             Case: 13-14741     Date Filed: 05/06/2014   Page: 1 of 10


                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-14741
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 0:13-cr-60066-WJZ-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                        versus

LUIS ENRIQUE LEGON MENA,

                                                              Defendant-Appellant.
                          ________________________

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

                                  (May 6, 2014)


Before TJOFLAT, JORDAN, and EDMONDSON, Circuit Judges.


PER CURIAM:

      Luis Enrique Legon Mena appeals his conviction and 20-month custodial

sentence for one count of conspiring to smuggle aliens. He argued that the district
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court abused its discretion in not finding that the government committed a

discovery violation and in admitting certain documentary evidence consisting of

DHL shipping documents. He also argues that the district court erred when it

applied a three-level sentencing enhancement based on acquitted and uncharged

criminal conduct, which showed he smuggled five or more aliens, and that the

district court imposed an unreasonable sentence. We see no reversible error.



                                          I.



      We review discovery rulings for an abuse of discretion. United States v.

Campa, 529 F.3d 980, 992 (11th Cir. 2008). The court abuses its discretion when

its decision “rests upon a clearly erroneous finding of fact, an errant conclusion of

law, or an improper application of law to fact.” United States v. Baker, 432 F.3d

1189, 1202 (11th Cir. 2005). We will not reverse a conviction on the basis of a

discovery violation unless it violates that defendant’s substantial rights. United

States v. Camargo–Vergara, 57 F.3d 993, 998 (11th Cir.1995). “Substantial

prejudice exists when a defendant is unduly surprised and lacks an adequate

opportunity to prepare a defense, or if the mistake substantially influences the

jury.” Id. at 998-99.




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      Rule 16 of the Federal Rules of Criminal Procedure requires that the

government permit the defendant, upon request, to inspect all documents the

government intends to use in its case in chief. Fed.R.Crim.P. 16(a)(1)(E). In

addition, the government has a continuing duty to disclose newly discovered

evidence. See Fed.R.Crim.P. 16(c). If a court determines that a party violated

Rule 16’s requirements on a certain item of evidence, the court may (1) grant a

continuance, (2) prohibit the violating party from introducing the evidence, or (3)

“enter any other order that is just under the circumstances.” Fed.R.Crim.P.

16(d)(2).

      The government fulfilled its continuing discovery duty by disclosing the

DHL shipping documents to Legon Mena as soon as it procured them, the evening

of the second day of trial. See Fed.R.Crim.P. 16(c). The government was only

able to acquire the documents after a co-conspirator provided at trial specific

chronological information about the DHL package: information that he did not

provide during his only pretrial meeting with the government; and Legon Mena

heard the co-conspirator’s testimony about DHL at the same time. So the

government did not have more notice about the details of the DHL package than

Legon Mena; and Legon Mena could have adapted his defensive strategy on the

first day of trial (after the testimony about the shipment) rather than claim lack of

notice when evidence was introduced two days later to bolster the co-conspirator’s


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testimony. Legon Mena did not demonstrate that the evidence substantially

influenced the jury who, at other times during the trial, heard him talk on the phone

about contacts in Cuba with an informant and an undercover officer and heard

testimony that Legon Mena admitted to Agent Ruiz that he sold some Cuban birth

certificates to his co-conspirator. See Camargo–Vergara, 57 F.3d at 998. As such,

Legon Mena has not shown substantial prejudice; and we affirm in this respect: the

district court did not abuse its discretion when it ruled that the government stopped

short of a discovery violation. See Campa, 529 F.3d at 992; Camargo-Vergara, 57

F.3d at 998-99.




                                         II.



      We review the district court’s evidentiary rulings for abuse of discretion.

United States v. Smith, 459 F.3d 1276, 1295 (11th Cir. 2006). “The court may

exclude relevant evidence if its probative value is substantially outweighed by a

danger of one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Fed.R.Evid. 403. In criminal trials, relevant evidence is

generally inherently prejudicial; so exclusion under Rule 403 is permitted “only

when unfair prejudice substantially outweighs probative value.” United States v.

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Merrill, 513 F.3d 1293, 1301 (11th Cir. 2008). “Rule 403 is an extraordinary

remedy, which should be used only sparingly since it permits the trial court to

exclude concededly probative evidence.” Smith, 459 F.3d at 1295 (quotations and

alteration omitted). “The balance under the Rule, therefore, should be struck in

favor of admissibility.” Id. Thus, “we look at the evidence in a light most

favorable to its admission, maximizing its probative value and minimizing its

undue prejudicial impact.” Id. (quotation omitted).

      Viewing the DHL evidence in the light most favorable to its admission, it

was highly probative to corroborate the testimony of a witness whose credibility

Legon Mena attacked; whereas, for prejudicial impact, the only new information it

provided was that someone named “Legon” mailed a package and that it was

actually signed for by an “I. Maria.” See id. It is unclear what unfair prejudicial

impact this evidence had beyond corroborating the co-conspirator’s testimony that

he went to a DHL office, met Legon Mena and his sister, and secured a package

from them. Given the other evidence the jury heard on Legon Mena’s connections

to Cuba and his admission to selling birth certificates, it is unclear what, if any,

impact this evidence had on the jury. Legon Mena has not demonstrated that the

undue prejudice from the DHL evidence substantially outweighed its probative

value, given the strong preference for admission of relevant evidence under Rule

403; and, accordingly, we affirm his conviction. See id.


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                                          III.



      When appropriate, we will review the reasonableness of a sentence under a

deferential abuse of discretion standard of review. Gall v. United States, 552 U.S.

