                                                                                 [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT


                                        No. 96-5303
                                                                            FILED
                           D. C. Docket No. 96-67-CR-KMMU.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                                                          08/13/99
                                                                       THOMAS K. KAHN
                                                                           CLERK
UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,

                                            versus

FRANCISCO GONZALEZ, RODRIGO BUITRAGO, DAVID
SANTIAGO, CARMELLO CLAUDIO, JUAN JOSE DIAZ,

                                                                     Defendants-Appellants.



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

                                     (August 13, 1999)

Before TJOFLAT and DUBINA, Circuit Judges, and SMITH*, Senior Circuit
Judge.

DUBINA, Circuit Judge:

_______________________
*Honorable Edward S. Smith, Senior U.S. Circuit Judge for the Federal Circuit, sitting by
designation.
       Appellants Rodrigo Buitrago (“Buitrago”), Juan Jose Diaz (“Diaz”),
Francisco Gonzalez (“Gonzalez”), David Santiago (“Santiago”), and Carmello

Claudio (“Claudio”), appeal their convictions and sentences for several offenses

relating to a cocaine conspiracy. Buitrago and Diaz were convicted of Count I,

charging conspiracy to import cocaine, in violation of 21 U.S.C. § 963. All

defendants were convicted of Count II, charging them with conspiracy to possess

with intent to distribute cocaine, in violation of 21 U.S.C. § 846, and Count III,

charging them with using or carrying a firearm in relation to a drug trafficking

crime, in violation of 18 U.S.C. § 924(c).

      We affirm Buitrago and Gonzalez’s convictions and sentences. We reverse

Santiago and Claudio’s convictions and vacate the attendant sentences on Count III

because the district court violated Bruton v. United States, 391 U.S. 123 (1968),

when it allowed a witness to relate an out-of-court statement made by Gonzalez

that implicated Santiago and Claudio. We also reverse Santiago’s and Claudio’s

convictions on Count II and Diaz’s conviction and sentence on Count III due to

insufficient evidence. We affirm Diaz’s remaining convictions but vacate his

sentence and remand for resentencing due to the government’s failure to abide by

the strict requirements of 21 U.S.C. § 851. Finally, we vacate the district court’s

imposition of fines and its orders that mandate, as a condition of supervised

release, that the defendants be deported. See United States v. Romeo, 122 F.3d 941


                                             2
(11th Cir. 1997).

                                      FACTS

      In October 1995, Nancy Camacho (“Camacho”), a confidential informant,

notified Drug Enforcement Administration (“DEA”) Agent Alfonso Savory

(“Agent Savory”) that Buitrago wanted to locate an individual to travel to Costa

Rica to pick up cocaine and deliver the cocaine to the United States for

distribution. While Agent Savory observed, Camacho met with Buitrago and

agreed to go to Costa Rica and retrieve the cocaine. Camacho told Buitrago that a

friend would accompany her to Costa Rica if she needed an additional person to

retrieve the cocaine. Buitrago indicated that he needed two people. Buitrago

agreed to pay Camacho $15,000.00 per kilogram of cocaine that she smuggled into

the United States. Buitrago added that Camacho’s travel and subsistence expenses

would be paid in advance. Several days later, Camacho spoke telephonically with

Buitrago. The DEA recorded the conversation, which was in Spanish. In the

conversation, Buitrago stated that the people in Columbia had to approve

Camacho’s employment. Once Buitrago received approval, he asked Diaz, one of

the coconspirators, to wire $1,800.00 to Camacho via Western Union for her travel

expenses.

      On October 24, 1995, Camacho, her friend “Mona,” and Surfside Police


                                         3
Officer/DEA Agent Robert De La Torre (“Agent De La Torre”), traveled to Costa

Rica. A Costa Rican named Armando Rojas gave Camacho two suitcases

containing a total of approximately 10 kilograms of cocaine. Camacho gave the

suitcases to DEA agents who returned to the United States with the cocaine. After

Camacho returned to the United States, she discussed with Buitrago the manner of

delivery of the cocaine. In this recorded conversation, Buitrago asked Camacho to

deliver the cocaine to him at a Wal-Mart parking lot in Miami, Florida.

