            Case: 13-13504    Date Filed: 09/26/2014   Page: 1 of 11


                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                No. 13-13504
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 1:12-cr-20452-KMM-5



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,

                                    versus

NORGE MANDULEY,
a.k.a. Norge Mandulay,
a.k.a. Norge,
a.k.a. Noje,

                                                            Defendant-Appellant.

                          ________________________

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

                             (September 26, 2014)

Before TJOFLAT, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Norge Manduley appeals his conviction for one count of conspiracy to

possess with intent to distribute less than 100 marijuana plants, in violation of 21

U.S.C. § 841(b)(1)(C), and his 240-month sentence. After a jury trial, Manduley

was convicted of his participation in the marijuana conspiracy but was acquitted of

various charges stemming from an alleged carjacking, kidnapping, and murder that

Manduley allegedly committed on behalf of the drug organization against the

leader of a rival organization. On appeal, Manduley contends the district court

abused its discretion by permitting the government to introduce into evidence

Manduley’s prior state felony conviction and information from Manduley’s

probation file from a different, unrelated matter. He next argues that the district

court abused its discretion when it excluded as hearsay evidence a statement of his

co-defendant, German Silvestro, that Silvestro overheard another co-defendant,

Juan Filipe Casteneda, admit to the murder that Manduley was alleged to have

committed. Manduley further argues that his statutory maximum sentence, based

on conduct for which he was acquitted, was procedurally and substantively

unreasonable. Lastly, Manduley argues for the first time on appeal that the district

court violated his due process rights by ordering his 240-month statutory maximum

sentence to run consecutive to his ten-year state court sentence for an unrelated

state felony conviction.




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                                            I.

      We review the district court’s rulings on admission of evidence for an abuse

of discretion. United States v. Gibson, 708 F.3d 1256, 1275 (11th Cir. 2013).

Even where an abuse of discretion is shown, we need not reverse a conviction if

the evidentiary error “had no substantial influence on the outcome and sufficient

evidence uninfected by error supports the verdict.” United States v. Fortenberry,

971 F.2d 717, 722 (11th Cir. 1982).

      However, when the district court refers a nondispositive matter to a

magistrate judge, a party has 14 days to submit written objections after being

served with a copy of the magistrate’s judge’s written order. Fed. R. Crim. P.

59(a). “The district judge must consider timely objections and modify or set aside

any part of the order that is contrary to law or clearly erroneous. Failure to object

in accordance with this rule waives a party’s right to review.” Id.

      Federal Rule of Evidence 404(b) provides that evidence of a crime, wrong,

or other act is not admissible to prove a person’s character in order to show that on

a particular occasion the person acted in accordance with the character, but it “may

be admissible for another purpose, such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

Fed. R. Evid. 404(b)(1) and (2).




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      Federal Rule of Evidence 403 provides that the district court may exclude

relevant evidence if its probative value is substantially outweighed by a danger of

unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting

time, and/or needlessly presenting cumulative evidence. Fed. R. Evid. 403.

Evidence of another crime, wrong, or act is admissible if (1) it is relevant to an

issue other than the defendant’s character, (2) there is sufficient proof to allow a

jury to find that defendant committed the extrinsic act, and (3) the evidence

possesses probative value that is not substantially outweighed by its undue

prejudice and otherwise meets requirements of Rule 403. United States v. Sanders,

668 F.3d 1298, 1314 (11th Cir. 2012).

      Manduley waived any argument that the evidence of his prior conviction

should not be admitted because he failed to object to the magistrate judge’s order

that the evidence be admitted. See Fed. R. Crim. P. 59(a). Accordingly, we will

not review his arguments here.

      The district court did not abuse its discretion by allowing pages from

Manduley’s probation file into evidence. The portion of the probation file

admitted into evidence consisted of Manduley’s self-reported contact and

employment information, and the phone numbers he provided corresponded to

phone numbers of drug conspiracy members and co-defendants charged with

conspiring to kidnap and murder. This evidence, which was probative of


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Manduley’s participation in the charged offenses and not Manduley’s character,

was limited to the relevant contact information evidence, and therefore was not

impermissible extrinsic evidence of an uncharged offense. See Fed. R. Evid.

404(b). Furthermore, the highly probative value of the evidence substantially

outweighed any prejudicial effect that may have resulted from the jury’s

knowledge that the information came from a probation file. See Fed. R. Evid. 403.

