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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-15774
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:16-cr-00505-JDW-AAS-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

JUAN ESCUDERO,

                                                         Defendant-Appellant.

                       ________________________

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

                            (February 12, 2019)

Before TJOFLAT, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      A federal jury found Juan Escudero guilty of conspiring to distribute and

possess with intent to distribute 500 grams or more of methamphetamine and 500

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

(b)(1)(B), and distributing and possessing with intent to distribute 500 grams or

more of methamphetamine and 500 grams or more of cocaine, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(A)(viii), (b)(1)(B)(i), and 18 U.S.C. § 2. Escudero

appeals his convictions and his 240-month, below-guideline range total sentence of

imprisonment. As to his convictions, he argues that the district court erred in

denying his motion for judgment of acquittal because the evidence presented at

trial was insufficient to overcome his defenses of entrapment and duress. With

respect to his total sentence, he argues that the district court erred in applying a

three-level enhancement under U.S.S.G. § 3B1.1(b) based on its finding that he

was a manager or supervisor of criminal activity, and, further, that the district court

erred in denying him a reduction under U.S.S.G. § 3E1.1, because it incorrectly

found that he had failed to accept responsibility for his criminal conduct. We

address each of his contentions in turn.

                  I.   Escudero’s Motion for Judgment of Acquittal

      We review de novo the denial of a defendant’s properly preserved motion

for judgment of acquittal. United States v. Perez-Tosta, 36 F.3d 1552, 1556 (11th

Cir. 1994). We will uphold the district court’s denial of a motion for judgment of


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acquittal “if a reasonable trier of fact could conclude that the evidence establishes

the defendant’s guilt beyond a reasonable doubt.” United States v. Rodriguez, 218

F.3d 1243, 1244 (11th Cir. 2000). “The district court’s decision on sufficiency of

the evidence is entitled to no deference by this [C]ourt.” United States v. Taylor,

972 F.2d 1247, 1250 (11th Cir. 1992). However, we must view the facts, and draw

all reasonable inferences therefrom, in the light most favorable to the government.

United States v. Hanson, 262 F.3d 1217, 1236 (11th Cir. 2001).

      The test for sufficiency of evidence “is identical regardless of whether the

evidence is direct or circumstantial, and no distinction is to be made between the

weight given to either direct or circumstantial evidence.” United States v. Mieres-

Borges, 919 F.2d 652, 656-67 (11th Cir. 1990). However, where the government

relies on circumstantial evidence, reasonable inferences, not mere speculation,

must support the jury’s verdict. United States v. Mendez, 528 F.3d 811, 814 (11th

Cir. 2008).

      Moreover, credibility questions are for the jury, and we will assume that the

jury answered them all in a manner that supports the jury’s verdict. United States

v. Jiminez, 564 F.3d 1280, 1285 (11th Cir. 2009). A jury is free to choose among

alternative, reasonable interpretations of the evidence. Id. And testimony will not

be considered incredible as a matter of law unless it cannot be believed on its face,

such as when a witness testifies to facts that she could not have possibly observed


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or events that could not have occurred under the law of nature. United States v.

Thompson, 422 F.3d 1285, 1291 (11th Cir. 2005).

      To establish the defense of duress, a defendant must prove by a

preponderance of the evidence that: (1) he faced an immediate threat of imminent

harm to himself or others; (2) he had a well-founded belief that the threat would be

carried out; and (3) he had no reasonable opportunity to escape or inform the

police. United States v. Alzate, 47 F.3d 1103, 1004 (11th Cir. 1995).

      “An affirmative defense of entrapment requires two elements:

(1) government inducement of the crime; and (2) lack of predisposition on the part

of the defendant.” United States v. Sistrunk, 622 F.3d 1328, 1333 (11th Cir. 2010)

(internal citation and quotations omitted). As to the first element, the defendant

bears the initial burden of production as to government inducement, and if the

defendant meets that burden, the burden shifts to the government to prove beyond

a reasonable doubt that the defendant was predisposed to commit the crime. Id.

(citing Untied States v. Ryan, 289 F.3d 1339, 1343 (11th Cir. 2002)). To meet this

burden, a defendant may produce

             any evidence sufficient to raise a jury issue “that the
             government’s conduct created a substantial risk that the
             offense would be committed by a person other than one
             ready to commit it . . . Evidence of the government’s mere
             suggestion of a crime or initiation of contact is not enough.
             Instead government inducement requires an element of
             persuasion or mild coercion.


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United States v. Brown, 43 F.3d 618, 623 (11th Cir. 1995) (citation omitted).