      On November 8, 1995, the DEA established surveillance at the Wal-Mart.

DEA agents observed Buitrago and Camacho discuss the transaction. Camacho

tape-recorded the conversation. Buitrago gave Camacho the keys to his car and

instructed her to take his car to get the cocaine, place the cocaine in the trunk of his

car, drive his car back to the Wal-Mart parking lot, and leave it parked there with

the keys under the driver’s seat. Buitrago also informed Camacho that she would

find her courier fee in cash in a box in the trunk of his car.

      Camacho followed Buitrago’s instructions. While a DEA agent helped

Camacho load the two suitcases of cocaine into Buitrago’s car, Camacho found the

box containing the money and gave the box to the DEA agent. Camacho then

drove Buitrago’s car to the Wal-Mart parking lot and drove away in her own car.

Camacho testified that before she left the parking lot, she saw Diaz. After


                                           4
Camacho left, Buitrago looked inside his car and approached the trunk. He then

quickly walked away from the car and disappeared. Shortly thereafter, Diaz

approached Buitrago’s car and looked inside. Diaz repeatedly looked in the car but

never entered it.

      DEA agents waited almost three hours for someone to retrieve Buitrago’s

car but no one did. Since the DEA agents did not want to leave the car with drugs

in it, they staged a theft of Buitrago’s vehicle. During the staged theft of the

vehicle, DEA agents observed Diaz running behind the vehicle in an attempt to

thwart the theft. Afterward, the DEA agents removed the two suitcases containing

cocaine and placed them in DEA custody.

      Later that same evening, a man named Diuza, who had originally put

Camacho in touch with Buitrago, called Camacho from Cali, Colombia. Diuza

said that Buitrago telephoned him and told him that he [Buitrago] was afraid to get

into the car containing the suitcases but had a friend guard the car. Buitrago also

informed Diuza of the theft of the vehicle. Diuza asked Camacho to assist

Buitrago recover the stolen vehicle, but she declined. Camacho and Agent Savory,

acting undercover, did meet with a man named Juan Carlos (“Carlos”) from Cali,

Colombia. Carlos told Camacho and Agent Savory that the people in Cali sent

him, and he questioned Camacho in detail in an effort to recover the lost cocaine.


                                           5
During this meeting, Agent Savory observed Diaz looking inside Camacho’s car

and inside the DEA surveillance van.

      In December, three men invaded Camacho’s house. Camacho, her 15 and 11

year old sons, and her aunt were present during the invasion. Camacho testified

that Gonzalez tried to grab her, but she ran to an empty bedroom and telephoned

the police. Another man grabbed Camacho’s aunt and youngest son and threatened

them. Camacho’s 15 year old son ran into another bedroom and telephoned the

police. Several minutes later, one of the men mentioned that the police were

coming, so they all left.

      The police arrived at the scene and Camacho, her aunt, and sons told them

about the men and their getaway vehicle. The police issued a “Be on the Lookout”

describing the men and their vehicle. A Metro Dade County police officer saw a

car matching the description and saw several items being thrown from the vehicle.

The officer stopped the vehicle and then recovered the items which were thrown

from the vehicle: a loaded .38 caliber revolver, three sets of handcuffs, and a stun

gun. The police then arrested the occupants of the vehicle, who were later

identified as Gonzalez, Santiago, and Claudio.



                                       ISSUES


                                          6
       1. Whether the defendants’s convictions must be reversed because of a

Bruton violation.

       2. Whether the police violated Gonzalez’s Sixth Amendment right when

they questioned him without his attorney present.

       3. Whether the evidence was sufficient to sustain the convictions of

Santiago and Claudio on Count II, and whether the evidence was sufficient to

support the convictions of Buitrago and Diaz on Count III.

       4. Whether the district court properly denied the following at trial: (a)

objections to the case agent’s testimony concerning the initiation of the

investigation; (b) objections to the case agent’s testimony that the informant was

reliable; (c) Buitrago’s request for an evidentiary hearing on counsel’s

competency; (d) Diaz’s objection to the introduction of his prior firearms

conviction; and (e) Claudio’s objection to the testimony of his common law wife

over her invocation of marital privilege.1

       5. Whether the district court properly enhanced the defendants’ sentences

for the use of a dangerous weapon in the commission of a drug offense, the

presence of vulnerable victims, and the physical restraint of those victims.



