                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-25-2008

USA v. Iglesias
Precedential or Non-Precedential: Precedential

Docket No. 06-4426




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                                   PRECEDENTIAL

  UNITED STATES COURT OF APPEALS
       FOR THE THIRD CIRCUIT
            ____________

                 No. 06-4426
                ____________

      UNITED STATES OF AMERICA


                      v.

ENRIQUE IGLESIAS a/k/a AGENT HENRY

               Enrique Iglesias,

                                   Appellant
                ____________

On Appeal from the United States District Court
   for the Eastern District of Pennsylvania
       District Court No.: 04-cr-0657-1
     District Judge: Lawrence F. Stengel
                ____________

  Submitted Under Third Circuit LAR 34.1(a)
              January 7, 2008

     Before: FISHER, HARDIMAN and
        ALDISERT, Circuit Judges.
                     (Filed: July 25, 2008)

Robert A. Zauzmer
Ewald Zittlau
Office of United States Attorney
Suite 1250
615 Chestnut Street
Philadelphia, PA 19106
       Attorneys for Appellee

Cheryl J. Sturm
387 Ring Road
Chadds Ford, PA 19317
      Attorney for Appellant

                         ____________

                 OPINION OF THE COURT
                      ____________


HARDIMAN, Circuit Judge.

       In this appeal, Enrique Iglesias seeks to overturn his
conviction on various drug and weapons charges. He claims
that the evidence was insufficient and that the District Court
abused its discretion when it admitted into evidence testimony
from a suppression hearing. Iglesias also claims that the District
Court erred at sentencing when it failed to deduct from the total
drug quantity attributable to him an amount reserved for
personal use. We will affirm.

                                2
                                I.

        Early in the morning on August 19, 2004, federal and
state law enforcement agents executed a search warrant at the
home of Elliott Shisler and seized a small quantity of
methamphetamine. Shisler agreed to cooperate with law
enforcement and informed the agents that Iglesias had sold him
the drug. As the officers were transporting Shisler downtown
for an interview, he pointed out that Iglesias lived in a duplex at
3625 Red Lion Road in Philadelphia.

       After arriving at the station house, the agents interviewed
Shisler and he agreed to telephone Iglesias to arrange a drug
buy. In a recorded conversation, Shisler asked Iglesias whether
he could come to the duplex on Red Lion Road. Iglesias
consented, telling Shisler to “hurry.” Based on that telephone
call and other statements Shisler made, a search warrant was
issued for Iglesias’s residence.

       Late that same evening, the search warrant was executed
at 3625 Red Lion Road, Apartment A, which was in a duplex
owned by Iglesias’s brother. In the master bedroom, agents
found a wallet containing Iglesias’s driver’s license and a bag of
methamphetamine in plain view on the bed. A woman’s purse
containing two bags of methamphetamine was found atop a
bureau in the same room. In the closet of the master bedroom,
agents found two Atlantic City casino cards bearing Iglesias’s
name, a black canvas bag containing unused food saver bags and
a bag sealer, and a bundle of cash totaling $15,611. In the
master bathroom, agents discovered a can of hairspray with a
false bottom in which was hidden a bag of methamphetamine.

                                3
       In a bedroom which had been set up as an office, agents
found a plastic bag containing 2.7 grams of methamphetamine
along with photographs of Iglesias, a Social Security card
bearing his name, and a receipt made out to “Henry Iglesias,”
which was a moniker that Iglesias used. In that same room was
a briefcase containing an unloaded Taurus 9 millimeter semi-
automatic handgun with an obliterated serial number and a
magazine loaded with 9 millimeter ammunition, and hundreds
of unused Ziploc® bags.

      During their search of the kitchen, agents found a coffee
can containing eight Ziploc® bags of methamphetamine
weighing approximately 135 grams. In all, thirteen bags of
methamphetamine — weighing a total of approximately 156
grams — were found in Apartment A.

       On the dining room table, agents found a keyring which
included keys to the front door of Apartment A and a silver
Volvo parked behind the duplex. In the trunk of the Volvo,
agents found a cooler that contained three food saver bags with
1146 grams of methamphetamine.1

       As a result of the evidence seized during the search,
Iglesias was indicted on four counts: (1) conspiracy to distribute
more than 500 grams of a substance containing a detectable
amount of methamphetamine in violation of 21 U.S.C. § 846;


       1
         Although the Volvo was registered to James Kenneth
Martin, Martin testified that he had given the car to Iglesias
shortly after purchasing it.

