                                                            [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-13660                ELEVENTH CIRCUIT
                                   Non-Argument Calendar           SEPTEMBER 14, 2011
                                 ________________________               JOHN LEY
                                                                         CLERK
                            D.C. Docket No. 1:09-cr-20960-CMA-3



UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                Plaintiff–Appellee,

                                            versus

RAMON SOSA MONTERO,

                                                               Defendant–Appellant.

                                ________________________

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

                                     (September 14, 2011)

Before TJOFLAT, CARNES and KRAVITCH, Circuit Judges.

PER CURIAM:
      Ramon Sosa Montero (Sosa) was convicted by a jury of conspiring to

possess cocaine with intent to distribute and attempting to possess cocaine with

intent to distribute, both in violation 21 U.S.C. §§ 841 and 846. Sosa was

sentenced to 320 months’ imprisonment. Sosa now appeals from his convictions

and sentence and argues (1) that the government’s evidence was insufficient to

support his convictions, (2) that various evidentiary errors and discovery

violations, along with other prosecutorial misconduct, resulted in cumulative error

that denied him a fair trial, (3) that the district court abused its discretion in

denying him an evidentiary hearing on his motion for a new trial, and finally (4)

that the district court erred in calculating his guidelines range. Because we

conclude that there was sufficient evidence to support Sosa’s convictions, that

there was not cumulative error, that the district court did not abuse its discretion in

denying Sosa an evidentiary hearing, and that it properly calculated his guidelines

range, we affirm.

                                            I.

      On November 3, 2009, Sosa was arrested inside Timba’s, a Cuban

restaurant in Miami, along with his co-conspirators, just after they had finished

negotiations to obtain 2 kilograms of cocaine. Those 2 kilograms were part of a

larger shipment from Colombia that an undercover officer had been attempting to

                                            2
“sell” to Sosa’s co-conspirators for over a month. The negotiations had stalled

because the conspirators were unable to get enough cash to buy the cocaine. They

had hoped to get some of the cocaine on credit and then use the proceeds from its

sale to finance the rest of the transaction. Although the undercover officer intially

had been unwilling to deal on those terms, he eventually he agreed that the

conspirators could pay the transportation costs for two kilograms of the shipment

and could then use the proceeds from selling those two kilograms to purchase the

rest of the cocaine. But they still needed money. And after about a month of

planning and just before they were arrested, Sosa entered the picture as their

financier.

                                         II.

      We review a district court’s denial of a motion for judgment of acquittal

based on the sufficiency of the evidence de novo. United States v. Friske, 640

F.3d 1288, 1290 (11th Cir. 2011). But we consider the evidence in the light most

favorable to the government and we will not overturn a conviction if any

reasonable construction of the evidence supports the jury’s verdict. Id. at 1291.

      To obtain a conviction for attempted possession of cocaine with intent to

distribute, the government must prove beyond a reasonable doubt that a defendant

(1) acted with the kind of culpability required to possess cocaine knowingly and

                                          3
willfully and with the intent to distribute it; and (2) engaged in conduct that

constituted a substantial step toward the commission of the crime under

circumstances strongly corroborative of his criminal intent. United States v.

McDowell, 250 F.3d 1354, 1365 (11th Cir. 2001).

      To obtain a conviction for conspiracy to possess cocaine with intent to

distribute, the government must prove beyond a reasonable doubt that (1) there

was an agreement to possess cocaine with intent to distribute (2) that the defendant

knew about and (3) voluntarily joined. United States v. Charles, 313 F.3d 1278,

1284 (11th Cir. 2002).

      Here the quantity of “sham cocaine” that Sosa attempted to possess was

sufficient to establish Sosa’s intent to distribute. United States v. Hernandez, 433

F.3d 1328, 1333 (11th Cir. 2005) (concluding that two kilograms of cocaine was

sufficient evidence of intent to distribute). And Sosa’s presence at the scene, the

three hours he waited for the drug dealer to return to Timba’s with the cocaine,

and his co-conspirator Rendelio Garcia’s testimony that Sosa gave him the money

to purchase the cocaine, was sufficient evidence that he took a substantial step

towards possession. Furthermore, Garcia’s testimony about Sosa’s participation in

and knowledge of the conspiracy, as well as the phone calls between the two men

in the days leading up to the deal were sufficient to establish Sosa’s participation

                                          4
in the conspiracy. Cf. United States v. Fernandez, 136 F.3d 1434, 1438 (11th Cir.

1998) (stating that the uncorroborated testimony of a co-conspirator can be

sufficient to support a conspiracy conviction.). Accordingly we conclude that

there was sufficient evidence to support Sosa’s convictions.

