                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                               No. 09-11848                   MAY 04, 2010
                           Non-Argument Calendar               JOHN LEY
                                                                 CLERK
                         ________________________

                     D. C. Docket No. 07-60230-CR-DMM

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

CARLOS DIAZ,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                 (May 4, 2010)

Before TJOFLAT, BIRCH and WILSON, Circuit Judges.

PER CURIAM:

     Carlos Diaz (“Diaz”) appeals his convictions and sentences for conspiracy to
possess with intent to distribute five kilograms or more of cocaine, 21 U.S.C.

§§ 841(a)(1),(b)(1)(A), 846 (count one); attempt to possess with intent to distribute

five kilograms or more of cocaine, 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846 (count

two); and carrying a firearm during and in relation to a drug trafficking crime, 18

U.S.C. § 924(c)(1)(A) (count three). The district court sentenced Diaz to

concurrent terms of 160 months of imprisonment on counts one and two, and a

consecutive term of 60 months of imprisonment on count three. After thorough

review of the record and briefs, we AFFIRM his convictions and sentences.

                                I. BACKGROUND

      In April 2007, Carmello Crespo-Dones (“Crespo-Dones”) and Diaz met with

two confidential informants, including Gildardo Zapada (“Zapada”), to discuss the

purchase of ten kilograms of cocaine. R11 at 120-21, 125-26. When Zapada

questioned the unexpected presence of Diaz at the meeting, Crespo-Dones

reassured Zapada that Diaz was a friend and a drug dealer with many contacts who

would be useful for future deals. Id. at 128. Diaz took an active role during the

meeting. He requested a price reduction and suggested that the drug sale be broken

into two transactions. Id. at 129. The deal ultimately fell through, however,

because Diaz and other potential purchasers believed it was too risky. Id. at 134.

      Diaz later informed Zapada that he would be his contact for any future drug



                                          2
deals. Id. at 137. Diaz emphasized that he was very careful in his drug

transactions, he always carried a gun, and he would shoot anybody if something

went wrong. Id. at 139. Diaz told Zapada about a potential buyer in New Jersey.

Id. at 139-40, 142. Diaz gave Zapada his phone number and told him he would

“keep in touch.” Id. at 142. A few weeks later, Diaz called Zapada to see if he

could purchase two to four kilograms of cocaine, but Zapada insisted that the

minimum was ten kilograms. Id. at 143-44.

      Throughout the summer, Zapada received several phone calls from Crespo-

Dones about purchasing the ten kilograms of cocaine. Id. at 146. At the end of

August 2007, Crespo-Dones advised Zapada that Diaz had most of the money

ready and would contact Zapada within the next few days. Id. at 145-47.

      On 1 September 2007, Diaz called Zapada and stated his New Jersey buyer

had come to Miami to purchase the drugs. Id. at 148. On 4 September, Diaz met

with Zapada at a restaurant in Hialeah, Florida. Id. at 148-49. Diaz showed

Zapada his gun, stated he does not play games, and reiterated that he would shoot

everybody if necessary. Id. at 150. Zapada believed Diaz and felt afraid. Id. Diaz

advised that he had personally seen the money but his New Jersey contact was

concerned about making such a large purchase. Id. at 151. After further

negotiations with Diaz, Zapada agreed to sell seven kilograms of cocaine for



                                         3
$120,000, with the final three kilograms being transacted at a future date. Id. at

151-52. Over the next few days, Diaz and Zapada hammered out the details of the

transaction. Id. at 155.

      On 7 September, Diaz arrived at the designated meeting place with two other

men, Dexter DeBernard and Eduardo Perez.1 Id. at 201-02, 206. Diaz entered the

restaurant with DeBernard and introduced him to Zapada as “the money guy” from

New Jersey. Id. at 156, 203. Although DeBernard expressed concern that Zapada

might be a cop, DeBernard and Diaz eventually agreed to return to the restaurant

with the money in an hour. Id. at 157-58. Upon their return, Zapada got into their

vehicle and inspected a plastic bag of money. Id. at 160. Zapada then exited their

vehicle so that they could go to his apartment to retrieve the cocaine. Id. at 160-

61.

      Shortly thereafter, officers of the Sunrise Police Department conducted a

traffic stop of the suspect vehicle and obtained consent to search it. Id. at 207-08,

227-29. The officers recovered from the vehicle a plastic bag containing $113,330

in cash, packaged in “quick count bundles” of $1000 increments. Id. at 208-09,

216. Prior to the bag being opened, Diaz informed one of the officers that it was

“just a bag of clothes.” Id. at 230. An officer also confiscated a loaded handgun



      1
          Both men were indicted with Diaz as co-conspirators. R1-1.

                                               4
from Diaz’s waistband. Id. at 209, 230-31.