                                4
(2) possession with intent to distribute more than 500 grams of
a substance containing a detectable amount of
methamphetamine in violation of 21 U.S.C. § 841(a)(2); (3)
possession of a firearm in furtherance of a drug-trafficking
crime in violation of 18 U.S.C. § 924(c)(1); and (4) possession
of a firearm by a convicted felon in violation of 18 U.S.C.
§ 922(g)(1).

        Before trial, Iglesias filed a motion to suppress evidence.
At an evidentiary hearing held two days before trial, Shisler
testified that Iglesias had sold him methamphetamine “once or
twice” at the Red Lion Road duplex in 2004. Shisler also
explained that sometimes he did not pay Iglesias until he had
sold the drug to his customers. The District Court denied the
motion to suppress and the case proceeded to trial.

       At trial, the government called Shisler as a witness, but
when asked “who supplied you with the methamphetamine that
you sold,” Shisler responded: “I can’t answer that question
because it has been brought to my attention that charges may be
brought against me.” In light of this about-face, the prosecutor
proceeded to impeach his own witness by revisiting the
questions that had been asked of Shisler at the suppression
hearing. Thereafter, the government offered into evidence
Shisler’s prior testimony from the evidentiary hearing pursuant
to Rule 801(d)(1)(A) of the Federal Rules of Evidence. The jury
subsequently found Iglesias guilty of all charges.

       The District Court sentenced Iglesias to 420 months in
prison, representing 360 months for each of the drug counts, to
run concurrently, plus a 60 month consecutive sentence on the

                                5
firearm count under 18 U.S.C. § 922(c)(1). The District Court
also sentenced Iglesias to a concurrent sentence of 120 months
for violating 18 U.S.C. § 922(g)(1). This timely appeal
followed, and we have jurisdiction pursuant to 18 U.S.C.
§ 3231.

                               II.

       Iglesias raises myriad challenges to his conviction and
sentence. In this opinion, we focus on the three most substantial
arguments, in which Iglesias claims: (1) insufficient evidence
supported his convictions for conspiracy, drug and weapons
possession, and possession of a handgun in furtherance of a drug
crime; (2) the District Court abused its discretion in admitting
into evidence at trial Shisler’s testimony from the suppression
hearing; and (3) the District Court erred at sentencing when it
failed to exclude from the drug quantity methamphetamine
earmarked for Iglesias’s personal use. The latter two arguments
involve questions of first impression for this Court.

                               A.

       Iglesias claims that the evidence at trial was insufficient
to convict him in three respects. First, he argues that he should
not have been convicted of conspiracy because he and Shisler
had merely a buyer-seller relationship. Second, Iglesias
contends that there was insufficient evidence to prove that he
possessed the methamphetamine or the Taurus firearm because
others had access to Apartment A. Finally, he maintains that
there was insufficient evidence for the jury to conclude that he
had kept the Taurus in furtherance of a drug crime.

                                6
       “The burden on a defendant who raises a challenge to the
sufficiency of the evidence is extremely high.” United States v.
Lore, 430 F.3d 190, 203-04 (3d Cir. 2005) (citation omitted).
As we explained in Lore:

       In reviewing a jury verdict for sufficiency of the
       evidence . . . we must consider the evidence in the
       light most favorable to the government and affirm
       the judgment if there is substantial evidence from
       which any rational trier of fact could find guilt
       beyond a reasonable doubt.

Id. at 204 (citations and internal quotation marks omitted).
Moreover, the government may defeat a sufficiency-of-the-
evidence challenge on circumstantial evidence alone. See
United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006).

       The essential elements of a drug distribution conspiracy
under 21 U.S.C. § 846 are: “(1) a shared unity of purpose, (2)
an intent to achieve a common goal, and (3) an agreement to
work together toward the goal.” Bobb, 471 F.3d at 494 (citation
and internal quotation marks omitted). Among the factors
courts have considered in determining whether a conspiracy has
been shown are “the length of affiliation between the defendant
and the conspiracy; whether there is an established method of
payment; the extent to which transactions are standardized; and
whether there is a demonstrated level of mutual trust.” United
States v. Gibbs, 190 F.3d 188, 199 (3d Cir. 1999) (citation
omitted).



