United States v. Carlos Granda , 346 F. App'x 524 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 29, 2009
No. 07-14101 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-20155-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS GRANDA,
Defendant-Appellant,
PAULINO GRANDA,
Defendant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(September 29, 2009)
Before HULL, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Carlos Granda appeals his convictions and sentences totaling 360 months’
imprisonment for conspiracy to possess with intent to distribute five kilograms or
more of cocaine, and attempt to do the same, in violation of 21 U.S.C. §§ 846 and
841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2; conspiracy to interfere with commerce
by threats or violence, and attempt to do the same, in violation of 18 U.S.C.
§§ 1951(a), (b)(1), and (b)(3) and 2; attempted carjacking, in violation of 18 U.S.C.
§§ 2119 and 2; and conspiracy to carry a firearm during and in relation to a drug
trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) and (o).1 Carlos
Granda’s convictions arose out of his involvement in a reverse sting operation, in
which his brother, Paulino Granda, planned with an undercover detective and
confidential informant to rob a tractor-trailer carrying more than 70 kilograms of
cocaine. To this end, Paulino Granda recruited Carlos Granda, among others.
On appeal, Granda argues that the district court erred in denying his motion
for judgment of acquittal as to all drug-related counts of conviction because the
evidence was insufficient to prove that he had knowledge that cocaine was the
object of the robbery conspiracy. He also argues that the government committed
prosecutorial misconduct in objecting to defense counsel’s statement during
1
While the instant appeal initially concerned both Paulino and Carlos Granda, we
dismissed Paulino Granda’s appeal for failure to file a corrected brief as required by 11th Cir. R.
42.
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closing argument that there was no record evidence that Carlos Granda had ever
been convicted of a crime, and that the district court plainly erred in sustaining the
objection. Finally, he argues that the district court clearly erred in denying him a
minor-role reduction and in enhancing his sentence for reckless endangerment.
I.
On appeal, Carlos Granda does not dispute the existence of a conspiracy to
commit cocaine robbery. Rather, he argues that his convictions with a cocaine
nexus must be reversed because the evidence was insufficient to prove that he had
knowledge of the nature of the robbery, i.e. that the robbery was a cocaine robbery.
He relies heavily on our opinion in Martinez v. United States, 83 F.3d 371 (11th
Cir. 1991).
“We review the denial of a defendant’s motion for acquittal de novo.”
United States v. Ryan, 289 F.3d 1339, 1346 (11th Cir. 2002). In reviewing the
sufficiency of the evidence, we consider “the evidence in the light most favorable
to the government.” United States v. Garcia, 405 F.3d 1260, 1269 (11th Cir.
2005). We make all reasonable inferences and credibility choices in favor of the
government and the jury’s verdict. Id. We must affirm “unless, under no
reasonable construction of the evidence, could the jury have found the [defendant]
guilty beyond a reasonable doubt.” Id. “The evidence need not exclude every
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hypothesis of innocence or be completely inconsistent with every conclusion other
than guilt because a jury may select among constructions of the evidence.” United
States v. Bailey, 123 F.3d 1381, 1391 (11th Cir. 1997).
To support a conspiracy conviction under § 841, the government must
establish beyond a reasonable doubt that (1) a conspiracy existed, (2) the defendant
had knowledge of it, and (3) he knowingly and voluntarily joined it. United States
v. Thompson, 422 F.3d 1285, 1290 (11th Cir. 2005). “The government may show
participation in the conspiracy by circumstantial evidence, if not by direct
evidence, and it need prove only that [the defendant] knew the general nature and
scope of the conspiracy.” United States v. Pineiro, 389 F.3d 1359, 1368 (11th Cir.
2004) (citation omitted). For instance, it is not necessary that the government
prove that the defendant knew that he was involved with cocaine, but only that the
defendant had knowledge that he was dealing with a controlled substance. United
States v. Mejia, 97 F.3d 1391, 1392-93 (11th Cir. 1996); but see Martinez, 83 F.3d
at 373-74 (reversing the conviction of an alleged co-conspirator to a drug theft
because the government failed to present evidence that the individual, who had
been excluded from discussions concerning the conspiracy, knew “the true object
of the burglary was cocaine”).
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The cumulative effect of the circumstantial evidence at trial suffices to
establish Granda’s knowing participation in the narcotics trafficking conspiracy.
In the instant case, the existence of a conspiracy to commit cocaine robbery is not
disputed, but rather the issue is Granda’s knowledge that cocaine was the object of
the robbery. Granda’s reliance on Martinez is misplaced because the evidence that
Granda prepared flex cuffs, directed Fidel Granda to proceed to the service station,
and made and received numerous telephone calls while he drove around the site of
the robbery, suffices to distinguish the instant case from Martinez. Martinez, 83
F.3d at 373-74 (showing that Gomez was excluded from all discussions with the
undercover detective and confidential informant).
