USCA11 Case: 22-11323 Document: 73-1 Date Filed: 05/11/2023 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11323
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO FERGILE,
a.k.a. Dave,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:19-cr-20633-CMA-2
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2 Opinion of the Court 22-11323
____________________
Before WILLIAM PRYOR, Chief Judge, and NEWSOM and BRASHER,
Circuit Judges.
PER CURIAM:
Ricardo Fergile appeals his sentence of 192 months of im-
prisonment for conspiring to import cocaine,
21 U.S.C. § 963. Fer-
gile argues that the district court clearly erred in determining the
drug quantity attributable to him at sentencing. We affirm.
A grand jury indicted Fergile for conspiring to import co-
caine,
id. § 963, importing cocaine, id. § 952(a), conspiring to pos-
sess with intent to distribute cocaine, id. § 846, and possessing with
intent to distribute cocaine, id. § 841(a)(1). At trial, Johny Telfort
testified that, after his friend Joel Exume recruited him to work for
a drug-trafficking organization in Haiti, Telfort began working
with the Drug Enforcement Agency as a confidential informant.
Telfort recorded meetings with members of the organization, in-
cluding Fergile and a woman called “Sexyliline.” Telfort identified
Fergile as “the boss,” specifically Exume’s boss.
Telfort testified that he when met “Sexyliline,” she was driv-
ing and had two cocaine packages near her. Telfort stated that the
packages were thicker and “a little bit longer than [his] Samsung
phone” and had an emblem of two crossed rifles with the inscrip-
tion “Diamante de Colombia.” “Sexyliline” drove to an alley and
received a bag from another car through the window, which she
handed to Exume who then poured “about 20, 25” rolled packs of
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22-11323 Opinion of the Court 3
cash from the bag into a different bag. “Sexyliline” then placed the
cocaine into the empty bag and returned the bag to the other car.
Telfort testified that Exume and “Sexyliline” began pressur-
ing him to smuggle cocaine. After he turned down a request to
travel, he received a voicemail from “Sexyliline” who said, “This
Friday, Joel [Exume] is sending someone [else] to give it for him.”
In a recorded conversation, Exume tried to put Telfort at ease by
telling him that a “football player,” which was code for a smuggler,
recently took a successful trip and that Exume had traveled with
drugs three times without an issue. Exume told Telfort that he re-
ceived a commission when his couriers smuggled cocaine.
Telfort told Exume that before he would agree to smuggle
cocaine, he wanted to talk to the boss of the organization. Exume
and Fergile later drove to Telfort’s house and picked him up. In the
car, Fergile received a phone call from his boss about finding a
“thief.” They met up with Fergile’s boss, and Fergile put the thief
in the car with Telfort and Exume. They drove three hours to
where the thief said he had hidden the drugs. Fergile recovered
about “seven brick-shaped packages” of cocaine that were identical
with the ones that he saw in “Sexyliline’s” car because the packages
bore a crossed-rifle emblem and the inscription “Diamante de Co-
lombia.” Law enforcement retrieved the bag that had held the co-
caine packages.
Telfort testified that after Fergile started a fire in his home
to pressure him into traveling, Telfort agreed to smuggle cocaine.
Fergile offered him a courier’s fee of $5,000 plus expenses. Fergile
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purchased the plane ticket and supplied a suitcase that was packed
with cocaine. Before Telfort traveled, Fergile asked a co-conspira-
tor “Steve” to tell Telfort about how Steve’s brother had made at
least 15 successful trips for the organization. Upon arriving in Fort
Lauderdale with the suitcase, Telfort followed instructions from
the government to leave the suitcase at the airport.
