United States v. Wilmer Quesada-Ramos , 429 F. App'x 909 ( 2011 )


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  •                                                               [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT           FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    No. 10-11996               JUNE 10, 2011
    Non-Argument Calendar            JOHN LEY
    ________________________            CLERK
    D.C. Docket No. 1:09-cr-20462-ASG-2
    UNITED STATES OF AMERICA,
    lllllllllllllllllllll                                      Plaintiff-Appellee,
    versus
    WILMER QUESADA-RAMOS,
    lllllllllllllllllllll                                      Defendant-Appellant.
    ________________________
    No. 10-12577
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 1:09-cr-20462-ASG-1
    UNITED STATES OF AMERICA,
    lllllllllllllllllllll                                      Plaintiff-Appellee,
    versus
    JUAN GONZALEZ,
    llllllllllllllllllll                                       lDefendant-Appellant.
    ______________________
    Appeals from the United States District Court
    for the Southern District of Florida
    ________________________
    (June 10, 2011)
    Before EDMONDSON, PRYOR and KRAVITCH, Circuit Judges.
    PER CURIAM:
    Wilmer Quesada-Ramos and Juan Gonzalez appeal their convictions for
    conspiring to destroy, 
    18 U.S.C. § 844
    (n), and destroying by fire a building used
    in interstate commerce, 
    id.
     §§ 2, 844(i). Ramos and Gonzalez challenge the
    sufficiency of the evidence to support their convictions and the reasonableness of
    their sentences. Gonzalez also challenges the denial of defense counsel’s pre-trial
    motion to withdraw, the admission of expert testimony, and a closing argument of
    the United States. We affirm.
    A jury reasonably could have found based on the circumstantial evidence
    presented by the government that Ramos and Gonzalez conspired to commit and
    committed arson. Officers arrived around 11:00 p.m. on February 4, 2009, to
    investigate an alarm activated in a carpet warehouse located in downtown Hialeah,
    Florida, and discovered a fire that had been started by pouring gasoline through a
    window onto rolls of carpet. The first two officers on the scene saw Ramos in his
    2
    red truck with its dim headlights drive out of a nearby alley. Ramos fled and led
    one officer on a high speed chase through four traffic lights before the officer
    stopped the truck at a crowded intersection. See United States v. Miranda, 
    425 F.3d 953
    , 959 (11th Cir. 2005) (presence at the scene is probative); United States
    v. Borders, 
    693 F.2d 1318
    , 1324–25 (11th Cir. 1982) (flight suggests
    consciousness of guilt). Inside the truck, the officer discovered Ramos’s cellular
    telephone and a wallet containing Gonzalez’s driver’s license and receipts from
    two gas stations where Gonzalez had purchased $60 in gasoline within three hours
    of the fire. Although Ramos denied that he knew Gonzalez, investigators later
    discovered that Gonzalez was Ramos’s uncle, Gonzalez had worked for years as a
    subcontractor for the owner of the warehouse, Gonzalez had fought with the
    owner about salary deductions in the two months preceding the fire, and Ramos
    had helped Gonzalez install storage racks inside the warehouse. See United States
    v. Molina, 
    443 F.3d 824
    , 828 (11th Cir. 2006) (the “existence of an agreement”
    can be “proved by inferences from the conduct of the alleged participants or from
    circumstantial evidence of a scheme”). Gonzalez, who lived many miles away,
    also was seen by police officers near the warehouse at the time of the fire, fled
    when officers at two different locations attempted to question him, see Borders,
    
    693 F.2d at 1324
    , and, when apprehended, was “really dusty,” coughed
