                                                                 [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT             FILED
                                                       U.S. COURT OF APPEALS
                             _________________________   ELEVENTH CIRCUIT
                                                             SEPT 15, 2006
                                    No. 04-11518          THOMAS K. KAHN
                             _________________________         CLERK


                       D.C. Docket No. 02-00585-CR-BBM-1-6

UNITED STATES OF AMERICA,

                                                         Plaintiff-Appellee,

                                           versus

ANTHONY GARZA,
SALOMON ALVAREZ,
TIMOTHY MC CLENDON,
JOSE HERNANDEZ TAURINO,

                                                         Defendants-Appellants.

                          _____________________________

                     Appeals from the United States District Court
                         for the Northern District of Georgia
                        _____________________________

                                  (September 15, 2006)

Before TJOFLAT and KRAVITCH, Circuit Judges, and JORDAN,* District Judge.

PER CURIAM:

       *
         Honorable Adalberto Jordan, United States District Judge for the Southern District of
Florida, sitting by designation.
      Following a one-week trial, a jury convicted Anthony Garza, Salomon Alvarez,

and Jose Hernandez Taurino of distributing, or aiding and abetting the distribution

of, 100 kilograms or more of marijuana, in violation of 21 U.S.C. § 841(a)(1) and 18

U.S.C. § 2. The jury also convicted Mr. Garza of conspiring to possess, with the

intent to distribute, 100 kilograms or more of marijuana, in violation of 21 U.S.C. §

846, and convicted Timothy McClendon of conspiring to possess, with the intent to

distribute, five kilograms or more of cocaine, in violation of 21 U.S.C. § 846. Mssrs.

Garza, Alvarez, Hernandez Taurino, and McClendon appeal their convictions and/or

sentences.   We affirm in all relevant respects, but remand so that Mr. Garza’s

judgment can be corrected to reflect the appropriate offense of conviction.

                                      I. FACTS

      In 1999, the Drug Enforcement Administration (“DEA”) received information

from confidential sources about drug trafficking activity by Ronald Knight and his

associates, and initiated an investigation. The government applied for and received

court approval for several Title III wiretaps, including a wiretap on Ronald Knight’s

telephone beginning on November 30, 2001. The intercepted calls showed that

Ronald Knight was a mid-level distributor for a Mexican drug distribution network

controlled at least in part by the Garza brothers (who are not related to Anthony

Garza). This organization was active in Atlanta, Birmingham, Chicago, Pittsburgh,


                                          2
and Grand Rapids. The conversations intercepted on the wiretaps showed that

Ronald Knight communicated directly with the Garza brothers to coordinate the

receipt of truckloads of cocaine and marijuana from Texas, and then sold the drugs

to Mr. McClendon, Kendell Ivory, and Corey Lewis. At trial, Mr. Lewis and Ronald

Knight testified for the government.

      In late 2001, Ronald Knight was looking for locations in Atlanta where

incoming drug-laden trucks could be covertly unloaded, so Mr. Lewis introduced him

to Henry Green, who operated a truck repair facility. Mr. Lewis and Ronald Knight

testified that Mr. Green agreed to allow trucks to pull into his repair facility after the

business was closed, and unload the drugs from the trucks, in return for payment from

Ronald Knight.

      The trial evidence centered around two separate shipments of drugs to Ronald

Knight from the Garza brothers. The first was a shipment of 89 kilograms of cocaine

in November of 2001. The second was a shipment of approximately 1,500 pounds

of marijuana on December 5, 2001. We do not discuss the cocaine shipment further

because the only defendant convicted of a cocaine charge, Mr. McClendon, does not

challenge the sufficiency of the evidence on that charge, and the cocaine shipment is

not otherwise relevant to the other issues raised on appeal.