        In his defense, Diaz testified that a 2005 motorcycle accident had resulted in

traumatic brain injuries and a total loss of memory. Id. at 241-43. Diaz further

stated that when he hears three or more voices, “[i]t becomes like a whisper and my

eyes get dizzy and my head starts spinning.” Id. at 243. While Diaz admitted

meeting with Zapada and Crespo-Dones on multiple occasions, he insisted he had

no intent to participate in any drug transactions. Id. at 245-49. He explained that

his gun was not for criminal purposes but for self-protection because he lived in a

rough neighborhood. Id. at 250. When confronted with his post-arrest statement

that he was being paid $500 per kilogram of cocaine, Diaz responded, “Well, the

truth, the truth about that was that I never really discussed price with Mr.

[De]Bernard.” Id. at 251. Diaz further asserted that he was “not a hundred percent”

mentally. Id. at 253. He admitted that he knew what he was doing, but testified

that “I didn’t have a full understanding of everything, and I was easily used to do a

crime. But not because I chose to.” Id.

        On appeal, Diaz raises multiple issues related to four general topics:

sufficiency of the evidence as to each conviction, the district court’s evidentiary

rulings, cumulative error, and multiple sentencing errors. We address each one in

turn.



                                            5
                                  II. DISCUSSION

A. Sufficiency of the Evidence

      We review de novo whether there is sufficient evidence in the record to

support a jury’s verdict. United States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir.

2009). We will affirm if “a reasonable trier of fact could find that the evidence

established guilt beyond a reasonable doubt.” Id. (quotation marks and citation

omitted). All credibility choices and conflicts in the evidence must be resolved in

the government’s favor. See id.

      1. Count One

      Diaz was charged in count one with conspiracy to possess with intent to

distribute five kilograms or more of cocaine, in violation of 21 U.S.C.

§§ 841(a)(1),(b)(1)(A), 846. To establish a conspiracy, the government must prove

that an agreement existed between two or more persons to commit a crime and that

the defendant knowingly and voluntarily joined or participated in that agreement.

United States v. Seher, 562 F.3d 1344, 1364 (11th Cir. 2009). The knowledge

component is satisfied if the defendant was aware of the conspiracy’s primary

purpose. Id. Evidence of the agreement can be purely circumstantial, and may

include inferences based on the alleged participants’ conduct. Id.

      Here, there was ample evidence demonstrating that Diaz knowingly and



                                           6
voluntarily participated in the charged conspiracy. According to Zapada’s

testimony, Diaz bargained over both the price and quantity of cocaine during their

first meeting. It was in part Diaz’s decision not to complete that deal because he

believed it was too risky a purchase. Diaz continued to take a pivotal role in

subsequent drug negotiations, acting as Zapada’s contact and securing the New

Jersey buyer. Furthermore, it was Diaz who negotiated the final terms of the

cocaine purchase, arranged the details of the transaction, initially inspected the

purchase money, and ultimately met with Zapada and DeBernard to execute the

drug deal.

      Although Diaz testified that he was merely present at the meetings and had

no intent to participate in any drug transactions, the jury chose not to credit his

testimony. “We have recognized that a statement by a defendant, if disbelieved by

the jury, may be considered as substantive evidence of the defendant’s guilt.”

United States v. McDowell, 250 F.3d 1354, 1367 (11th Cir. 2001) (quotation marks

and citation omitted). Consequently, the jury could reasonably conclude from

Diaz’s non-credible testimony that he had the requisite guilty knowledge and intent

to participate in the drug conspiracy. See id. (explaining that the jury was free to

infer from appellants’ false statements that they knew and intended to import

cocaine). Viewing the evidence in the light most favorable to the verdict, we



                                            7
conclude that there was sufficient evidence to support Diaz’s conviction of

conspiracy in count one.

      2. Count Two

      Count two charged Diaz with attempt to possess with intent to distribute five

kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A),

846. A person is guilty of attempt if he has the specific intent to commit the

underlying crime and he took actions that constituted a “substantial step” toward the

commission of that crime. United States v. Yost, 479 F.3d 815, 819 (11th Cir.

2007) (per curiam). “A substantial step can be shown when the defendant’s

objective acts mark his conduct as criminal and, as a whole, strongly corroborate

the required culpability.” Id. (quotation marks and citation omitted).

      The evidence at trial reveals sufficient evidence that Diaz had the specific

intent to commit the underlying crime at issue and that he took substantial steps to

initiate, facilitate, and execute the purchase of seven kilograms of cocaine. As

previously discussed, Diaz had multiple discussions with Zapada about purchasing

cocaine, introduced Zapada to a cocaine buyer, and negotiated the terms of the final

deal. The fact that Diaz was arrested before the deal was consummated is

immaterial. See United States v. Rodriguez, 765 F.2d 1546, 1552 (11th Cir. 1985).