       1
         Due to our disposition of the case, we find it unnecessary to address the district
court’s rulings as to these specific challenges.

                                              7
         6. Whether the district court properly denied Diaz’s motion to strike the

government’s notice of intention to seek an enhanced sentence pursuant to 21

U.S.C. § 851.

         7. Whether the district court properly enhanced Buitrago’s sentence based

upon his supervisory role in an offense involving five or more persons.

         8. Whether the district court properly denied Claudio a mitigation of

sentence based upon his allegedly minor role.2

         9. Whether the district court erred in admitting at trial, pursuant to Federal

Rule of Evidence 404(b), evidence of Gonzalez’s prior conviction for possession

of a weapon.

                                        DISCUSSION

         A. Bruton

         Santiago, Claudio and Buitrago contend that the district court violated

Bruton v. United States, 391 U.S. 123 (1968), when it allowed into evidence the

non-testifying codefendants’ confessions implicating them in the drug importation

conspiracy and home invasion. Bruton involved two defendants accused of

participating in the same crime and tried jointly before the same jury. One



         2
             Because we reverse Claudio’s convictions, we do not address this sentencing
issue.

                                               8
defendant confessed, naming and incriminating the other defendant. The trial court

admitted the confession into evidence with a limiting instruction for the jury. The

Supreme Court held that despite the limiting instruction, the Constitution forbids

the use of such a confession in a joint trial.

      The Supreme Court recently addressed a Bruton violation in Gray v.

Maryland, 523 U.S.185, 118 S.Ct. 1151 (1998). In Gray, the confessing

defendant, Bell, made a statement to police in which he said that he and two other

men, Gray, and a third man (who died before indictments were returned), had

beaten to death the murder victim. 523 U.S. at ___, 118 S.Ct. at 1153. The

prosecution introduced Bell’s confession in the joint trial of Bell and Gray, and

Bell did not take the stand. The prosecution redacted the confession by using

blanks or the word “deleted” to replace every mention of Gray or the third

participant. However, after the detective read the redacted confession to the jury,

the prosecutor asked whether the detective arrested Gray after Bell had confessed.

The detective answered yes. The court instructed the jury that it should only

consider the confession as evidence against Bell, not Gray.

      The Court held that a Bruton violation still exists where a non-testifying

defendant’s confession is redacted by replacing a name with an obvious blank

space, or symbol, or word such as “deleted.” See id. at 1156. In such a situation,


                                            9
the limiting instruction to consider the testimony as evidence against only the

confessing defendant will be difficult for the jury to obey because it serves to

emphasize the tendency of the confession to incriminate the non-confessing

defendant. See id. at 1155. Additionally, the “accusation that the redacted

confession makes ‘is more vivid than inferential incrimination, and hence more

difficult to thrust out of mind.’” Id. at 1157 (quoting Richardson, 481 U.S. at 208).

Accordingly, the Court held that confessions which substitute blanks or the word

“delete” for the codefendant’s proper name, fall within the class of statements to

which Bruton applies. See id.

      After his arrest, Gonzalez made a statement to law enforcement officials,

who taped it. DEA Agent Vereault introduced Gonzalez’s confession at trial. The

prosecutor and Agent Vereault read the transcript to the jury as a dialogue, with the

prosecutor reading the questions posed to Gonzalez by the interviewing law

enforcement officials and Agent Vereault reading Gonzalez’s statements.

Gonzalez’s confession, as redacted, states that there were four people involved in

the “home invasion,” including Gonzalez himself and a Colombian who was

waiting out of sight about a block away. Agent Vereault’s recitation included

certain information identifying Gonzalez’s coconspirators. For instance, the jury

heard that the man who asked Gonzalez to go to Camacho’s house to intimidate her


                                          10
because she had failed to deliver ten kilograms of cocaine from him was a

Colombian, a little taller than Gonzalez, in his 30's or 40's, with a full head of hair.