      In the days leading up to December 5, 2001, Ronald Knight received a


                                            3
telephone call from Wilfredo Garza, one of the Garza brothers. Wilfredo Garza

advised Ronald Knight that a tractor trailer shipment of marijuana was on its way to

Atlanta. Before the marijuana arrived in Atlanta, Wilfredo Garza provided Ronald

Knight with a phone number and said the person using this number would coordinate

the delivery of the marijuana with him.

      On December 5, 2001, Ronald Knight called the number given to him by

Wilfredo Garza and arranged to meet with the person who answered at a local hotel

to finalize plans for unloading the marijuana. DEA agents monitoring the wiretap of

Ronald Knight’s telephone overheard this conversation and followed Ronald Knight

to the hotel. They watched him park at the hotel and eventually enter a room on the

second floor. Ronald Knight explained at trial that, during this meeting, he and two

unidentified Hispanic individuals worked out the details of how the truckload of

marijuana would be unloaded. Right after Ronald Knight left the hotel, DEA Special

Agent McCrorey went to the room Ronald Knight had visited and knocked on the

door, pretending to be lost. Agent McCrorey testified that Anthony Garza opened the

door to the hotel room. The second Hispanic male in the room was never identified.

      In making arrangements for the delivery of the marijuana, Ronald Knight asked

Mr. Lewis if they could once again use Mr. Green’s repair facility to unload the

drugs. Mr. Lewis testified that he consulted Mr. Green, who refused to open up the


                                          4
garage or allow the marijuana to be stored in his shop because he had not received

additional payment for storing the earlier shipment of cocaine. Mr. Green, however,

agreed to allow Mr. Lewis to use the lot outside his garage, and further agreed to

leave his office open and have his employee, Roy Bridges, present to open the gate

to the lot to let in the tractor trailer. This conversation between Mr. Lewis and

Ronald Knight took place at around 8:15 p.m.

      Ronald Knight asked his brother, Byron Knight, to go to the hotel where he had

earlier met Anthony Garza and pick up Mr. Garza and the other Hispanic male.

Byron Knight testified that he picked up these two men at the hotel and drove them

to a truck stop, where two more Hispanic males were waiting with the tractor trailer

carrying the marijuana. Byron Knight, Mr. Garza, and the other Hispanic mail from

the hotel joined the two other Hispanic males inside the cab of the tractor trailer, and

the five of them then rode in the tractor trailer to Mr. Green’s lot. When Byron

Knight and the four Hispanic males arrived at the lot in the tractor trailer – at around

9:45 p.m. – Mr. Lewis and Mr. Bridges were there to meet them. No one present at

the lot at this time identified who the Hispanic males were or gave any descriptions

of them.

      Because Mr. Green did not allow Mr. Lewis to park the tractor trailer inside the

garage, and thus, did not unlock the garage, the Hispanic male who was driving the


                                           5
tractor trailer simply backed up close to the front wall of the building. The four

Hispanic males and Byron Knight got out of the truck, and everyone present,

including Mr. Lewis and Mr. Bridges, went into the office located inside the building.

      While Ronald Knight worked on finding vehicles to transport the marijuana

from the lot, some of the Hispanic males obtained a flashlight, entered the trailer, and

began off-loading the marijuana, assisted by Mr. Lewis. Mr. Lewis testified that,

“from what [he] recall[ed],” “all” of the Hispanic males got into the trailer. Byron

Knight testified that only three of the Hispanic males entered the trailer at this time,

and that the fourth – the driver – stayed at the back of the trailer with him. While they

were together at the back of the trailer, Byron Knight and the driver did not discuss

the marijuana. As noted earlier, no one present at the lot identified who these

Hispanic males were (or who the driver was), or gave any descriptions of them.

        The trailer, which was refrigerated, contained double-stacked pallets of

cabbage. The marijuana was stored at the front (or nose) of the trailer so that much

of the cabbage had to be removed to get to the drugs. The marijuana was secreted

inside produce boxes and wrapped in bundles coated with a greasy substance to mask

the smell. When the boxes containing the marijuana were moved from the front of

the trailer to the rear, the bundles were taken out of the boxes and stacked up just

inside the rear of the trailer. In this way, until Ronald Knight arrived with the off-


                                           6
load vehicles, all activity took place inside the trailer, and the doors of the trailer were

kept nearly closed to avoid police detection.