      “Evidence of persuasion or mild coercion may be shown by the evidence

that the defendant had not favorably received the government plan, and the

government had to push it on him, or that several attempts at setting up an illicit

deal had failed and on at least one occasion he had directly refused to participate.”

Sistrunk, 622 F.3d at 1333 (quotations omitted). And after the defendant sustains

his burden of showing “some evidence that the government induced the defendant

to commit the crime, the question of entrapment becomes a factual one for the jury

to decide.” Id. Importantly, we have stated that “[w]hen an entrapment defense is

rejected by the jury, our review is limited to deciding whether the evidence was

sufficient to permit a reasonable jury to conclude that the defendant was

predisposed to take part in the illicit transaction.” Brown, 43 F.3d at 622.

      “[A] defendant who chooses to present a defense runs a substantial risk of

bolstering the Government’s case.” United States v. Brown, 53 F.3d 312, 314

(11th Cir. 1995). Moreover, we have long held that “a statement by a defendant, if

disbelieved by the jury, may be considered as substantive evidence of the

defendant’s guilt.” Id. (emphasis in original).

      As a preliminary matter, because Escudero does not challenge his

convictions on the basis that the evidence was insufficient to prove, as a factual

matter, the elements of those offenses, and instead argues only that a reasonable


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jury could not have found that he had failed to establish his defenses of duress and

entrapment, our review of his convictions will focus only on whether the evidence

was sufficient to permit a reasonable jury to reject those defenses.

      Here, sufficient evidence was presented to negate Escudero’s affirmative

defense of entrapment. There was ample evidence of predisposition—e.g. phone

calls and text messages relating to the Tampa deal—providing evidence that

Escudero was a seasoned drug dealer. Additionally, the jury was free to disbelieve

Escudero’s testimony that he was not a drug dealer, and that he had only agreed to

participate in a Tampa drug deal—which he testified was his first ever drug deal—

because he wanted to further his dream of transporting watermelons. Brown, 53

F.3d at 315. The jury could have found the opposite. Therefore, the evidence was

sufficient to permit a reasonable jury to conclude that Escudero was predisposed to

committing the charged offenses, and consequently, to reject Escudero’s

entrapment defense. Brown, 43 F.3d at 622.

      Ample evidence was also presented to negate Escudero’s affirmative defense

of duress. Moreover, the jury was free to disbelieve Escudero’s testimony as to the

threats he received, and to conclude that the opposite of what he said was true.

Brown, 53 F.3d at 315. Based on the evidence at trial, a reasonable jury could

have concluded that—as this jury did—Escudero failed to prove his duress defense

and that he was therefore guilty of charged offenses.


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       Therefore, a reasonable jury could have concluded that Escudero failed to

establish his defenses of entrapment and duress, and that he was therefore guilty of

the charged offenses, both of which he did not contest having committed. As such,

we affirm the district court’s denial of his renewed motion for judgment of

acquittal.1

                          II.   U.S.S.G. § 3B1.1(b) Enhancement

       We review a district court’s factual findings, including a defendant’s role in

a crime, for clear error. United States v. Mesa, 247 F.3d 1165, 1168 (11th Cir.

2001). And we review the district court’s application of the Sentencing Guidelines

to the facts de novo. Id.

       Under U.S.S.G. § 3B1.1(b), the district court must enhance a defendant’s

offense by three levels “[i]f the defendant was a manager or supervisor (but not an

organizer or leader) and the criminal activity involved five or more participants or

was otherwise extensive.” U.S.S.G. § 3B1.1(b). In assessing a defendant’s role in

the offense, the factors the courts should consider include:

               the exercise of decision making authority, the nature of
               participation in the commission of the offense, the
               recruitment of accomplices, the claimed right to a larger
               share of the fruits of the crime, the degree of participation
               in planning or organizing the offense, the nature and scope
       1
         Escudero waived appellate review of his initial motion for judgment of acquittal by
presenting his case after it was denied. See United States v. Jones, 32 F.3d 1512, 1516 (11th Cir.
1994) (noting that “[i]n our circuit, a defendant’s decision to present his case after denial of a
motion for judgment of acquittal operates as a waiver of his objection to the denial of his motion
for acquittal.”).
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              of the illegal activity, and the degree of control and
              authority exercised over others.

See § 3B1.1, comment. (n.4); United States v. Njau, 386 F.3d 1039, 1041 (11th Cir.

2004). There is no requirement that all of these factors must be present; they “are

merely considerations for the sentencing judge.” United States v. Martinez, 584

F.3d 1022, 1026 (11th Cir. 2009).

        “The mere status of a middleman or a distributor does not support

enhancement under Section 3B1.1 for being a supervisor, manager, or leader.