A customs officer testified that Antoine Lubin, another
co-conspirator, picked up the suitcase and that the suitcase con-
tained two packages of cocaine. Fergile and the government stipu-
lated that the suitcase contained 2.4 kilograms of cocaine. Lubin
testified that his job was to watch over people who traveled with
drugs for the organization, and he was paid to travel with and
watch over Telfort on his first trip. Lubin was paid $1,000 for each
trip and had worked on three deals for the organization. It was Fer-
gile’s job to supply and prepare suitcases for the couriers. Although
Lubin did not know the amount of drugs that Fergile packed into
the suitcases, on the night before his first trip as a watcher he saw
Fergile pack a suitcase with two bags of cocaine
Derek Sousa, an expert in international narcotics trafficking,
testified that the wholesale price of Colombian cocaine was be-
tween $1,000 and $3,000 per kilogram. At the time of trial, the price
of the same kilogram of cocaine ranged from $12,000 to $13,000 in
Haiti, and from $23,000 to $40,000 in the United States. The jury
found Fergile guilty of conspiring to import cocaine,
21 U.S.C.
§ 963, in an amount between 500 grams and five kilograms, but ac-
quitted him of the other counts.
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22-11323 Opinion of the Court 5
Fergile’s presentence investigation report provided a base
offense level of 32 because he was accountable for at least 18.4 kil-
ograms of cocaine, U.S.S.G. § 2D1.1(c)(4). The report applied en-
hancements for possessing a firearm, id. § 2D1.1(b)(1), and his role
in the organization, id. § 3B1.1(b). With a total offense level of 37
and a criminal history category of I, Fergile’s advisory sentencing
range was 210 to 262 months of imprisonment. Fergile objected to
the base offense level because it was based on a higher weight of
cocaine than the jury found.
At sentencing, the government argued that it had proved
that the conspiracy involved more than 15 kilograms of cocaine.
The parties stipulated that Telfort’s suitcase contained 2.4 kilo-
grams of cocaine, and audio recordings and transcripts referenced
five trips—one trip made by a courier who “Sexyliline” told Telfort
was sent in his place after he refused to travel, three trips that Ex-
ume made on his own, and one trip that Exume said was made by
a “football player.” Lubin testified about taking two additional trips
as a “watcher.” Telfort also testified about seeing “Sexyliline” ex-
change two packages of cocaine and seeing Fergile retrieve seven
packages of stolen cocaine, which, in total, was at least seven trips
and nine packages of cocaine, plus the suitcase that contained 2.4
kilograms. The government argued that, based on the arrests of
other couriers for the organization, the average courier carried be-
tween 1.6 and 3.5 kilograms of cocaine. The government con-
tended that the weight likely remained consistent within this range
because Fergile was responsible for supplying and preparing the
suitcases. The government argued that packing the suitcases with
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6 Opinion of the Court 22-11323
less than one kilogram would not have been worth the expense of
flights and travel costs, the courier’s fee, the watcher’s fee, and the
recruiter’s commission, in addition to profits for the organization.
The government argued that an estimate of 1.6 kilograms per pack-
age and per trip was reasonable, but that even a conservative esti-
mate of one kilogram per package and trip, plus the 2.4-kilogram
airport seizure, yielded over 15 kilograms.
The district court ruled that the government proved by a
preponderance of the evidence that Fergile was responsible for at
least 18.4 kilograms of cocaine. The district court sentenced him to
192 months of imprisonment.
We review the determination of drug quantity attributable
to a defendant for clear error. United States v. Reeves,
742 F.3d 487,
506 (11th Cir. 2014). For a finding to be clearly erroneous, we
“must be left with a definite and firm conviction that a mistake has
been committed.” United States v. Almedina,
686 F.3d 1312, 1315
(11th Cir. 2012). The government must establish drug quantity by
a preponderance of the evidence.
Id. This standard “requires the
trier of fact to believe that the existence of a fact is more probable
than its nonexistence” and must be supported by reliable and spe-
cific evidence.
Id.
“When the amount of the drugs seized does not reflect the
scale of the offense, the district court must approximate the drug
quantity attributable to the defendant.” Reeves,
742 F.3d at 506. To
make this determination, the district court “may consider, for ex-
ample, the price generally obtained for the controlled substance,
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22-11323 Opinion of the Court 7
financial or other records, [and] similar transactions in controlled
substances by the defendant . . . .” U.S.S.G. § 2D1.1 cmt. n.5 (2021).
The district court may also rely on evidence of the amount and fre-
quency of a defendant’s drug activities if it is based on “fair, accu-
rate, and conservative estimates of the drug quantity attributable
to a defendant, [but it] cannot be based on calculations of drug
quantities that are merely speculative.” Reeves,
742 F.3d at 506 (al-
teration in original).