                                          III.

      In reviewing a cumulative-error claim, we review all preserved errors and

all plain errors to determine whether taken together they denied the defendant a

fair trial. United States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005). If there

are no errors or only a single error, a claim for cumulative error fails. United

States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011).

      Sosa argues that prejudice caused by the following alleged errors denied

him a fair trial: First, the jury instructions failed to define attempt. Second, the

admission of his prior convictions was unduly prejudicial. Third, the district court

erred in admitting Sosa’s mobile phone records because the government’s late

disclosure of the records violated the court’s discovery order. Fourth, the district

court erred in allowing lay opinion testimony. Fifth, the district court erred in

denying Sosa’s request for impeachment evidence and his attempt to impeach a

government witness. Sixth, the government failed to disclose exculpatory

evidence; and, last, the prosecutor made improper comments in closing argument

                                           5
that were not supported by the evidence. We address each argument in turn.

      A. Jury Instructions

      Sosa argues that district court failed to instruct the jury on the elements of

attempted possession of cocaine with intent to distribute. Here, however, judge

did instruct the jury on all the elements of the attempted possession with intent to

distribute count because she instructed that it could only find Sosa guilty if “all of

the following facts are proved beyond a reasonable doubt: First, that the

defendant knowingly and intentionally attempted to possess a controlled substance

as charged and, second, that the defendant attempted to possess the controlled

substance with the intent to distribute it.” Although it is true, as Sosa points out,

that the district court did not define attempt in its instructions, it did not have to.

See United States v. Gonzalez, 940 F.2d 1413, 1427 (11th Cir. 1991) (“[T]erms

[that] are within the common understanding of the jury need not be defined in the

jury instructions. ‘Attempt’ is not an overly technical or ambiguous term, nor is it

beyond the common understanding of the jury.”). Accordingly, we find no error in

the jury instructions.

      B. Prior Convictions

      Next, Sosa argues that district court erred in admitting the records of his

prior convictions because they were unduly prejudicial. Although Sosa filed a

                                            6
motion in limine to exclude this evidence, which the district court denied, he did

not renew his objection and instead stipulated to the convictions’ admission. And

by stipulating to their admission, Sosa invited any error, which forecloses our

review. Baker, 432 F.3d at 1223; United States v. Jernigan, 341 F.3d 1273,

1289–90 (11th Cir. 2003).

      C. Phone Records

      Sosa also argues that his mobile phone records should not have been

admitted because the government did not timely disclose them to the defense. The

government responds that it turned over the records as soon as it received them, a

process that was delayed because Sosa’s phone was registered under a fictitious

name. Even assuming that the records were belatededly disclosed, Sosa would

still need to establish that the late disclosure violated his substantial rights. United

States v. Bueno-Sierra, 99 F.3d 375, 380 (11th Cir. 1996). Sosa’s substantial

rights would have been violated if he was unduly surprised by the late disclosure

and it impacted his ability to prepare his defense. Id. But Sosa cannot

demonstrate that he was surprised by the late disclosure of the records or that it

impacted his ability to prepare his defense.

      Sosa knew that government had proof of his phone calls to the other

conspirators before November 3, 2009 because the government had already

                                           7
disclosed his co-conspirators’ phone records, which included calls made to and

from his number. Because Sosa knew his own phone number—indeed, he

stipulated it was his number—and the co-conspirators’ phone records showed

essentially the same evidence, that is that they had called Sosa and he had called

them, he cannot demonstrate that he was surprised. Accordingly, there was no

error in admitting Sosa’s phone records.

      D. Lay Opinion Testimony

      Sosa next argues that the district court erred by admitting two pieces of lay

opinion testimony. At trial, the government asked Garcia, Sosa’s co-conspirator,

who had pleaded guilty, whether he thought Sosa was at Timba’s pretending to be

a part of the drug deal. Garcia responded that he did not think that Sosa was

pretending and that Sosa was, in fact, a part of the deal. Sosa’s counsel objected,

but was overruled. Sosa argues here that the district court erred in admitting this

testimony because it was a lay opinion. See Fed. R. Evid. 701. But because

Garcia’s testimony was based on his own perceptions and was helpful to

understanding a material fact of the case—that is whether Sosa was just in the

wrong place at the wrong time, as he claimed—it was admissible.