Section 3B1.1 requires the exercise of some authority in the organization, the

exertion of some degree of control, influence, or leadership.” United States v.

Ndiaye, 434 F.3d 1270, 1304 (11th Cir. 2006) (quotation omitted). “[T]here must

be evidence that the defendant exerted some control, influence, or decision-making

authority over another participant in the criminal activity.” Martinez, 584 F.3d at

1026.

        Here, Escudero has failed to show that the district clearly erred in applying a

three-level enhancement to his base offense level under § 3B1.1(b), because the

government offered sufficient evidence to demonstrate that he was a manager or

supervisor of the scheme for which he was convicted. U.S.S.G. § 3B1.1(b). That

evidence included, among other things, the phone calls and text messages

regarding the Tampa drug deal, which showed that Escudero managed and

controlled the money courier, or in Escudero’s own words, his “guy.” Martinez,
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584 F.3d at 1026. Accordingly, we affirm the Escudero’s total sentence in this

respect.

                 III.   Denial of Reduction Under U.S.S.G. § 3E1.1

      We review the district court’s decision regarding acceptance of

responsibility for clear error. United States v. Calhoon, 97 F.3d 518, 531 (11th

Cir. 1996). To find the district court’s decision clearly erroneous, we must have a

“definite and firm conviction that a mistake was committed.” United States v.

Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010) (quotation omitted). Because a

sentencing judge is in a unique position to evaluate a defendant’s acceptance of

responsibility, the district court’s decision in that respect will not be overturned

unless the facts in the record clearly establish that the defendant actually accepted

personal responsibility. United States v. Sawyer, 180 F.3d 1319, 1323 (11th Cir.

1999). The defendant bears the burden of proving he clearly accepted

responsibility. Id.

      The Sentencing Guidelines allow for a decrease in the offense level by two

or three points if the defendant clearly demonstrates acceptance of responsibility.

U.S.S.G. § 3E1.1. A wide range of evidence may be considered in determining if

the defendant recognizes the wrongfulness of his conduct, has remorse for the

consequences, and is willing to turn away from that conduct in the future. United

States v. Scroggins, 880 F.2d 1204, 1215-16 (11th Cir. 1989).


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      In pertinent part, the commentary to § 3E1.1 explains as follows:

             This adjustment is not intended to apply to a defendant
             who puts the government to its burden of proof at trial by
             denying the essential factual elements of guilt, is
             convicted, and only then admits guilt and expresses
             remorse.     Conviction by trial, however, does not
             automatically preclude a defendant from consideration for
             such a reduction. In rare situations a defendant may
             clearly demonstrate an acceptance of responsibility for his
             criminal conduct event though he exercises his
             constitutional right to a trial. This may occur, for example,
             where a defendant goes to trial to assert and preserve
             issues that do not relate to factual guilt (e.g., to make a
             constitutional challenge to a statute or a challenge to the
             applicability of a statute to his conduct). In each instance,
             however, a determination that a defendant has accepted
             responsibility will be based primarily upon pretrial
             statements and conduct.

U.S.S.G. § 3E1.1, comment. (n. 2). We have relied on the commentary in stating

that such a rare situation may exist when a defendant goes to trial only to preserve

issues that do not relate to factual guilt. United States v. Brenson, 104 F.3d 1267,

1288-89 (11th Cir. 1997).

      Moreover, we have previously noted that a defendant would not be “barred

as a matter of law from receiving an adjustment [for acceptance of responsibility]

merely because he asserted an entrapment defense at trial, even though some courts

have viewed the assertion of an entrapment defense as the virtual antithesis of

acceptance of responsibility.” Joiner v. United States, 103 F.3d 961, 963 (11th Cir.

1997).


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      In this case, Escudero has failed to demonstrate that the district court clearly

erred in finding that he had not accepted responsibility as contemplated by

U.S.S.G. § 3E1.1. First, although Escudero was not automatically ineligible for

this reduction because he went to trial and pursued two different defenses, his case

was not the type of “rare situation” in which a reduction under § 3E1.1 is

warranted, because he did not go to trial to preserve a constitutional challenge or

raise an issue that did not relate to his factual guilt. § 3E1.1, comment. (n. 2).

Secondly, in claiming that his criminal conduct was the product of government

entrapment and duress, Escudero placed responsibility for his crimes on others, and

it was not until he was allowed to allocate at sentencing that he truly expressed

remorse for his actions. Under these facts, it cannot be said that the district court

clearly erred in concluding that a reduction for acceptance of responsibility was not

warranted in Escudero’s case. Accordingly, we affirm Escudero’s total sentence.

      AFFIRMED.




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