                                                       [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                        FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                            JULY 21, 2010
                                No. 09-12148                 JOHN LEY
                            Non-Argument Calendar              CLERK
                          ________________________

                    D. C. Docket No. 08-00270-CR-T-30-EAJ

UNITED STATES OF AMERICA,


                                                            Plaintiff-Appellee,

                                   versus

JEAN EVENS BAPTISTE,
a.k.a. Jean Evans Baptiste,
HARDAWAY VOLCY,
a.k.a. Hardaway Valcy,
SHELDON SHORTER,
a.k.a. Anthony Dubois,
a.k.a. Marco Davis,
a.k.a. Shelly Shorter,
a.k.a. Denzeil Sawyer,
a.k.a. Jay,
a.k.a. O’Neil Shorter,

                                                     Defendants-Appellants.
                           ________________________

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

                                   (July 21, 2010)

Before EDMONDSON, BIRCH and CARNES, Circuit Judges.

PER CURIAM:

      Jean Evens Baptiste, Sheldon Shorter, and Hardaway Volcy appeal their

convictions following a jury trial. Shorter also appeals his sentence of 328 months

in prison, and Volcy appeals his sentence of 97 months. Baptiste and Volcy were

found guilty of one count of conspiracy to distribute and possess with intent to

distribute marijuana, 21 U.S.C. §§ 846, 841(b)(1)(A), and one count of possession

with intent to distribute 100 kilograms or more of marijuana, 21 U.S.C. § 841(a)(1)

and (b)(1)(B). They were arrested when police, acting on a tip from an informant,

stopped them driving a tractor-trailer loaded with over 700 kilograms of marijuana

that was concealed behind boxes of frozen cookie dough. Shorter, the ringleader

of the operation and the intended recipient of that shipment and many others like it,

was found guilty of one count of conspiracy to distribute and possess with intent to

distribute marijuana, 21 U.S.C. §§ 846, 841(b)(1)(A), and one count of possession

with intent to distribute 1,000 or more kilograms of marijuana, 21 U.S.C.



                                          2
§ 841(a)(1) and (b)(1)(D). We affirm Shorter’s convictions and all three

defendants’ sentences. We find no error in the convictions of Baptiste and Volcy,

but remand for the limited purpose of correcting clerical errors in their judgments.

                                               I.

       Baptiste, who was driving the truck, contends that the district court erred by

denying his motion to suppress the marijuana found in it. He argues that the police

did not have justification for the initial traffic stop, that they unreasonably

prolonged the stop, and that they exceeded the scope of his consent to search the

truck by cutting into a cellophane-wrapped package to verify that it contained

marijuana.1

       The district court’s ruling on a motion to suppress evidence is reviewed as a

mixed question of law and fact. See United States v. Perkins, 348 F.3d 965, 969

(11th Cir. 2003). We review the court’s findings of fact for clear error and its

application of the law to the facts de novo. Id. “The facts are construed in favor of

the party that prevailed below.” Id.

       A confidential informant told DEA agents that a large shipment of marijuana

       1
         Volcy, who rode in the truck with Baptiste, attempts to adopt Baptiste’s argument on
the motion to suppress the marijuana. Volcy is not entitled to a ruling on the merits of that
motion because in the district court he did not file a pretrial motion to suppress nor join
Baptiste’s motion, and he therefore failed to preserve the issue. See Fed. R. Crim. P.
12(b)(3)(C), 12(e); United States v. Nix, 438 F.3d 1284, 1288 (11th Cir. 2006) (defendant failed
to preserve challenge to search warrant by filing pretrial motion to suppress).


                                                3
was due to arrive by truck at Shorter’s warehouse. He told the agents that previous

deliveries had come in a white trailer pulled by a blue tractor, but he was not sure it

would be the same truck this time. The agents arranged with the Florida Highway

Patrol to intercept the truck on its way to the warehouse. At the appointed time, a

state police officer waited on the interstate where the truck was expected to exit.

