                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT            FILED
                        ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                              No. 08-17207                  JAN 14, 2010
                          Non-Argument Calendar              JOHN LEY
                                                           ACTING CLERK
                        ________________________

                  D. C. Docket No. 08-00006-CR-OC-10GRJ

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

ALFREDO ISLES HERNANDEZ,
a.k.a. Alfredo Hernandez,

                                                          Defendant-Appellant.


                        ________________________

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

                              (January 14, 2010)

Before BARKETT, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

     Defendant-Appellant Alfredo Isles Hernandez appeals his convictions and
sentences for conspiring to manufacture and possess with intent to distribute 100 or

more kilograms of marijuana and 100 or more marijuana plants, in violation of 21

U.S.C. § 846 and 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(vii) (Count One), and

with manufacturing and possessing with intent to distribute 100 or more kilograms

of marijuana and 100 or more marijuana plants, in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(B)(vii) and 18 U.S.C. § 2 (Count Two).

      After review, we affirm Hernandez’s convictions and sentences.

                               I. BACKGROUND

      On January 10, 2008, a grand jury issued a two-count indictment against

Hernandez and five codefendants – Teresita E. Mena, Miguel R. Castellano-

Rodriguez, Francisca Marrero-Soca, Pedro Correa, and Hanoy Capdevilla. Count

One charged the defendants with conspiring to manufacture and possess with intent

to distribute 100 or more kilograms of marijuana and 100 or more marijuana

plants, beginning on an unknown date and continuing through November 20, 2007,

in Sumter County and Lake County, Florida. Count Two charged the defendants

with manufacturing and possessing with intent to distribute 100 or more kilograms

of marijuana and 100 or more marijuana plants, on or about November 20, 2007, in

Sumter County and Lake County, Florida.

      On July 24, 2008, Hernandez appeared at a plea hearing in the district court



                                         2
where he attempted to plead guilty to his involvement in the drug operations.

Hernandez admitted his alleged involvement in drug trafficking operations at a

house in Center Hill, Florida, in Sumter County (the “Center Hill House”).

Hernandez denied, however, his alleged involvement in the drug operations at a

house, which he owned, on Groveland Farms Road in Groveland, Florida, in Lake

County (the “Groveland Farms House”). Hernandez stated that although he owned

the Groveland Farms House, he was unaware of the marijuana grow operation in

the house. The district court refused to accept Hernandez’s plea, finding there was

an insufficient factual basis to accept his plea to both counts of the indictment.

         The case proceeded to jury trial against defendants Hernandez and Mena.

The remaining codefendants – Castellano-Rodriguez, Marrero-Soca, Correa, and

Capdevilla – each pled guilty to Count One of the indictment. Castellano-

Rodriguez, Marrero-Soca, and Capdevilla testified against Hernandez and Mena at

trial.

         In opening statements, Hernandez acknowledged that he was involved in the

marijuana operations at the Center Hill House but again denied having any

involvement in the events at the Groveland Farms House.

         The government’s first witness, Detective Edward Fritz, testified that he was

involved in the preliminary investigation of the events at the Center Hill House.



                                            3
Specifically, Detective Fritz identified the Center Hill House property and stated he

participated in a fly-over of the house. The government’s next witness, Detective

Angela Wilkinson, testified that she too was involved in the investigation of the

Center Hill House property. On November 19, 2007, Wilkinson saw defendant

Hernandez leave the Center Hill House. The same day, Groveland police officers

followed Hernandez’s truck and stopped it for having illegal window tinting.

Hernandez, Capdevilla, and Correa were in the truck. Detective Wilkinson arrived

and assisted the Groveland police officers in searching the truck after she smelled

the odor of marijuana emanating from the truck. Wilkinson found soil, pipes,

duct-work, and other implements useful in operating a marijuana grow house, and

paperwork that showed that Hernandez had deposited $20,000 into a bank account

in Costa Rica and had $250,000 on deposit in another bank.