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    incessantly, had soot on his face and singed hair in his nose, and spit up “blackish
    mucus,” see Miranda, 
    425 F.3d at 959
    . Gonzalez gave vague explanations for his
    symptoms and for his presence near the warehouse, and a fragment of DNA on a t-
    shirt found at the scene shared 20 characteristics with Gonzalez’s DNA. A police
    officer seized from Gonzalez a cigarette lighter and a cell phone, which Gonzalez
    had used “pretty close” to the warehouse at 10:22 p.m. and at 11:19 p.m. Records
    for Ramos’s cellular telephone established that he had driven to Hialeah the night
    of the fire, where he had made calls between 10:30 p.m. and 11:20 p.m. Although
    investigators did not discover any accelerant on Ramos’s clothing or on any
    objects in his truck, a trained dog alerted to the presence of an accelerant in the
    bed of his truck. The evidence and reasonable inferences from that evidence
    supports the finding of the jury that Ramos and Gonzalez agreed to burn the
    warehouse, the two men transported in Ramos’s truck some supplies to start the
    fire, Ramos waited in the truck while Gonzalez set the warehouse on fire, and the
    two men fled separately from the scene. “‘A jury is free to choose among
    reasonable constructions of the evidence,’” United States v. Hernandez, 
    433 F.3d 1328
    , 1334 (11th Cir. 2005) (quoting United States v. Bell, 
    678 F.2d 547
    , 549 (5th
    Cir. 1982) (en banc)), and the jury rejected the defenses presented by Gonzalez
    and Ramos.
    4
    Gonzalez argues that his trial was unfair because the district court refused to
    allow defense counsel to withdraw, but we disagree. Although a defendant is
    entitled to counsel of his choice, “[t]he right to choose counsel may not be
    subverted to obstruct the orderly procedure in the courts or to interfere with the
    fair administration of justice,” Gandy v. Ala., 
    569 F.2d 1318
    , 1323 (5th Cir. 1978),
    which appeared to be Gonzalez’s strategy. Gonzalez retained defense counsel and
    was satisfied with his representation until two weeks before trial when Gonzalez
    told counsel that he had hired a new attorney. Gonzalez presented no definitive
    proof that a new attorney was available, or even existed. The new attorney never
    filed a notice of appearance, failed to respond to defense counsel’s voice
    messages, and did not appear at the hearing on the motion to withdraw. Defense
    counsel said that he and Gonzalez had had a “large disagreement in the case,” but
    the district court was never told the nature of that disagreement and reasonably
    determined that the motion was an “attempt[] to manipulate the court’s schedule
    by a last minute switch of attorneys or selection of an unavailable attorney,” 
    id. at 1328
    . The district court also reasonably determined that defense counsel, who was
    prepared for trial, would represent Gonzalez adequately, and that proceeding to
    trial would best protect codefendant Ramos’s right to a speedy trial. See United
    States v. Calderon, 
    127 F.3d 1314
    , 1343 (11th Cir. 1997). Gonzalez argues that he
    5
    had the “right to ‘face trial alone’ rather than proceed with unwanted counsel,” but
    Gonzalez never asked to proceed pro se, and “[d]efendants are only guaranteed a
    fair or reasonable opportunity to select the attorney of their choice,” United States
    v. Baker, 
    432 F.3d 1189
    , 1248 (11th Cir. 2005). The district court has “wide
    latitude in balancing the right to counsel of choice against the needs of fairness . . .
    and against the demands of its calendar,” United States v. Gonzalez-Lopez, 
    548 U.S. 140
    , 152, 
    126 S. Ct. 2557
    , 2565–66 (2006), and the district court did not
    abuse its discretion by denying the motion to withdraw.