The informant talked to Volcy on a cell phone, instructing him and Baptiste how to

get off the highway and find their way the last few miles to the warehouse, while

simultaneously recording their conversation and relaying the truck’s current

location to authorities. Although Baptiste’s truck was a different color than the

one previously described, it was the only tractor-trailer the officer saw on the road

at the right time. The officer saw the truck take the correct exit and then make

several turns that appeared to match the informant’s directions. Noting the truck

was drifting outside of its lane, the officer pulled it over to write a traffic citation.

       A traffic stop is a “seizure” within the meaning of the Fourth Amendment.

United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001). Police may stop a

vehicle and briefly detain its occupants in order to investigate a reasonable

suspicion that they are involved in criminal activity. See Terry v. Ohio, 392 U.S.

1, 19–21, 88 S.Ct. 1868, 1879–80 (1968); United States v. Lindsey, 482 F.3d 1285,

1290 (11th Cir. 2007). To justify such a detention, the police must “be able to



                                             4
point to specific and articulable facts which, taken together with rational inferences

from those facts, reasonably warrant that intrusion.” Terry, 392 U.S. at 21, 88

S.Ct. at 1880. “Reasonable suspicion” is determined from the totality of the

circumstances and from the collective knowledge of the officers involved in the

stop. United States v. Williams, 876 F.2d 1521, 1524 (11th Cir. 1989). The

reasonable suspicion standard “is considerably less demanding than proof of

wrongdoing by a preponderance of the evidence and less than probable cause,” but

nonetheless requires officers to “articulate facts which provide some minimal,

objective justification for the stop.” Id. Authorities may rely on an informant’s tip

as the basis for reasonable suspicion, but there should be sufficient corroboration,

such as an ability to predict the defendant’s future actions. See United States v.

Lee, 68 F.3d 1267, 1271 (11th Cir. 1995) (citing Alabama v. White, 496 U.S. 325,

110 S.Ct. 2412 (1990)). Officers may also stop a vehicle upon observing probable

cause for a traffic violation, even if their real purpose is to investigate some other

crime. See Whren v. United States, 517 U.S. 806, 813, 819, 116 S.Ct. at 1769,

1774, 1777 (1996); United States v. Simmons, 172 F.3d 775, 778 (11th Cir. 1999).

      Baptiste argues that the officer lacked a reasonable suspicion that his truck

was the one identified by the informant because it was the wrong color, and that

the officer lacked probable cause to pull him over for a traffic citation because he



                                            5
had not actually violated Florida’s lane usage statute. See Fla. Stat. § 316.089. We

need not construe the meaning of Florida’s Uniform Traffic Control Law.

Regardless of whether there was a traffic violation, the officer performed a legal

stop because he had a reasonable suspicion, as a result of the informant’s real-time

conversation with Volcy and his accurate prediction of the truck’s movements, that

the tractor-trailer driven by Baptiste was transporting marijuana.

       After the officer pulled over the truck, he saw Volcy attempting to

disassemble a cell phone. Both defendants seemed nervous, and they gave

inconsistent answers to his questions about their destination. The officer also

observed that the refrigerated trailer was not set at the correct temperature for the

frozen foodstuffs the defendants told him they were hauling. He put Baptiste and

Volcy in the back of his car while he called for a drug-sniffing dog.2 Because the

dog and its handler had to be brought in from a neighboring town, this prolonged

the duration of the stop by about twenty minutes. Once a legitimate traffic stop is

made, it must last no longer than is necessary to effectuate the purpose of the stop.

United States v. Pruitt, 174 F.3d 1215, 1220 (11th Cir. 1999). Baptiste argues

twenty minutes was too long to detain him for the purpose of writing a traffic



       2
         Unbeknownst to Baptiste and Volcy, the conversation they had while sitting in the back
of the police cruiser was secretly recorded. The transcript of that conversation makes it clear
they knew what the police would find inside the trailer.

                                               6
citation. Perhaps, but the officer had reasonable suspicion that the truck was

carrying a large shipment of marijuana, and calling for a drug-sniffing dog was

necessary to confirm or dispel that suspicion. The time it took for the dog and its

handler to arrive was not unreasonably long. See Simmons, 172 F.3d at 778

(detention of 17 to 26 minutes while officer checked for outstanding warrants was

not unreasonable).

