             Case: 12-10004   Date Filed: 12/28/2012   Page: 1 of 7

                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 12-10004
                           Non-Argument Calendar
                         ________________________

                  D.C. Docket No. 1:11-cr-00020-ODE-JFK-2


UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                    versus

LEONARDO MACEDO BALTAZAR,
JOSE ABRAHAM MEMBRENO-ORELLANA,

                                                         Defendants-Appellants.

                         ________________________

                 Appeals from the United States District Court
                     for the Northern District of Georgia
                        ________________________
                            (December 28, 2012)

Before BARKETT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

      Leonardo Baltazar and Jose Membreno-Orellana appeal their convictions

stemming from their attempt to sell methamphetamine and marijuana to an
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undercover law enforcement agent from a truck containing the defendants, two co-

conspirators, and the drugs. 1 Specifically, Membreno-Orellana supplied the

marijuana, while Baltazar supplied the methamphetamine. Upon arresting them,

law enforcement found that both defendants possessed loaded firearms.

      On appeal, Baltazar and Membreno-Orellana both argue that there was

insufficient evidence to convict them of possessing a firearm during and in relation

to a drug-trafficking crime. See 18 U.S.C. § 924(c)(1)(A)(i). Additionally,

Membreno-Orellana argues that there was insufficient evidence to support his

convictions for (1) conspiracy to possess with intent to distribute

methamphetamine, see 21 U.S.C. §§ 846 and 841(b)(1)(A)(viii); and (2)

possession with intent to distribute methamphetamine, see 21 U.S.C. § 841(a)(1),

(b)(1)(A)(viii), and 18 U.S.C. § 2. Baltazar also argues that the district court

abused its sentencing discretion by failing to avoid an unwarranted disparity

between Baltazar’s sentence and the shorter sentences of his co-conspirators.

                                            I.

      Regarding their convictions for possession of a firearm during and in

relation to a drug-trafficking crime, Baltazar and Membreno-Orellana argue that

there was insufficient evidence to prove that they possessed the firearms “in


1
 From the truck, law enforcement seized 907.5 grams of methamphetamine and 4,489 grams of
marijuana, with a total “street value” of approximately $134,000.

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furtherance of” a drug-trafficking crime because the officers did not find the

firearms on them until the agents arrested them. 2 To prove a violation of 18 U.S.C.

§ 924(c), the government must show that the defendant “(1) knowingly (2)

possessed a firearm (3) in furtherance of any drug-trafficking crime for which he

could be prosecuted in a court of the United States.” United States v. Woodard,

531 F.3d 1352, 1362 (11th Cir. 2008). The presence of a gun during a drug-

trafficking offense alone is not sufficient to establish the “in furtherance” element,

id., but rather, the firearm must have “helped, furthered, promoted, or advanced the

drug trafficking[,]” Woodard, 531 F.3d at 1362 (internal quotations omitted). To

determine the latter, we consider several factors including:

       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 the drugs or drug profits, and the time and
       circumstances under which the gun is found.

Id. (internal quotations omitted).

       Consistent with these factors, the jury here heard evidence that both Baltazar

and Membreno-Orellana were involved in a major drug deal, involving large

amounts of cash and drugs packaged for distribution. They further heard that


2
  We review the denial of a defendant’s motion for judgment of acquittal on sufficiency-of-the-
evidence grounds de novo, viewing the evidence in the light most favorable to the government.
United States v. Emmanuel, 565 F.3d 1324, 1333 (11th Cir. 2009). We will uphold a conviction
unless the jury could not have found the defendant guilty under any reasonable construction of
the evidence. Id.

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Baltazar and Membreno-Orellana each illegally possessed a loaded semiautomatic

firearm tucked into their waistband and positioned near the drugs in the truck.

The court did not err in upholding their convictions under § 924(c) because a

reasonable jury could infer that Baltazar and Membreno-Orellana used their

weapons as protection for the drugs and thereby conclude that each possessed their

firearm “in furtherance of” the anticipated drug deal.

                                         II.