       Mr. Lewis testified that, although at times one or more of the Hispanic males

would get out of the trailer to get some air, throughout the course of the off-loading

each of the Hispanic males spent some time in the trailer. Because the refrigeration

unit had been turned off, the walls of the trailer were wet and dripping with water.

       In the meantime, Ronald Knight had arranged to borrow a maroon pick-up

truck, and at around 10:30 p.m. DEA agents saw him meet the truck at an Amoco gas

station and guide the truck to Mr. Green’s lot. Mr. Lewis also borrowed a white pick-

up truck and brought it to Mr. Green’s lot. The parties agreed that they would load

the marijuana onto the trucks, and that Mr. Lewis, with the white truck, and Byron

Knight, with the maroon truck, would drive to another location.

       Testimony at trial, viewed in the light most favorable to the government,

established that everyone at the lot – the unidentified Hispanic males, Mr. Lewis,

Byron Knight, and Mr. Bridges – loaded the marijuana bundles from the back of the

trailer onto the two trucks. Byron Knight, for example, explained that he and the

unidentified driver of the tractor trailer helped carry the marijuana bundles from the

back of the trailer to the trucks. Byron Knight attempted to cover the marijuana

bundles in the maroon truck by placing cardboard boxes from the back of the trailer


                                             7
on top of the drugs. At 12:19 a.m. on December 6, 2001 – just after midnight – Mr.

Lewis called Ronald Knight and informed him that he and Byron Knight were leaving

Mr. Green’s lot.

      The white truck left first, followed closely by the maroon truck. Dekalb

County police officers, who were assisting DEA agents that evening, performed a

traffic stop of the maroon truck, but Mr. Lewis managed to flee in the white truck.

Dekalb County police seized approximately 750 pounds of marijuana from the

maroon truck and arrested Byron Knight.

      Agent McCrorey testified that, after the maroon truck was stopped, he briefly

examined the truck and its contents and observed the 750 pounds of marijuana in the

truck’s bed partially covered by flattened cabbage boxes. Agent McCrorey then

drove into Mr. Green’s nearby lot, where he saw a tractor trailer parked in front of the

building and Mr. Bridges walking from the back of the trailer to a large green

dumpster with empty produce boxes in his hands. Agent McCrorey noticed that the

boxes Mr. Bridges was carrying were identical to the boxes he had seen in the bed of

Byron Knight’s truck. Agent McCrorey then drove out of the lot and called in

marked Dekalb County police units.

      Dekalb County Officers Brink and Frank, driving a marked car and wearing

uniforms, entered defendant Mr. Green’s lot. Once there, they saw Mr. Bridges at the


                                           8
front of the tractor trailer near the cab. When the officers asked him what he was

doing in the lot, Mr. Bridges stated he was working on the tractor trailer; however,

it was after midnight, there was no lighting in the lot, and Mr. Bridges had no tools

in his hands or nearby.

      The officers then walked to the rear of the trailer where they found four

Hispanic males, who were identified as Mssrs. Garza, Alvarez, Hernandez Taurino,

and Rudy Perez.2 The officers smelled a strong odor of raw, bulk marijuana. One

door of the trailer was open and the officers noticed that the shipper’s tag – which is

used to seal the trailer after it is loaded and locked – had been cut.

      The officers asked Mssrs. Garza, Alvarez, Hernandez Taurino, and Perez what

they were doing, and they replied that they were “hanging out.” The officers

performed pat-down searches and noticed that, although it had not rained that

evening, the whole front of the clothing worn by Mr. Garza and Mr. Perez was wet.