                               7
        Although he purchased drugs from Iglesias “once or
twice” at Iglesias’s apartment on Red Lion Road, Shisler
testified that Iglesias gave him drugs on credit and awaited
payment until after Shisler had sold the drugs to his customers.
This arrangement is sufficient evidence of a conspiracy. See
Bobb, 471 F.3d at 495. Also, the fact that Iglesias invited
Shisler to Apartment A with drugs in plain view reflects a level
of mutual trust consistent with a conspiracy. See Gibbs, 190
F.3d at 199.

        Furthermore, the government was not required to prove
that all of the Gibbs factors supported the conspiracy because
“the presence of one or more of these factors furthers the
inference that the buyer knew that he was part of a larger
operation and hence can be held responsible as a co-
conspirator.” Id. at 200 (emphasis added). Based on the
evidence adduced at trial, a reasonable juror could conclude that
Shisler and Iglesias shared a common goal (the distribution of
methamphetamine), the intent to achieve that goal, and a tacit
agreement to cooperate to achieve it (via a credit arrangement).
No more was required to prove a conspiracy under 21 U.S.C.
§ 846.

       Iglesias next argues that the evidence was insufficient to
prove that he possessed the methamphetamine and the Taurus
firearm because others had access to Apartment A. We reject
this argument because it erroneously assumes that Iglesias’s
dominion and control over Apartment A had to be exclusive.

      “The essential elements of the substantive offense of
possession of a controlled substance with intent to distribute are

                                8
that the defendant (1) knowingly possessed a controlled
substance with (2) the intent to distribute it.” Bobb, 471 F.3d at
497 (citing 21 U.S.C. § 841(a)(1)). Possession is also an
element of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(c)(1).
See United States v. Dodd, 225 F.3d 340, 344 (3d Cir. 2000);
United States v. Williams, 344 F.3d 365, 370 (3d Cir. 2003).
The jury could convict Iglesias of the possession charges if it
concluded that he actually or constructively possessed the
methamphetamine and the Taurus. See Bobb, 471 F.3d at 497;
see also Williams, 344 F.3d at 378. “[C]onstructive possession
requires an individual to have the power and intent to exercise
both dominion and control over the object he or she is charged
with possessing.” United States v. Garth, 188 F.3d 99, 112 (3d
Cir. 1999) (citation omitted). Constructive possession may be
proved by circumstantial evidence. See Bobb, 471 F.3d at 497.

        Viewing the evidence in the light most favorable to the
government, we find that overwhelming direct and
circumstantial evidence tied Iglesias to Apartment A. First,
Shisler testified that he purchased drugs from Iglesias at
Apartment A and that Iglesias lived there alone. Second,
virtually every room contained damning evidence that Iglesias
exercised dominion and control over Apartment A and its
contents. The office where methamphetamine and the Taurus
were found contained numerous photographs of Iglesias, as well
as a receipt and a Social Security card in his name. The master
bedroom contained more drugs, bags, and a large quantity of
cash, along with Iglesias’s driver’s license and several casino
cards in his name. The kitchen contained the same drugs stored
in the same kinds of Ziploc® bags found in the office. The
dining room contained keys to a Volvo that contained

                                9
methamphetamine packaged in the same bags that agents had
found in the bedrooms. Finally, one of Iglesias’s own witnesses
testified that he had heard Iglesias refer to Apartment A as “his
apartment.” The aforementioned facts far exceeded the
minimum quantum of evidence necessary for the jury to find
that Iglesias exercised dominion and control over Apartment A
and its contents, and that he possessed the drugs and the Taurus
firearm. See Garth, 188 F.3d at 112-13.

        Iglesias next contends that there was insufficient
evidence to support the jury’s conclusion that he possessed the
Taurus firearm in furtherance of drug crimes. To obtain a
conviction under 18 U.S.C. § 924(c), the government must show
that the defendant possessed the firearm “to advance or promote
criminal activity.” Bobb, 471 F.3d at 496. As we explained in
Bobb:

       In making this determination, the following
       nonexclusive factors are relevant: the type of drug
       activity that is being conducted, accessibility of
       the firearm, the type of the weapon, whether the
       weapon is stolen, the status of the possession
       (legitimate or illegal), whether the gun is loaded,
       proximity to drugs or drug profits, and the time
       and circumstances under which the gun is found.

Id. (quoting United States v. Sparrow, 371 F.3d 851, 853 (3d
Cir. 2004)). To determine whether there was sufficient evidence
that Iglesias’s possession of the Taurus was “in furtherance of”
his drug trafficking, we scrutinize the “totality of the evidence,
both direct and circumstantial,” and make “all available

                               10
inferences in favor of the government.” See Sparrow, 371 F.3d
at 852 (citation omitted).