      When the dog arrived, it alerted outside the front end of the trailer. The

officer told Baptiste he suspected the presence of marijuana and asked for consent

to search the truck. Baptiste agreed to the search. Inside the trailer the officer

found numerous packages wrapped in cellophane and duct tape that were

concealed behind boxes of frozen cookie dough. He cut into one of those packages

and confirmed that it contained marijuana.

      Baptiste argues that the scope of his consent to search the truck did not

extend to permission to cut into a wrapped package. A search may be

unreasonable, even when an individual consents to that search, “when an officer

does not conform to the limitations imposed by the person giving consent.” United

States v. Zapata, 180 F.3d 1237, 1242 (11th Cir. 1999). “When an individual

provides a general consent to search, without expressly limiting the terms of his

consent, the search is constrained by the bounds of reasonableness: what a police



                                           7
officer could reasonably interpret the consent to encompass.” Id. (quotation

omitted). Permission to search an area for narcotics “may be construed as

permission to search any compartment or container within the specified area where

narcotics may be found,” but officers may not intentionally damage the places or

things to be searched. United States v. Martinez, 949 F.2d 1117, 1119 (11th Cir.

1992). The permissible scope of the search generally includes any area where the

item in question may be found, even if the search requires “separate acts of entry or

opening,” including “forcing open locked compartments or containers.” Id. at

1120–21 (consent to search warehouse reasonably included consent to search

locked trunk of car parked inside it, even though police had to force it open).

      The officer did not exceed the scope of Baptiste’s consent by cutting into the

package, because it could have contained the drugs for which Baptiste had given

consent to search. See Martinez, 949 F.2d at 1119. By that point the dog had

already detected the smell of marijuana, and the officer had recognized the

wrapped bundles as typical of the packaging often used by drug smugglers.

Accordingly, we affirm the denial of Baptiste’s motion to suppress and we affirm

his and Volcy’s convictions.

                                          II.

      Shorter, who is black, argues that his Sixth Amendment right to a jury drawn



                                          8
from a fair cross-section of the community was violated because the venire did not

include a representative number of African-Americans.3 We review de novo

constitutional challenges to the jury selection process based on the fair cross-

section requirement. United States v. Grisham, 63 F.3d 1074, 1077 (11th Cir.

1995). The Sixth Amendment guarantees a criminal defendant the right to be tried

by a jury “drawn from a fair cross-section of the community.” Id. at 1078. A

defendant claiming a violation of that right makes a prima facie case by showing

(1) that the underrepresented group is distinctive, (2) that the group’s

representation in the venire is “not fair and reasonable in relation to the number of

such persons in the community,” and (3) that the underrepresentation is due to

systematic exclusion in the jury-selection process. Id. Failure to establish any of

these elements is fatal to a defendant’s Sixth Amendment challenge. See United

States v. Clark, 562 F.3d 1158, 1163 (11th Cir. 2009).

       We find Shorter’s claim to be wholly without merit. When the venire was

seated, Shorter’s counsel said the following:

       Your Honor, on behalf of my client, who is African-American, and the other
       two co-defendants who are African-American, we’re making a challenge
       that the venire that is not a representative example of the community, nor is
       it statistically proportionate to African-Americans here. We believe our


       3
        Shorter claims that on the day of his voir dire the jury pool included only one African-
American. However, this fact is not in the record. Nor are any facts at all about the racial
composition of the jury pool or about the district court’s procedures for assembling it.

                                                9
      client may be prejudiced by the present venire. And for the record I’m
      making that objection.

The court responded: “You have it for the record.” Voir dire and jury selection

then went forward with no further discussion of the matter. Shorter contends that

the district court erroneously denied his objection and prevented him from

presenting evidence to support it. However, the record does not show that Shorter

ever tried to offer any such evidence. He objected to the composition of the jury

pool but without any evidence to support his objection. It was Shorter’s burden to

make a prima facie showing of underrepresentation and systematic exclusion, and

his failure to even attempt to do so is not error on the part of the court. See Clark,

562 F.3d at 1163; Grisham, 63 F.3d at 1077.

                                          III.