                                           8
       Sosa also argues that certain statements by a DEA agent who testified at

trial were inadmissible lay opinion.1 We agree. Rule 701 permits opinion

testimony from lay witnesses, but not opinion testimony that is based on

specialized knowledge within the scope of Rule 702. The agent’s specialized

knowledge of drug dealers and their methods of operation is the type of expert

opinion testimony that is within the scope of Rule 702. United States v. Cross,

928 F.2d 1030, 1050 (11th Cir. 1991) (stating federal courts have allowed

experience law-enforcement officers to testify as experts about the modus

operandi of criminal operations); United States v. Smith, 640 F.3d 358, 365 (D.C.

Cir. 2011) (holding FBI agent’s testimony on coded slang used by drug dealers is

expert testimony). And because the agent here was not disclosed as an expert and

his opinion testimony was outside the scope of Rule 701, the district court erred in

admitting the testimony.

       Sosa also argues that the district court erred by allowing the DEA agent to

testify on redirect about the propensity of cooperating witnesses to the tell the

truth in general. Although in most circumstances this would have been error, here

it was not. Untied States v. Sorondo, 845 F.2d 945, 949 (11th Cir. 1988) (stating



1
  Sosa did not object to this testimony at trial so we review for plain error. United States v.
Sorondo, 845 F.2d 945, 948 (11th Cir. 1988).

                                                  9
that testimony that encourages the jury to substitute its judgment with that of

another should not be admitted). Here, however, Sosa opened the door to the

testimony because he attacked the credibility of cooperating witnesses during his

cross-examination of the DEA agent. Cf. United States v. Elliott, 849 F.2d 554,

559 (11th Cir. 1988).

      But we conclude that the district court’s error was harmless given the

strength of the other evidence against Sosa. United States v. Phaknikone, 605 F.3d

1099, 1109 (11th Cir. 2010).

      E. Impeachment Evidence, and Brady and Giglio Materials

      Sosa next argues that the district court erred by limiting his ability to

impeach his co-conspirator, Garcia. Specifically, Sosa claims the district court

erred by excluding an order from Garcia’s post-conviction challenge to an earlier

conviction that commented on Garcia’s testimony on behalf of his wife in a related

trial. Sosa also argues that the district court erred in denying his motion for

discovery related to Garcia’s expectation of a sentencing reduction.

      We conclude that the district court did not err in excluding the order from

Garcia’s post-conviction proceeding because it was “probative only of the

witness’[s] generally propensity for truthfulness.” United States v. Calle, 822 F.2d

1016, 1021 (11th Cir. 2001).

                                          10
       Although it could have been error for the district court to deny Sosa’s

motion for additional discovery on the grounds that the motion did not comply

with the district court’s local rules, see Fed. R. Crim. P. 57(a)(2), we find no error

here because the district court’s order did not cause Sosa to lose any rights. First

we note that the government was already under an obligation to produce any

sentencing reduction agreement under the district court’s standing discovery order,

the Federal Rules of Criminal Procedure, and Giglio itself,2 and thus were not

relieved of any obligation to produce any such material material. Second, Sosa

has not established a Giglio violation. Sosa argues that the government agreed to

file for a sentence reduction on behalf of Garcia, in exchange for his testimony

against Sosa, simply because the government did file a motion to reduce Garcia’s

sentence after Sosa’s trial. The government contends that no such agreement

exists, and we cannot accept Sosa’s assertion without more.

       F. Prosecutorial Misconduct

       Finally, Sosa argues that the government made three improper statements

during its closing arguments. In order to prevail on such an argument, Sosa would

need to prove that the government’s remarks were improper and that the remarks


   2
     Under Giglio v. United States, 405 U.S. 150 (1972), the government is obligated to turn
   over to the defense any material evidence that could be used to impeach government
   witnesses. United States v. Jordan, 316 F.3d 1215, 1226 n.16 (11th Cir. 2003).

                                              11
prejudicially affected his substantial rights. United States v. Eckhardt, 466 F.3d

938, 947 (11th Cir. 2006).

      Sosa did not object to any of these statements then, but now contends that

the government improperly argued (1) that he possessed the sham cocaine when it

was put on the table where he was sitting, (2) that he was involved in the

conspiracy before November 3, 2009; and (3) referred to his prior convictions.

We address each argument in turn.

      First we note that government’s remarks about Sosa’s constructive

possession of the cocaine were not improper. Constructive possession is sufficient

to sustain a conviction for possession. United States v. Faust, 466 F.3d 1342,

1345 (11th Cir. 2006). Although Sosa never possessed any actual cocaine,

constructively or actively, the government was entitled to argue that his

constructive possession of the sham cocaine was a substantial step towards

attempted possession. United States v. McDowell, 250 F.3d 1354, 1365 (11th Cir.

2001). Accordingly, we conclude that the prosecutor’s argument was proper.

