U.S.C. § 952(a). On appeal, Cineus argues that he was denied his right to a fair
and impartial jury and to equal protection because the government used four of its
peremptory challenges to strike prospective African-American jurors from the jury
without legitimate cause, in violation of Batson v. Kentucky, 476 U.S. 79, 106
S. Ct. 1712, 90 L. Ed. 2d 69 (1986). Second, Cineus argues that the evidence was
not sufficient to support his conviction of importation of cocaine because the
government failed to prove that he had knowledge that the cocaine was in his
luggage. Finally, Cineus argues that the $2,000 fine rendered his sentence
unreasonable, and cites to United States v. Booker, 543 U.S. 220, 125 S. Ct. 738,
160 L. Ed. 2d 621 (2005), and the sentencing factors set forth in 18 U.S.C.
§ 3553(a), as the appropriate standard of review. Upon review of the record, and
upon consideration of the parties’ briefs, we discern no reversible error.
I.
We review “the resolution of a Batson challenge giv[ing] great deference to
a district court’s finding as to the existence of a prima facie case. De novo review
is inappropriate.” United States v. Ochoa-Vasquez, 428 F.3d 1015, 1039 (11th Cir.
2005). Moreover, as the district court’s determination of the reason for a juror’s
dismissal is a finding of fact, we will not overturn it unless it is clearly erroneous
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or appears to have been guided by improper principles of law. Id. (citation and
quotation omitted).
The Supreme Court has held that “[p]urposeful racial discrimination in
selection of the venire violates a defendant’s right to equal protection.” Batson,
476 U.S. at 86, 106 S.Ct. at 1717. “Batson established the . . . three-part inquiry
for evaluating whether a peremptory strike was motivated by rac[e] . . . . First, the
district court must determine whether the party challenging the peremptory strikes
has established a prima facie case of discrimination by establishing facts sufficient
to support an inference of racial discrimination.” Ochoa-Vasquez, 428 F.3d at
1038 (internal citations omitted).
If the objector makes a prima facie showing, the burden then shifts at
step two to the striker to articulate a race-neutral explanation for the
challenged strike. However, the ultimate burden of persuasion rests
with, and never shifts from, the opponent of the strike. Thus, even if
the [striker] produces only a frivolous or utterly nonsensical
justification for its strike, the case does not end-it merely proceeds to
step three. At step three, the district court determines the
persuasiveness of the justification offered by the striker and decides
whether the objector has carried its burden of proving purposeful
discrimination.
Id. at 1038-39 (citations and quotations omitted).
Because the district court elicited nondiscriminatory reasons for the exercise
of the prosecution’s peremptory strikes, we review the prosecutor’s articulation,
and the judge’s acceptance, of the stated justifications for the strikes. Hernandez v.
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New York, 500 U.S. 352, 358, 111 S. Ct. 1859, 1866, 114 L. Ed. 2d 395 (1991)
(plurality opinion); see United States v. Houston, 456 F.3d 1328, 1335-36 (11th
Cir. 2006). In this case, it appears that the government met its burden of
production in setting forth race-neutral explanations for using four of its six
peremptory strikes against prospective African-American jurors. See Purkett v.
Elem, 514 U.S. 765, 768, 115 S. Ct. 1769, 1771, 131 L. Ed. 2d 834 (1995).
Although Cineus asserted that the prosecution’s reasons for striking some
African-American jurors were pretextual, he did not introduce any evidence
tending to discredit the government’s proffered explanations or otherwise establish
pretext. See Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196
(2005). Furthermore, the record shows that the government did not object to at
least three prospective African-American jurors, and, ultimately, two African-
American jurors sat on the jury. Without more, Cineus’s allegation based solely on
the number of prospective African-American jurors stricken from the venire does
not establish that the government engaged in racial discrimination. See Central
Ala. Fair Housing Ctr, Inc., v. Lowder Realty Co., 236 F.3d 629, 636 (11th Cir.
2000) (“[T]he mere fact of striking a juror or a set of jurors of a particular race
does not necessarily create an inference of racial discrimination.”). Therefore,
Cineus has failed to demonstrate that the district court clearly erred in this respect.
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II.
We review a challenge to the sufficiency of evidence de novo. United States
v. Gunn, 369 F.3d 1229, 1234 (11th Cir.) cert. denied, 543 U.S. 937 (2004).
Moreover, credibility determinations are left to the jury, and as long as the
testimony is not incredible as a matter of law, we must accept the jury’s
conclusions. United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997). We
must view the evidence in the light most favorable to the jury’s verdict, and accept
reasonable inferences and credibility choices by the fact-finder. United States v.
Quilca-Carpio, 118 F.3d 719, 720 (11th Cir. 1997) (internal quotations and citation
omitted).
Section 952(a) prohibits the importation of any controlled substance into the
United States. 21 U.S.C. § 952(a). A charge under § 952(a) requires proof that the
defendant had knowledge that he was importing a controlled substance. United
States v. Peart, 888 F.2d 101, 104 (11th Cir. 1989). Direct evidence of intent is
not necessary, however, as knowledge can be inferred from circumstantial
evidence. Quilca-Carpio, 118 F.3d at 721.