R. Vol. 7, p. 163. The confession indicated that this Colombian went with

Gonzalez in the car to Camacho’s house. From other evidence, including

Buitrago’s own confession, it became obvious at trial that the Colombian was

Buitrago.

      As redacted, the confession was not initially clear whether anyone other than

Gonzalez and the Colombian were involved in the assault on Camacho’s family.

Then, the prosecutor, reading from the transcript, said: “The Colombian was there

at the house. He was the fourth person?” R. Vol. 7, p. 171. This is dangerously

close to a confession that reads “Me, deleted, deleted, and the Colombian,” which

would obviously violate Gray. As in Gray, the jury in this case could readily infer

that the two others referred to in the confession were seated at the defense table;

specifically, Santiago and Claudio. The rationale underlying the Supreme Court’s

decision in Gray requires finding a Bruton violation on facts such as these, where a

redacted confession implicates a precise number of the confessor’s codefendants.

      Relying on his own investigative report, Agent Vereault also recounted to

the jury Buitrago’s confession. This confession implicated his codefendants in

several ways. Buitrago told Agent Vereault that he asked a friend to wire Camacho


                                           11
her traveling expenses because Buitrago lacked the proper identification. Buitrago

did not state or imply that he told his friend the purpose for wiring the money.

Buitrago’s confession indicates that he was working for several men in Colombia.

When Buitrago failed to receive delivery of the cocaine, the Columbians told him

that he would have to work off his debt to them unless he recovered either the

drugs or drug proceeds from Camacho. Agent Vereault testified that Buitrago

“contacted a couple of people that had been introduced to him, and he discussed

this proposed ripoff from [Camacho] with these people.” R. Vol. 7, p. 182. Agent

Vereault then testified that Buitrago had told him that he never provided weapons

to “any of the people” who went to Camacho’s house. Id. Although Agent

Vereault had initially redacted his notes to eliminate references to other

defendants’ involvement, on the stand, Agent Vereault subtly changed some of the

pronouns and phrasing, thus implying to the jury that the defendants who

participated in the home invasion knew that the overarching purpose behind the

crime was to recover drug proceeds.

      Bruton violations are subject to a harmless error review.

      The mere finding of a violation of the Bruton rule in the course of the
      trial, however, does not automatically require reversal of the ensuing
      criminal conviction. In some cases the properly admitted evidence of
      guilt is so overwhelming, and the prejudicial effect of the
      codefendant’s admission is so insignificant by comparison, that it is
      clear beyond a reasonable doubt that the improper use of the

                                          12
       admission was harmless error.

Schneble v. Florida, 405 U.S. 427, 430 (1972). We therefore consider each

defendant’s claim of a Bruton violation in light of the harmless error standard.3

       Although leaving a physical description of Buitrago in Gonzalez’s

confession was a blatant Bruton violation, see Gray, 118 S.Ct. at 1156 (“[t]his

Court has assumed, however, that . . . specific descriptions fall inside, not outside,

Bruton’s protection.”), the error was harmless. Buitrago’s confession and other

evidence produced at trial indicated Buitrago’s full participation in the drug

conspiracy. Accordingly, we affirm his convictions.

       For Claudio and Santiago, though, the only evidence linking them to the

home invasion was their codefendants’ confessions, so the admission of

Gonzalez’s confession was not harmless error. This confession violated Claudio’s

and Santiago’s right of confrontation and they are entitled to new trials.

       B. Sixth Amendment

       Gonzalez appeals the district court’s denial of his motion to suppress the


       3
         The government argues that some of the defendants did not preserve the Bruton
error for appellate review. The record reveals, however, that Santiago made a motion for
a separate trial, based on Bruton, because of Claudio and Gonzalez’s statements. R. Vol.
2, p. 77; R. Vol. 4, pgs. 3-17. Santiago also objected to the admission of Gonzalez’s
confession shortly after Agent Vereault began to recount it to the jury. R. Vol. 7, p. 163.
Buitrago and Claudio joined in that objection. Accordingly, the defendants preserved the
Bruton issue for appeal.

                                            13
confession he gave to the police. He alleges that the police unlawfully interrogated

him after he invoked his right to counsel. Specifically, Gonzalez claims that he did

not personally initiate any contact with the police following his invocation of his

right to counsel and the subsequent questioning by police violated his Sixth

Amendment right.