The officers then obtained permission to search the tractor and the trailer from one

of the Hispanic males who identified himself as the driver (there was no testimony

at trial about which of the four Hispanic males this person was). Inside the trailer,

the officers saw crates of produce with many of them appearing to have been

trampled upon. In addition, the tops of all the crates were wet. No marijuana was


      2
          According to the government’s brief, Mr. Perez was a fugitive at the time of trial.

                                                  9
found in or near the trailer.

      Agent McCrorey searched the cab of the tractor and found the following: (1)

a certificate of completion of a truck driving course in Mr. Alvarez’s name; (2) a

Texas commercial driver’s license in Mr. Hernandez Taurino’s wallet; and (3) several

driver daily logs, used to keep track of the hours driven each day by each driver of the

tractor trailer. According to the driver logs, Mr. Alvarez and Mr. Hernandez Taurino

drove the tractor trailer from Texas to Georgia, with each one operating the truck for

various stages of the trip.

                                   II. TRIAL ISSUES

  A. THE FAILURE OF THE COURT REPORTER TO TRANSCRIBE THE CALLS AS
                   THEY WERE PLAYED FOR THE JURY

      Mr. McClendon, who has new counsel on appeal, argues that reversal is

warranted because the court reporter did not transcribe the recorded telephone calls

when they were played for the jury, thereby making it impossible (1) for his new

counsel to review the record and decide what arguments to make on appeal, and (2)

for this Court to undertake appropriate appellate review. Although we agree that the

court reporter’s failure to transcribe the calls played for the jury was a violation of 28

U.S.C. § 753(b), we reject Mr. McClendon’s claim based upon our prior decision in

United States v. Charles, 313 F.3d 1278, 1282-83 (11th Cir. 2002), because (1) the

calls here were in English; (2) the disc with the calls was introduced into evidence as

                                           10
Government Exhibit 1 and is part of the record on appeal; (3) the transcripts of these

calls were introduced into evidence as Government Exhibit 2 and are part of the

record on appeal; and (4) Ronald Knight and Mr. Lewis, participants in the

conversations, testified that the transcripts were accurate. Given that the calls were

in English and that the transcripts were accurate, there is not a “substantial and

significant omission from the trial transcript,” and we have been able to reconstruct

the record. As in recent cases involving similar circumstances, reversal is not

warranted. See, e.g., United States v. Wright, 164 Fed. Appx. 809, 819 (11th Cir. Jan.

6, 2006); United States v. Payne, 148 Fed. Appx. 804, 808 (11th Cir. August 29,

2005).

                           B. SUFFICIENCY OF THE EVIDENCE

       Mssrs. Garza, Alvarez, and Hernandez Taurino contend that there was

insufficient evidence to support their convictions. To recap, all three were convicted

of distributing, or aiding and abetting the distribution of, 100 kilograms or more of

marijuana, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. In addition, Mr.

Garza was convicted of conspiracy to possess, with the intent to distribute, 100

kilograms or more of marijuana, in violation of 21 U.S.C. § 846.3

       We review the sufficiency of the evidence de novo, “resolv[ing] all reasonable

       3
       To the extent Mr. McClendon challenges the sufficiency of the evidence by adopting his co-
defendants’ arguments, we summarily affirm.

                                               11
inferences in favor of the jury’s verdict. The evidence is sufficient so long as a

reasonable trier of fact, choosing among reasonable interpretations of the evidence,

could find guilt beyond a reasonable doubt.” United States v. Arbane, 446 F.3d 1223,

1226 n.1 (11th Cir. 2006) (citation and internal quotation marks omitted).

