             Case: 13-11224    Date Filed: 05/27/2014   Page: 1 of 8


                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-11224
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 1:09-cr-20964-JAG-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

ALBERTO GRAJALES,

                                                            Defendant-Appellant.

                         ________________________

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

                                (May 27, 2014)

Before PRYOR, MARTIN, and FAY, Circuit Judges.

PER CURIAM:

      Alberto Grajales appeals his conviction and sentence of 220 months of

imprisonment for conspiring and attempting to interfere with commerce by
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robbery, in violation of 18 U.S.C. § 1951(a); conspiring and attempting to possess

with intent to distribute five or more kilograms of cocaine, in violation of 21

U.S.C. § 846; and possessing a firearm in furtherance of a crime of violence and a

drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). 1 We affirm.

                                    I. BACKGROUND

       When a confidential informant (“CI”) met with the Bureau of Alcohol,

Tobacco, Firearm and Explosives agents to discuss information he had obtained

regarding Grajales, an undercover reverse sting operation was initiated. The CI

and an undercover law enforcement officer solicited Grajales’s assistance in

planning an armed robbery of 30 kilograms of cocaine from a “stash house.” R at

2699. During Grajales’ trial, the government presented video and audio recordings

of several meetings and telephone calls in which Grajales, the CI, the undercover

officer, and several of Grajales’s co-conspirators planned the robbery over the

course of approximately three weeks. During these conversations, Grajales asked

the CI and the undercover officer numerous questions about the drugs and the stash

house, discussed the need for weapons on several occasions, 2 and discussed how


       1
         A jury previously had convicted Grajales of the same crimes. See United States v.
Grajales, 450 F. App’x 893, 894 (11th Cir. 2012) (unpublished). In January 2012, we reversed
Grajales’s convictions, because the district judge erred when she (1) failed to give the jury
Grajales’s requested entrapment instruction; (2) instructed the jury Grajales’s mistaken belief
that he was helping law enforcement had to be reasonable; and (3) excluded Grajales’s testimony
regarding a confidential informant’s statements. Id. at 899, 901-02.
       2
           Some of these conversations included (1) Grajales’s discussing six crewmembers who
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the stolen drugs would be divided and sold. On November 4, 2009, the night of the

planned robbery, Grajales and his co-conspirators were arrested, when they arrived

at the final meeting location before they proceeded to the stash house. A loaded

semi-automatic gun was found hidden in a car driven to the scene by one of

Grajales’s co-conspirators.

       At the close of the government’s case-in-chief, Grajales moved for a

judgment of acquittal, because (1) there was no proof he actively participated in

drug-dealing, (2) law enforcement was incapable of being robbed, and (3) the

government had not established he was predisposed to commit the charged crimes.

The district judge denied Grajales’s motion. The public defender then presented

testimony of an investigator that, between May and November 2009, the CI had

telephoned Grajales 56 times, and Grajales had telephoned the CI 21 times.

During cross-examination, the investigator testified 31 of those calls occurred

before the government’s investigation began. Grajales renewed his motion for

judgment of acquittal; the district judge denied the motion. At Grajales’s request,

the district judge provided the jury with an entrapment instruction. The jury

convicted Grajales on all charged counts.




would all have guns, (2) Grajales’s telling the CI that one crewmember had a .22 caliber firearm
and a shotgun, and (3) Grajales’s telling the CI, on the night of planned robbery, the crew was
armed.

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      The presentence investigation report assigned a base offense level of 34 and

added two levels for Grajales’s role as an organizer, leader, manager, or

supervisor, under U.S.S.G. § 3B1.1(c). The public defender objected and argued

the facts did not support an aggravating-role enhancement. The district judge

overruled Grajales’s role-enhancement objections and adopted the PSI’s factual

findings and Sentencing Guidelines calculations. The judge sentenced Grajales to

a total of 220 months of imprisonment and 5 years of supervised release. On

appeal, Grajales raises three arguments: (1) the evidence was insufficient for the

jury to find Grajales was predisposed to commit the charged offenses; (2) the

evidence was insufficient to support Grajales’s conviction for possession of a

firearm in furtherance of a crime of violence and a drug-trafficking crime; and

(3) the district judge clearly erred in imposing a two-level sentencing enhancement

for Grajales’s role as an organizer, leader, manager, or supervisor in the crimes.

                                II. DISCUSSION

A. Entrapment Defense

      We review de novo a jury’s rejection of an entrapment defense; we view the

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

inferences and credibility evaluations in favor of the jury verdict. United States v.

Haile, 685 F.3d 1211, 1218-19 (11th Cir.) (per curiam), cert. denied, 133 S. Ct.

1723 (2012). An affirmative defense of entrapment requires two elements:


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(1) government inducement of the crime; and (2) the defendant’s lack of

predisposition to commit the crime before the inducement. Id. at 1219. The

defendant bears the burden of proving inducement; after he meets this burden, the

government must prove beyond a reasonable doubt the defendant was predisposed

to commit the crime. United States v. Demarest, 570 F.3d 1232, 1240 (11th Cir.

2009). Where the jury has rejected an entrapment defense and government

inducement is not at issue, our review is limited to deciding whether the evidence

was sufficient for a reasonable jury to find the defendant was predisposed to take

part in the illicit acts. Haile, 685 F.3d at 1219.