      The day after the police arrested Gonzalez on charges arising out of the

invasion of Camacho’s home, he appeared in state court and the court appointed a

state public defender to represent him. The public defender filed a “Notice of

Defendant’s Invocation of the Right to Counsel” in state court and provided a copy

to the state attorney. On January 10, 1996, Agent Savory and the lead state

detective in the pending state case interrogated Gonzalez at the county jail, without

the public defender present. Agent Savory testified that he interviewed Gonzalez

because Gonzalez’s wife told him in an interview that Gonzalez wanted to speak

with him immediately. R. Vol. 4, p. 21. This interrogation resulted in a 13-page

confession which prosecutors introduced into evidence at the trial.

      Gonzalez moved to suppress the confession on the grounds that he had not

initiated contact with the police after invoking his right to counsel. The district

court conducted a hearing on the motion and found that Gonzalez had initiated

contact with the police through his wife. The district court also noted that after


                                          14
Agent Savory arrived at the jail, he read Gonzalez his rights and Gonzalez agreed

to speak with Agent Savory. The district court concluded that Gonzalez waived his

rights by voluntarily answering Agent Savory’s questions, and therefore, the

resulting confession was properly admissible. .

      In Edwards v. Arizona, 451 U.S. 477 (1981), the Supreme Court held that an

accused person in custody who has “expressed his desire to deal with the police

only through counsel, is not subject to further interrogation by the authorities until

counsel has been made available to him, unless the accused himself initiates further

communication, exchanges, or conversations with the police.” 451 U.S. at 484-85.

Thus, only a defendant, not the police, can reinitiate questioning once the

defendant has asserted his Sixth Amendment right to counsel. We find no police

initiation under the facts of this case. The district court did not err in finding that,

under these circumstances, Gonzalez reinitiated the questioning – albeit through

his agent, his wife.

      We find persuasive our decision in United States v. Gaddy, 894 F.2d 1307

(11th Cir. 1990). In Gaddy, the police approached the defendant’s aunt, who

worked in the police department, and told her that it would be in the defendant’s

best interest for him to talk to the police. The aunt communicated this to the

defendant and he agreed to speak with the police. Later that same day, the


                                           15
defendant provided a detailed statement to the police after being advised of his

Miranda rights and signing a waiver form. This court, relying on Miranda v.

Arizona, 384 U.S. 436 (1966), and Edwards, 451 U.S. 477, found that the

defendant’s Fifth and Sixth Amendment rights were not violated because the police

did not initiate any further interrogation with the defendant. The defendant

initiated the discussion – albeit through his agent, his aunt. Therefore, the policy

behind Edwards – that police cannot reinitiate questioning after the defendant has

invoked his right to counsel – remained intact.

      Similarly, in this case, Gonzalez’s wife indicated to the police that Gonzalez

wished to talk to them. The police did not initiate any further discussion with

Gonzalez. The police respected Gonzalez’s right to counsel and only went to talk

to him after his wife told them that he wanted to talk to them. After they arrived,

the police read Gonzalez his rights and he voluntarily waived those rights by

agreeing to talk with the police. As in Gaddy, there is no Sixth Amendment

violation. Therefore, the district court did not err in denying Gonzalez’s motion to

suppress.

      C. Sufficiency of the Evidence4



      4
        Buitrago challenges the sufficiency of the evidence to support his convictions. A
review of the record convinces us that there is no merit to his challenge.

                                           16
      Santiago and Claudio challenge the sufficiency of the evidence to convict

them on Count II, the conspiracy to possess with intent to distribute cocaine count.

We review de novo sufficiency of the evidence questions. See United States v.

Delgado, 56 F.3d 1357, 1363 (11th Cir. 1995). The evidence linking Santiago and

Claudio to drug activity is highly circumstantial and inferential. The most

damaging evidence is the testimony of Camacho’s aunt. She reported that a man

holding a gun said, “Tell her [Camacho] to pay the money that she stole.” The

prosecutor asked, “Stole from whom?” She responds, “To some people from

Cali.” (R. Vol. 7, p. 122). It is not clear from this testimony whether the aunt

inferred that the money was stolen from some people from Cali or whether the man

with the gun said that the money was owed to people in Cali. This evidence is not

sufficient to link Santiago or Claudio to the conspiracy to possess with intent to

distribute cocaine.

