                                                         [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT          FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                            APRIL 24, 2012
                             No. 11-14130
                                                             JOHN LEY
                         Non-Argument Calendar
                                                              CLERK
                       ________________________

                 D.C. Docket No. 9:11-cr-80055-DMM-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

NORBERTO CASTILLO-GAMEZ,

                                                         Defendant-Appellant.

                      ________________________

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

                             (April 24, 2012)

Before BARKETT, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
       Norberto Castillo-Gamez appeals his convictions and sentence for

conspiring to and transporting illegal aliens within the United States for private

gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) and (a)(1)(A)(ii).1 After a

thorough review of the record, we affirm.

       Castillo-Gamez and co-conspirator Marino Velasquez-Santizo were charged

with one count of conspiracy and three counts of transporting illegal aliens for

private gain. Prior to trial, both defendants moved to suppress the evidence

obtained during the traffic stop that led to their arrest on the ground that the Border

Patrol agent lacked probable cause or reasonable suspicion to conduct the stop.

       At a suppression hearing, Border Patrol agent Cesar Barrientos testified that

he was conducting traffic surveillance on I-95 looking for high-capacity vehicles

when he observed a tan minivan in the center lane. The minivan appeared to be

loaded down, although it had only four passengers, and it had tinted windows and

Alabama license plates. When he pulled next to the minivan, the driver appeared

stiff and did not make eye contact. He ran a check on the license plate and found a

note cautioning that the driver might not be the registered owner. These facts led

him to believe that the minivan was carrying illegal aliens, so he conducted a stop.


       1
         Although Castillo-Gamez has completed his twelve-month prison term, he remains on
supervised release; thus his appeal is not moot. Dawson v. Scott, 50 F.3d 884, 886 n.2 (11th Cir.
1995).

                                               2
Barrientos explained that the use of high-capacity vehicles, especially those with

tinted windows, and the appearance that the vehicle is weighted down are all

indicative of alien smuggling. He further explained that smugglers are more likely

to use I-95 than the Florida Turnpike because the Turnpike charges tolls and has

cameras. Based on this testimony, the district court concluded that Barrientos had

reasonable suspicion to stop the minivan, and thus the court denied the motion to

suppress.

      At trial, Barrientos testified that after his arrest, Castillo-Gamez gave a

sworn statement in which he admitted that he was hired by “Marcelino” to

transport the aliens to New York and back for $500. Although he did not know the

passengers, he admitted that he knew they were illegal. Castillo-Gamez told

Barrientos that the passenger in the front seat of the minivan, Velasquez-Santizo,

was in charge of collecting fees.

      Velasquez-Santizo2 testified that Marcelino asked him to transport illegal

aliens and that he had hired a man named Norberto to drive the van. Castillo-

Gamez objected to Velasquez-Santizo’s testimony on hearsay grounds, but the

court admitted the statement as a co-conspirator’s statement under Federal Rule of

Evidence 801(d)(2)(E). Velasquez-Santizo stated that he was responsible for


      2
          Velasquez-Santizo pleaded guilty to conspiracy and testified for the government.

                                                3
collecting fees from the aliens and that he received $400 for his involvement.

Velasquez-Santizo and Castillo-Gamez both drove the minivan at times, picking up

and dropping off passengers at Marcelino’s instruction in various locations. After

they had picked up a passenger in Maryland, they headed south on I-95. Castillo-

Gamez was driving when they were stopped. One of the passengers, Haricel

Hernandez-Izquierdo, testified that he paid $240 for transportation to Florida from

Maryland.

      Castillo-Gamez testified in his own defense, denying that he was paid to

drive the van. Instead, he explained that he only drove to help Velasquez-Santizo,

who was tired. He further denied that he told Barrientos that he knew the

passengers were illegal aliens.

      The jury convicted Castillo-Gamez on all counts. The probation officer

calculated Castillo-Gamez’s advisory guidelines range including a two-level

enhancement for obstruction of justice. Castillo-Gamez’s sentencing range was 15

to 21 months’ imprisonment. Castillo-Gamez objected to the calculations, arguing

that he was entitled to a minor-role reduction, U.S.S.G. § 3B1.2, and that the

enhancement for obstruction of justice was in error. He also argued that he should

receive a downward departure under § 5K2.0 and 5H1.6 because he cared for his

mentally disabled girlfriend. He further requested a downward variance.