      Before turning to the evidence, we summarize the elements of the offenses on

which the jury convicted. With respect to the distribution charge under 21 U.S.C. §

841(a)(1), the government had to prove beyond a reasonable doubt (1) that the

defendant in question distributed (i.e., transferred or delivered possession of) 100

kilograms or more of marijuana to another, and (2) that the defendant acted

knowingly and intentionally. See, e.g., United States v. Rosen, 582 F.2d 1032, 1033

(5th Cir. 1978); United States v. Harold, 531 F.2d 704, 705 (5th Cir. 1976). On an

aiding and abetting theory under 18 U.S.C. § 2, the government had to prove beyond

a reasonable doubt (1) that someone committed the offense of distributing 100

kilograms or more of marijuana, (2) that the defendant in question committed an act

which contributed to and furthered this offense, and (3) that the defendant intended

to aid the commission of the offense. See, e.g., United States v. Arias-Izquierdo, 449

F.3d 1168, 1176 (11th Cir. 2006). “Mere presence is . . . insufficient when the

government charges the defendant under an aiding and abetting theory.” United

States v. Diaz-Boyzo, 432 F.3d 1264, 1269 (11th Cir. 2005). “To aid and abet one


                                         12
must actively participate in the illegal venture.” Harold, 531 F.2d at 705. To support

a guilty verdict on the conspiracy charge against Mr. Garza under 21 U.S.C. § 846,

the government had to prove beyond a reasonable doubt (1) that two or more persons

conspired or illegally agreed to possess, with the intent to distribute, 100 kilograms

or more of marijuana, (2) that Mr. Garza knew of the goal or objective of the

conspiracy, and (3) that, with this knowledge, he voluntarily joined the conspiracy.

See, e.g., United States v. Cruz, 106 F.3d 1553, 1555-56 (11th Cir. 1997).

                 1. MSSRS. ALVAREZ AND HERNANDEZ TAURINO

      The government’s case against Mssrs. Alvarez and Hernandez Taurino was not

overwhelming, largely because no one present at the lot identified the Hispanic males

who helped unload the marijuana from the trailer. Nevertheless, understanding that

“suspicion and conjecture are not sufficient to sustain a conviction,” Montoya v.

United States, 402 F.2d 847, 850 (5th Cir. 1968), we conclude that the evidence was

sufficient to support the jury’s verdict.

      First, both men drove the tractor trailer with the 1500 pounds of marijuana

from Texas to Georgia. Neither was a mere passenger. Cf. United States v. Flores,

564 F.2d 717, 718-19 (5th Cir. 1977) (reversing conviction of passenger of pickup

truck containing 175 pounds of marijuana, even though passenger fled from law

enforcement, because there was no evidence that marijuana was visible to passenger


                                            13
or that passenger made any inculpatory statements). Our cases hold that driving or

operating a vehicle, boat, or aircraft containing a large amount of narcotics is enough

for conviction, but where the narcotics are hidden, there must be “circumstances

evidencing a consciousness of guilt on the part of the defendant.” United States v.

Stanley, 24 F.3d 1314, 1320 (11th Cir. 1994) (adopting Fifth Circuit standard). Here

there were such circumstances. Although the driver log for December 5, 2001,

indicated that the tractor trailer “broke” at 9:00 p.m., the men drove the tractor trailer

to a lot next to a closed repair facility – remember that Mr. Green had refused to open

the garage – late at night with no indication that any repairs were made or that any

tools were available for such repairs. Furthermore, when questioned by the officers

after midnight on December 6, 2001, as to what they were doing at the lot, Mssrs.

Alvarez and Hernandez Taurino (together with Mssrs. Garza and Perez) said they

were hanging out. That response was inconsistent with being at the lot for repairs to

the tractor trailer, and suspicious given (1) the strong odor of raw marijuana and (2)

the fact that the unloading operation had just been completed.

      Second, there is the general principle that, in cases involving large amounts of

narcotics, “a prudent drug smuggler is not likely to suffer the presence of unaffiliated

bystanders.” United States v. Cruz-Valdez, 773 F.2d 1541, 1547 (11th Cir. 1985) (en

banc). That principle, by itself, is not enough, but it is not irrelevant either.