      Santiago testified at the trial and denied any knowledge that the purpose of

the home invasion was to recover drugs or drug proceeds. The government argues

that the jury disbelieved Santiago’s testimony and this is sufficient to support his

conviction. However, we have held that a defendant’s testimony denying guilt can

establish sufficient evidence of his guilt only if other corroborative evidence of

guilt exists for the charged offense. See United States v. Brown, 53 F.3d 312, 314-


                                          17
15 (11th Cir. 1995). The record discloses no other corroborative evidence of guilt,

so we reverse Santiago’s conviction on Count II.

      The evidence is also insufficient to support Claudio’s conviction on Count

II. No witness identified Claudio as a participant in the home invasion and no

witness mentioned Claudio as a participant in the conspiracy to possess cocaine.

We therefore reverse his conviction on Count II.

      There is sufficient evidence to support Diaz’s convictions on Counts I and

II; however, the evidence is insufficient to support his conviction on Count III.

There is no evidence in the record linking Diaz to the planning or the participation

in the home invasion. The government argued at trial that Diaz aided and abetted

his codefendants in the use and possession of the firearms used in the home

invasion. To prove that Diaz aided and abetted his codefendants, the government

must demonstrate that a codefendant committed a substantive offense, that Diaz

associated himself with the criminal venture, and that he committed some act that

furthered the crime. See United States v. Hamblin, 911 F.2d 551, 557 (11th Cir.

1990). Because the government failed to meet its burden, the district court erred in

denying Diaz’s motion for judgment of acquittal on Count III.

      D. Buitrago and Gonzalez’s sentencing challenges

      Buitrago challenges his sentence on several grounds. First, he contends that


                                         18
the district court erred in enhancing his sentence pursuant to U.S.S.G. § 3B1.1(a),

which provides a four-level enhancement if the defendant was an organizer or

leader of a criminal activity that involved five or more participants. A review of

the record demonstrates that there was more than sufficient evidence of Buitrago’s

involvement and participation in the drug conspiracy and the home invasion. In

addition to Buitrago’s confession, Camacho testified that Buitrago was the one

who contacted her about the drug importation and distribution scheme. The

government introduced into evidence transcribed recordings of Buitrago and

Camacho’s conversations concerning the illegal activity. In light of this

overwhelming testimony, we conclude that the district court did not clearly err in

enhancing Buitrago’s sentence by four levels.

      Buitrago and Gonzalez argue that the district court erred in enhancing their

sentence by two levels pursuant to U.S.S.G. § 2D1.1(b)(1), which provides for

such enhancement if a defendant possessed a dangerous weapon during the drug

offense. They rely on United States v. Henderson, 75 F.3d 614 (11th Cir. 1996), to

support their argument that an adjustment under this provision is inappropriate

when a defendant has been convicted of 18 U.S.C. § 924(c). Their reliance on

Henderson is misplaced. We did state in Henderson that a defendant’s sentence

could not be enhanced under section 2D1.1(b)(1) if the defendant was convicted


                                         19
under 18 U.S.C. § 924(c). We further noted that the “sentence for firearm use

under 18 U.S.C. § 924(c) is not dependent on the number of firearms used.” 75

F.3d at 618. However, unlike the defendants’ situation here, Henderson had no

coconspirators. This distinction is significant.

      In United States v. Rodriguez, 65 F.3d 932 (11th Cir. 1995), the defendant

was convicted of cocaine conspiracy and possession of a firearm in connection

with the drug conspiracy. The sentencing judge enhanced the defendant’s sentence

under U.S.S.G. § 2D1.1(b)(1), and we affirmed. We stated that:

      [t]his provision [U.S.S.G. § 2K2.4] applies to forbid enhancements for
      the defendant’s possession of the weapon, since punishment for
      possession of that weapon has been meted out in the 924(c) sentence. .
      . . We do not read the note to suggest that enhancement for a separate
      weapons possession, such as that of a coconspirator, is prohibited.