Moreover, based on the quantity of drugs involved, the jury could reasonably



                                           8
conclude that Diaz intended to distribute the cocaine. See United States v.

Hernandez, 433 F.3d 1328, 1333 (11th Cir. 2005) (concluding that a jury may infer

a defendant’s intent to distribute two kilograms of cocaine based on the amount of

narcotics involved). While Diaz argues he only intended to act as a broker by

introducing the parties, a broker can still be found guilty of possession with intent

to distribute cocaine. See Rodriguez, 765 F.2d at 1551-53 (affirming drug

conspiracy conviction for defendant who acted as a broker by placing a government

agent into contact with a drug source). We thus find ample evidence to support

Diaz’s conviction of attempt on count two.

      3. Count Three

      Diaz was convicted in count three of carrying a firearm during and in relation

to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). Diaz concedes

on appeal that if we affirm his convictions on counts one and two, then he is guilty

of count three. In light of our affirmance of his convictions on counts one and two,

we find sufficient evidence to support his conviction on count three as well.

B. Evidentiary Rulings

      Diaz next argues that the district court erred by admitting various evidence

that prejudiced his case. We review a district court’s evidentiary rulings for abuse

of discretion. United States v. Docampo, 573 F.3d 1091, 1096 (11th Cir. 2009),



                                           9
cert. denied (U.S. Apr. 5, 2010). Even if we find an abuse of discretion, we will not

reverse the conviction if the error was harmless. Id.

1. Leading Question

      Diaz first challenges the court’s ruling on a leading question. During direct

examination of Zapada, the following exchange took place:

      [PROSECUTOR]: Who is that individual that was going to buy 10
      kilos of cocaine?

      [ZAPADA]: I know him as Carmello.

      [PROSECUTOR]: Carmello Crespo-Dones?

      [ZAPADA]: Yes.

R11 at 125. Diaz objected to the question as leading, and the court overruled his

objection. Id. On appeal, Diaz contends that without this leading question, it is

possible Zapada was testifying about someone else.

      Federal Rule of Evidence 611(c) provides that “[l]eading questions should

not be used on the direct examination of a witness except as may be necessary to

develop the witness’ testimony.” Fed. R. Evid. 611(c). Here, the government’s

question was necessary to clarify that Zapada was referring to Carmello Crespo-

Dones in order to avoid the very misidentification that Diaz highlights. The district

court did not abuse its discretion in permitting this question.

      2. Zapada’s Testimony About Crespo-Dones’ Statements

                                           10
         Diaz asserts that Zapada’s testimony as to statements made by Crespo-Dones

constituted impermissible hearsay. Specifically, Diaz challenges Zapada’s

testimony that Crespo-Jones introduced Diaz as a friend and drug dealer. Diaz also

objects to Zapada’s testimony that Crespo-Jones called Zapada at the end of August

2007 and said that Diaz was almost ready to execute the drug deal.

         The district court admitted Zapada’s testimony about Crespo-Dones’

statements under Federal Rule of Evidence 801(d)(2)(E). R11 at 128, 145. This

rule allows statements of a co-conspirator if the government proves by a

preponderance of the evidence that a conspiracy existed, the conspiracy included

the declarant and the defendant, and the statement was made as part of the

conspiracy. See United States v. Underwood, 446 F.3d 1340, 1345-46 (11th Cir.

2006).

         We find no abuse of discretion in this matter. The evidence established that

Crespo-Dones conspired with Diaz to purchase cocaine from Zapada. Crespo-

Dones introduced Diaz as a friend and a drug dealer in order to reassure Zapada that

Diaz was knowledgeable about their intended drug transaction and would be useful

for future drug deals. Likewise, Crespo-Dones called Zapada during August 2007

to report on Diaz’s progress in securing the drug purchase money. Both of Crespo-

Dones’ challenged statements were made in furtherance of the drug conspiracy.



                                            11
Accordingly, Crespo-Dones’ statements were admissible under Federal Rule of

Evidence 801(d)(2)(E) as statements by a co-conspirator in furtherance of a

conspiracy. See id.

      Diaz further asserts for the first time on appeal that admission of Crespo-

Dones’ statements violated his Sixth Amendment right of confrontation because

Crespo-Dones did not testify. Our review is limited to plain error as Diaz did not

raise a constitutional objection in the district court. See United States v. Arbolaez,

450 F.3d 1283, 1291 (11th Cir. 2006) (per curiam). Diaz must therefore

demonstrate that an error occurred, it was plain, it affected his substantial rights,

and it “seriously affect[ed] the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotation marks and citation omitted).

      No error, plain or otherwise, has been shown. Although the Confrontation

Clause prohibits the admission of “testimonial” statements unless the witness is

unavailable and there was a prior opportunity for cross-examination, the Clause

does not bar the admission of non-testimonial statements. See Crawford v.

Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004). The Supreme Court

has noted that statements in furtherance of a conspiracy are “by their nature . . . not

testimonial.” Id. at 56, 124 S. Ct. at 1367.

      We have likewise held that a co-conspirator’s statements to a confidential



                                            12
informant, which are admissible under Federal Rule of Evidence 801(d)(2)(E), are

not “testimonial” and thus do not violate a defendant’s Sixth Amendment

confrontation rights. Underwood, 446 F.3d at 1347-48. We explained in

Underwood that a co-conspirator’s recorded conversations “clearly were not made

under circumstances which would have led him reasonably to believe that his

statement[s] would be available for use at a later trial.” Id. at 1347. Had the co-

conspirator known the true identity of the confidential informant, he would never

have spoken to her in the first place. See id.

      The same holds true here. When Crespo-Dones referred to Diaz as a drug

dealer or discussed the purchase of drugs, Crespo-Dones did not anticipate that his

statements would be used at some future trial. Nor would he have made the

statements if he knew that Zapada was a confidential informant. As such, Crespo-

Dones’ statements were not “testimonial” in nature and their admission did not

violate Diaz’s Sixth Amendment confrontation rights. See id.

      3. Zapada’s Testimony That He Felt Afraid

      Diaz contends that the district court should have excluded as irrelevant

Zapada’s testimony that he felt afraid when Diaz displayed his gun. We disagree.

      Evidence is relevant if it tends “to make the existence of any fact that is of

consequence to the determination of the action” more or less probable. Fed. R.



                                           13
Evid. 401. Here, count three charged Diaz with carrying a firearm during and in

relation to a drug trafficking crime. Diaz asserted in his opening statement that he

carried a firearm for personal safety because of his neighborhood. In anticipation of

this defense, Zapada testified that Diaz displayed his gun during their final drug

meeting and reiterated his previously-stated intent to “start shooting everybody” if

anything went wrong. R11 at 150. Zapada’s testimony that he felt afraid was

relevant to show that Diaz was carrying his gun for the purpose of protecting

himself during the drug deal, not because he lived in a rough neighborhood.

Because Zapada’s testimony was relevant to establish count three and to rebut

Diaz’s anticipated defense, the district court did not abuse its discretion in

overruling Diaz’s objection.

      4. Zapada’s Testimony About Recorded Conversations

      Diaz alleges that the district court improperly allowed Zapada to testify about

his recorded conversations with Diaz and Crespo-Dones. Because no recordings or

transcripts were admitted, Diaz contends that Zapada’s testimony was

untrustworthy and prejudicial.

      We find no abuse of discretion. Diaz objected to Zapada’s testimony about

“conversations that are memorialized on these CDs that are all in Spanish,” but he

gave no basis for the objection. Id. at 153. On appeal, Diaz cites no legal precedent



                                           14
for the proposition that a witness cannot testify about a recorded conversation if the

recording or transcript of the recording is not introduced. The sole case he cites

cuts against him, as it explains that Federal Rule of Evidence 602 permits a witness

to testify about a matter within his personal knowledge. See United States v.

Castro, 89 F.3d 1443, 1454 (11th Cir. 1996). This rule would apply here. No abuse

of discretion has been shown.

      5. Diaz’s Motives for Trial

      At trial, Diaz was asked by his attorney why he chose to go to trial. Diaz

responded that, “I didn’t really choose to go to trial. I mean, I had a lawyer who

really didn’t want to help me in the beginning. He had me – ” R11 at 253-54. The

government objected and the court sustained the objection on the grounds that

Diaz’s reasons not to go to trial or his communications with a lawyer were not

relevant. Id. at 254. On appeal, Diaz submits his testimony was relevant to the

truthfulness of his testimony about his confession.

      Diaz’s argument is without merit. Diaz was permitted to testify that he was

coerced into confessing and to explain his reasons for wanting to testify at trial. Id.

at 252-53. Diaz does not specify on appeal what further information he would have

provided in response to the challenged question that would have been relevant to

the veracity of his police interview. Nor does Diaz identify any other material fact



                                           15
that would have been made more or less probable by his testimony regarding his

motives for trial. See Fed. R. Evid. 401. We therefore conclude that the district

court did not abuse its discretion in ruling that Diaz’s reasons for choosing to

proceed to trial were irrelevant.

C. Cumulative Error

       Diaz maintains that the cumulative effect of the district court’s putative errors

discussed in Section IIB warrant the grant of a mistrial.

       We have recognized that “the ‘cumulative effect’ of multiple errors may so

prejudice a defendant’s right to a fair trial that a new trial is required, even if the

errors considered individually are non-reversible.” United States v. Ramirez, 426

F.3d 1344, 1353 (11th Cir. 2005) (per curiam) (quotation marks and citation

omitted). Of course, the absence of any individual error precludes the existence of

any cumulative error. See United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir.

