                                                                       [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                       No. 10-12604                     APRIL 11, 2012
                                 ________________________                 JOHN LEY
                                                                           CLERK
                           D.C. Docket No. 1:09-cr-00240-KD-N-4

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                     Plaintiff - Appellee,

                                             versus

JUAN RAMON SABINA,

lllllllllllllllllllll                                                 Defendant - Appellant.


                                  ______________________

                          Appeal from the United States District Court
                             for the Southern District of Alabama
                                 ________________________

                                       (April 11, 2012)

Before TJOFLAT and CARNES, Circuit Judges, and MICKLE,* District Judge.

PER CURIAM:

         Juan Sabina appeals his conviction for conspiracy to possess marijuana with


         *
         Honorable Stephan P. Mickle, United States District Judge for the Northern District of
Florida, sitting by designation.
intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 846, contending that the

evidence was insufficient to support the jury’s verdict.

                                          I.

      An anonymous tipster called a drug task force in Mobile County, Alabama,

reporting that people were growing marijuana at three properties in Eight Mile,

Alabama. The properties are within three miles of each other, and the tipster said

that on each property there was not only a house but also an outbuilding equipped

with large air conditioners.

      Police officers obtained search warrants for the three properties mentioned

in the tip. The first property the officers searched was located on Jib Road and

was owned by Sabina, although he had leased it to Omar Huezo. Just as the tipster

said, Sabina’s property had a house and an outbuilding. Inside the house, the

officers found a marijuana growing operation, which included high-intensity

lighting equipment, voltage-boosting ballasts used to power that lighting

equipment, timers, and 119 marijuana plants. Two cars were parked in the

driveway, and one of them was registered to Sabina. The outbuilding contained

remnants of a marijuana growing operation, including two 5-ton air conditioners

used to counteract the heat from the high-intensity lighting equipment, which

might otherwise burn the marijuana plants.

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      The second property mentioned in the anonymous tip was owned by Jose

Noriega and was located on Chutney Drive. When officers arrived at that

property, they encountered Sabina, Huezo, and Noriega drinking beer on the back

porch. Inside the property’s outbuilding, officers found “[a] very large and

elaborate marijuana grow[ing] operation,” including “identical wiring and ballasts

and lights as at the Jib Road address” and 245 marijuana plants. And there were

two 5-ton air conditioners attached to the outbuilding. Inside the Chutney Drive

house, officers found more high-intensity lighting equipment and ballasts.

      The third property mentioned in the tip was located on Kushla McLeod

Road. There the officers uncovered a marijuana growing operation similar to

those at the Jib Road and Chutney Drive properties, including high-intensity

lighting equipment, ballasts, timers, an outbuilding with one 5-ton air conditioner

attached to it, a garage with another 5-ton air conditioner attached to it, and 160

marijuana plants.

      A federal grand jury issued a superseding indictment charging Sabina,

Huezo, Noriega, and four other defendants with conspiracy to possess marijuana

with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 846, and

possession of marijuana with intent to distribute in violation of 21 U.S.C. §

841(a)(1). It also charged Noriega and Huezo with knowingly possessing a

                                          3
firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §

924(c)(1). In addition, it included a forfeiture count. See 21 U.S.C. § 853.1

       A jury found Sabina guilty of conspiracy, but the court declared a mistrial

on the possession charge after the jury deadlocked on it. The presentence

investigation report advised that the guidelines range for his conviction on the

conspiracy count would have been 41 to 51 months but that the mandatory

minimum prison sentence is 60 months for the quantity of marijuana that Sabina

was convicted of conspiring to possess. See 21 U.S.C. §§ 841(b)(1)(B), 846. The

court sentenced him to 60 months imprisonment and imposed a 5-year term of

supervised release.

                                               II.

       “We review de novo the sufficiency of the evidence presented at trial, and

we will not disturb a guilty verdict unless, given the evidence in the record, no

trier of fact could have found guilt beyond a reasonable doubt.” United States v.

White, 663 F.3d 1207, 1213 (11th Cir. 2011) (quotation marks omitted). “In

       1
        One defendant remains a fugitive. Huezo pleaded guilty to the conspiracy charge and to
the charge of possessing a firearm in furtherance of a drug trafficking crime, and two other
defendants pleaded guilty to the conspiracy charge. Noriega, Sabina, and one other defendant
went to trial, but the district court granted that other defendant’s motion for a judgment of
acquittal after the government’s case-in-chief. Noriega was convicted of conspiracy and
possession of marijuana with intent to distribute and he appealed his convictions. In a separate
opinion issued today, we are entering a limited remand in Noriega’s case. See United States v.
Noriega, — F.3d —, No. 10-12480 (11th Cir. April 11, 2012).

                                               4
reviewing the sufficiency of the evidence, we look at the record in the light most

favorable to the verdict and draw all reasonable inferences and resolve all

questions of credibility in its favor.” Id. (quotation marks omitted).

      To prove that Sabina committed the crime of conspiracy to possess

marijuana with intent to distribute, the government had to establish: (1) the

existence of an agreement between two or more persons for someone to possess

marijuana with intent to distribute; (2) “that [Sabina] knew of the conspiratorial

goal”; and (3) “that he knowingly joined or participated in the illegal venture.”

United States v. Brown, 587 F.3d 1082, 1089 (11th Cir. 2009). “Because

conspiracies are secretive by nature, the existence of an agreement and [Sabina’s]

participation in the conspiracy may be proven entirely from circumstantial

evidence.” White, 663 F.3d at 1214 (quotation marks omitted).

      Sabina contends that there was not enough evidence to convict him of

conspiracy, arguing that “[t]he government’s evidence shows only [his] presence

at a location, where marijuana was found on the property.” It is true that “mere

presence is insufficient to support a conviction for conspiracy, [but] the jury is

permitted to consider presence as a probative factor in determining whether the

defendant knowingly and intentionally participated in a criminal scheme.” United

States v. Bacon, 598 F.3d 772, 777 (11th Cir. 2010). In addition to Sabina’s

                                          5
presence at the Chutney Drive property, the record contains other evidence of his

guilt. Sabina owned the Jib Road property where officers found a marijuana

growing operation and found his vehicle parked in the driveway. He also leased

that property to one of his codefendants, whom officers found drinking beer with

Sabina at the Chutney Drive property, where there was an almost identical

marijuana growing operation to the one at the Jib Road property. Sabina was

living at that Chutney Drive property, according to what he told an Immigration

and Customs Enforcement agent on the day he was arrested.

      The government also introduced evidence that the three properties at which

officers found marijuana growing operations were part of one drug conspiracy. At

each marijuana growing operation there were two 5-ton air conditioners; an

invoice showed that someone in Miami, Florida, had bought three of those air

conditioners on a single order form; and at each of the three marijuana growing

operations, officers found one of the three 5-ton air conditioners that were listed

on that order form. In light of all that evidence, a reasonable jury could have

found that the government had established more than “mere presence” and proved

beyond a reasonable doubt that Sabina was guilty of conspiracy to possess

marijuana with intent to distribute.

      AFFIRMED.

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