65 F.3d at 933 (citations omitted) (emphasis in original); accord United States v.

Martinez, 83 F.3d 371, 377 n. 8 (11th Cir. 1996). Rodriguez controls this case.

       Accordingly, we conclude that the district court did not err in enhancing

Buitrago and Gonzalez’s sentences under section 2D1.1(b)(1).

      Buitrago and Gonzalez challenge the district court’s enhancement of their

sentence pursuant to U.S.S.G. § 3A1.1(b), which provides:

      If the defendant knew or should have known that a victim of the
      offense was unusually vulnerable due to age, physical or mental
      condition, or that a victim was otherwise particularly susceptible to
      the criminal conduct, increase by 2 levels.

                                          20
The district court’s determination of a victim’s “vulnerability” is essentially a

factual finding to which this court gives due deference. See United States v. Page,

69 F.3d 482, 488 (11th Cir. 1995).

      We have “clearly recognized that the ‘vulnerable victim’ adjustment

‘focuses chiefly on the conduct of the defendant’ and should be applied only where

‘the defendant selects the victim’ due to the victim’s perceived vulnerability to the

offense.” Page, 69 F.3d at 488 (quoting United States v. Long, 935 F.2d 1207,

1210 (11th Cir. 1991) (emphasis in original). The applicability of a vulnerable-

victim enhancement must be determined on a case-by-case basis, and is appropriate

where the defendant knows the victim has “unique characteristics” that make the

victim more vulnerable to the crime than other potential victims of the crime. See

United States v. Malone, 78 F.3d 518, 521 (11th Cir. 1996).

      Our § 3A1.1 cases require that a defendant “target” his victim. The

Sentencing Commission, however, has recently amended the commentary to §

3A1.1 to clarify that the enhancement can apply even if a defendant did not

“target” his victim. The amended note states: “Subsection (b) applies to offenses

involving an unusually vulnerable victim in which the defendant knows or should

have known of the victim’s unusual vulnerability.” See U.S.S.G. § 3A1.1,

comment. (n.2) (1998); Rodriguez, 65 F.3d at 933 n.1 (commentary binding on


                                          21
court).

      Buitrago and Gonzalez’s argument that this enhancement is improper in a

drug-conspiracy case is meritless. Although we typically apply the enhancement to

cases involving fraud, obstruction of justice, or money laundering, we have also

applied the enhancement in the context of a violent offense. See Malone, 78 F.3d

518 (11th Cir. 1996) (armed robbery; carjacking). Buitrago and Gonzalez also

contend that the district court erroneously found that the aunt and the son were

vulnerable simply because of their ages. Arguably, a victim’s elderly or youthful

status, without more, is insufficient as a matter of law to justify a vulnerable victim

enhancement. The district court must look not only at the victim’s individual

vulnerability, but also at the totality of the circumstances, including the status of

the victim and the nature of the crime. See United States v. Tissnolthtos, 115 F.3d

759, 762 (10th Cir. 1997). The district court complied with Tissnolthtos in the

present case.

      The evidence showed that the goal of the home invasion was to confront

Camacho about the whereabouts of the missing drugs and the money the

defendants paid her. The conspirators initially targeted Camacho; however, upon

arriving at her home, they threatened and intimidated the other victims, Comacho’s

72 year old aunt and her 11 year old son. Those two people had “unique


                                           22
vulnerabilities” due to their relationship with Camacho and were easy targets

because of their presence in the house. The district court found that the aunt and

son were vulnerable victims because the defendants pointed a gun to the son’s head

and threatened his life as well as the aunt’s, in an effort to obtain information,

drugs, or money from Camacho. See United States v. Tapia, 59 F.3d 1137, 1143

(11th Cir. 1995) (individual was vulnerable victim because of his inability to escape

from defendants). Thus, their argument that they did not know that other people

would be in Camacho’s house is irrelevant, because once the defendants entered

the house, they selected their victims in furtherance of their conspiracy.

Accordingly, we affirm the district court’s enhancement of Buitrago and

Gonzalez’s sentences pursuant to U.S.S.G. § 3A1.1.