      Shorter next argues that the evidence was insufficient to support his

convictions. We review de novo the sufficiency of the evidence, “viewing the

evidence in the light most favorable to the verdict.” United States v. Thompson,

473 F.3d 1137, 1142 (11th Cir. 2006). “The jury gets to make any credibility

choices, and we will assume that they made them all in the way that supports the

verdict.” Id. “[T]he issue is not whether a jury reasonably could have acquitted

but whether it reasonably could have found guilt beyond a reasonable doubt.” Id.

The testimony of a co-conspirator, even if uncorroborated, is sufficient to support a

                                           10
conviction unless it is “incredible or otherwise insubstantial” on its face. United

States v. Diaz, 248 F.3d 1065, 1093–94 (11th Cir. 2001).

      Two co-conspirators testified extensively about the marijuana distribution

enterprise and Shorter’s leading role in it. Their testimony was corroborated by

ledgers documenting some of the shipments, by marijuana actually seized from

some of Shorter’s associates, and by Shorter’s own words in several phone

conversations secretly taped by a government informant. The evidence proved that

Shorter set up a connection with a marijuana supplier in Arizona, and recruited

drivers and couriers to transport drugs and cash between there and Florida. On one

occasion, Shorter chartered a private jet and flew west carrying duffel bags filled

with cash. Although he did so using an alias, the jet’s pilot identified him. Shorter

supervised other associates who warehoused the marijuana at several locations in

and around Tampa, distributed it to local dealers, and collected money owed. He

took the lion’s share of the proceeds, using some of the money to buy expensive

sports cars. After police seized 80 pounds of marijuana from one of the

warehouses, Shorter was caught on tape asking the informant what had happened

to it and demanding payment for it. Even though Shorter did not handle the

marijuana himself, the evidence at trial established his constructive possession by

showing his “ownership, dominion, or control” over it and over the premises on



                                          11
which it was concealed. See United States v. Montes-Cardenas, 746 F.2d 771, 778

(11th Cir. 1984). The evidence was more than sufficient for the jury to find

Shorter guilty beyond a reasonable doubt on both the conspiracy and substantive

possession counts.

                                          IV.

      Shorter also contends that the evidence did not support the district court’s

decision at sentencing to hold him responsible for more than 10,000 kilograms of

marijuana. The district court accepted the PSR’s calculation that Shorter had

distributed 13,483.7 kilograms. This amount gave Shorter a base offense level of

36. See U.S.S.G. § 2D1.1(c)(2) (more than 10,000 but less than 30,000 kilograms

of marijuana).

      The district court’s determination of the quantity of drugs used to establish a

base offense level for sentencing purposes is reviewed for clear error. United

States v. Simpson, 228 F.3d 1294, 1298 (11th Cir. 2000). “When a defendant

objects to a factual finding that is used in calculating his guideline sentence, such

as drug amount, the government bears the burden of establishing the disputed fact

by a preponderance of the evidence.” United States v. Rodriguez, 398 F.3d 1291,

1296 (11th Cir. 2005). When the quantity of drugs seized does not reflect the scale

of the offense, the district court must approximate the amount attributable to the



                                           12
defendant, and “may base its computation on evidence showing the average

frequency and amount of a defendant’s drug sales over a given period of time.” Id.

However, the defendant’s sentence must be based on “fair, accurate, and

conservative” estimates of drug quantity, not mere speculation. Id. For sentencing

purposes, a member of a drug conspiracy is liable not only for his own acts, but

also for the reasonably foreseeable acts of co-conspirators in furtherance of the

activity the defendant agreed to undertake. United States v. Ismond, 993 F.2d

1498, 1499 (11th Cir. 1993).

      The evidence at trial established that the conspirators received shipments

averaging at least 1,000 pounds of marijuana per month over a two-year period,

which would add up to 24,000 pounds or 10,886 kilograms. This estimate is

conservative, considering that two co-conspirators testified that an average

shipment weighed between 1,200 and 1,500 pounds, and the fact that the marijuana

seized from Baptiste and Volcy’s truck weighed 1,561 pounds. In addition, the

estimate does not include six or seven shipments of marijuana delivered in 1000-

pound crates by air freight. Accordingly, the district court did not clearly err in

holding Shorter responsible for more than 10,000 kilograms of marijuana.

                                          V.

      The district court also imposed a four-level enhancement on Shorter under



                                           13
U.S.S.G. § 3B1.1(a) for being an “organizer or leader” of a criminal activity

involving five or more participants. This gave him a total offense level of 40.