                                           14
      Third, despite the inability of any witnesses present at the lot to identify or

describe the Hispanic males who helped unload the marijuana, the jury could

reasonably have found that two of those males were Mssrs. Alvarez and Hernandez

Taurino. For starters, the two Hispanic males driving the tractor trailer containing the

marijuana met Byron Knight and the two other Hispanic males from the hotel at the

truck stop sometime before 9:45 p.m. and then headed to Mr. Green’s lot. Since

Mssrs. Alvarez and Hernandez Taurino drove the tractor trailer from Texas, and the

driver log indicated that the tractor trailer “broke” at 9:00 p.m., the jury could

reasonably have found that they were the two in the tractor trailer who met Byron

Knight and the other two Hispanic males. In addition, one of the Hispanic males

waiting in the tractor trailer identified himself to Byron Knight as the driver, which

again supports a finding that the two males waiting in the tractor trailer were Mssrs.

Alvarez and Hernandez Taurino. Finally, the whole unloading operation for the 1500

pounds of marijuana took about two to two and a half hours (from around 9:45 p.m.

to around 12:15 a.m.), the testimony was that four Hispanic males helped unload the

marijuana, and the arresting officers arrived at the lot shortly after the drugs were

unloaded. From these facts, the jury could reasonably have found that the four men

found near the open trailer by the officers after midnight – including Mssrs. Alvarez

and Hernandez Taurino – were the same four men who had helped move the drugs.


                                          15
      We have considered the cases cited by Mssrs. Alvarez and Hernandez Taurino,

as well as cases similar to them. See, e.g., United States v. Lopez-Ramirez, 68 F.3d

438, 441 (11th Cir. 1995) (defendant’s mere presence in garage when alleged

coconspirator unloaded crate packed with cocaine, and presence in house where

police later discovered cocaine, was not sufficient to support convictions for

conspiracy or possession with intent to distribute); United States v. Hernandez, 896

F.2d 513, 519-20 (11th Cir. 1990) (reversing conspiracy conviction despite being able

to “surmise that [the defendant’s] association with [another individual] may have

been criminal, that [the defendant’s] presence at the scene of the crime could have

been because of his involvement in the conspiracy, [and] that [the defendant’s] abrupt

departure might have occurred because he caught on[,] was guilty, and hoped to avoid

arrest”); United States v. Pintado, 715 F.2d 1501, 1504-05 (11th Cir. 1983) (evidence

that defendant was hiding in closet of house where drug raid was conducted at around

1:45 a.m. was insufficient to support conspiracy conviction, even though 29 bales of

damp marijuana were found in a car inside an enclosed garage whose door was open,

and even though Coast Guard had seen various unidentified individuals run from a

boat to the house carrying packages, as damp clothing found in the house was not tied

to defendant). We do not find these cases controlling, however, as the facts here are

quantitatively and qualitatively different. More on point is United States v. Mietus,


                                         16
237 F.3d 866, 873 (7th Cir. 2001), which upheld the conviction of a defendant who

drove a tractor-trailer to a garage, called other co-defendants to come to the garage,

and was found unloading boxes of marijuana concealed in the trailer load of fresh

produce. Mietus is not on “all fours,” because the defendant there made calls to

others and was arrested while unloading the drugs, but it is analogous because, as we

have noted above, the jury could reasonably have found that Mssrs. Alvarez and

Hernandez Taurino were two of the Hispanic males who helped unload the marijuana

at Mr. Green’s lot.

                                   2. MR. GARZA

      As to Mr. Garza, we also find the evidence sufficient on both counts of

conviction. First, the jury could reasonably have found that Byron Knight met Mr.

