           Case: 16-12949   Date Filed: 10/12/2017   Page: 1 of 8


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-12949
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:14-cr-20768-WPD-4



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

CLINTON COLEMAN, JR.,

                                                         Defendant-Appellant.

                      ________________________

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

                            (October 12, 2017)

Before JORDAN, ROSENBAUM and BLACK, Circuit Judges.

PER CURIAM:
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       Clinton Coleman, Jr. appeals his convictions and sentences for conspiring to

import cocaine into the United States, 21 U.S.C. §§ 952(a), 960(b)(1)(B), 963, and

conspiring to possess with intent to distribute cocaine, 21 U.S.C. §§ 841(a)(1),

(b)(1)(A)(ii), 846, as well as the denial of his motion for new trial based on the

weight of the evidence. On appeal, Coleman first argues that the trial evidence

was insufficient to support his convictions. Second, he contends that the court

abused its discretion by denying his motion for new trial. Finally, he argues that

his total 135-month sentence is unreasonable. After review,1 we affirm.

                                       I. DISCUSSION

A. Sufficiency of the Evidence

       Coleman first contends that the evidence was insufficient because it was

based only on circumstantial and speculative evidence and the testimony of a

confidential informant (CI), who Coleman submits was not credible. He further

argues that, because he was acquitted of substantive charges but convicted of the

related conspiracy charges, the verdicts were inconsistent.



       1
          When the defendant has challenged the sufficiency of the evidence by an appropriate
motion for judgment of acquittal, we review de novo whether there is sufficient evidence to
support a conviction. United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). We
review the district court’s disposition of a motion for new trial for abuse of discretion. United
States v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985). On a motion for a new trial based on
the weight of the evidence, the court need not view the evidence in the light most favorable to
the verdict, but instead may weigh the evidence and consider the credibility of the witnesses. Id.
Finally, we review the reasonableness of a sentence under a deferential abuse-of-discretion
standard. Gall v. United States, 552 U.S. 38, 41 (2007).
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      To sustain a conviction for conspiracy to distribute a controlled substance

under 21 U.S.C. § 846, “the government must prove that 1) an agreement existed

between two or more people to distribute the drugs; 2) that the defendant at issue

knew of the conspiratorial goal; and 3) that he knowingly joined or participated in

the illegal venture.” United States v. Brown, 587 F.3d 1082, 1089 (11th Cir. 2009)

(quotation omitted). To sustain a conviction for conspiracy to import a controlled

substance under 21 U.S.C. § 960, “the government must prove that there existed an

agreement between two or more persons to import narcotics into the United States

and that the defendant knowingly and voluntarily participated in that agreement.”

United States v. Arbane, 446 F.3d 1223, 1228 (11th Cir. 2006).

      There is a reasonable basis in the record for both convictions. The evidence

supports the conclusion that Coleman knew about the goal of the conspiracies to

import and distribute drugs and knowingly participated in the ventures. At trial,

the Government produced an audiotape of Coleman discussing the conspiracy on

the night the cocaine was seized at the port, in which Coleman provided to the CI

the size and location in the cargo ship of the container in which the cocaine was

stowed. Law enforcement agents testified that the container Coleman described

was the one they later seized and which was ultimately found to contain a cocaine

shipment. Further, Coleman and the CI discussed compensation and back pay

from prior deals and whether payment would be made in cash or in kind, requiring


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the conspirators to engage in further drug deals. The CI testified to explain the

import of the conversations, and although Coleman attacks the informant’s

credibility on appeal, “the jury gets to make any credibility choices, and [this

Court] will assume that they made them all in the way that supports the verdict.”

United States v. Garcia-Bercovich, 582 F.3d 1234, 1238 (11th Cir. 2009)

(quotation omitted). In addition, the Government produced evidence that Coleman

made only four phone calls to other members of the conspiracy in the weeks

leading up to the seizure, but made dozens of calls on the day before the cocaine

shipment arrived, the day of, and the day after. See United States v. Lyons, 53 F.3d

1198, 1201 (11th Cir. 1995) (holding that the inference of participation from

presence and association with conspirators is “a material and probative factor that

the jury may consider in reaching its verdict” (quotation omitted)). Taken in the

light most favorable to the Government, the evidence is sufficient to show

Coleman knowingly participated in the conspiracy to import and distribute the

cocaine. See United States v. Farley, 607 F.3d 1294, 1333 (11th Cir. 2010)

(reiterating that in reviewing for sufficiency of the evidence, we view the record in

the light most favorable to the government and resolve all reasonable inferences in

favor of the verdict; accordingly, a defendant’s conviction will be sustained as long

as there is a reasonable basis in the record for it).