       The Taurus was found — along with a loaded magazine
— inside a briefcase in the office. In addition to the Taurus and
the magazine, the briefcase held a large food saver bag that
contained several hundred Ziploc® bags. The food saver bag
was of the same type which had been used to store the drugs
found in the Volvo, and the Ziploc® bags were identical to
those which had been used to store methamphetamine in the
kitchen of Apartment A. Given the proximity of the loaded
magazine to the gun — and considering that the gun, magazine,
and drug packaging paraphernalia all were stored together in the
briefcase that was found in the same room as methamphetamine
— a rational juror easily could have concluded that the gun was
used “in furtherance of” Iglesias’s drug-trafficking activities
within the meaning of 18 U.S.C. § 924(c). See United States v.
Loney, 219 F.3d 281, 289 (3d Cir. 2000) (weapon’s physical
proximity to narcotics provides sufficient nexus).

                               B.

        Iglesias asserts that the District Court erred when it
admitted into evidence the statements that Shisler made at the
hearing on Iglesias’s motion to suppress. Although Shisler
testified freely at the suppression hearing, he did an about-face
at trial, apparently because he had second thoughts about the
propriety of his cooperation with the government. At the
government’s request and over Iglesias’s attorney’s objection



                               11
that “the best evidence available is on the witness stand,” 2 the
District Court then admitted Shisler’s prior testimony into
evidence.

       The government argues that the District Court properly
admitted this prior testimony pursuant to Rule 801(d)(1)(A) of
the Federal Rules of Evidence.

       Rule 801(d)(1)(A) provides that a statement is not
hearsay if “[t]he declarant testifies at the trial or hearing and is
subject to cross-examination concerning the statement, and the
statement is . . . inconsistent with the declarant’s testimony, and
was given under oath subject to the penalty of perjury at a trial,
hearing, or other proceeding, or in a deposition . . . .”

       At trial, Iglesias failed to object to Shisler’s prior
testimony on the basis of hearsay; instead he objected on the
grounds of the best evidence rule. Rule 103(a)(1) of the Federal
Rules of Evidence, however, “require[s] a timely and specific
objection to evidence erroneously admitted.” United States v.
Moore, 375 F.3d 259, 262 (3d Cir. 2004). Our sister circuits
have held, and we agree, that “a party fails to preserve an
evidentiary issue for appeal not only by failing to make a
specific objection, . . . but also by making the wrong specific
objection.” See United States v. Gomez-Norena, 908 F.2d 497,
500 (9th Cir. 1990) (citations omitted) (emphasis in original);


       2
          Iglesias does not now argue that Shisler’s prior
testimony should have been excluded pursuant to the best
evidence rule.

                                12
see also United States v. Gracia, 522 F.3d 597, 599 n.1 (5th Cir.
2008); United States v. Schalk, 515 F.3d 768, 776 (7th Cir.
2008); United States v. Arias, 575 F.2d 253, 255 (9th Cir. 1978).
Accordingly, despite the parties’ apparent agreement that the
appropriate standard of review is abuse of discretion, we will
review the District Court’s admission of Shisler’s prior
testimony for plain error. See Moore, 375 F.3d at 262; see also
Schalk, 515 F.3d at 776; Gomez-Norena, 908 F.2d at 500-01.

        Under this standard, “[t]here must be an error that is plain
and that affect[s] substantial rights.” United States v. Olano,
507 U.S. 725, 732 (1993) (citations and internal quotation marks
omitted). An error is a “[d]eviation from a legal rule” and it is
“plain” if it is “clear” or “obvious.” Id. at 732-34. Generally,
an error affects substantial rights when it is prejudicial, i.e., it
“affected the outcome of the district court proceedings.” Id. at
734. Moreover, even if such an error is found, “the court of
appeals has the authority to order correction, but is not required
to do so.” Id. at 735. We should exercise our discretion to
correct the error only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” Id. at 736
(citation and internal quotation marks omitted).

        Two days before Iglesias’s trial began, the government
called Shisler as a witness at the suppression hearing. Shisler
testified under oath that he had bought methamphetamine from
Iglesias “once or twice” in 2004 at the Red Lion Road
apartment, that he sometimes would pay Iglesias for the drugs
after he sold them to other people, and that Iglesias might have
delivered drugs to Shisler’s apartment.


