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                                                                   [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-16515
                               ________________________

                      D.C. Docket No. 6:11-cr-00302-CEH-TBS-2



UNITED STATES OF AMERICA,

                             Plaintiff - Appellee,

versus

JAMES TIPTON,

                             Defendant - Appellant.

                               ________________________

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

                                       (July 16, 2014)

Before CARNES, Chief Judge, DUBINA, and SILER, * Circuit Judges.

PER CURIAM:




         *
        Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit Court
of Appeals sitting by designation.
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      Appellant James Tipton appeals his conviction and sentence for conspiring

to distribute and to possess with intent to distribute oxycodone, in violation of 21

U.S.C. § 846. After reviewing the record, reading the parties’ briefs, and having

the benefit of oral argument, we affirm Tipton’s conviction and his 168-month

sentence.

                                I. BACKGROUND

      Michael Snow lived in Kentucky and worked with Robbie Adams, who was

an oxycodone broker for Juanita Hall. Adams introduced Snow to Hall. After this

introduction, for approximately ten months, Snow regularly supplied Hall with up

to 3,000-pill quantities of oxycodone. Snow moved to Florida. Hall was unable to

obtain the 30-milligram oxycodone pills in Kentucky, so she suggested that she

would purchase oxycodone directly from Snow. Hall continued to call Snow to

purchase more oxycodone pills even after Snow’s arrest on drug charges in

Florida.

      After being convicted of unrelated state drug offenses, Snow became a

confidential informant (“CI”) with the Drug Enforcement Administration (“DEA”).

Snow signed a cooperation agreement with the DEA and identified Hall as a drug

dealer. Subsequently, Snow and Hall communicated via telephone and text

messages to negotiate a deal for 2,000, 30-milligram oxycodone pills at the price of

$15 per pill. Hall chose not to travel to Florida to secure the oxycodone pills


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because her daughter was ill. She told Snow that Harold Durham (Tipton’s former

father-in-law) and Tipton (whom Hall called “Jay”) would contact him to arrange a

meeting for the transfer of the pills. Thereafter, Tipton, Durham, and Danny

Winburn, the driver, traveled to Florida from Kentucky with the money to

purchase the oxycodone. They also took fishing equipment with them to disguise

the real nature of their trip.

       After several telephone calls between Snow and Tipton, the men eventually

arrived at a hotel to meet with the oxycodone source, who was undercover agent

Paul Roque. The police arrested the men and searched Tipton’s van, uncovering

two boxes containing a total of $29,030.10 in cash. The currency was separated

into $1,000 bundles and bound with rubber bands, which police acknowledge is a

common way for drug dealers to transport cash.

       Tipton proceeded to trial, and a jury found him guilty of conspiracy to

distribute and to possess with intent to distribute oxycodone, in violation of 21

U.S.C. § 846. At the sentencing hearing, the government indicated that Tipton

qualified as a career offender, and because of this, Tipton had an enhanced total

offense level of 34 and a criminal history category of VI. This resulted in an

advisory sentencing guideline range of 262 to 327 months’ imprisonment. The

district court denied Tipton's motion for a downward departure but determined

that, given the evidence of Tipton’s cognitive disorder and passive/dependent


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personality, a below-guideline-range sentence of 168 months would be reasonable.

Tipton timely perfected this appeal.

                                         II. ISSUES

      (1)    Whether the district court erred by denying Tipton’s motions for
             judgment of acquittal.

      (2)    Whether the district court abused its discretion by denying Tipton’s
             motions for new trial and dismissal of the indictment.

      (3)    Whether Tipton’s below-guidelines sentence is procedurally or
             substantively unreasonable.

                             III. STANDARDS OF REVIEW

      Because Tipton moved for a judgment of acquittal at the end of the

government’s case and after presentation of all of the evidence, we review the

sufficiency of the evidence de novo, viewing the evidence in the light most

favorable to the government and making all reasonable inferences and credibility

choices in the government’s favor. United States v. Keller, 916 F.2d 628, 632

(11th Cir. 1990).

      This court reviews for abuse of discretion the district court’s rulings on

motions for a new trial. United States v. Thompson, 422 F.3d 1285, 1294-95 (11th

Cir. 2005). Because Tipton did not object to some of the district court’s rulings

until he filed his motion for new trial, we review those rulings for plain error only.

United States v. Baker, 432 F.3d 1189, 1202–03 (11th Cir. 2005) (“Under the plain

error standard, before an appellate court can correct an error not raised at trial,
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there must be (1) error, (2) that is plain, and (3) that affects substantial rights.”