      Buitrago and Gonzalez also challenge the district court’s enhancement of

their sentences pursuant to U.S.S.G. § 3A1.3, which provides that “[i]f a victim

was physically restrained in the course of the offense, increase by 2 levels.” They

argue that the district court improperly applied this enhancement because they did

not physically restrain anyone and it was not foreseeable that any codefendants

would physically restrain a victim. The government responds that the facts do not

support such a contention. The government claims that the goal of the home

invasion – to retrieve money or drugs from Camacho – alerted them to the


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possibility that violence might be involved.

      “Physical restraint” means the “forcible restraint of the victim such as by

being tied, bound, or locked up.” U.S.S.G. § 1B1.1, comment. (n.1(I)). The use of

the modifier “such as” indicates that the illustrations of physical restraint are listed

by way of example rather than limitation. See United States v. Jones, 32 F.3d

1512, 1518 (11th Cir. 1994). The record demonstrates that the defendant physically

restrained the victims by forcibly holding them at gunpoint. The district court

found that Buitrago and Gonzalez participated in the home invasion and these

findings are not clearly erroneous. The acts of the defendants were acts in

furtherance of the conspiracy and reasonably foreseeable to them. Accordingly,

we affirm their sentences.

      E. 21 U.S.C. § 851

      At sentencing, Diaz moved to strike the 21 U.S.C. § 851 notice of sentence

enhancement filed by the government, claiming it was defective because it lacked

specificity and this court requires strict compliance with the § 851 notice

provisions. The district court denied his motion, stating that the government

remedied its original lack of specificity by subsequently filing a discovery

response. See United States v. Belanger, 970 F.2d 416 (7th Cir. 1992)

(government’s “Notice of Intention to Seek Enhanced Penalty” may have been


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insufficient by itself, but when considered together with the government’s “Notice

of Intent to Offer Evidence,” it met requirements of § 851). Diaz contends that the

district court erred in denying his motion because the notice was defective since it

failed to state any previous convictions upon which the government intended to

rely. Alternatively, Diaz argues that the district court failed to make the

appropriate inquiry required by § 851(b). The government concedes that its initial

notice was deficient, but it argues that the supplemental discovery response

remedied the problem. We disagree.

      A recent opinion of this court disposes of this issue. See United States v.

Rutherford, . 175 F.3d 899 (11th Cir. 1999). As we stated in Rutherford,

“[r]equiring a defendant to combine a vague enhancement notice with an unrelated

pleading that is often filed without the purpose of sentence enhancement is

inconsistent with strict compliance.” 175 F.3d at 904. The government’s

supplemental discovery response is not sufficient to remedy its failure to follow the

strict requirements of § 851. Accordingly, we vacate Diaz’s sentence.

      F. Gonzalez assails the district court’s admission, pursuant to Fed. R. Evid.

404(b), of his 1982 conviction in New York for criminal possession of a weapon in

the third degree. He contends that this evidence was not probative to any issue in

the trial. Furthermore, Gonzalez contends that any probative value that the


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evidence may have had was substantially outweighed by its prejudicial effect. The

district court disagreed and held that the prior firearms conviction was relevant to

prove issues related to the instant firearms charge set forth in Count III.

      We agree. In our view, the evidence tended to make it more likely that

Gonzalez in fact possessed a gun. Second, the prior act made it more likely that

the gun was to be used to threaten Camacho. Additionally, the prior weapons

conviction refuted the contentions by Gonzalez and a coconspirator that he did not

possess a .38 caliber firearm. Accordingly, the district court did not abuse its

discretion in allowing the prior weapons conviction into evidence.

                                   CONCLUSION

      We affirm Buitrago and Gonzalez’s convictions and sentences. We reverse

Santiago and Claudio’s convictions on Counts II due to insufficient evidence, and

on Count III due to a Bruton violation. We reverse Diaz’s conviction on Count III

and his attendant sentence but affirm his remaining convictions. We also remand

Diaz’s case for re-sentencing in light of the government’s failure to strictly adhere

to the requirements of 21 U.S.C. § 851. We vacate the district court’s imposition

of fines and orders of deportation as to all defendants.

      AFFIRMED in part, REVERSED in part, VACATED in part, and

REMANDED.


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