Garza at the hotel and discussed with him how the marijuana would be unloaded, that

Mr. Garza was one of the two Hispanic males driven by Byron Knight to the truck

stop to meet Mssrs. Alvarez and Hernandez Taurino, and that Mr. Garza then traveled

in the tractor trailer to Mr. Green’s lot. This evidence, by itself, shows Mr. Garza’s

knowledge and is sufficient to sustain the conspiracy conviction.           See, e.g.,

Hernandez, 896 F.2d at 518-19 (upholding conspiracy conviction of defendant who

checked her phone to see if cocaine deal would go through and who offered to

conduct transaction at her house if it could not be completed as planned). Second, at


                                         17
the time of Mr. Garza’s arrest, the whole front of his clothing was wet (as was the

front of Mr. Perez’s clothing). The jury could reasonably have found that Mr. Garza

had been inside the trailer, whose walls were dripping with water because the

refrigeration unit had been turned off, and that he had been inside the trailer to help

unload the marijuana. Third, when asked by the officers what he was doing at Mr.

Green’s lot after midnight – having no other known connection to the tractor trailer

or the lot – Mr. Garza said he was hanging out. This evidence, taken together with

the earlier discussion Byron Knight had with Mr. Garza, supports the distribution

conviction.

                              III. SENTENCING ISSUES

      We review the district court’s application and interpretation of the Sentencing

Guidelines de novo. See e.g., United States v. Norris, 452 F.3d 1275, 1280 (11th Cir.

2006). The district court’s role assessment under U.S.S.G. § 3B1.2 is reviewed for

clear error. See United States v. Rodriguez De Varon, 175 F.3d 930, 937 (11th Cir.

1999) (en banc).

                               A. MR. MCCLENDON

      Mr. McClendon argues that the district court erred in not awarding him a minor

role reduction under USSG § 3B1.2. We disagree. The district court held Mr.

McClendon accountable only for the nine kilograms of cocaine that he agreed to sell,


                                          18
and not for the entire shipment of 89 kilograms. This limitation of relevant conduct

does not bar a minor role reduction as a matter of law, see § 3B1.2,comment. (n.

3(a)), but it is not irrelevant either, as explained in United States v. Boyd, 291 F.3d

1274, 1277 (11th Cir. 2002), because the district court must measure a defendant’s

conduct against the role of others in that relevant conduct. The district court did not

clearly err in finding that Mr. McClendon was not a minor participant. Unlike some

of the other conspirators, Mr. McClendon had an ownership interest in a portion of

the cocaine shipment, and agreed to further distribute some of the cocaine; he was not

“substantially less culpable than the average participant.” § 3B1.2, comment (n.

3(a)).4

          Mr. McClendon further contends that, in calculating his criminal history, the

district court erred in counting a Georgia misdemeanor conviction for obstruction of

a police officer and a Georgia misdemeanor conviction for simple battery. Again, we

disagree.

          Looking at the obstruction conviction first, Mr. McClendon was sentenced in

2000 to 10 days’ imprisonment and 12 months’ probation. See McClendon PSR ¶ 29.

In relevant part, USSG § 4A1.2( c)(1)(A) provides that a misdemeanor conviction for


          4
          Mr. Garza sought to adopt the arguments made by his co-defendants, including the minor
role argument asserted by Mr. McClendon. We do not address Mr. Garza’s entitlement to a minor
role, as that matter is heavily dependent on the facts and those facts are not addressed by Mr. Garza
in his brief.

                                                 19
an offense similar to “hindering or failure to obey a police officer” is counted if the

“sentence was a term of probation of at least one year or a term of imprisonment of

at least 30 days[.]” Mr. McClendon, citing to Billingsley v. State, 177 Ga. App. 775,

341 S.E. 2d 305 (Ga. App. 1997) (holding that “twelve months” is not equivalent to

“one year” for purposes of a misdemeanor), argues that “Georgia law makes a critical

distinction between sentences of ‘twelve months’ and sentences of ‘one year.’ A

misdemeanor cannot be punished by a period of time exceeding twelve months, and

Georgia law holds that one year is greater than twelve months.” McClendon Brief at