(internal quotation marks and citation omitted)).

      This court reviews a sentence for reasonableness, United States v.

Winingear, 422 F.3d 1241, 1244-45 (11th Cir. 2005), “under a deferential abuse-

of-discretion standard,” Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591

(2007).

                                   IV. ANALYSIS

A. Sufficiency of the Evidence

      To prove a violation of 21 U.S.C. § 846, the government had to establish

that two or more persons agreed to violate the narcotics laws and that Tipton

knowingly participated in that agreement. See United States v. Baptista-Rodriguez,

17 F.3d 1354, 1369 (11th Cir. 1994). A jury may infer participation in a

conspiracy from the defendant’s concert of action with others. United States v.

Calderon, 127 F.3d 1314, 1326 (11th Cir. 1997). Although mere association with

conspirators and presence at the scene of a crime do not in themselves establish

participation in a criminal conspiracy, a jury may properly consider both in

conjunction with one another and with other facts to infer knowing and intentional

participation in the conspiracy. United States v. Brantley, 68 F.3d 1283, 1288 n. 4

(11th Cir. 1995). See also United States v. Cruz-Valdez, 773 F.2d 1541, 1546

(11th Cir. 1985) (“A jury may find knowledgeable, voluntary participation from


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presence when the presence is such that it would be unreasonable for anyone other

than a knowledgeable participant to be present.”).

      Here, the record evidence demonstrates that, based upon her prior

association with Snow, Hall had brokered a deal to supply Durham and Tipton

with approximately 2,000, 30-milligram oxycodone pills for $32,000. To facilitate

the deal, Hall had provided Snow with Durham’s cell phone number, and to ensure

that Snow would feel comfortable consummating the deal in her absence, Hall told

Snow that she had met Tipton during a prior drug deal. During the men’s drive to

Florida, Snow had asked Tipton whether “you guys” were still going to Florida,

and Tipton responded that they were. Also during the drive, Durham told Snow

that “if we can get the right kind of deal going, we’ll pick up all you can get.” Hall

also stated to Snow that Hall had been in contact with Durham and Tipton after

their arrival in Florida to secure arrangements for a meeting place. Once the men

arrived at the hotel, Snow entered the van, discussed the particulars of the deal, and

confirmed that the defendants had the buy money. During Snow’s conversation

with the men, Durham stated that “we’ve got the money stuffed up under the van

in boxes.” Snow observed during the meeting that Tipton expressed neither

surprise that a drug deal was underway nor any misgivings about the deal going

forward. When they searched the van, the authorities found money inside.




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       Although the government’s evidence did not include statements from Tipton

or his co-defendants directly implicating Tipton in the drug deal, the jury was

entitled to find from the evidence presented that Tipton, Durham’s former son-in-

law, was fully apprised of the particulars regarding the drug deal. See Cruz-

Valdez, 773 F.2d at 1546. Moreover, the government proved at trial that Tipton

previously had been convicted of conspiracy to distribute marijuana and a

controlled substance, which is relevant to show his intent to enter into this

conspiracy as well. See United States v. Cardenas, 895 F.2d 1338, 1344 (11th Cir.

1990) (“Evidence of prior drug dealings is highly probative of intent to distribute a

controlled substance, as well as involvement in a conspiracy.” (quoting United

States v. Hitsman, 604 F.2d 443, 448 (5th Cir. 1979)).

       Tipton’s challenge to the sufficiency of the evidence includes an argument

that, because Hall was a CI who allegedly had acted to thwart the purported

conspiracy, the district court erred by admitting her statements as a co-conspirator

under Federal Rule of Evidence (“Rule”) 801(d)(2)(E). The district court

conducted a pretrial James 1 hearing to determine whether Hall’s statements

qualified for admission pursuant to Rule 801(d)(2)(E). In our view, the district

court did not abuse its discretion by admitting Hall’s statements because the

government established the prerequisites for their admission under Rule

       1
         See United States v. James, 590 F.2d 575, 579–80 (5th Cir. 1975) (en banc) (holding
that judge alone should determine admissibility of co-conspirator’s declarations).
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801(d)(2)(E). Because we conclude from the record that sufficient evidence

established that Tipton knowingly participated in the conspiracy to possess and

distribute oxycodone, we hold that the district court did not err by denying

Tipton’s motions for judgment of acquittal.