2004) (per curiam) (“‘If there are no errors or a single error, there can be no

cumulative error.’”). Having found no individual error by the district court, we also

reject Diaz’s claim of cumulative error. See id.

D. Sentencing Errors

       In his final argument, Diaz raises the following challenges to his sentence:

(1) the district court erroneously denied a minor role reduction; (2) the district court



                                             16
erroneously denied a downward departure for diminished capacity; (3) the district

court erred in ruling that his sentence for count three should run consecutively to his

sentence for counts one and two; (4) the district court erroneously applied a two-

level enhancement for obstruction of justice and violated Diaz’s Sixth Amendment

right to a jury trial; and (5) the district court erroneously denied a request for a

variance under 18 U.S.C. § 3553, which resulted in an unreasonable sentence.

      We review a sentence for both procedural and substantive reasonableness

under a deferential abuse-of-discretion standard. See United States v. Pugh, 515

F.3d 1179, 1190 (11th Cir. 2008). To be procedurally reasonable, the sentence

must be properly calculated under the advisory Sentencing Guidelines and reflect

consideration of the sentencing factors under 18 U.S.C. § 3553(a).2 See id. A


       2
           These factors are as follows:

                 (1) the nature and circumstances of the offense and the history and
                 characteristics of the defendant;
                 (2) the need for the sentence imposed –
                         (A) to reflect the seriousness of the offense, to
                         promote respect for the law, and to provide just
                         punishment for the offense;
                         (B) to afford adequate deterrence to criminal
                         conduct;
                         (C) to protect the public from further crimes of the
                         defendant; and
                         (D) to provide the defendant with needed
                         educational or vocational training, medical care, or
                         other correctional treatment in the most effective
                         manner;
                 (3) the kinds of sentences available;
                 (4) the kinds of sentence and the sentencing range . . .;

                                                 17
sentence is substantively reasonable if, under the totality of the circumstances, it

achieves the purposes of § 3553(a). See id. at 1191. We may apply a presumption

of reasonableness to a sentence within the guidelines range. See id. at 1190. The

onus of demonstrating that a sentence is unreasonable lies on the party challenging

the sentence. See United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007).

      1. Minor Role Reduction

      Diaz first contends the district court erred in denying his request for a minor

role reduction. He argues that his role as a broker meant he did not control or

exercise authority over others, or perform functions vital to the criminal conduct.

      We review a district court’s factual determination regarding a defendant’s

role in an offense for clear error. See United States v. De Varon, 175 F.3d 930, 937

(11th Cir. 1999) (en banc). Under the sentencing guidelines, a district court may

decrease the offense level by two if the defendant was a minor participant in the

criminal activity. U.S.S.G. § 3B1.2(b) (2009). A minor participant means someone

“who is less culpable than most other participants, but whose role could not be

described as minimal.” Id., comment. (n.5). The defendant bears the burden of


              (5) any pertinent policy statement . . .;
              (6) the need to avoid unwarranted sentence disparities . . .; and
              (7) the need to provide restitution to any victim of the offense.

18 U.S.C. § 3553(a) (2009).



                                               18
proving his minor role by a preponderance of the evidence. De Varon, 175 F.3d at

939.

       The district court’s factual determination that Diaz played a major role as “an

active broker” in the crimes is not clearly erroneous. R14 at 13-14. Diaz was held

accountable for the seven kilograms of cocaine that Zapada agreed to sell to

DeBernard. The evidence at trial established that Diaz communicated with Crespo-

Dones and Zapada about the transaction, secured DeBernard as the buyer, arranged

the details of the exchange, attended the drug meeting, verified the purchase money,

and negotiated the terms for the final sale. Without Diaz, it is doubtful that the drug

transaction would have even occurred. The district court correctly denied a minor

role reduction.

       2. Departure for Diminished Capacity

       Diaz next maintains that he was entitled to a downward departure for

diminished capacity pursuant to U.S.S.G. § 5K2.13, which provides that a court

may depart below the applicable guideline range if the defendant committed the

offense while suffering from a significantly reduced mental capacity which

contributed substantially to the commission of the offense. See U.S.S.G. § 5K2.13

(2009). According to Diaz, his age, education, employment record, severe

motorcycle injuries, and minor role in the offenses rendered his case atypical, such



                                          19
that he was entitled to a downward departure for diminished capacity under Koon v.

United States, 518 U.S. 81, 116 S. Ct. 2035 (1996).3

      We lack jurisdiction to review the district court’s denial of a downward

departure in this case. Unless the district court incorrectly believed that it lacked

the authority to grant a downward departure, we have no jurisdiction to review its

decision. See United States v. Dudley, 463 F.3d 1221, 1228 (11th Cir. 2006).