Accordingly, the district court did not abuse its discretion by allowing the evidence

and took measures to limit any potential prejudice. See Sanders, 668 F.3d at 1314.

Moreover, even if the court did commit error, the error was harmless in light of the

ample evidence of Manduley’s guilt in the marijuana conspiracy. See Fortenberry,

971 F.2d at 722.

                                           II.

      A statement is hearsay if “(1) the declarant does not make [it] while

testifying at the current trial or hearing; and (2) a party offers [it] in evidence to

prove the truth of the matter asserted in the statement.” Fed. R. Evid. 801(c). A

statement is not hearsay if it “is offered against an opposing party and . . . was

made by the party’s coconspirator during and in furtherance of the conspiracy.”

Fed. R. Evid. 801(d)(2)(E). “The rule is intended to allow for introduction of co-

conspirators’ statements as evidence against them as defendants.” United States v.

Kapp, 781 F.2d 1008, 1014 (3d Cir. 1986). Accordingly, because the prosecution


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is not a “party” against whom such evidence can be offered, an exculpatory

hearsay statement made by a defendant’s co-conspirator is inadmissible. Id.

Where a constitutional violation may have occurred as the result of error, the

conviction need not be reversed where the error is harmless beyond a reasonable

doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705

(1967).

      The district court did not abuse its discretion in excluding Silvestro’s

testimony about his prior statement. Rule 801(d)(2)(E) was not an applicable

exception to the hearsay rule because Manduley offered the statement as an

exculpatory statement made by a co-conspirator. See Kapp, 781 F.2d at 1014.

Even if the district court abused its discretion by excluding Silvestro’s out of court

statement as inadmissible hearsay or violated Manduley’s purported due process

right to admit an exculpatory statement, the error was harmless beyond a

reasonable doubt. Chapman, 386 U.S. at 24, 87 S.Ct. at 828. Castaneda’s

statement, offered through Silvestro, would have related solely to the kidnapping

and murder charges, of which Manduley was acquitted. The evidence connecting

Manduley to the drug conspiracy, for which he was convicted, was overwhelming,

and admission of Silvestro’s statement would not have impacted the jury’s verdict

on that count. Accordingly, the statement “had no substantial influence on the




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outcome and sufficient evidence uninfected by error supports the verdict.”

Fortenberry, 971 F.2d at 722.

                                         III.

      When reviewing the district court’s findings with respect to a Guidelines

issue, we consider legal issues de novo, factual findings for clear error, and the

district court’s application of the guidelines to the facts with due deference, which

is tantamount to clear error review. United States v. Rothenberg, 610 F.3d 621,

624 (11th Cir. 2010). For a finding to be clearly erroneous, the district court’s

finding must leave us with a “definite and firm conviction that a mistake has been

committed.” Id.

      We review the reasonableness of a sentence under an abuse of discretion

standard. United States v. Kuhlman, 711 F.3d 1321, 1326 (11th Cir. 2013). The

appellant has the burden of establishing that the sentence is unreasonable in light of

the record and the 18 U.S.C. § 3553(a) factors. United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2005).

      In reviewing the reasonableness of a sentence, we first ensure that the

sentence was procedurally reasonable, meaning the district court properly

calculated the guideline range, treated the Guidelines as advisory, considered the

§ 3553(a) factors, did not select a sentence based on clearly erroneous facts, and

adequately explained the chosen sentence. Gall v. United States, 552 U.S. 38, 51,


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128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).

      In reviewing for substantive reasonableness, we consider the totality of the

facts and circumstances in evaluating whether the sentence lies outside the range of

reasonable sentences dictated by the facts of the case. United States v. Irey, 612

F.3d 1160, 1189-1190 (11th Cir. 2010) (en banc). Although we do not

automatically presume a sentence within the guideline range to be reasonable, we

ordinarily expect such a sentence to be reasonable. United States v. Hunt, 526 F.3d

739, 746 (11th Cir. 2008).

      The district court must issue a sentence “sufficient, but not greater than

necessary” to comply with the purposes of 18 U.S.C. § 3553(a)(2). 18 U.S.C.