      Membreno-Orellana argues that there was insufficient evidence to support

his convictions for possession with intent to distribute methamphetamine and

conspiracy to possess with intent to distribute methamphetamine because he was

unaware that his co-conspirators were dealing methamphetamine in the drug

transaction.

      For conspiracy to possess with intent to distribute drugs, the government

must prove that (1) an agreement existed between two or more persons to commit a

crime, and (2) the defendant knowingly and voluntarily participated in the

conspiracy. United States v. Ohayon, 483 F.3d 1281, 1292 (11th Cir. 2007). A

defendant may be found guilty of conspiracy if the evidence demonstrates that he

knew the essential objective of the conspiracy, even if the defendant did not know

all the details or played only a minor role in the overall scheme. United States v.




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McNair, 605 F.3d 1152, 1195-96 (11th Cir. 2010). The government does not have

to show that a defendant participated in every stage of the conspiracy. Id. at 1196.

      The jury here heard evidence that: Membreno-Orellana had telephone

contact with at least one other co-defendant multiple times in the days leading up

to the deal; co-conspirator Carlos Ivan Ortiz-Aleman told the undercover agent that

the drug transaction would involve multiple suppliers selling to the agent for a

single price; Membreno-Orellana arrived to the deal with the co-defendants in a

truck driven by Ortiz-Aleman; and Membreno-Orellana attempted to show the

contents of a large bag of marijuana to the undercover agent. This evidence

allowed the jury to reasonably conclude that Orellana conspired with his co-

defendants towards the common goal of selling marijuana and methamphetamine.

      Regarding his drug possession conviction, Membreno-Orellana specifically

argues that the government failed to sufficiently prove that he knowingly possessed

the methamphetamine. For drug possession with intent to distribute, the

government must prove that the defendant had (1) knowledge, (2) possession, and

(3) intent to distribute. United States v. Garcia-Bercovich, 582 F.3d 1234, 1237

(11th Cir. 2009). Possession may be constructive and “will be found where there

is a knowing exercise of or the knowing power or right to exercise dominion and

control over the substance.” United States v. Mieres-Borges, 919 F.2d 652, 657

(11th Cir. 1990) (quotation omitted). A defendant’s possession conviction will be

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affirmed if he aided and abetted another person’s possession. United States v.

Bain, 736 F.2d 1480, 1487 (11th Cir. 1984). 3 The jury heard sufficient evidence to

find that Orellana’s participation went beyond merely being present in the truck

with the methamphetamine to being an active participant in ensuring the success of

a large, multi-drug transaction, which included the methamphetamine. See United

States v. Rackley, 742 F.2d 1266, 1272 (11th Cir. 1984). Thus, the court did not

err in upholding Membreno-Orellana’s conviction for methamphetamine

possession with intent to distribute.

                                              III.

       Baltazar challenges the reasonableness of his sentence by arguing that the

district court abused its discretion in weighing the sentencing factor evaluating “the

need to avoid unwarranted sentence disparities among defendants with similar

records who have been found guilty of similar conduct.” See 18 U.S.C. §

3553(a)(6). Baltazar received a 200-month long sentence, which was within his

guidelines range of 180-months to life, but longer than that of Ortiz-Aleman, the

primary organizer of the drug deal, and those of the two other co-conspirators who

both had greater criminal histories than Baltazar. During sentencing, the judge



3
  For aiding and abetting, the government must prove that (1) the substantive offense took place;
(2) the defendant associated himself with that crime; and (3) the defendant committed some act
that furthered the crime. United States v. Camargo-Vergara, 57 F.3d 993, 1001 (11th Cir. 1995).


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noted that, unlike Ortiz, Baltazar carried a gun to the drug deal and went to trial.

Moreover, the judge further noted that, unlike his two other co-conspirators,

Baltazar offered to supply the agents specifically with methamphetamine, a

particularly dangerous drug. We may vacate a sentence only “if we are left with

the definite and firm conviction that the district court committed a clear error of

judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.” United

States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (internal quotations omitted).

Baltazar has not met his burden of showing that the court abused its discretion by

imposing an unreasonable sentence.

      AFFIRMED.




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