Here, the district court rejected a downward departure because it found that “while

[Diaz] had an unfortunate accident, there is no indication that it led to a diminished

capacity or that it really played any role in this offense.” R14 at 14. The record

thus reflects the district court recognized its authority to make a downward

departure but found that the facts did not warrant one. Accordingly, we lack

jurisdiction to review the district court’s decision. See Dudley, 463 F.3d at 1228.

      3. Consecutive Sentence

      Diaz argues that the district court erred in ordering that his sentence on count

three, for violating 18 U.S.C. § 924(c), should run consecutively to his sentences for

his drug offenses in counts one and two.

      Diaz’s argument is foreclosed by our decision in United States v. Segarra,



       3
         In Koon, the Supreme Court instructed that before a district court may depart
downward, it must first find the case contains aspects “unusual enough for it to fall outside the
heartland of cases” in the Sentencing Guidelines. 518 U.S. at 98, 116 S. Ct. at 2046.

                                                20
582 F.3d 1269 (11th Cir. 2009) (per curiam), petition for cert. filed, (U.S. No. 09-

8536) (Jan. 8, 2010). In Segarra, we concluded that the plain language of 18 U.S.C.

§ 924(c) requires consecutive sentences for a defendant convicted of a § 924(c)

offense and an underlying drug crime. See id. at 1272-73. Accordingly, the district

court correctly imposed a consecutive sentence for Diaz’s § 924(c) conviction.

      4. Obstruction of Justice Enhancement

       Diaz also challenges the district court’s application of a two-level

enhancement for obstruction of justice under U.S.S.G. § 3C1.1. He contends the

enhancement categorically violated his Sixth Amendment right to a jury trial under

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and his Fifth

Amendment right to a grand jury indictment and due process, because the

enhancement was never presented to the jury so there was no jury verdict that found

Diaz significantly hindered the prosecution. Additionally, Diaz submits there was

insufficient evidence to support the enhancement.

      The record reflects that Diaz initially informed the court in November 2007

that he was under medical treatment for brain damage from a past accident and was

experiencing problems understanding his attorney. R6 at 2-5. However, the results

of a government-sponsored mental examination revealed that he was malingering

and was competent to stand trial. R1-44, 86, 94; R11 at 3. In March 2008, Diaz



                                          21
decided to plead guilty to counts one and three of the indictment. R1-64. At his

plea hearing, both Diaz and his attorney testified that any medicines Diaz was

taking related to his prior motorcycle accident did not adversely affect his ability to

communicate with his attorney or make decisions. R7 at 31-32, 37-38. Diaz further

acknowledged that he was pleading guilty of his own free will because he was in

fact guilty. Id. at 38. Prior to sentencing, however, Diaz moved to withdraw his

plea, stating that he was coerced into pleading guilty, he was mentally ill, and he

was innocent by reason of insanity. R1-70. Based on the agreement of the parties,

the court permitted Diaz to withdraw his plea and set the case for trial. R1-82.

      Diaz then filed notice of his intent to assert an insanity defense, which

resulted in a second court-ordered mental evaluation and multiple postponements of

trial. R1-88, 90. The second evaluation confirmed that Diaz was malingering and

had no serious mental defect. R11at 3. Additionally, an examination by Diaz’s

own expert concluded that Diaz was not insane at the time of the offense, that he

understood the nature and quality of his criminal behavior, and that his crimes were

not a result of a mental defect. R1-94 at 2. Based on that report, Diaz’s attorney

conceded that “at the time of the incident [Diaz] was competent and knew what he

was doing.” R11 at 4. Trial finally commenced in January 2009.

      At his sentencing hearing, the government argued that Diaz had obstructed



                                           22
justice by feigning mental illness and by committing perjury at trial concerning his

alleged mental impairments. R14 at 19-20. Christopher Whitley, Special Agent

with the Drug Enforcement Administration, testified over objection that DeBernard

told him that several months after Diaz’s arrest, Diaz informed DeBernard that

“there was no way to get out of this other than to tell them that he had a mental

illness.” Id. at 17. After hearing arguments by both parties, the district court

concluded that an enhancement was warranted. Id. at 24. The court explained its

decision as follows:

             Okay. I’m persuaded by the Government’s argument and will
      enhance by two levels. I rarely have enhanced for obstruction when a
      defendant goes to trial and testifies because I don’t want to be in the
      position of punishing a defendant for exercising his constitutional right
      to go to trial. The only times really I do that is when they manufacture
      evidence, get somebody else to lie for them, come up with – make up
      documentation, that sort of thing that goes beyond just testifying.