Shorter argues the enhancement was error because he was merely a supplier of

marijuana and not a leader of the conspiracy.

      A district court’s upward adjustment of a defendant’s offense level under

U.S.S.G. § 3B1.1 is a finding of fact reviewed only for clear error. United States v.

Phillips, 287 F.3d 1053, 1055 (11th Cir. 2002). “[T]he ultimate determination of

role in the offense is . . . a fundamentally factual determination entitled to due

deference.” United States v. De Varon, 175 F.3d 930, 938 (11th Cir. 1999).

Factors to consider in determining whether the enhancement applies are: “(1)

exercise of decision-making authority, (2) nature of participation in the

commission of the offense, (3) recruitment of accomplices, (4) claimed right to a

larger share of the fruits of the crime, (5) degree of participation in planning or

organizing the offense, (6) nature and scope of the illegal activity, and (7) degree

of control and authority exercised over others.” United States v. Rendon, 354 F.3d

1320, 1331–32 (11th Cir. 2003); U.S.S.G. § 3B1.1 cmt. n.4. The government bears

the burden of proving the defendant’s aggravating role by a preponderance of the

evidence. United States v. Yeager, 331 F.3d 1216, 1226 (11th Cir. 2003).

      The evidence supports the district court’s conclusion that Shorter was an



                                           14
organizer or leader of the criminal conspiracy. He chartered a jet to fly bags of

cash across the country, arranged for shipments of marijuana, supervised others

who handled the marijuana directly, and took what he wanted from the proceeds.

Two co-conspirators testified at trial that Shorter called the shots, and the evidence

supports their testimony. The jury heard recorded phone conversations in which

Shorter gave various orders to a co-conspirator, at one point telling him to pay a

home visit to the mother of a buyer who owed him money in order to pressure him

to pay. Accordingly, the district court did not clearly err by enhancing Shorter’s

sentence pursuant to U.S.S.G. § 3B1.1.

                                          VI.

      Shorter finally contends that the district court failed to comply with 18

U.S.C. § 3553(c)(1) when it sentenced him to 328 months’ imprisonment, the

midpoint in the advisory guideline range of 292–365 months, without explaining

its reason for choosing that particular sentence.

      When a district court sentences a defendant within the guidelines, and the

sentence range exceeds 24 months, the court must state its reason for imposing a

sentence at a particular point within the range. 18 U.S.C. § 3553(c)(1); United

States v. Williams, 438 F.3d 1272, 1274 (11th Cir. 2006). In doing so, the district

court should “tailor its comments to show that the sentence imposed is appropriate,



                                          15
given the factors to be considered as set forth in § 3553(a).” Bonilla, 463 F.3d at

1181. However, there is no requirement that the court “incant the specific

language used in the guidelines” or that it expressly discuss each of the § 3553(a)

factors. Id. at 1182. In Bonilla, we upheld a sentence when the district court

allowed the parties to offer argument as to the § 3553(a) factors, heard the

defendant’s statement of remorse, stated that it had considered the § 3553(a)

factors, and stated that the sentence was “neither greater nor lesser than necessary

to achieve the statutory purposes of sentencing.” Id. Here, the district court heard

arguments from the attorneys, heard from Shorter himself, expressly acknowledged

that it considered the § 3553(a) factors, and concluded that the sentence imposed

was “sufficient but not greater than necessary to comply with the statutory purpose

of sentencing.” That is enough to comply with § 3553(c)(1).

                                         VII.

      Volcy argues that the district court erred by not giving him a minor-role

reduction under U.S.S.G. §§ 2D1.1(a)(3) and 3B1.2 because he was less culpable

than Baptiste in transporting the marijuana across the country. He describes his

role as a “mere passenger” who only went along “for the ride” and had no idea that

the tractor-trailer was hauling marijuana. That claim is belied by the conversation

recorded between him and Baptiste while they sat in the back of a police cruiser



                                          16
and watched the officers search the truck. In that conversation Volcy worried that

the police would see “the thing” if they went far enough into the trailer, asked

Baptiste how many boxes he had stacked on top of it, and exclaimed when he saw

the drug-sniffing dog that they were “out of luck.” He also told Baptiste that he

destroyed the memory chip from his cell phone by smashing it with his teeth.