      Predisposition may be shown by a defendant’s ready commission of the

charged crimes and by evidence the defendant had opportunities to withdraw from

the illegal acts but did not. Demarest, 570 F.3d at 1241. Because an entrapment

defense is fact-intensive, a jury’s consideration of demeanor and credibility can be

pivotal. Id. The jury verdict cannot be overturned if any reasonable construction

of the evidence would allow the jury to find the defendant guilty beyond a

reasonable doubt. United States v. Padron, 527 F.3d 1156, 1159 (11th Cir. 2008).

      Grajales’s numerous questions concerning the details of the robbery and his

discussions with the CI and others regarding the need for guns showed he actively

was engaged in planning the robbery. Grajales had several chances to withdraw

from the operation, but he did not. See Demarest, 570 F.3d at 1241. Moreover,


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Grajales designated his home as a meeting place to be used immediately before and

after the robbery; the jury repeatedly heard Grajales was neither hesitant nor

nervous throughout the planning. This evidence was sufficient for the jury to

conclude Grajales readily participated in planning and executing the attempted

armed drug robbery, showing him predisposed to commit the charged crimes. See

Haile, 685 F.3d at 1219; Demarest, 570 F.3d at 1241.

B. Sufficiency of the Evidence

      We review whether the evidence was sufficient to support a conviction de

novo, view the evidence in the light most favorable to the government, and draw

all reasonable inferences and credibility choices in the government’s favor. See

United States v. Joseph, 709 F.3d 1082, 1093 (11th Cir.), petition for cert. filed,

No. 13-5319 (U.S. July 10, 2013). Possession of a firearm may be actual or

constructive. United States v. Perez, 661 F.3d 568, 576 (11th Cir. 2011) (per

curiam). A defendant’s knowing participation in a joint criminal venture in which

a particular firearm is intended to play a central part permits the jury to conclude

reasonably the defendant constructively possessed that gun. Id. This is true even

if the defendant never intended to use the gun, because he shares his co-

participants’ intent and jointly possesses the gun as part of the criminal enterprise

surrounding its possession. Id. at 577.




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       Grajales does not contest the terms “crime of violence” and “drug trafficking

crime” in § 924(c) include the robbery and drug crimes charged, see 18 U.S.C.

§ 924(c)(2), (3), or that the gun recovered during his arrest was possessed “in

furtherance” of the offenses, see United States v. Woodard, 531 F.3d 1352, 1362

(11th Cir. 2008). Grajales challenges only the jury’s finding he possessed a gun in

this case. The jury heard: (1) while riding in a car on the night of the planned

robbery, Grajales told the CI guns were “inside the hood” and others were armed,

R at 2968; and (2) Grajales helped a co-conspirator hide a gun in one of the cars.

Based on the numerous discussions between Grajales and other co-conspirators

regarding the need for weapons during the robbery, the jury also was entitled to

find Grajales knowingly participated in crimes in which the recovered handgun

was intended to play a central part. See Perez, 661 F.3d at 576-77. We conclude

there was sufficient evidence to support Grajales’s § 924(c)(1)(A) conviction,

because the jury could have determined Grajales knew about the recovered gun. 3

C. Sentencing Enhancement

       We review the application of the Sentencing Guidelines de novo and the

district judge’s factual determinations for clear error. United States v. Campa, 529

       3
         Although Grajales’s indictment charged him with possessing a firearm in furtherance of
a crime of violence and a drug-trafficking crime, it was necessary for the jury only to find
Grajales possessed a firearm in furtherance of a crime of violence or a drug-trafficking crime.
See United States v. Simpson, 228 F.3d 1294, 1300 (11th Cir. 2000) (explaining, where an
indictment charges in the conjunctive several means of violating a statute, a conviction may be
obtained on proof of only one of the means).

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F.3d 980, 992 (11th Cir. 2008). Where a defendant is an organizer, leader,

manager, or supervisor over one or more co-conspirators in a criminal activity, a

two-level sentencing enhancement applies. U.S.S.G. § 3B1.1(c) & cmt. n.2. The

enhancement requires evidence the defendant exerted some control, influence, or

decisionmaking authority over another participant in the criminal activity. United

States v. Martinez, 584 F.3d 1022, 1026 (11th Cir. 2009). The assertion of control

or influence over only one individual is enough to support a § 3B1.1(c)

enhancement. United States v. Perry, 340 F.3d 1216, 1217 (11th Cir. 2003) (per

curiam).

      Witnesses testified Grajales recruited at least two other co-conspirators, one

of whom provided protection for Grajales against his remaining co-participants,

which supports finding Grajales exerted some control or influence over one or both

of them. See id. Testimony that Grajales’s co-conspirators met at his home before

the robbery, where Grajales explained the plan to the group, and planned to meet

there again after the robbery, similarly supported finding Grajales exerted some

decisionmaking authority over his co-conspirators. See Martinez, 584 F.3d at

1026. Consequently, there was sufficient evidence to support the enhancement,

and the district judge did not clearly err when he imposed a two-level § 3B1.1(c)

role enhancement.

      AFFIRMED.


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