      We now turn to the government’s argument that the jurors could infer from

the many phone calls between Garcia and Sosa before November 3, 2009 that Sosa

was involved in the conspiracy before November 3. It is error for the government

to argue facts that are not in evidence or misstate evidence. United States v.

                                         12
Sarimiento, 744 F.3d 755, 764 (11th Cir. 1984). But here the government did

neither. First, Garcia’s testimony is not clear about when he first spoke to Sosa

about the possibility of a drug deal. And the questions that the government and

Sosa’s defense counsel asked him do not make that clear either. Given the volume

of the phone calls between the two men in the days leading up to the attempted

drug deal, and Garcia’s testimony about Sosa’s knowledge of the conspiracy, it

would be reasonable to infer that Sosa participated in the conspiracy before

November 3, and as such the prosecution was free to make the argument. United

States v. Kopituk, 690 F.2d 1298, 1342 (11th Cir. 1982).

      We now address the prosecution’s reference to Sosa’s prior convictions

during closing argument. Had the prosecutor argued that Sosa’s prior convictions

were substantive evidence of his guilt, that would have been improper. United

States v. DeLoach, 34 F.3d 1001, 1004 (11th Cir. 1994). But here the prosecutor

referred to Sosa’s prior convictions not to suggest his propensity for criminal

activity, but, as he explained, to refute his argument that his presence at Timba’s

during the drug deal was accidental. Accordingly, the argument was not improper.

Id.




                                         13
      Because we conclude that the only error Sosa has identified is the admission

of the DEA agent’s expert testimony without proper notice, his cumulative error

claim fails. Gamory, 635 F.3d at 497.

                                         IV.

      We review a district court’s decision not to hold an evidentiary hearing on a

motion for a new trial for abuse of discretion. United States v. Sweat, 555 F.3d

1364, 1368 (11th Cir. 2009) (citing United States v. Massey, 89 F.3d 1433, 1443

(11th Cir. 1996)). Sosa’s motion for a new trial was based on his claims that the

government violated Brady and Giglio, as well as the court’s discovery orders. He

also asserts that the government failed to disclose an agreement it had with a

witness that the witness would not testify against Sosa. But because Sosa has

failed to produce any evidence to support these claims, we conclude that the

district court did not abuse its discretion in denying his motion for an evidentiary

hearing. See United States v. Venske, 296 F.3d 1284, 1292 (11th Cir. 2002).

                                         V.

      We now address the district court’s calculation of the sentencing guidelines,

which we review de novo. United States v. DeVegter, 439 F.3d 1299, 1303 (11th

Cir. 2006).




                                         14
      Sosa argues that district court improperly sentenced him as a career offender

under Sentencing Guideline § 4B1.1 because the statutory maximum term of

imprisonment he faced was 40 years based on the district court’s finding that he

could only be held accountable for conspiring to possess with intent to distribute 2

kilograms of cocaine.

      Under § 4B1.1 a defendant who has at least two prior felony convictions for

crimes of violence or controlled substance offenses may be classified as a career

offender if he is convicted of a third felony crime of violence or controlled

substance offense and was at least eighteen when he committed the third offense.

If a defendant is classified as such, his offense level is determined by the statutory

maximum for that last conviction. If the statutory maximum is life imprisonment,

a defendant is assigned an offense level of 37. If the statutory maximum is 25

years’ or more imprisonment, the defendant is given an offense level of 34.

      Sosa argues that the district court improperly counted his 1987 controlled

substance offense convictions as prior convictions under the career offender

guideline. Sosa’s sentence on those charges was 25 years’ imprisonment. In order

to count as a prior conviction under the career offender guideline, the earlier

offense must have resulted in a sentence of over a year and a day, and it either

must have been committed within 15 years of the instant offense, or the term of

                                          15
imprisonment must have ended within fifteen years of the instant offense. See

U.S.S.G. §§ 4A1.2(e)(1), 4B1.2(c). Because Sosa’s imprisonment was greater

than a year and a day and ended only a little over a year before he committed this

offense, his 1987 convictions were properly counted in applying the career

offender guideline.

      Sosa also argues that his offense level should have been 34 because the

statutory maximum penalty he faced was 40 years’ imprisonment. But Sosa

actually faced a statutory maximum of life imprisonment, even with the drug

quantity the district court held him accountable for, because he had a prior felony

drug conviction. See 21 U.S.C. § 841(b)(1)(B) (“If any person commits such a

violation after a prior conviction for a felony drug offense has become final, such

person shall be sentenced to a term of imprisonment which may not be less than 10

years and not more than life imprisonment. . . .”) (emphasis added). Accordingly,

the district court properly classified Sosa as a career offender.

AFFIRMED.




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