                                          4
      The district court denied the minor-role reduction, finding that Castillo-

Gamez was not less culpable than his co-conspirators, but did not apply the

enhancement for obstruction of justice. This changed the advisory guideline range

to 10 to 16 months. The court sentenced Castillo-Gamez to 12 months’

imprisonment. On appeal, Castillo-Gamez raises five issues: (1) the district court

improperly denied his motion to suppress; (2) the evidence was insufficient to

convict him of conspiring to transport illegal aliens or of transporting illegal aliens;

(3) the district court improperly admitted Velasquez-Santizo’s testimony; (4) these

cumulative errors rendered his trial unfair; and (5) the sentence imposed was

procedurally and substantively unreasonable. We address each in turn.

      I. Motion to Suppress

      When reviewing a district court’s denial of a motion to suppress evidence,

we review factual findings for clear error and the application of the law to those

facts de novo, construing all facts in the light most favorable to the party who

prevailed in the district court. United States v. Ponce-Aldona, 579 F.3d 1218, 1221

(11th Cir. 2009).

      The Fourth Amendment provides that the “right of the people to be secure in

their persons . . . and effects, against unreasonable searches and seizures, shall not

be violated.” U.S. Const. amend. IV. If an officer reasonably suspects that a


                                           5
vehicle may contain illegal aliens, he may briefly stop the car and “‘investigate the

circumstances that provoke suspicion.’” United States v. Bautista-Silva, 567 F.3d

1266, 1271–72 (11th Cir. 2009) (quoting United States v. Brignoni-Ponce, 422

U.S. 873, 881 (1975)). This reasonable suspicion must be more than a mere hunch,

and it must be based on “specific articulable facts” and rational inferences from

those facts. Id. at 1272 (quoting Brignoni-Ponce, 422 U.S. at 884). A court

evaluating whether an officer had reasonable suspicion to stop a vehicle must

consider the totality of the circumstances to determine whether the agent had “‘a

particularized and objective basis for suspecting legal wrongdoing.’” Id. (quoting

United States v. Arvizu, 534 U.S. 266, 273 (2002)). Courts “may not consider each

fact only in isolation, and reasonable suspicion may exist even if each fact ‘alone is

susceptible of innocent explanation.’” Id. (quoting Arvizu, 534 U.S. at 277–78).

      Here, the district court properly concluded that Barrientos had a reasonable

suspicion that the minivan carried illegal aliens. As Barrientos testified, the

minivan had out-of-state license plates, tinted windows, and appeared to be

weighted down. Barrientos knew that smugglers often used I-95 to avoid the

cameras and tolls on the Florida Turnpike. And when he pulled along side the

minivan, Barrientos noticed that Castillo-Gamez appeared stiff and did not make

eye contact. Considering these facts together, Barrientos had a reasonable


                                          6
suspicion that the minivan contained illegal aliens. See Bautista-Silva, 567 F.3d at

1272–74.

      II. Sufficiency of the Evidence

      Generally, we review de novo whether there is sufficient evidence to support

a conviction, drawing all inferences in favor of the jury’s verdict. United States v.

Farley, 607 F.3d 1294, 1333 (11th Cir. 2010). But where, as here, a defendant

fails to renew his motion for judgment of acquittal after presenting evidence on his

own behalf, that failure “operates as a waiver of the motion for acquittal and

forecloses any review of the sufficiency of the evidence except where a

miscarriage of justice would result.” United States v. Tapia, 761 F.2d 1488, 1491

(11th Cir. 1985) (citation and internal quotation marks omitted). A miscarriage of

justice would result only if “‘the evidence on a key element of the offense is so

tenuous that a conviction would be shocking.’” Id. at 1492 (quoting United States

v. Landers, 484 F.2d 93, 94 (5th Cir. 1973)).

      Under 8 U.S.C. § 1324, “[a]ny person who[,] knowing or in reckless

disregard of the fact that an alien has come to, entered, or remains in the United

States in violation of law, transports . . . such alien within the United States by

means of transportation or otherwise, in furtherance of such violation of law,” and

“for the purpose of . . . private financial gain” shall be fined or imprisoned for up


                                           7
to ten years. 8 U.S.C. § 1324(a)(1)(A)(ii) and (a)(1)(B)(i). The same section

criminalizes conspiring to commit that offense. Id. § 1324(a)(1)(A)(v)(I). To

obtain a conspiracy conviction under this subsection, the government was required

to prove the existence of “an agreement to commit the substantive offense.”