B. Motions For New Trial and Dismissal and Evidentiary Rulings

      The district court did not abuse its discretion by denying Tipton’s motion for

a new trial. At the James hearing, the government presented evidence to support

the district court’s finding that Hall had not been an informant and supported the

district court’s admission of her statements as co-conspirator statements under

Rule 801(d)(2)(E). While it is true that Hall gave inconsistent statements to direct

questioning regarding whether she had worked as an informant, the jury, as the

sole arbiter of credibility, determined that she was not an informant, thus implicitly

rejecting Tipton’s assertion to the contrary. That is the prerogative of the jury. See

Calderon, 127 F.3d at 1325 (determination concerning witnesses’ credibility is

jury’s exclusive province). Thus, there was sufficient evidence for a reasonable

jury to conclude that Hall had been a co-conspirator, along with Tipton, Durham,

and Winburn, and not an informant. Assuming arguendo that Hall had been an

informant, we would not reverse Tipton’s conspiracy conviction because Tipton’s

prior association with Hall and his travel to Florida with Durham and Winburn,




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despite his physical discomfort due to a boil on his body, was sufficient to establish

that Tipton knowingly participated in the conspiracy.

       Tipton next argues that, at trial, the district court should have excluded

Hall’s statements about the conspiracy to Snow because they were “testimonial”

statements within the meaning of the Sixth Amendment and therefore barred by

Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004). In United

States v. Underwood, 446 F.3d 1340 (11th Cir. 2006), this court held that

statements made to an undercover informant in the course of an investigation were

non-testimonial because the statements “clearly were not made under

circumstances which would have led [the declarant] reasonably to believe that his

statement would be available for use at a later trial.” Id. at 1346. Because Hall’s

statements to Snow, a CI, were non-testimonial and satisfied the requirements for

admissibility of co-conspirator statements, we conclude the district court properly

admitted them. 2

       While Tipton seeks to exclude Hall’s inculpatory statements about the

conspiracy, he contends that her equivocal statements about her work as a CI

should have been admitted under either Rule 804 or Rule 807. Rule 804 allows for



       2
         Tipton also contends that the district court erred in admitting Hall’s statements about the
conspiracy after it found that Hall was not credible. Rule 801(d)(2)(E) provides that a statement
offered against an opposing party that was made by the party’s co-conspirator during and in
furtherance of the conspiracy is not hearsay. This rule does not require that the district court
make a credibility determination before admitting the statement. That is for the jury to decide.
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the admission of a hearsay statement against interest when it “is supported by

corroborating circumstances that clearly indicate its trustworthiness.” Fed. R.

Evid. 804(b)(3)(B). Similarly, under Rule 807, the hearsay statement may be

admissible if it has “circumstantial guarantees of trustworthiness.” Fed. R. Evid.

807(a)(1). However, the district court found that Hall was “completely

unbelievable at this point,” and Tipton does not point to anything that refutes this

finding. Accordingly, the district court’s exclusion of the statements under both

rules was proper.

      Relying on Rule 806, Tipton next argues that the district court improperly

excluded Hall’s statements that she had been an informant and that Tipton had not

been involved in the drug conspiracy. Because Tipton did not rely on Rule 806 in

the district court, we review this argument for plain error only. See Baker, 432

F.3d at 1202–03. The district court did not violate Rule 806 because it was not

applicable. However, assuming the district court abused its discretion by

excluding Hall’s statements under Rule 806, Tipton has failed to show that the

error affected his substantial rights such that he is entitled to relief. Tipton admits

that the district court permitted him to elicit testimony that Hall had given

inconsistent statements in response to the “direct question” about whether she had

worked as an informant. The district court refused to admit Hall’s equivocal

statements about her work as a CI under Rules 804 or 807, determining that the


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statements lacked sufficient indicia of trustworthiness for admissibility. The

district court’s exclusion of the evidence under either rule was not an abuse of

discretion. See United States v. Jayyousi, 657 F.3d 1085, 1113–14 (11th Cir.

2011).

      Tipton also alleges that the district court erred by denying his second motion

for new trial and motion to dismiss the indictment. Not only is Tipton’s motion for

new trial untimely, we conclude it is meritless. We also conclude he has waived

review of his motion to dismiss the indictment because he failed to provide any

authority in support of his argument. See Flanigan’s Enters. Inc. of Georgia v.

Fulton Cnty, Ga., 242 F.3d 976, 987 n.16 (11th Cir. 2001).

