           Case: 18-12334   Date Filed: 06/13/2019   Page: 1 of 6


                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-12334
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 5:17-cr-00031-JDW-PRL-2



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

TIRSO HERNANDEZ-ASTUDILLO,

                                                         Defendant-Appellant.

                       ________________________

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

                              (June 13, 2019)

Before WILSON, BRANCH, and HULL, Circuit Judges.

PER CURIAM:
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      Tirso Hernandez-Astudillo appeals his total sentence of 240 months’

imprisonment for conspiring to possess, with intent to distribute, 500 grams or

more of a mixture containing methamphetamine, in violation of

21 U.S.C. §§ 841(b)(1)(A) & 846 (Count 1), and possessing, with intent to

distribute, a mixture and substance containing 400 grams or more of fentanyl, in

violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A) (Count 6). Hernandez-Astudillo

argues that the district court improperly applied a two-level enhancement to his

offense level under the Sentencing Guidelines because the government failed to

establish, by a preponderance of the evidence, that the methamphetamine which he

possessed was imported from Mexico.

      At his trial, one of Hernandez-Astudillo’s co-conspirators testified that he

and Hernandez-Astudillo were among several “workers” for people in Mexico who

were involved in the drug trade. He further testified about multiple sales of

methamphetamine that he made using supplies of the drug from his boss in

Mexico, who would have the requested quantity of methamphetamine dropped off

at a house shared by Hernandez-Astudillo and Hernandez-Astudillo’s cousin. The

DEA agent who interviewed Hernandez-Astudillo after his arrest also testified. He

recounted that Hernandez-Astudillo admitted to entering the United States illegally

from Mexico and confessed that he and his cousin had been selling cocaine and

methamphetamine for about two months before their arrest. Hernandez-Astudillo


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told the agent that he helped his cousin boil methamphetamine powder with

mineral water to convert it into crystal methamphetamine. He also stated that his

cousin had told him that the methamphetamine powder came from Mexico. The

agent learned in his interview with Hernandez-Astudillo that a co-conspirator

visited “regularly from Mexico”—a fact that evidence found on the cousin’s phone

corroborated.

       After the government rested its case, Hernandez-Astudillo testified on his

own behalf. He confirmed that he was working for people in Mexico. When asked

whether he told the DEA agent that the methamphetamine powder originally came

from Mexico, Hernandez-Astudillo responded, “I don’t remember.”

       After deliberation, the jury found Hernandez-Astudillo guilty of Counts 1

and 6. At sentencing, he objected to the two-level special offense characteristic

enhancement for committing an offense which involved the manufacture of

methamphetamine from listed chemicals that the defendant knew were imported

unlawfully. See U.S.S.G. § 2D1.1(b)(5).1 The government proffered

circumstantial evidence in the form of text messages and photos recovered from

the cell phones of the conspirators; this evidence showed that the conspirators had




1
 “If (A) the offense involved the importation of amphetamine or methamphetamine or the
manufacture of amphetamine or methamphetamine from listed chemicals that the defendant
knew were imported unlawfully, and (B) the defendant is not subject to an adjustment under
§3B1.2 (Mitigating Role), increase by 2 levels.” U.S.S.G. § 2D1.1(b)(5)
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been receiving information about bank accounts in Mexico and sending money

there. The district court characterized the issue as “a very close question,” but

ultimately overruled the objection, finding that “the statement attributed to the

Defendant, that his cousin told him [that the methamphetamine powder was

imported from Mexico], indicates that the Defendant was aware” of the

importation.

      “We review a sentencing court’s findings of fact for clear error and its

application of the guidelines de novo.” United States v. Victor, 719 F.3d 1288,

1290 (11th Cir. 2013). Where a fact pattern gives rise to two reasonable and

different constructions, “the factfinder’s choice between them cannot be clearly

erroneous.” United States v. Saingerard, 621 F.3d 1341, 1343 (11th Cir. 2010)

(quoting United States v. Izquierdo, 448 F.3d 1269, 1278 (11th Cir. 2006)). “For a

finding to be clearly erroneous, this Court ‘must be left with a definite and firm

conviction that a mistake has been committed.’” United States v. Rothenberg, 610

F.3d 621, 624 (11th Cir. 2010) (quoting United States v. Rodriguez–Lopez, 363

F.3d 1134, 1137 (11th Cir. 2004)). “Although review for clear error is deferential,

a finding of fact must be supported by substantial evidence.” United States v.

Robertson, 493 F.3d 1322, 1330 (11th Cir. 2007).

      The government bears the burden of establishing the facts necessary to

support a sentencing enhancement by a preponderance of the evidence using


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reliable and sufficient evidence. United States v. Askew, 193 F.3d 1181, 1183

(11th Cir. 1999). “This burden ‘requires the trier of fact to believe that the

existence of a fact is more probable than its nonexistence.’” United States v.

Almenida, 686 F.3d 1312, 1315 (11th Cir. 2012) (quoting United States v. Trainor,

376 F.3d 1325, 1331 (11th Cir. 2004)).

      At sentencing, the district court may consider any relevant information with

no regard to whether the information would have been admissible at trial, so long

as the information has sufficient indicia of reliability to support its probable

accuracy. United States v. Ghertler, 605 F.3d 1256, 1269 (11th Cir. 2010). The

district court may base its factual findings on undisputed statements in the PSI and

on evidence presented at the sentencing hearing. United States v. Wilson, 884 F.2d

1355, 1356 (11th Cir. 1989).

      The Guidelines provide for a two-level upward adjustment where (1) an

individual’s offense conduct involved the importation of methamphetamine or the

manufacture of methamphetamine from listed chemicals that the defendant knew

were imported unlawfully, and (2) the individual is not subject to a mitigating role

adjustment. U.S.S.G. § 2D1.1(b)(5).

      Here, the district court’s finding that the government had established the

factual basis for Hernandez-Astudillo’s two-level enhancement by a preponderance

of the evidence was supported by: (i) Hernandez-Astudillo’s testimony at trial that


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he worked for people in Mexico; (ii) cell phone text messages showing that a

co-conspirator had been communicating with individuals in Mexico; (iii) evidence

that a co-conspirator regularly traveled to and from Mexico; (iv) photos on

Hernandez-Astudillo’s and a co-conspirator’s phone showing that they had been

sending money to bank accounts in Mexico; and (v) a statement from a Drug

Enforcement Administration agent at trial that Hernandez-Astudillo “told [the

agent] that his cousin told [him] . . . [the methamphetamine powder] comes from

Mexico.” Because the facts of this case support the district court’s conclusion that

it was more probable than not that the methamphetamine was imported from

Mexico and that Hernandez-Astudillo knew of the importation, we affirm.

      AFFIRMED.




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