United States v. Reme, 738 F.2d 1156, 1161 (11th Cir. 1984). Evidence of a

defendant’s acts in furtherance of a conspiracy to transport illegal aliens can

support an inference that the defendant agreed to commit the substantive offense of

transporting illegal aliens. Id. If a defendant testifies at trial, the jury may

disbelieve him and treat his untruthfulness as substantive evidence of guilt. United

States v. Bacon, 598 F.3d 772, 776 (11th Cir. 2010).

      We conclude that Castillo-Gamez has not shown that the evidence on any

element of his offenses was so tenuous that his convictions are shocking, resulting

in a miscarriage of justice. Barrientos testified that he stopped a van with four

passengers who were illegal aliens, and Castillo-Gamez was the driver. Velasquez-

Santizo testified about the conspiracy to transport illegal aliens. And although

Castillo-Gamez denied any participation in a conspiracy, the jury was free to

disbelieve his testimony and treat it as substantive evidence of his guilt. Because

the evidence showed that Castillo-Gamez conspired to transport illegal aliens and

that he actually transported them, the evidence was sufficient to support his


                                            8
convictions.

      III. Admission of Hearsay Evidence

      We review a district court’s admission of evidence for an abuse of

discretion. United States v. Hill, 643 F.3d 807, 840 (11th Cir. 2011). The district

court’s conclusions that (1) a conspiracy existed, (2) Castillo-Gamez, Velasquez-

Santizo, and Marcelino participated in it, and (3) Marcelino’s statements were

made in furtherance of the conspiracy are reviewed for clear error. United States v.

Garcia, 13 F.3d 1464, 1472–73 (11th Cir. 1994). We review de novo evidentiary

challenges based on the Confrontation Clause. United States v. Caraballo, 595

F.3d 1214, 1226 (11th Cir. 2010).

      Generally, hearsay evidence is inadmissible. Fed. R. Evid. 802. But an out-

of-court statement offered against an opposing party that “was made by the party’s

coconspirator during and in furtherance of the conspiracy” is not hearsay. Fed. R.

Evid. 801(d)(2)(E).

      The admission of certain evidence can violate a defendant’s rights under the

Confrontation Clause, which protects a defendant’s right “to be confronted with

the witnesses against him.” U.S. Const. amend. VI. The admission of statements

made by coconspirators in furtherance of a conspiracy, however, does not violate a

defendant’s constitutional right to confrontation because such statements are not


                                         9
testimonial. See Crawford v. Washington, 541 U.S. 36, 55 (2004) (“Most of the

hearsay exceptions covered statements that by their nature were not testimonial–for

example, . . . statements in furtherance of a conspiracy.”); United States v.

Underwood, 446 F.3d 1340, 1346–48 (11th Cir. 2006). Further, statements of an

uncharged co-conspirator may be admitted as long as the existence of the

conspiracy itself has been established. United States v. Salisbury, 662 F.2d 738,

740 (11th Cir. 1981).

      Here, the evidence established the existence of a conspiracy between

Castillo-Gamez, Velasquez-Santizo, and Marcelino. The evidence further showed

that the statements were made during and in furtherance of the conspiracy. Thus,

Marcelino’s statements, admitted through Velasquez-Santizo’s testimony, were

admissible because they were not hearsay. Further, although Castillo-Gamez

argues that these statements were the only evidence showing his involvement in the

conspiracy, in a statement to Barrientos, Castillo-Gamez admitted being part of a

conspiracy to transport illegal aliens at Marcelino’s direction. Accordingly, the

district court did not err in admitting Velasquez-Santizo’s testimony about

Marcelino’s statements.

      IV. Cumulative Error

      “[T]he cumulative effect of multiple errors may so prejudice a defendant’s


                                          10
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) (internal quotation marks omitted). If a defendant claims that

cumulative errors exist but fails to show any error, we will affirm. See United

States v. Augustin, 661 F.3d 1105, 1127–29 (11th Cir. 2011).

       As noted above, Castillo-Gamez has failed to demonstrate any error, much

less cumulative error. Therefore, he has not shown that his trial was unfair or that

he is entitled to a new trial.

       V. Sentencing

       We review sentences for procedural and substantive reasonableness under a

deferential abuse of discretion review. United States v. Irey, 612 F.3d 1160,

1188–89 (11th Cir. 2010) (en banc), cert. denied, 131 S.Ct. 1813 (2011). We lack

the authority to review claims that the district court erred in denying a downward

departure when the district court understood its authority to depart. United States

v. Llanos-Agostadero, 486 F.3d 1194, 1199 (11th Cir. 2007). A district court’s

denial of a minor role reduction is reviewed for clear error. United States v.