      Tipton proffers a serious allegation that the district court violated his Sixth

Amendment right to compulsory process by failing to issue a bench warrant or an

order to show cause for Hall to appear at Tipton’s trial. Because Tipton failed to

assert this argument in the district court, we review this contention for plain error

only. See United States v. Douglas, 489 F.3d 1117, 1125 (11th Cir. 2007),

abrogated on other grounds by United States v. Whatley, 719 F.3d 1206 (11th Cir.

2013). Tipton has failed to meet his burden under the plain error review standard.

After the trial had begun, Tipton provided to the district court proof of service and

a draft order to show cause. However, the district court never issued the order

because Tipton’s request for it was inadequate and untimely. That determination


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was not an abuse of discretion. Tipton’s Sixth Amendment claim also lacks merit

because the Sixth Amendment guarantees a criminal defendant compulsory process

only for obtaining witnesses in his favor. United States v. Valenzuela-Bernal, 458

U.S. 858, 867, 102 S. Ct. 3440, 3446 (1982). Here, Tipton fails to show that Hall’s

testimony was material and favorable because he cannot state with certainty what

her testimony would have contained.

      Tipton next argues that the district court erred by failing sua sponte to give a

missing-witness jury instruction. Because Tipton failed to request such an

instruction, we review this claim for plain error only. See United States v. Moore,

525 F.3d 1033, 1048 (11th Cir. 2008). Because Tipton has failed to demonstrate

entitlement to a missing-witness instruction, the district court did not plainly err by

failing to give the instruction.

      Tipton argues that the district court erred by admitting evidence of his prior

drug dealing because the evidence was relevant to his purported criminal

propensity and was unduly prejudicial. He is wrong. Rule 404(b) prohibits the

introduction of evidence of a defendant’s other crimes, wrongs, or acts to prove the

character of the defendant, and to show that he acted in conformity with that

character when he engaged in the charged criminal conduct. Such evidence may

be admissible, however, for other purposes such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.


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We conclude from the record that the district court conducted the proper balancing

test and did not err in admitting the evidence of Tipton’s prior drug dealing.

Moreover, the district court gave a limiting instruction which mitigated the risk of

any unfair prejudice. See United States v. Edouard, 485 F.3d 1324, 1346 (11th

Cir. 2007).

      Tipton complains that the district court erred by admitting Snow’s testimony

that he had seen Tipton during a prior drug deal in Kentucky. To the extent that

Tipton’s argument is that this was evidence of a prior bad act which should have

been excluded under Rule 404(b), the district court did not plainly err in admitting

it. Snow’s testimony regarding his prior contact with Tipton was intrinsic evidence

of Tipton’s participation in the charged conspiracy. See Edouard, 485 F.3d at

1344 (“[E]vidence of criminal activity other than the charged offense is not

“extrinsic” under Rule 404(b), and thus falls outside the scope of the Rule when it

is . . . necessary to complete the story of the crime or . . . inextricably intertwined

with the evidence regarding the charged offense.” (internal quotation marks and

citation omitted)).

      Tipton has waived his argument that the prosecutor attempted to bolster

witnesses by vouching for their credibility. Tipton likewise has waived review of

his argument that the district court erroneously denied his discovery motions.




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      Finally, because we conclude there was no error in any of the district court’s

evidentiary rulings, there can be no cumulative error. In sum, we affirm the district

court’s dispositions on its rulings on motions and its evidentiary rulings.

C.    Sentence

      Tipton argues that his 168-month, below guidelines sentence is procedurally

unreasonable because the district court erred in calculating his advisory sentencing

range. He also contends that his sentence is substantively unreasonable because

the district court created an unwarranted disparity between his and his co-

conspirators’ sentences. This court reviews a sentence for reasonableness.

Winingear, 422 F.3d at 1244-45. We do so under a deferential abuse of discretion

standard. Gall v. United States, 552 U.S. at 41, 128 S. Ct. at 591. The party

challenging the sentence bears the burden of proving unreasonableness. United

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

      Based on our review of the record, we conclude that Tipton’s sentence is

procedurally and substantively reasonable. The district court properly assessed

Tipton’s role in the offense and criminal history score, granted Tipton a downward

variance based upon his mental deficiencies and troubled upbringing, and created

no unwarranted disparities between Tipton and his co-defendants’ sentences.

Accordingly, because we see no merit in any of the arguments Tipton makes in this

appeal, we affirm his conviction and his 168-month sentence.


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AFFIRMED.




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