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         Contrary to Coleman’s assertions, acquittal on the substantive counts does

not foreclose convictions for the related conspiracies. United States v. Corley, 824

F.2d 931, 935 (11th Cir. 1987) (“[C]onspiracy and the related substantive offense

which is the object of the conspiracy are considered separate and distinct crimes.

An acquittal on the substantive count does not foreclose prosecution and

conviction for a related conspiracy.” (citations and footnote omitted)). Similarly,

Coleman’s assertion that the evidence was circumstantial and thus insufficient to

convict him also fails. See United States v. Williams, 390 F.3d 1319, 1324 (11th

Cir. 2004) (stating that whether the evidence is direct or only circumstantial, this

Court will accept all reasonable inferences that tend to support the Government’s

case).

B. Motion for New Trial

         Coleman argues that the court abused its discretion by denying his motion

for new trial, as the court did not properly weigh the circumstantial evidence

presented at trial, consider the witnesses’ credibility, or recognize the

inconsistencies in the CI’s testimony. However, as discussed above, there was

evidence that Coleman knowingly joined in the conspiracies to import and

distribute cocaine. Coleman’s challenges to the Government’s evidence, such as

the alleged inconsistencies in the CI’s testimony (which were in any event

reconciled), are insubstantial. See United States v. Martinez, 763 F.2d 1297, 1313


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(11th Cir. 1985) (“[C]ourts have granted new trial motions based on weight of the

evidence only where the credibility of the government's witnesses had been

impeached and the government's case had been marked by uncertainties and

discrepancies.”). The weight of the evidence presented at trial does not

preponderate heavily against the verdict such that it would be a miscarriage of

justice to let the verdict stand. See id. at (stating that in order for a new trial to be

proper, “the evidence must preponderate heavily against the verdict, such that it

would be a miscarriage of justice to let the verdict stand”).

C. Unreasonableness of Sentence

       Finally, Coleman challenges the reasonableness of his sentence. See United

States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008) (describing two-part

reasonableness inquiry). He contends the district court erred when it imposed a

fifteen-month upward variance over the ten-year statutory minimum. Coleman has

not demonstrated that his sentence is either procedurally or substantively

unreasonable. See United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010)

(“The party challenging the sentence has the burden of demonstrating that it is

unreasonable in light of the record and the § 3553(a) factors.”). The record shows

that the court weighed the § 3553(a) factors before imposing Coleman’s sentence,

such as his history, his characteristics, and the need to impose a sentence that acts

as a deterrent to others. See Gall v. United States, 552 U.S. 38, 51 (2007); 18


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U.S.C. § 3553(a)(2). It explained in detail that Coleman’s statements at sentencing

convinced it that the court needed to impose a sentence that promotes respect for

the law. See id.; United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (“The

weight to be accorded to any given § 3553(a) factor is a matter committed to the

sound discretion of the district court . . . .”).

       In addition, Coleman’s 135-month sentence was well below the statutory

maximum penalty of life imprisonment for each count, an indicator of a reasonable

sentence. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008).

Coleman has not established that the court improperly weighed the sentencing

factors, committed a clear error of judgment, or unjustly relied on one factor to the

detriment of all the others. See United States v. Irey, 612 F.3d 1160, 1189 (11th

Cir. 2010) (en banc).

       Finally, Coleman’s contention that the court improperly calculated the

guideline range by erroneously applying an enhancement under U.S.S.G. § 3C1.1

is without merit. The court imposed an upward variance based on its conclusion

that a within-Guidelines sentence was insufficient, not an enhancement under

§ 3C1.1.




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                               II. CONCLUSION

      For the reasons stated above, we affirm Coleman’s convictions and his

sentence.

      AFFIRMED.




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