Moreover, the cumulative effect of the circumstantial establishes Granda’s
knowing participation in a narcotics trafficking conspiracy. First, both Yosvany
and Fidel Granda, who are Paulino Granda’s relatives and served less significant
roles in the conspiracy than that of Granda, testified that they knew that they were
participating in a cocaine robbery. Granda correctly states that while Paulino
Granda told both Yosvany and Fidel Granda of the plan to commit a cocaine
robbery, there is no evidence that Paulino Granda specifically told him that cocaine
was the object of the robbery. However, given Granda’s familial relationship with
Paulino, Yosvany, and Fidel Granda, the jury could have inferred that Paulino
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Granda had disclosed the full extent of the conspiracy to him. Also, the jury could
have reasonably inferred that Granda shared “a common purpose” with the other
conspirators from his presence at the meeting at his parents’ home and actions in
furtherance of the conspiracy. In addition, Fidel Granda testified that he
understood that Granda planned to participate in the cocaine robbery. While
Granda questions the reliability of Fidel Granda’s testimony because Fidel Granda
was cooperating with the government, the jury was permitted to credit Fidel
Granda’s testimony, unless it was “unbelievable on its face.” Rivera, 775 F.2d at
1561.
Further, the jury was presented with evidence that (1) Paulino Granda
specifically identified Granda in discussing the drug theft with Gamez; (2) Granda
was present during two-drug related meetings, one of which involved explicit
discussion of marijuana; (3) Granda had telephone contact with various members
of the conspiracy during critical times in planning and executing the drug theft;
(4) vague references to the cocaine robbery were made to Granda or in his
presence; (5) and Granda was apprehended within close proximity to the scene of
the robbery. See Mejia, 97 F.3d at 1392-93 (stating it was sufficient to show that
the defendant had knowledge that he was dealing with a controlled substance).
While these facts are also consistent with Granda’s argument that he knowingly
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participated in a robbery, but not a cocaine robbery, this Court has repeatedly held
that a jury is permitted to choose among constructions of the evidence. See e.g.,
United States v. Lyons, 53 F.3d 1198, 1202 (11th Cir. 1995). Therefore,
considering the totality of the circumstances, the jury could have reasonably
inferred that the appellant was a knowing participant in a drug conspiracy, and this
Court should affirm his convictions. Thus, the district court did not err in denying
Granda’s motion for judgment of acquittal, and we affirm in this regard.
II.
Granda identifies as prosecutorial error the government’s objection to
defense counsel’s statement during closing argument that the record showed that
Granda had never been convicted of a crime. Granda acknowledges that no
evidence of his criminal record or lack thereof was admitted at trial.
Generally, we review de novo claims of prosecutorial misconduct, which are
a mixed questions of law and fact. United States v. Eckhardt, 466 F.3d 938, 947
(11th Cir. 2006). However, objections not raised before the district court are
subject to review for plain error. United States v. Foley, 508 F.3d 627, 637 (11th
Cir. 2007). “For there to be plain error, there must (1) be error, (2) that is plain,
(3) that affects the substantial rights of the party, and (4) that seriously affects the
fairness, integrity, or public reputation of a judicial proceeding.” Id. (quotation
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omitted). An error is plain only if it is “obvious or clear under current law.”
United States v. Williams, 469 F.3d 963, 966 (11th Cir. 2006).
“To find prosecutorial misconduct, a two-pronged test must be met: (1) the
remarks must be improper, and (2) the remarks must prejudicially affect the
substantial rights of the defendant.” United States v. Eyster, 948 F.2d 1196, 1206
(11th Cir. 1991). As to the first prong, we have held that “[a]rgument to the jury
must be based solely on the evidence admitted at trial” and that “[a]ttorneys are
forbidden from saying anything to the jury to imply that evidence supporting their
position exists but has not been introduced at trial.” United States v. Martinez,
96 F.3d 473, 476 (11th Cir. 1996); Brooks v. Francis, 716 F.2d 780, 787 (11th Cir.
1983). Regarding the second prong, improper comments are prejudicial when they
“so infect the trial with unfairness as to make the resulting conviction a denial of
due process.” Eyster, 948 F.3d at 1206 (quotation and alteration omitted). Any
potential prejudice “may be rendered harmless by curative instructions to the jury.”
United States v. Simon, 964 F.2d 1082, 1087 (11th Cir. 1992) (quotation omitted).
“A district court does not abuse its discretion by prohibiting counsel from making
arguments that are unsupported by the record.” United States v. Martinez, 486
F.3d 1239, 1247 (11th Cir. 2007).