38, 41, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). We review a sentence for

reasonableness using a two-step process, ensuring that the sentence is both

procedurally and substantively reasonable. United States v. Turner, 626 F.3d 566,

573 (11th Cir. 2010).

      A sentence is procedurally unreasonable if the district court erred in

calculating the guideline range, treated the Sentencing Guidelines as mandatory,

failed to consider the 18 U.S.C. § 3553(a) factors, selected a sentence based on

clearly erroneous facts, or failed adequately to explain the sentence, including any

deviation from the guideline range. United States v. Rodriguez, 628 F.3d 1258,

1264 (11th Cir. 2010). The district court is not required to explicitly state that it

considered the § 3553(a) factors, as long as the court’s comments demonstrate that

it considered the factors when imposing sentence. See United States v. Dorman,

488 F.3d 936, 944 (11th Cir. 2007).

      The substantive reasonableness of a sentence is determined in the light of the

totality of the circumstances, and we will not vacate a sentence as substantively


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unreasonable unless we are left with the definite and firm conviction that the

district court clearly erred in weighing the § 3553(a) factors and imposed a

sentence outside the range of reasonable sentences. Turner, 626 F.3d at 573;

United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008). Under this standard,

the district court does not need to impose the same sentence we would have given;

it need only impose a sentence that is within the range of reasonableness. Gall,

552 U.S. at 51, 128 S. Ct. at 597.

      The party challenging the sentence has the burden of demonstrating that the

sentence is unreasonable in the light of the record and factors outlined in § 3553(a).

United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). Nevertheless, merely

raising a point without offering substantive argument abandons that issue on

appeal. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

      The district court is required to “impose a sentence sufficient, but not greater

than necessary, to comply with the purposes” listed in § 3553(a), including the

need to reflect the seriousness of the offense; promote respect for the law; provide

just punishment for the offense; deter criminal conduct; protect the public from the

defendant’s future criminal conduct; and provide the defendant with educational or

vocational training, medical care, or other treatment. See 18 U.S.C. § 3553(a)(2).

In imposing a particular sentence, the district court must also consider the nature

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


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the kinds of sentences available, the applicable guideline range, the pertinent

policy statements of the Sentencing Commission, the need to avoid unwarranted

sentencing disparities, and the need to provide restitution to victims. Id.

§ 3553(a)(1),(3)-(7).

      In considering the § 3553(a) factors, the district court does not have to

discuss each one explicitly. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th

Cir. 2008). An acknowledgement that the court “has considered the defendant’s

arguments and the § 3553(a) factors will suffice.” Id “We will defer to the

district’s court judgment regarding the weight given to the § 3553(a) factors unless

the district court made ‘a clear error in judgment’ and has imposed ‘a sentence that

lies outside the range of reasonable sentences dictated by the facts of the case.’”

Id. Furthermore, that a sentence is below the statutory maximum is indicative of

its reasonableness. See id.

      In Faust, we wrote that sentencing courts can consider relevant conduct,

including acquitted conduct, “so long as the facts underlying the conduct are

proved by a preponderance of the evidence and the sentence imposed does not

exceed the maximum sentence authorized by the jury verdict.” 456 F.3d 1342,

1348 (11th Cir. 2006). Sentencing enhancements based on acquitted conduct do

not violate the Fifth Amendment Due Process Clause or the Sixth Amendment. Id.

at 1347-48. The sentencing court can also consider uncharged conduct in


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determining sentencing levels. United States v. Hamaker, 455 F.3d 1316, 1336

(11th Cir. 2006) (district courts are required to consider all relevant, not just

charged, conduct in calculating the Guidelines range); see also United States v.

Rodriguez, 398 F.3d 1291, 1300 (11th Cir. 2005) (the use of extra-verdict

enhancements, under an advisory guidelines regime, is not unconstitutional).

      On the procedural reasonableness of Legon Mena’s sentence, he conceded

on appeal that our precedent squarely forecloses his argument that the district court

erred in relying on acquitted conduct when it applied a three-level sentencing

enhancement. See Faust, 456 F.3d at 1348. The district court was also permitted

to consider relevant uncharged conduct, namely the involvement of two customers

not named in the indictment, as long as the conduct was proved by a

preponderance of the evidence. See Hamaker, 455 F.3d at 1336. Legon Mena

does not now argue on appeal nor did he claim at sentencing that the acquitted

conduct and uncharged conduct were not proven by a preponderance of the

evidence. He has only argued -- contrary to our precedent -- that the

preponderance standard is unconstitutional. See Rodriguez, 398 F.3d at 1299;

Faust, 456 F.3d at 1348. At trial, Special Agent Ruiz testified that the co-

conspirator admitted to selling Cuban birth certificates acquired from Legon Mena

to seven customers. In the absence of any countervailing evidence, the district

court did not err when it found, by a preponderance of the evidence, that the


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conspiracy involved more than 5 but less than 25 aliens; and the court imposed a

procedurally reasonable sentence. See Rodriguez, 628 F.3d at 1264.

      Even assuming arguendo that Legon Mena preserved his argument regarding

the substantive reasonableness of his sentence, the sentencing court did not clearly

err in weighing the § 3553(a) factors or impose a sentence outside the range of

reasonable sentences. See Turner, 626 F.3d at 573. After explicitly stating that it

had considered the advisory guideline range, the facts and circumstances of the

case, and the § 3553(a) sentencing factors, the district court imposed a sentence

within the guideline range that was well below the 120-month statutory maximum,

which is indicative of its reasonableness. See Gonzalez, 550 F.3d at 1324.

Accordingly, Legon Mena’s 20-month sentence was substantively reasonable, and

we affirm the sentence.

      AFFIRMED.




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