Bernal-Benitez, 594 F.3d 1303, 1320 (11th Cir. 2010).

       A sentence is procedurally unreasonable if the district court improperly

calculates the guideline range, considers the Sentencing Guidelines to be


                                            11
mandatory, does not consider the proper statutory factors, imposes a sentence

based on clearly erroneous facts, or does not explain adequately the sentence.

United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008). A sentence is

substantively unreasonable if, considering the totality of the circumstances, the

court weighed the factors in 18 U.S.C. § 3553(a) unreasonably and imposed a

sentence that did not achieve the purposes of sentencing outlined in § 3553(a).

Irey, 612 F.3d at 1189. Ordinarily, we expect a sentence within the advisory

guideline range to be reasonable. United States v. Martinez-Gonzalez, 663 F.3d

1305, 1311 (11th Cir. 2011).

      Here, Castillo-Gamez challenges the denial of his minor-role reduction, the

court’s failure to apply a downward departure or variance, and the failure to give

him credit for time served.

             a. minor-role reduction

      Under U.S.S.G. § 3B1.2, a defendant is entitled to a two-level decrease if he

“was a minor participant in any criminal activity.” U.S.S.G. § 3B1.2(b). An

adjustment is appropriate if a defendant “play[ed] a part in committing the offense

that makes him substantially less culpable than the average participant.” Id.

§ 3B1.2, comment. (n.3(A)). To determine whether a defendant is entitled to a

minor role reduction, the district court should consider his conduct in comparison


                                         12
to the relevant conduct attributed to him in determining his base offense level and

in comparison to the conduct of the other participants. Bernal-Benitez, 594 F.3d at

1320. The defendant bears the burden of proving his minor role by a

preponderance of the evidence. Id. A defendant “is not automatically entitled to a

minor role adjustment merely because [he] was somewhat less culpable than the

other discernable participants.” United States v. Rodriguez De Varon, 175 F.3d

930, 944 (11th Cir. 1999) (en banc).

      Here, Castillo-Gamez has not met his burden to show that he was entitled to

a minor role reduction. Castillo-Gamez points to nothing other than his own

testimony to show that he was substantially less culpable than others. But the

testimony of Velasquez-Santizo and Barrientos show that Castillo-Gamez was at

least as culpable as Velasquez-Santizo. Thus, Castillo-Gamez has not shown that

the district court clearly erred in refusing to apply this reduction.

             b. downward departure

      Although Castillo-Gamez argues that the district court erred in refusing to

depart downward pursuant to U.S.S.G. § 5H1.6, he does not contend that the

district court misunderstood its authority to do so. Accordingly, we lack

jurisdiction to review that claim. Llanos-Agostadero, 486 F.3d at 1199.

      Additionally, Castillo-Gamez has not shown that the district court


                                           13
unreasonably declined to vary downward under 18 U.S.C. § 3553(a). The court

considered the § 3553(a) factors as well as its belief that Castillo-Gamez was

untruthful when he testified at trial. The court concluded that a 12-month total

sentence, within the applicable guideline range, was appropriate. Castillo-Gamez

has not demonstrated that the district court abused its discretion, and we find

nothing unreasonable in the sentence imposed.

             c. credit for time served

      Under 18 U.S.C. § 3585, in certain circumstances, a defendant should

receive credit toward the service of a term of imprisonment for time spent in

official detention before the date on which his sentence commences. 18 U.S.C.

§ 3585(b). This section, however, does not authorize a district court to compute

and award credit for time served at sentencing. United States v. Wilson, 503 U.S.

329, 333 (1992). Rather, “Congress has indicated that a computation of credit

must occur after the defendant begins his sentence. A district court, therefore,

cannot apply § 3585(b) at sentencing.” Id.; see also United States v. Jayyousi, 657

F.3d 1085, 1118 n.5 (11th Cir. 2011) (acknowledging that the Attorney General

gives credit for time served in pretrial confinement).

      Before the district court, Castillo-Gamez requested a sentence of time

served, but he did not request credit for time served. Even if he had, the district


                                          14
court did not have the authority to give him such credit. Wilson, 503 U.S. at 333.

      In sum, Castillo-Gamez has failed to show that his sentence was

procedurally or substantively unreasonable. The district court properly calculated

his guideline range, explained the sentence, and weighed the § 3553(a) factors

before imposing a total sentence of 12 months, within his advisory guideline range

and below the statutory maximum of 10 years. Because Castillo-Gamez’s total

sentence is procedurally and substantively reasonable, we affirm.

      AFFIRMED.




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