The district court did not clearly err in its finding that the
government established by a preponderance of the evidence that
Fergile was responsible for at least 18.4 kilograms of cocaine. The
district court agreed with and implicitly adopted the calculation by
the government. That calculation was supported by Telfort’s testi-
mony and audio recordings that, during the course of the conspir-
acy, at least seven drug-smuggling trips were made and at least nine
packages of cocaine were involved, in addition to the 2.4 kilograms
of cocaine found during the airport seizure.
Fergile argues that, as in United States v. Butler, the district
court clearly erred by relying on the 2.4-kilogram airport seizure as
a representative proxy for all of the other trips and packages.
41
F.3d 1435 (11th Cir. 1995). We held in Butler that the district court
erred by making insufficient findings on the drug quantity that the
defendants distributed by adopting the presentence investigation
report without hearing testimony or argument about what quan-
tity was reasonably foreseeable by each defendant.
Id. at 1446–48.
The government estimated the drug quantity by reviewing
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8 Opinion of the Court 22-11323
surveillance video from one day of the conspiracy, counting the
number of drug transactions that occurred during a four-hour pe-
riod on that day, and extrapolating that number of transactions to
each day of a two-month conspiracy. We concluded that more spe-
cific findings were needed because the record revealed no evidence
that the day that was chosen was a reliable proxy for all days of the
conspiracy, which was a “vital prerequisite” to finding the method
reliable.
Id.
Unlike in Butler, the district court did not use a snapshot of
an amount captured on a single day or trip and extrapolate that
amount to each day of the conspiracy. The district court relied on
testimony about nine specific packages and seven specific trips. The
weight of the packages was supported by Telfort’s testimony that
each one was packaged identically bearing the same crossed-rifle
emblem and inscription “Diamante del Colombia.” Telfort testified
that the two packages exchanged by “Sexyliline” were longer and
thicker than a cell phone, and the seven packages of stolen cocaine
were “brick-like.” Telfort also saw two packages being exchanged
for “20, 25” rolled packs of cash, and the narcotics trafficking expert
testified that one kilogram sold for $12,000 or $13,000 in Haiti,
which gave rise to the reasonable inference that each package
weighed approximately one kilogram.
The district court did not clearly err by determining that it
was more likely than not that each drug-smuggling trip involved at
least one kilogram of cocaine. Telfort and Lubin testified that Fer-
gile was responsible for packing and providing the suitcases to his
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couriers, which fairly supported the inference that Fergile pack-
aged the suitcases similarly and with a comparable amount of co-
caine. Although the government asserted that previous stops re-
vealed between 1.6 and 3.5 kilograms per trip and that 1.6 kilo-
grams was a reasonable estimate that would avoid inflating Fer-
gile’s sentence based on a high aberration, the district court made
a conservative finding of one kilogram per trip. As the government
argued, it was more probable than not that each suitcase contained
at least one kilogram because a lesser amount would be unprofita-
ble after paying the various costs of smuggling, including flights
and travel expenses, the courier’s $5,000 fee, the watcher’s $1,000
fee, and the recruiter’s commission. Viewing the evidence as a
whole, we are not left with a definite and firm conviction that the
district court made a mistake in finding that Fergile was responsible
for at least 15 kilograms of cocaine. See Almedina,
686 F.3d at 1315.
Fergile argues that the district court was constitutionally
prohibited from sentencing him based on conduct of which he was
acquitted and that it was constrained by the finding of the jury, but
this argument fails. The jury verdict reflected its finding that a drug
quantity in excess of five kilograms had not been proved beyond a
reasonable doubt, but the government bore a lighter burden at sen-
tencing. And, as Fergile concedes, our precedent is well established
that district courts may consider acquitted conduct in sentencing,
so long as the government proves the conduct in question by a pre-
ponderance of the evidence and the sentence imposed does not ex-
ceed what is authorized by the jury verdict. United States v. Culver,
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598 F.3d 740, 752-53 (11th Cir. 2010); see United States v. Archer,
531
F.3d 1347, 1352 (11th Cir. 2008).
We AFFIRM Fergile’s sentence.