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Because the government’s objection during closing argument was based on
defense counsel’s reference to facts not established by evidence, it was not
improper, and, thus, the government did not commit prosecutorial misconduct.
Furthermore, the district court did not plainly err in sustaining the objection.
Accordingly, we affirm in this regard.
III.
Finally, Granda challenges the district court’s denial of his request for a
minor-role reduction, pursuant to U.S.S.G. § 3B1.2, and its application of the
enhancement for reckless endangerment, pursuant to U.S.S.G. § 3C1.2, on
grounds that the factual findings upon which the district court relied are clearly
erroneous
We review a district court’s factual findings for clear error and its
application of the Guidelines to those facts de novo. United States v. Kinard, 472
F.3d 1294, 1297 n.3 (11th Cir. 2006). We review a district court’s decision on
whether to grant a minor-role reduction for clear error. United States v. Rodriguez
De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en banc).
U.S.S.G. § 3B1.2(b)
Section 3B1.2 authorizes a district to reduce a defendant’s offense level by
two levels if the defendant was a “minor participant” in the crime. U.S.S.G.
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§ 3B1.2(b). A minor participant “means any participant who is less culpable than
most other participants, but whose role could not be described as minimal.” Id.,
comment. (n.5); De Varon, 175 F.3d at 939. The defendant has the burden of
establishing his role by a preponderance of evidence. De Varon, 175 F.3d at 939.
For a sentencing court to determine whether to grant a minor-role reduction, it
considers two principles. Id. at 940. First, the court must measure the defendant’s
role against the relevant conduct for which he is being held accountable. Id. The
second prong of the minor role reduction analysis permits a district court, “where
the record evidence is sufficient . . . [, to] measure the defendant’s conduct against
that of other participants in the criminal scheme attributed to the defendant.” Id.
at 934. The “district court has considerable discretion in making this
fact-intensive determination.” United States v. Boyd, 291 F.3d 1274, 1278 (11th
Cir. 2002).
The district court did not clearly err in finding that Granda was not entitled
to a minor-role reduction because the record supports the district court’s findings
that Granda played an important role in his relevant conduct and that he was more
culpable than several of his co-conspirators. Because the first prong of the minor-
role inquiry concerns Granda’s role in the conspiracy in relation to the conduct
attributed to him at sentencing, Granda’s role should be measured in view of his
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involvement in the attempted “drug rip off of 70 kilograms” of cocaine. De Varon,
175 F.3d at 941. During sentencing, the district court denied Granda’s request for
a minor-role reduction because it found that Granda’s communications showed that
he played an integral role in planning the conspiracy, his involvement in the
marijuana deal was a motivating factor in the conspiracy, and he was within close
proximity to the scene of the robbery. The court also found that Granda “played a
far different role” in the conspiracy than Fidel and Yosvany Granda, who were
“late-comers” to the conspiracy. These findings have support in the record, which
shows that (1) unlike Fidel and Yosvany Granda, Granda made and received
numerous telephone calls from occupants of the black SUV after 11:00 p.m. on the
night of the robbery; (2) Paulino Granda needed money to satisfy an outstanding
debt to his marijuana supplier, and Granda had some connection to the marijuana
transaction; (3) Granda was apprehended within close proximity to the scene of the
robbery; and (4) Paulino Granda approached Yosvany Granda about participating
in the cocaine robbery on February 21, 2007, and Fidel Granda was not assigned
any responsibility in executing the plan until after 10:00 p.m. on February 22,
2007. These findings demonstrate that Granda played an important role in his
relevant conduct and that he was more culpable than Fidel and Yosvany Granda.
De Varon, 175 F.3d at 944. Thus, we affirm in this regard.
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U.S.S.G. § 3C1.2
Section 3C1.2 of the Guidelines authorizes a two-level increase “[i]f the
defendant recklessly created a substantial risk of death or serious bodily injury to
another person in the course of fleeing from a law enforcement officer.” U.S.S.G.
§ 3C1.2. The Guidelines define recklessness, under § 3C1.2, as “a situation in
which the defendant was aware of the risk created by his conduct and the risk was
of such a nature and degree that to disregard that risk constituted a gross deviation
from the standard of care that a reasonable person would exercise in such a
situation.” U.S.S.G. §§ 2A1.4, comment. (n.1), 3C1.2, comment (n.2).
Because the record supports the district court’s findings that Granda tried to
evade police and that he created a dangerous situation by colliding his vehicle into
a police car, the district court did not clearly err in enhancing Granda’s sentence
pursuant to § 3C1.2, and we affirm his sentence in this regard.
Conclusion
Based on our review of the record and the parties’ briefs, Carlos Granda’s
convictions and sentences are affirmed.
AFFIRMED.2
2
Granda’s request for oral argument is denied.
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