      Law enforcement officers executed a search warrant at the Center Hill House

on November 20, 2007. Defendants Hernandez, Mena, Capdevilla, Correa, and

Castellano-Rodriguez were in the house at the time. The detectives found a fully-

functional marijuana growing operation, with water circulation pumps, fertilizer,

1000-watt lights, electric transformers, timers, extra air-conditioning units, tubing,

drain pans, and filtering equipment. Some marijuana already had been harvested,

and law enforcement agents found stalks, dried plants, stems, and bags of



                                           4
marijuana buds. The marijuana seized at the Center Hill House from the

unharvested plants weighed 104 kilograms, and law enforcement agents found a

total of 70 marijuana plants, 38 of which had been harvested.

      Codefendant Capdevilla then testified that he worked for Hernandez and

lived in the Groveland Farms House, which Hernandez owned. Hernandez, with

Capdevilla’s help, converted three rooms of Hernandez’s Groveland Farms House

to grow marijuana. Capdevilla agreed to tend to the 72 marijuana plants that

Hernandez had installed there, in exchange for Capdevilla’s living at the house

rent-free and getting twenty-five percent of the gross proceeds from the sale of the

marijuana. Hernandez instructed Capdevilla to claim that he alone owned the

marijuana should he be arrested, and Hernandez promised to hire an attorney to

represent Capdevilla in that circumstance.

      Codefendants Marrera-Soca and Castellano-Rodriguez next testified that

Hernandez proposed that they purchase a house to grow marijuana and provided

them $35,000 for the down payment and to reduce their credit card debt. After

confirming the house was satisfactory for use as a grow house, Marrera-Soca and

Castellano-Rodriguez bought the Center Hill House. Hernandez installed

equipment to grow marijuana and bypass cables to obtain unmetered electricity.

Hernandez brought marijuana plants into the Center Hill House. Hernandez and



                                          5
Castellano-Rodriguez agreed that if Castellano-Rodriguez took care of the

marijuana plants, he would received a share of the net profits from the plants,

which Castellano-Rodriguez believed would amount to about $30,000. Hernandez

instructed Castellano-Rodriguez that if the police came, he should claim the

marijuana belonged to him alone.

      The government also introduced into evidence items obtained from the

Groveland Farms House, which included another fully-operational marijuana

growing operation, with electric transformers, fertilizer, high-voltage lights, and 72

mature marijuana plants.

      During the government’s case at trial, Hernandez objected to the admission

of a receipt document showing he purchased a vehicle in 2006, and he requested a

sidebar discussion. The district court denied Hernandez’s request for a sidebar and

ordered the prosecutor to describe the document in the jury’s presence. The

prosecutor stated:

             This is a vehicle that was purchased in 2006. There are
             going to be receipts that go back through 2006, consistent
             with the marijuana activity. This would show an asset
             purchased during the time that the Government would
             contend and submit is during the period of marijuana
             activity, perhaps not as to the two grow houses, but the
             conspiracy charge is from a date uncertain, and we have
             the receipts going back to previous dates.

The district court then sustained Hernandez’s objection to the exhibit and

                                           6
instructed the jury: “Ladies and gentlemen, with regard to the matters which were

referred to by Government Counsel as being related to a vehicle in the Lake Stuart

residence,1 you will disregard any of the comments of counsel with regard to that

item and that exhibit.”

       Hernandez subsequently moved for a mistrial based on the prosecutor’s

comments, arguing that the government’s “proffer in front of the jury implies

[Federal Rule of Evidence] 404(b) evidence, prior existing collateral criminal

activity.” The district court implicitly denied Hernandez’s motion by ordering the

prosecutor to proceed.

       At the close of the government’s case, Hernandez renewed his motion for a

mistrial. The district court confirmed its prior ruling and denied Hernandez’s

motion.