Cineus’s conviction was supported by the evidence. Although it is true that
the government did not introduce direct evidence showing that Cineus knew the
two suitcases contained cocaine, this argument is not fatal to the government’s
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case. See Quilca-Carpio, 118 F.3d at 721. Here, the surrounding circumstances
provide ample circumstantial evidence to support the jury’s verdict. The evidence
at trial showed that Cineus’s behavior at the primary customs check point was so
suspicious that the customs officer referred him for customs inspection. In the
secondary inspection, Cineus admitted to owning the two suitcases and the
contents therein, and having packed the suitcases. When the customs officers
noticed the unusual weight of the partition in Cineus’s luggage, Cineus began to
question the officers and make statements that a reasonable jury could understand
were meant to divert the officers’ attention from the luggage under immediate
inspection. Three separate compartments containing a significant amount of
cocaine—four kilograms—were found in Cineus’s two suitcases. Based on these
facts, a reasonable jury could conclude beyond a reasonable doubt that a person
who is caught with luggage containing a large amount of drugs knew of the
presence of the drugs. See Quilca-Carpio, 118 F.3d at 721-22. In addition, a
reasonable jury could infer from the quantity of drugs seized that a “prudent
smuggler” was not likely to entrust such valuable cargo to an innocent person
without that person’s knowledge and consent. See id. Moreover, the testimonial
evidence at trial revealed that Cineus had told numerous conflicting stories, and
therefore a reasonable jury could choose to disbelieve Cineus’s testimony that he
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did not have knowledge of the cocaine in his luggage. Because a reasonable jury
could find beyond a reasonable doubt that Cineus intended to import cocaine into
the United States in violation of § 952(a), we affirm his conviction.
III.
We review a fine set by the district court for clear error. United States v.
Lombardo, 35 F.3d 526, 527 (11th Cir. 1994). The defendant has the burden of
proving inability to pay a fine. United States v. Hernandez, 160 F.3d 661, 665
(11th Cir. 1998).
A sentence to pay a fine may be imposed in addition to any other sentence.
18 U.S.C.A. § 3551(b). The statutory maximum fine is $2,000,000. 21 U.S.C.
§ 960(b)(2)(B). Section 5E1.2(a) provides that “[t]he court shall impose a fine in
all cases, except where the defendant establishes that he is unable to pay and is not
likely to become able to pay.” Here, Cineus was scored an offense level of 30, for
which the sentencing guidelines recommend a fine of $15,000 to $2,000,000.
U.S.S.G. § 5E1.2(c)(2-4).
If a district court determines, however, that the defendant could not pay, and
would not likely become able to pay, a fine within the applicable range, the district
court may impose a sentence outside the recommended guideline range. U.S.S.G.
§ 5E1.2(f). The guidelines provide a list of seven factors that the court must
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consider when setting a fine. U.S.S.G. § 5E1.2(d). These factors include:
defendant’s income; earning capacity; financial resources; the burden on the
defendant and his dependents; pecuniary loss inflicted on others as a result of the
offense; whether restitution is ordered; the need to deprive the defendant of illegal
gains; and the need to promote respect for the law, provide just punishment, and
adequate deterrence. U.S.S.G. § 5E1.2(d). Evidence that a defendant has failed to
disclose the existence of assets to the court may support a determination that he is
able to pay a fine with those undisclosed assets. United States v. Rowland, 906
F.2d 621, 624 (11th Cir. 1990). Although the representation of a defendant by
appointed counsel may indicate his inability to pay, that fact is not determinative.
United States v. Long, 122 F.3d 1360, 1366 n.8 (11th Cir. 1997); U.S.S.G. §
5E1.2, comment. (n.3).
While the district court did not make explicit findings of fact regarding
Cineus’s ability to pay, the hearing did provide an adequate record to enable us to
conduct a meaningful review. See United States v. Alston, 895 F.2d 1362, 1374
(11th Cir. 1990). First, the PSI showed that Cineus claimed ownership of $2,000
worth of jewelry when arrested, and he admitted, when objecting to the PSI, that he
had other items of jewelry with an undetermined value. Second, the district court
relied on the fact that Cineus did not provide the probation office with sufficient
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information regarding his financial status when it imposed his fine. See Rowland,
906 F.2d at 624. The district court departed downward from the guideline range of
$15,000 to $2,000,000 to impose a $2,000 fine because there was not sufficient
information to confirm Cineus’s ability to pay. Moreover, the court provided that
if Cineus—who was in his mid-thirties and good health at sentencing—could not
pay the fine immediately, he could pay it over time by arrangement through the
Inmate Financial Responsibility Program. Thus, over the course of Cineus’s nine
years of incarceration and four years of supervised release, he would have to pay
less than $20 per month to satisfy the $2,000 fine. Cf. Long, 122 F.3d at 1367
(upholding fine amounting to $56 per month over period of imprisonment and
supervised release).
For the reasons stated above, the district court did not clearly err in imposing
a $2,000 fine as part of Cineus’s sentence, and because no other circumstances
suggest that Cineus’s sentence was unreasonable,1 we affirm his sentence in this
respect.
AFFIRMED.
1
After United States v. Booker, 543 U.S. 220, 261, 125 S. Ct. 738, 765, 160 L. Ed. 2d 621
(2005), we review sentences under the advisory guideline regime for “unreasonable[ness].”
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