             In this case I think the defendant did go beyond that. First, he –
      according to the reports, the two doctors or the doctors at the FDC did
      determine that he was malingering. They gave him the test. It is very
      apparent as you read those reports that he basically was trying to
      present himself as being mentally ill and hurt in this motor vehicle
      accident. When found to be competent, he changed his plea. I went
      through the plea colloquy. He was fine. I frankly would not have
      allowed him to withdraw that plea but for the position that the
      Government took. The Government agreed to set aside the plea for
      him to go to trial. I thought he was competent at the time, wouldn’t
      have let him do that, but I acceded to the parties[’] advice on that. He
      went to trial. I should say he also wrote a letter to me which going
      through the file – where he talks about how he said he was mentally ill,
      that his lawyer was involved with a conspiracy with – his previous

                                           23
      lawyer was involved with a conspiracy with the prosecution, all this
      about his accident and how he doesn’t have his memory. And he was
      then examined in terms of his insanity defense, found not to qualify for
      that both by the Government’s lawyer and the defense lawyer, and then
      his testimony at trial about – that is set forth in the Government’s
      memorandum on Page 5 where he talked about the voices and all of
      that was just plainly unbelievable and was clearly for the purpose of
      trying to convince the jury that he had mental problems that he really
      didn’t have. And so for those reasons I think this case does require an
      enhancement for obstruction.

Id. at 24-25.

      With respect to Diaz’s constitutional challenges to the enhancement, our

review is limited to plain error because Diaz did not raise a Sixth or Fifth

Amendment violation in the district court. See United States v. Zinn, 321 F.3d

1084, 1088 (11th Cir. 2003) (explaining that a defendant must “clearly articulate a

specific objection during sentencing” in order to preserve the objection for appeal).

No error, plain or otherwise, has been shown. In Blakely, the Supreme Court

applied the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.

Ct. 2348, 2362-63 (2000): “Other than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.” Blakely, 542 U.S. at

301, 124 S. Ct. at 2536. The Court held in Blakely that the petitioner’s Sixth

Amendment right to a jury trial was violated when the court imposed a sentence

beyond the statutory maximum based on a judicial determination that the petitioner

                                           24
acted with “deliberate cruelty,” a finding that was neither admitted to by the

petitioner nor found by a jury. Id. at 303-05, 124 S. Ct. at 2537-38. Blakely is

inapposite here, however, because Diaz was not sentenced beyond the statutory

maximum that applied based on the jury’s verdict. As our precedent establishes,

“an Apprendi constitutional error occurs only where a defendant is sentenced

beyond the statutory maximum for the offense.” Underwood, 446 F.3d at 1345.

Consequently, where a defendant’s sentence falls below the statutory maximum

term of life imprisonment for a conviction under 21 U.S.C. § 841(b)(1)(A), there

can be no Apprendi error. See id. Here, the jury convicted Diaz of violating

§ 841(b)(1)(A) in counts one and two, and the court sentenced him to concurrent

terms of 160 months of imprisonment. As Diaz’s sentence was below the statutory

maximum, he cannot establish that the district court committed plain error. See id.

      Furthermore, in accordance with the Supreme Court, we have recognized that

“the use of extra-verdict enhancements in an advisory guidelines system is not

unconstitutional.” United States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005)

(per curiam) (quotation marks and citation omitted). Consequently, the district

court did not plainly err in applying the obstruction of justice enhancement.

      As for Diaz’s second argument, that there was insufficient evidence to

support the enhancement, we review the district court’s factual findings for clear



                                          25
error and the application of the sentencing guidelines de novo. United States v.

Uscinski, 369 F.3d 1243, 1246 (11th Cir. 2004) (per curiam). U.S.S.G. § 3C1.1

permits a two-level enhancement to a defendant’s offense level if “the defendant

willfully obstructed or impeded, or attempted to obstruct or impede, the

administration of justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction,” and “the obstructive conduct

related to the defendant’s offense of conviction and any relevant conduct.”

U.S.S.G. § 3C1.1 (2009).

      We have previously upheld the application of a § 3C1.1 enhancement where

a defendant feigned amnesia and his malingering postponed his trial for a year,

forcing the government to waste time and resources to evaluate his competency.

See United States v. Patti, 337 F.3d 1317, 1325 (11th Cir. 2003). We noted that

“feigning incompetency, whether to create doubt as to his competency so as to prod

his attorney into requesting competency hearings or to convince the court that he

cannot stand trial, will trigger a § 3C1.1 enhancement.” Id. (quotation marks and

citation omitted). Additionally, an enhancement is justified if a defendant commits,

suborns, or attempts to suborn perjury. U.S.S.G. § 3C1.1, comment (n.4(b)).

Perjury, for purposes of § 3C1.1, means willfully giving false testimony under oath

“that, if believed, would tend to influence or affect the issue under determination.”



                                           26
United States v. Singh, 291 F.3d 756, 763 (11th Cir. 2002) (quotation marks and

citation omitted).