       Hernandez’s counsel also stated to the district court, outside the presence of

the jury, that the evidence was sufficient for both charges to go to the jury, and he

would not be making a “frivolous” motion for acquittal:

                    Judge, under the rules, counsel has a responsibility
              to address the issue of a judgment of acquittal, and very
              candidly with the Court, I believe that the testimony that


       1
         The Presentence Investigation Report states that Hernandez also owned a residence on
Lake Stewart Drive in Groveland, Florida, at which he and Mena resided. Law enforcement
officers executed a search warrant upon the Lake Stewart residence and found chemicals and
other items indicative of a marijuana grow operation, but not marijuana itself.

                                               7
             we’ve heard here today, in the light most favorable to the
             Government, certainly would allow a jury to consider the
             factual basis of those allegations concerning the two
             charges that we’ve heard here today. So I’m not going to
             extend the Court’s time on making a frivolous motion.

                   So, I will acknowledge that the jury does, in fact,
             have sufficient factual basis to make a determination as
             to whether or not Alfredo Hernandez did, in fact,
             conspire with these other people to grow 100 plants or
             more, that aspect of it.

      In its final instructions to the jury, the district court reminded the jury that it

must “make [its] decision only on the basis of the testimony and the other

evidence” and that “anything the lawyers say is not evidence in the case.”

      The jury found both Hernandez and Mena guilty on both counts. The

verdict form reflects the jury made specific findings that the offenses charged in

both Counts One and Two involved 100 kilograms or more of marijuana and

numbered 100 or more marijuana plants.

      The district court sentenced Hernandez to 60 months’ imprisonment on both

counts to run concurrently. The Presentence Investigation Report listed

Hernandez’s advisory guidelines sentence as 60 months’ imprisonment because

five years is the statutory mandatory minimum sentence for a violation of 21

U.S.C. § 841(b)(1)(B)(vii), which applies to violations of § 841(a) involving 100

kilograms or more of marijuana or 100 or more marijuana plants.



                                            8
      Hernandez timely filed this appeal.

                                 II. DISCUSSION

A.    Sufficiency Of The Evidence

      Hernandez does not specifically argue that there was insufficient evidence to

convict him of drug charges as to the Center Hill House. Rather, Hernandez argues

the evidence was insufficient to convict him of drug activity at the Groveland

Farms House, which, he argues, was essential to (1) the jury’s specific findings that

the two counts involved 100 or more kilograms of marijuana or 100 or more

marijuana plants, and (2) the district court’s imposition of 60-month statutory

mandatory minimum sentences based on those drug quantities, pursuant to 21

U.S.C. § 841(b)(1)(B)(vii). Hernandez in essence raises two issues, albeit through

his sufficiency-of-the-evidence argument: (1) whether the government presented

evidence sufficient to support his convictions as to the Groveland Farms House

referenced in Counts One and Two; and (2) whether the district court correctly

imposed 60-month statutory mandatory minimum sentences.

      Hernandez did not move for a judgment of acquittal at the close of the

evidence. In fact, his counsel’s statements, as quoted above, conceded that the

government presented sufficient evidence for the jury to consider the two charges

in the indictment and characterized a motion for acquittal as a “frivolous motion.”



                                            9
       When the defendant fails to move for judgment of acquittal at the close of

evidence, as in this case, this “operates as a waiver of the motion for acquittal and

forecloses any review of the sufficiency of the evidence except where a

miscarriage of justice would result,” which requires a finding that “the evidence on

a key element of the offense is so tenuous that a conviction would be shocking.”

United States v. Tapia, 761 F.2d 1488, 1491-92 (11th Cir. 1985) (quotation marks

omitted); accord United States v. Bichsel, 156 F.3d 1148, 1150 (11th Cir. 1998).2

       In order to sustain a conspiracy conviction under 21 U.S.C. § 846, the

government must prove beyond a reasonable doubt that (1) an illegal agreement

existed to possess with intent to distribute a controlled substance; (2) the defendant

knew of it; and (3) the defendant knowingly and voluntarily joined the agreement.