22. Like the other circuits which have addressed this argument, we reject it because

Mr. McClendon has cited no authorities to support his contention that the Sentencing

Guidelines – as opposed to Georgia law – view a probationary sentence of “twelve

months” as different than a probationary sentence of “one year.” See United States

v. Blevins, 29 Fed. Appx. 195, 197 (6th Cir. Dec. 28, 2001); United States v. Mattox,

1998 WL 808362, *4 (4th Cir. Nov. 23, 1998); United States v. Prosper, 1998 WL

767105, *1-*2 (8th Cir. Nov. 2, 1998). See also United States v. McClendon, 195

F.3d 598, 602-03 (11th Cir. 1999) (rejecting similar argument on plain error review).

      With respect to the simple battery conviction, Mr. McClendon was sentenced

in 1992 to 12 months’ probation and a $360 fine. Mr. McClendon asserts that a

simple battery conviction is not counted under the Sentencing Guidelines, but the


                                          20
language of § 4A1.2( c) does not support his argument. Under this provision,

“sentences for misdemeanor and petty offenses are counted, except as follows . . . .

” Nothing following this language – i.e., nothing in subsections ( c)(1) or ( c)(2) –

suggests that a simple battery conviction would be excluded. Battery is not like the

other offenses excluded under § 4A1.2( c), see United States v. Dillon, 905 F.2d

1034, 1036 (7th Cir. 1990), and the cases we have been able to locate indicate that

simple (i.e., misdemeanor) battery is properly counted. See United States v. Lee, 995

F.2d 887, 888-89 (9th Cir. 1993) (rejecting argument that such a conviction could not

be counted because it was uncounseled); United States v. Reynolds, 31 Fed. Appx.

293, 294 (4th Cir. March 29, 2002) (same).

                 B. MR. GARZA AND MR. HERNANDEZ TAURINO

      Mr. Garza and Mr. Hernandez Taurino argue that their respective 78-month and

63-month sentences were imposed in violation of the Sixth Amendment under Blakely

v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543 U.S. 220

(2005), because the district court found that the amount of marijuana involved was

at least 400 but less than 700 kilograms. This argument, however, is raised for the

first time on appeal. Before the district court, Mr. Garza and Mr. Taurino only

asserted as a factual matter that the amount of marijuana was less than what the

government claimed and what the district court found. They did not argue that the


                                         21
Sixth Amendment prohibited the district court from making findings on drug quantity

beyond what was inherent in the jury verdict. Reviewing for plain error under our

decision in United States v. Rodriguez, 398 F.3d 1291, 1298-1301 (11th Cir. 2005),

cert. denied, 125 S. Ct. 2935 (2005), we find that there was error and that the error

was plain; the district court applied the Sentencing Guidelines in a mandatory fashion

after making a factual finding on a contested issue beyond what was inherent in the

jury verdict. But we also conclude that Mr. Garza and Mr. Taurino have not

established that the error affected their substantial rights. The fact that the district

court imposed sentences at the bottom of the applicable ranges under the Sentencing

Guidelines is not enough in light of our precedent. See United States v. Underwood,

446 F.3d 1340, 1344 (11th Cir. 2006); United States v. Fields, 408 F.3d 1356, 1360-61

(11th Cir. 2005).

      We note that Mr. Garza’s judgment is incomplete, as it does not reflect that Mr.

Garza was convicted of violating 21 U.S.C. § 841 (a) (1). We therefore remand to the

district court to correct this clerical error. See United States v. Anderton, 136 F.3d

747, 751 (11th Cir. 1998).

                                  IV. CONCLUSION

      For the reasons set forth above, the convictions and sentences of Mssrs. Garza,

Alvarez, McClendon, and Hernandez Taurino are affirmed. We remand, however, for


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the district court to amend Mr. Garza’s judgment to reflect that Mr. Garza was

convicted of violating 21 U.S.C. § 841 (a) (1).

      AFFIRMED.




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