      A defendant may receive a four-level reduction in his base offense level if

his role in the offense can be described as “minimal,” a two-level reduction if his

role can be described as “minor,” or a three-level reduction for cases falling in

between. See U.S.S.G. § 3B1.2. A “minimal” participant is one who is “plainly

among the least culpable of those involved in the conduct of a group.” Id. § 3B1.2

cmt. n.4. The four-level reduction is intended to be used “infrequently.” Id. A

“minor” participant is one who is “less culpable than most other participants, but

whose role could not be described as “minimal.” Id. § 3B1.2 cmt. n.5. The

district court’s determination of a defendant’s offense role is a question of fact we

review only for clear error. De Varon, 175 F.3d at 938. The court “is not required

to make any specific findings other than the ultimate determination of the

defendant’s role in the offense.” Id. at 940. The defendant, as proponent of the

downward adjustment, bears the burden of establishing his minor role by a

preponderance of the evidence. De Varon, 175 F.3d at 939.



                                          17
       Under De Varon the district court’s determination is informed by a two-part

analysis of the defendant’s conduct. See id. at 940–45. First, the court measures

“the defendant’s role against the relevant conduct for which [he] was held

accountable at sentencing.” Id. at 945. Where the relevant conduct attributed to a

defendant is identical to his actual conduct, he cannot prove that he is entitled to a

minor role adjustment simply by pointing to some broader criminal scheme in

which he was a minor participant but for which he was not held accountable. Id. at

941. Thus, “when a drug courier’s relevant conduct is limited to [his] own act of

importation, a district court may legitimately conclude that the courier played an

important or essential role in the importation of those drugs.” Id. at 942–43. The

first prong of the De Varon analysis is often dispositive of the issue. See id. at

945.

       In considering the second prong, the district court may measure the

defendant’s culpability as compared to other participants in the crime. Id. at 944.

However, the court may only consider those who also participated in the same

relevant conduct. Id. “The conduct of participants in any larger criminal

conspiracy is irrelevant.” Id. Even if a defendant’s role is “less than that of other

participants” engaged in the same conduct,” he might not be entitled to a reduction

because, in some cases, there are no “minor or minimal participants.” Id.



                                           18
      The district court did not clearly err in refusing a minor-role reduction,

because the record demonstrates that Volcy’s role in the offense was identical to

the relevant conduct for which he was held accountable at sentencing and

comparable to the role of Baptiste in the same conduct. See De Varon, 175 F.3d at

941–44. Therefore, Volcy’s reliance on his relatively small role in the broader

criminal enterprise is to no avail. See id. The court calculated Volcy’s offense

level based on only the amount of marijuana found in the truck when he was

arrested, not the much larger amount attributed to the conspiracy as a whole.

Volcy fails to show how he was less culpable than anyone else in the relevant

conduct of smuggling that load of marijuana. Both Volcy and Baptiste rode with

the shipment all the way from its origin in Arizona, and they took turns driving.

Both men took the stand and denied knowing anything about the marijuana in the

truck, and the jury believed neither of them. Accordingly, this is a situation where

there are no “minor or minimal” participants, id. at 944, and we affirm Volcy’s

sentence.

                                        VIII.

      We note sua sponte that the amended judgments against Baptiste and Volcy

each contain two clerical errors. As to Count 1, the jury found both defendants

responsible for 100 kilograms or more of marijuana, but the judgments incorrectly



                                          19
state that it was 1,000 kilograms or more. As to Count 3, the judgments indicate

both defendants were found guilty of violating 21 U.S.C. § 846, the conspiracy

statute, but Count 3 was not charged as a conspiracy. These mistakes did not

appear in the presentence reports, and the district court made no error in calculating

the sentencing ranges under the guidelines. Nevertheless, we vacate and remand to

the district court for the limited purpose of correcting the errors in Baptiste’s and

Volcy’s judgments. See United States v. Massey, 443 F.3d 814, 822 (11th Cir.

2006).

         AFFIRMED IN PART, VACATED AND REMANDED IN PART.




                                           20