United States v. Charles, 313 F.3d 1278, 1284 (11th Cir. 2002). To establish

Hernandez violated 21 U.S.C. § 841(a)(1) as charged, the government must prove

Hernandez knowingly and intentionally manufactured or possessed with the intent

to distribute marijuana, all of which can be shown by direct or circumstantial



       2
         In reviewing a claim for sufficiency of the evidence, we review the evidence in the light
most favorable to the government. United States v. Thomas, 8 F.3d 1552, 1556 (11th Cir. 1993).
 “[T]o the extent that Appellant’s argument depends upon challenges to the credibility of
witnesses, the jury has exclusive province over that determination and the court of appeals may
not revisit the question.” United States v. Emmanuel, 565 F.3d 1324, 1334 (11th Cir. 2009)
(quotation marks omitted), cert. denied, __ S. Ct. __, 2009 WL 3848425 (Dec. 14, 2009) (No.
09-7574). We accept a jury’s credibility determinations as long as they are not “incredible as a
matter of law.” United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997).

                                               10
evidence. United States v. Poole, 878 F.2d 1389, 1391-92 (11th Cir. 1989).

Knowledge can be shown by the surrounding circumstances. Id. at 1392.

“Constructive possession is sufficient for the possession element, and can be

established by showing ownership or dominion and control over the drugs or over

the premises on which the drugs are concealed.” Id.

       Hernandez has not shown the evidence on a key element of his convictions

is so tenuous that a conviction would be “shocking” and would cause a

“miscarriage of justice.” To the contrary, the evidence against Hernandez was

amply sufficient to sustain his convictions on Counts One and Two.3 For example,

codefendant Capdevilla testified he worked for Hernandez and lived in the

Groveland Farms House, which Hernandez owned. Capdevilla also stated that

Hernandez, with his help, converted three rooms of the Groveland Farms House to

grow marijuana, and Capdevilla agreed to tend to 72 marijuana plants Hernandez

installed there, in exchange for Capdevilla’s living at the house rent-free and

earning twenty-five per cent of proceeds from the sale of the marijuana. This

testimony alone, and especially when combined with Hernandez’s constructive



       3
         Although the indictment alleged a marijuana conspiracy in both Lake and Sumter
Counties, there is an argument that Hernandez’s drug conspiracy convictions would stand even if
the evidence established only drug operations in Sumter County. We need not reach that issue,
as there was ample evidence to support Hernandez’s involvement in the drug conspiracy in both
Lake and Sumter Counties.

                                              11
possession of marijuana through his ownership of the Groveland Farms House,

was sufficient to convict him of Counts One and Two related to drug activity at the

Groveland Farms House.

      Hernandez argues his convictions related to the Groveland Farms House

should be reversed because the only testimony connecting Hernandez to the

Groveland Farms House was that of Capdevilla, who, Hernandez argues, is not

credible. This argument is not persuasive. First, Capdevilla’s testimony was not

the only evidence linking Hernandez to the Groveland Farms House – Hernandez

also was record owner of the property. Second, Capdevilla’s testimony with

respect to the Groveland Farms House is consistent with the testimony by Marrera-

Soca and Castellano-Rodriguez regarding the Center Hill House in that it shows a

consistent pattern through which Hernandez agreed to provide a portion of the

proceeds from the sale of marijuana to Capdevilla, Marrera-Soca, and Castellano-

Rodriguez, in exchange for their agreement to take care of marijuana in the

Groveland Farms House and the Center Hill House. The jury was entitled to make

credibility choices and to believe the testimony of codefendant Capdevilla. We

will not disturb the jury’s credibility determination unless it was “incredible as a

matter of law.” Calderon, 127 F.3d at 1325. Hernandez has not shown the jury’s

conclusion was in error.



                                           12
       Hernandez also has not shown the district court erred in computing and

imposing 60-month statutory mandatory minimum sentences for Counts One and

Two. The Presentence Investigation Report calculated Hernandez’s total offense

level as 20 and his criminal history category as I, yielding an advisory guidelines

range of 33-41 months’ imprisonment. However, the statutory mandatory

minimum sentence for a violation of 21 U.S.C. § 841(a)(1) involving 100

kilograms or more of marijuana or 100 or more marijuana plants is 60 months. 21

U.S.C. § 841(b)(1)(B)(vii). Thus 60 months is the applicable guidelines sentence.