                                13
        At trial, the government called Shisler to testify again.
Shisler conceded that he had a prior criminal record, admitted
selling methamphetamine in 2004, and testified that he had
persuaded his girlfriend to buy him a handgun because he knew
that his status as a felon precluded him from doing so. When
Shisler was asked to identify “who supplied you with the
methamphetamine that you sold,” however, Shisler responded:
“I can’t answer that question because it has been brought to my
attention that charges may be brought against me.” Shisler also
expressed frustration that he testified frankly at the suppression
hearing under the mistaken impression that his lawyer had
secured a deal for him. Upon learning that this was not the case,
Shisler’s testimony at trial was as evasive and opaque as it was
clear and straightforward at the suppression hearing. After
Shisler initially declined to disclose the identity of his
methamphetamine supplier at trial, the prosecutor then
impeached him with his prior testimony from the suppression
hearing. During this part of the examination, Shisler’s responses
included one word admissions, evasive and rambling responses,
and equivocations. Over Iglesias’s objection, the government
offered into evidence the questions Shisler had been asked at the
suppression hearing (along with his answers thereto), which
were then admitted by the District Court. Afterwards, Shisler
was cross-examined by Iglesias’s attorney.

       On the facts presented in this case, we do not find that the
District Court committed plain error in admitting Shisler’s
sworn testimony from the suppression hearing.                 The
admissibility of this evidence turned on whether Shisler’s prior
testimony was “inconsistent” with his refusal to answer the same
questions at trial. This Court has noted previously that “[t]he

                                14
district court should have considerable discretion to determine
whether evasive answers are inconsistent with statements
previously given.” United States v. Mornan, 413 F.3d 372, 379
(3d Cir. 2005) (quoting United States v. Thompson, 708 F.2d
1294, 1302 (8th Cir. 1983)).

        Although we have yet to decide the precise issue
presented here, two federal courts of appeals have held that “[i]n
applying Rule 801(d)(1)(A), inconsistency is not limited to
diametrically opposed answers but may be found in evasive
answers, inability to recall, silence, or changes of position.”
United States v. Matlock, 109 F.3d 1313, 1319 (8th Cir. 1997)
(citation and internal quotation marks omitted); accord United
States v. Williams, 737 F.2d 594, 608 (7th Cir. 1984).
Specifically, where a witness demonstrates a “manifest
reluctance to testify” and “forgets” certain facts at trial, this
testimony can be inconsistent under Rule 801(d)(1)(A).3
Williams, 737 F.2d at 608 (quotation omitted); see also Mornan,
413 F.3d at 379. We agree with these courts such that when a
witness who testifies frankly under oath subject to cross-
examination only two days later states that he now “can’t answer
the question” and is otherwise evasive and vague, a district court
may find that these statements are inconsistent and may admit


       3
          Rule 801(d)(1)(A) is meant to “provide a party with
desirable protection against the ‘turncoat witness’ who changes
his story on the stand and deprives the party calling him of
evidence essential to his case.” Williams, 737 F.2d at 609
(quoting Fed. R. Evid. 801(d)(1)(A) advisory committee’s note).


                               15
the prior testimony under Rule 801(d)(1)(A). Accordingly, the
District Court did not commit plain error in admitting Shisler’s
prior testimony from the suppression hearing.

                               C.

       In his final substantive argument, Iglesias claims that the
District Court erred at sentencing by failing to exclude from the
quantity of drugs seized an amount that he intended to keep for
personal consumption.

        We review this claim for plain error because Iglesias
raises it for the first time on appeal. United States v. Watson,
482 F.3d 269, 274 (3d Cir. 2007).

       Iglesias correctly notes that when a defendant is
convicted of drug distribution, ordinarily a district court should
exclude from the total drug quantity any amount possessed for
his personal consumption. See Jansen v. United States, 369
F.3d 237, 249 (3d Cir. 2004). In this case, which involved a
conspiracy, the District Court did not attribute any quantity of
the drugs found to Iglesias’s personal use. Iglesias argues that
this constituted reversible error. We disagree.