    Gonzalez argues that he was denied a fair trial because the district court
    allowed Officer Ross Holt to testify as an expert witness, but we disagree. As
    long as the testimony establishes that an expert witness has “a reliable basis in the
    knowledge and experience of his discipline” to provide an opinion, he is
    “permitted wide latitude to offer opinions.” Daubert v. Merrell Dow Pharm., Inc.,
    
    509 U.S. 579
    , 592, 
    113 S. Ct. 2786
    , 2796 (1993). The United States told Gonzalez
    before trial that Holt would testify that his trained dog alerted to the bed of
    Ramos’s truck, see Fed. R. Crim. P. 16, and the United States offered Holt as an
    expert witness before he testified about his dog’s response, see Fed. R. Evid. 702;
    Guinn v. AstraZeneca Pharm. LP, 
    602 F.3d 1245
    , 1252 (11th Cir. 2010). The
    United States established that Holt was qualified to testify that his trained dog
    6
    could detect accelerants not perceptible in a laboratory, the district court limited
    the scope of Holt’s testimony, and Gonzalez was permitted to cross-examine Holt
    about his opinion. See Daubert, 
    509 U.S. at 596
    , 
    113 S. Ct. at 2798
    . The district
    court did not abuse its discretion in admitting Holt’s testimony.
    Gonzalez also argues that the prosecutor “improperly vouch[ed] for [his]
    case,” but we again disagree. Prosecutorial misconduct occurs when counsel
    makes statements that “‘prejudicially affect the substantial rights of the
    defendant’” and create “‘a reasonable probability . . . that, but for the remarks, the
    outcome of the trial would have been different.’” United States v. Lopez, 
    590 F.3d 1238
    , 1256 (11th Cir. 2009) (quoting United States v. Eckhardt, 
    466 F.3d 938
    , 947 (11th Cir. 2006)). Gonzalez contends that he was prejudiced when the
    prosecutor stated that specific tests were performed “to make sure that these
    defendants were the ones that did it,” but the statement was a fair response to
    Gonzalez’s criticisms of the tests performed and his arguments that tests were not
    conducted that would have weakened the case against him. See 
    id.
    Gonzalez also complains about the prosecutor’s argument that the United
    States had “interviewed countless witnesses, . . . tested numerous items over the
    course of months, [and] collected all kinds of evidence even stuff you didn’t get a
    chance to see,” but any error was harmless. This argument was intended to
    7
    respond to Gonzalez’s arguments that the investigation was incomplete. See 
    id.
    The prosecutor did not mention any evidence that was not presented to the jury,
    the district court instructed the jury “to not speculate on any evidence that [it] did
    not see,” and the United States presented “‘sufficient independent evidence of
    guilt,’” 
    id.
     (quoting Eckhardt, 466 F.3d at 947).
    Gonzalez and Ramos also argue that their sentences are procedurally and
    substantively unreasonable, but we disagree. Gonzalez did not object to the facts
    in his presentence investigation report that he had “orchestrated the plan to set fire
    to [the warehouse] and recruited [Ramos] to assist him in accomplishing this,” and
    those facts are sufficient to enhance Gonzalez’s base offense level by two points
    for his role as an organizer or leader. See United States v. Turner, 
    626 F.3d 566
    ,
    572 (11th Cir. 2010). The district court considered the sentencing range of 78 to
    97 months, the sentencing factors, and Gonzalez’s arguments about his childhood
    and health and reasonably determined that an upward variance to 115 months of
    imprisonment would address the “seriousness of [the] fire, the danger it posed to
    those who had to confront it as firefighters, . . . the very serious risk to other
    property nearby,” “the injury to [an] officer” who chased Gonzalez, “the risk to
    others in [his] apprehension,” and Gonzalez’s “criminal history and escalating
    criminality.” Ramos argues that the district court “failed to adequately explain
    8
    [its] chosen sentence,” see 
    18 U.S.C. § 3553
    (c), but the district court stated that its
    sentence was based on the “great danger” that the fire caused to firefighters “as
    well as additional properties in the area,” the destruction the fire caused, Ramos’s
    decision to “engage[] in the very kind of high-speed chase . . . that put[s] . . .
    officers at risk,” and the “need to provide a just punishment.” The district court
    reasonably determined that a within-guidelines sentence of 70 months of
    imprisonment was required to punish Ramos for his crimes and deter similar future
    misconduct. The district court did not abuse its discretion in sentencing Gonzalez
    and Ramos.
    The convictions and sentences of Gonzalez and Ramos are AFFIRMED.
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