United States v. Williams, 549 F.3d 1337, 1341 (11th Cir. 2008) (“For those

situations in which the mandatory minimum exceeds the range for the entire

offense level, the ‘guideline sentence’ would thus be the same as the ‘guideline

range,’ even if it involves a ‘range’ of only one number.”).4

       The district court’s imposition of a 60-month statutory mandatory minimum

sentence is sufficiently supported by the evidence and the jury’s verdict. The jury

found Hernandez guilty of the offenses in Counts One and Two and specifically



       4
          We normally review the factual findings underlying a district court’s sentencing
guidelines calculation for clear error and then review the district court’s application of those
facts to the guidelines de novo. United States v. Williams, 527 F.3d 1235, 1247-48 (11th Cir.
2008). Also, “‘[a]ny fact (other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.’”
United States v. Burge, 407 F.3d 1183, 1189 (11th Cir. 2005) (quoting United States v. Booker,
543 U.S. 220, 244, 125 S. Ct. 738, 756 (2005)).

                                               13
found that both Counts One and Two involved marijuana weighing 100 kilograms

or more and 100 or more marijuana plants. The evidence supported these

conclusions. As we already explained, sufficient evidence connected Hernandez to

the drug operations at the Groveland Farms House, meaning Hernandez’s offenses

involved 104 kilograms of marijuana and 142 marijuana plants. Even if we were

to adopt Hernandez’s argument and assume he was not involved in the grow

operation at the Groveland Farms House, the evidence still supported the district

court’s imposition of 60-month statutory mandatory minimum sentences because

marijuana seized at the Center Hill House alone weighed 104 kilograms.

Hernandez has not shown any error in the district court’s imposition of 60-month

mandatory minimum sentences.

B.    Prosecutor’s Comments

      We review a district court’s refusal to grant a mistrial for abuse of

discretion. United States v. Diaz, 248 F.3d 1065, 1101 (11th Cir. 2001). The “trial

judge has discretion to grant a mistrial since he is in the best position to evaluate

the prejudicial effect of a statement or evidence on the jury.” United States v.

Delgado, 321 F.3d 1338, 1346-47 (11th Cir. 2003) (internal quotation marks

omitted). A defendant must show substantial prejudice in order to be granted a

mistrial. United States v. Chastain, 198 F.3d 1338, 1352 (11th Cir. 1999). “This



                                           14
occurs when there is a reasonable probability that, but for the [government’s]

remarks, the outcome of the trial would have been different.” United States v.

Newsome, 475 F.3d 1221, 1227 (11th Cir. 2007), cert. denied, 552 U.S. 899, 128

S. Ct. 218 (2007). We consider an appellant’s mistrial motion in the context of the

entire trial and in light of any curative instruction given by the district court. Id.

“If a district court issues a curative instruction, we will reverse only if the evidence

is so highly prejudicial as to be incurable by the trial court's admonition.” Diaz,

248 F.3d at 1101 (internal quotation marks omitted).

      Hernandez argues the government’s proffer regarding the vehicle Hernandez

purchased in 2006, the evidence of which ultimately was excluded by the district

court, prejudiced him enough to require a mistrial. We disagree. The prosecutor’s

inadmissible statement about Hernandez’s 2006 automobile purchase was made

near the end of the government’s case after most other evidence was admitted. The

government’s statement was limited to a single item of evidence which bore little

relation to the rest of the government’s case. Further, the district court

immediately gave a curative instruction to the jury that they were to “disregard any

of the comments of counsel with regard to that item and that exhibit,” and the

district court twice told the jury that statements made by the lawyers were not

evidence. In light of these circumstances and the extensive evidence supporting



                                            15
Hernandez’s convictions, the district court did not abuse its discretion when it

denied Hernandez’s motion for a mistrial.

      AFFIRMED.




                                          16