§ 3553(a). These purposes include the need for a sentence to reflect the

seriousness of the offense, promote respect for the law, provide just punishment for

the offender, deter criminal conduct, and protect the public from future criminal

conduct. Id. § 3553(a)(2). Additional considerations include the nature and

circumstances of the offense, the history and characteristics of the defendant, the

applicable guideline range, and the pertinent policy statements of the Sentencing

Commission. Id. § 3553(a)(1), (3)–(7).

      At sentencing, the district court may consider conduct of which defendant

has been acquitted, so long as that conduct has been proved by a preponderance of




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evidence. United States v. Watts, 519 U.S. 148, 149, 117 S.Ct. 633, 634, 136

L.Ed.2d 554 (1997).

      Pursuant to U.S.S.G. § 2D1.1, “[i]f a victim was killed under circumstances

that would constitute murder under 18 U.S.C. § 1111 had such killing taken place

within the territorial or maritime jurisdiction of the United States, [a sentencing

court should] apply § 2A1.1 (First Degree Murder).” U.S.S.G. § 2D1.1(d)(1). First

degree murder receives a base offense level of 43. U.S.S.G. § 2A1.1. That offense

level applies to both premeditated killings, and to felony murder such as bank

robbery. Id. comment. (nn.1-2).

      Manduley’s statutory maximum 240-month sentence is not procedurally or

substantively unreasonable. The district court correctly applied the cross-reference

to the murder guideline to reach a base offense level of 43 because the district

court found by a preponderance of the evidence that the victim in this matter was

killed. Although Manduley was acquitted of the murder charge, under Watts, the

district court was permitted to consider the acquitted conduct for the purposes of

sentencing, so long as that conduct was proved by preponderance of evidence. 519

U.S. at 149, 117 S.Ct. at 634. Accordingly, the district court did not procedurally

err when applying § 2A1.1 and setting Manduley’s base offense level at 43.

      Manduley’s sentence is not substantively unreasonable in light of the totality

of the circumstances and the § 3553(a) factors. In light of the serious nature of the


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crime, which resulted in kidnapping and murder, it was not a clear abuse of

discretion to sentence Manduley to 240 months. Rather, Manduley’s sentence

promotes respect for the law, provides just punishment, deters criminal conduct,

and protects the public from Manduley’s future criminal conduct. 18 U.S.C. §

3553(a)(2). Manduley has not met his burden of showing that his 240-month

sentence is outside the range of reasonable sentences. See Irey, 612 F.3d 1189-

1190.



                                           IV.

        When a defendant fails to assert his objection before the district court at

sentencing, we review for plain error. See United States v. Ramirez-Flores, 743

F.3d 816, 821 (11th Cir. 2014). To prevail under the plain error standard, an

appellant must show: (1) an error occurred; (2) the error was plain; (3) it affected

his substantial rights; and (4) it seriously affected the fairness of the judicial

proceedings. Id. at 822. An error is “plain” if controlling precedent from the

Supreme Court or the Eleventh Circuit establishes that an error has occurred. Id.

        Where a term of imprisonment is imposed on a defendant who is already

subject to an undischarged term of imprisonment, the terms may run concurrently

or consecutively. 18 U.S.C. § 3584(a). To determine whether to impose a

sentence concurrently, partially concurrently, or consecutively to an undischarged


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term of imprisonment, the court should consider the factors enumerated in

§ 3553(a). Id. § 3584(b); U.S.S.G. § 5G1.3(c). In addition, the commentary to

§ 5G3.1 provides that the court should also consider, inter alia, any other

circumstance relevant to the determination of an appropriate sentence for the

instant offense. U.S.S.G. § 5G1.3, comment. (n.3).

       Manduley did not object at sentencing to his sentence being run consecutive

to his state sentence, nor did he argue before or after imposition of sentence that

the consecutive nature of the sentence violated his due process rights.            We

therefore review his argument for plain error. Ramirez-Flores, 743 F.3d at 821.

       Manduley does not demonstrate that any error occurred, let alone plain error.

The state charge was unrelated to the instant offense, and it was within the district

court’s discretion to impose his federal sentence consecutive to his undischarged

state court sentence. See 18 U.S.C. § 3584(a). Moreover, Manduley does not

provide support for his purely factual contention that his state sentence was to run

concurrent to his federal sentence, and he points to no controlling authority that the

district court violated.

       Upon review of the record and consideration of the parties’ briefs, we

affirm.

       AFFIRMED.




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