      The district court did not clearly err in finding that Diaz obstructed or

impeded justice by feigning a mental illness. At various stages throughout the

proceedings, Diaz represented that he suffered from a mental infirmity. Diaz’s

representations resulted in two court-ordered psychiatric evaluations, both of which

concurred that Diaz was malingering. Even Diaz’s own expert agreed that Diaz

understood the criminal nature of his actions and that his crimes did not result from

any mental defect. As in Patti, Diaz’s malingering wasted government resources

and needlessly delayed the prosecution of his case for over a year. The district

court correctly applied the obstruction of justice enhancement on this basis.4 See

Patti, 337 F.3d at 1325.

      Moreover, the enhancement was also justified based on the district court’s

finding that Diaz purposefully gave false testimony at trial regarding his mental

health. At trial, Diaz testified that “[w]hen there are three or more voices, I can’t


       4
         Diaz contends that the district court erroneously relied on the hearsay testimony of
Agent Whitley that Diaz told DeBernard he would pretend to be mentally ill. A district court
may rely upon hearsay evidence at sentencing if: (1) it is reliable, (2) the court makes explicit
findings of fact as to credibility, and (3) the defendant is allowed to rebut the evidence. See
Patti, 337 F.3d at 1326. While the sentencing transcript does not indicate that the court explicitly
found Agent Whitley to be credible, the district court did not expressly rely on Agent Whitley’s
testimony as a basis for applying the enhancement. Given that sufficient additional evidence
supports the district court’s stated reasons for the enhancement, we need not determine whether
an error occurred.

                                                27
understand what they’re saying.” R11 at 243. Diaz further stated his brain shuts

down, the voices become whispers, he feels dizzy, and he cannot fully understand

anything because he has not really heard it. Id. at 243, 252. The district court had

the opportunity to view and hear Diaz but found this testimony “plainly

unbelievable.” R14 at 25. This credibility finding is entitled to due deference. See

Singh, 291 F.3d at 763-64. Moreover, Diaz’s testimony stands in stark contrast to

Zapada’s testimony that Diaz actively participated in conversations involving three

or more people. Diaz’s testimony also directly contradicts the medical reports that

he has no mental defect or inability to comprehend the nature of his actions.

Indeed, based upon the report by Diaz’s expert, Diaz’s counsel acknowledged that

“it would be disingenuous for me to put Dr. Toomer on the stand and go forward

with him to try and illicit testimony from him that my client, you know, is either not

competent now or did not know what he was doing at the time of the offense.” R11

at 5. The record thus supports the district court’s determination that Diaz’s

testimony was “clearly for the purpose of trying to convince the jury that he had

mental problems that he really didn’t have.” R14 at 25. Accordingly, we affirm the

district court’s application of the obstruction of justice enhancement.

      5. Substantive Reasonableness of the Sentence

      In addition to the putative procedural errors discussed above, Diaz also



                                          28
challenges the substantive reasonableness of his sentence. He contends that his

mental health, lack of prior convictions, and his minor role in the crimes constituted

extraordinary mitigating circumstances which warranted a variance below the

sentencing guidelines range. Consequently, he submits that the district court

imposed a sentence that was greater than necessary to comply with the purposes of

18 U.S.C. § 3553(a).

      We disagree. As previously noted, we review the substantive reasonableness

of a sentence for an abuse of discretion. See Pugh, 515 F.3d at 1190. Even if we

reasonably conclude that a different sentence is appropriate, we may not reverse

unless we possess a “definite and firm conviction that the district court committed a

clear error of judgment in weighing the § 3553(a) factors.” Id. at 1191. No clear

error of judgment exists here. The district court stated that it based its sentence

upon consideration of the parties’ statements, the pre-sentence report, the criminal

history category, the advisory guidelines range of 151 to 188 months, all the

§ 3553(a) factors, including the seriousness of the crime, and the consecutive nature

of the sentence on count three. R14 at 29-30. Diaz’s sentence of 160 months of

imprisonment on counts one and two falls within the guidelines range and is

therefore subject to a presumption of reasonableness. See Pugh, 515 F.3d at 1190.

Though he suggests that certain mitigating factors should have received greater



                                           29
weight than the court accorded them, we “will not substitute our judgment in

weighing the relevant factors.” Amedeo, 487 F.3d at 832 (quotation marks and

citation omitted). The district court fashioned a reasonable sentence that comported

with the sentencing purposes of § 3553(a). No abuse of discretion has been shown.

                                 III. CONCLUSION

      Diaz challenges his convictions and sentences on direct appeal. We conclude

that there was sufficient evidence to support each conviction, that the district court’s

challenged evidentiary rulings were not individually or cumulatively erroneous, and

that Diaz’s sentence is both procedurally and substantively reasonable.

Accordingly, we AFFIRM his convictions and sentences.

      AFFIRMED.




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