        Under the United States Sentencing Guidelines (USSG),
relevant conduct in a conspiracy is determined by reference to
“all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the
defendant; and . . . all reasonably foreseeable acts and omissions
of others in furtherance of the jointly undertaken criminal
activity.”   United States Sentencing Guidelines Manual

                               16
§§ 1B1.3(a)(1)(A), 1B1.3(a)(1)(B). As the commentary to
Guidelines § 1B1.3 explains, a person convicted of conspiracy
to distribute controlled substances “is accountable for all
quantities of contraband with which he was directly involved
and . . . all reasonably foreseeable quantities of contraband that
were within the scope of the criminal activity that he jointly
undertook.” USSG § 1B1.3 cmt. n.2 (emphasis added).

        Nothing in the Guidelines suggests that drugs a defendant
earmarks for his personal use should be deducted from the total
quantity involved in a conspiracy. Indeed, “[e]very circuit to
address the question has held that where a member of a
conspiracy to distribute drugs handles drugs both for personal
consumption and distribution in the course of the conspiracy, the
entire quantity of drugs handled is relevant conduct for purposes
of calculating the base offense level pursuant to the Guidelines.”
United States v. Asch, 207 F.3d 1238, 1243-44 (10th Cir. 2000)
(citing United States v. Fregoso, 60 F.3d 1314, 1328-29 (8th
Cir. 1995), United States v. Snook, 60 F.3d 394, 395-96 (7th Cir.
1995), and United States v. Innamorati, 996 F.2d 456, 492 (1st
Cir. 1993)).

       Two of our sister courts have explained why excluding
the quantity of drugs retained for personal use does not make
sense when a conspiracy has been proved:

       The case would be different . . . if the charge were
       conspiracy rather than possession . . . . Suppose
       that X sells Y a kilogram of cocaine in
       circumstances that make Y a conspirator with X
       and not merely a buyer from him. The amount of

                               17
       drugs involved in the conspiracy is unaffected by
       the use that Y makes of the drugs. It makes no
       difference whether he sells the entire amount and
       buys drugs for his personal consumption on the
       open market with the proceeds or keeps a portion
       of the drugs to consume personally as
       compensation for his participation in the
       conspiracy.

United States v. Williams, 247 F.3d 353, 358 (2d Cir. 2001)
(Calabresi, J.) (quoting United States v. Wyss, 147 F.3d 631, 632
(7th Cir. 1998) (Posner, J.)). We find this reasoning sound and,
accordingly, hold that a defendant convicted of conspiring to
distribute drugs is not entitled to exclude a personal use amount
from the total quantity of drugs involved in the conspiracy.

                               III.

      Iglesias raises various additional arguments that we
have considered and found to be neither meritorious nor
worthy of extended discussion. For the reasons set forth in
the margin, we reject Iglesias’s contentions that the District
Court: (1) constructively amended the indictment;4 (2)


       4
          The indictment was not constructively amended
because the District Court correctly told the jury that the amount
of methamphetamine seized was not an essential element of the
offense. See 21 U.S.C. §§ 841(a)(1), 846. Thus, the
government’s allegation of a specific amount in the indictment
properly was disregarded as surplusage. See United States v.

                               18
materially erred at sentencing when it incorrectly stated that
the Taurus was loaded;5 (3) relied on a Presentence
Investigation Report (PSR), which contained an erroneous
description of his prior criminal history;6 and (4) failed to
reconcile his sentence with the sentences received by
similarly-situated defendants.7 We also decline to reach on
direct appeal Iglesias’s argument that his attorney rendered



Miller, 471 U.S. 130, 136 (1985).
       5
         The District Court’s statement that the Taurus was
“loaded” had no material effect on the sentence Iglesias
received, and thus was not misinformation of constitutional
magnitude. See United States v. Blackston, 940 F.2d 877, 881
(3d Cir. 1991) (declining to overturn a sentence “based on a
single misspoken phrase”).
       6
         Iglesias waived any argument that the District Court
improperly relied on the PSR’s factual description of his prior
crimes when applying the career-offender enhancement because
he did not challenge the PSR’s factual description of his
criminal history in District Court. See United States v. Siegel,
477 F.3d 87, 93-94 (3d Cir. 2007).
       7
          Iglesias did not meet his burden of “demonstrat[ing]
similarity by showing that other defendants’ circumstances
exactly paralleled his,” and “a court should not consider
sentences imposed on defendants in other cases in the absence
of such a showing by a party.” United States v. Vargas, 477
F.3d 94, 100 (3d Cir. 2007) (citation omitted).

                               19
ineffective assistance. See United States v. Headley, 923
F.2d 1079, 1083 (3d Cir. 1991).

      For all the foregoing reasons, we will affirm the
judgment of the District Court.




                              20
