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                                                                        [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                     ________________________

                                             No. 12-12257
                                       ________________________

                          D.C. Docket No. 8:11-cr-00333-SDM-TGW-6

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,
                                                 versus

PEDRO LAZARO RODRIGUEZ,
CHESTER JOHN FLOYD,

llllllllllllllllllllllllllllllllllllllll                               Defendants-Appellants.
                                       ________________________

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

                                            (March 12, 2014)

Before PRYOR and MARTIN, Circuit Judges, and GOLD, ∗ District Judge.

PRYOR, Circuit Judge:

         This appeal raises four challenges to the judgments of convictions and

sentences of two co-conspirators in a Florida drug ring. First, we must decide


∗
 Honorable Alan Stephen Gold, United States District Judge for the Southern District of Florida,
sitting by designation.
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whether there was sufficient evidence to convict Chester Floyd, who received

shipments of methamphetamine and cocaine to his address. Second, we must

decide whether Pedro Rodriguez was denied a fair trial because of statements made

by Floyd’s counsel in his closing argument. Third, we must decide whether Pedro

Rodriguez was denied a fair trial because the district court did not sua sponte sever

his trial from Floyd’s. Fourth, we must decide whether Rodriguez must be

resentenced because the district court enhanced his sentence with a prior

conviction that was not final before the drug conspiracy ended. See 21 U.S.C.

§ 841(b)(1)(A)(viii). We AFFIRM the judgments of convictions of both

defendants, but we VACATE the sentence of Rodriguez and REMAND for

resentencing.

                                 I. BACKGROUND

      Chester Floyd and Pedro Rodriguez participated in a drug conspiracy led by

Victor Yanez-Gutierrez, the drug supplier, and Juan Hernandez-Ramirez, the drug

wholesaler. The conspiracy transported cocaine, marijuana, and methamphetamine

from California to Florida by smuggling it in cars on car haulers or concealing it in

FedEx and UPS deliveries. Rodriguez chauffeured Hernandez-Ramirez and sold

portions of the conspirators’ supply of methamphetamine. Floyd, who often

purchased methamphetamine from Hernandez-Ramirez, later became involved

with the conspiracy when he agreed to receive shipments of the drugs to the trailer


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where he resided. When federal authorities arrested members of the drug ring, they

seized dozens of kilograms of cocaine, more than five pounds of

methamphetamine, and over $800,000 in drug proceeds.

      The United States filed a superseding indictment against Floyd and

Rodriguez, along with another co-conspirator, and charged them as participants in

the drug conspiracy that began “on an unknown date and continu[ed] until on or

about July 20, 2011.” See 21 U.S.C. §§ 841(b)(1)(A)(ii), (b)(1)(A)(viii), (b)(1)(D),

846. The superseding indictment also charged that Floyd, a convicted felon,

knowingly possessed a firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2), and aided and

abetted others who possessed or used a firearm or carried a firearm in furtherance

of a drug trafficking crime, id. § 924(c)(1)(A)(i). The superseding indictment also

charged that Rodriguez was a participant in a money laundering scheme, 18 U.S.C.

§§ 1952(a)(1), 1956(h), and aided and abetted the sales of methamphetamine at his

apartment, 21 U.S.C. § 856(a)(1), (b).

      The district court conducted a joint trial of Floyd and Rodriguez, and the

jury convicted both conspirators on all counts. The court then sentenced Floyd to

300 months of imprisonment and sentenced Rodriguez to life imprisonment. See

21 U.S.C. § 841(b)(1)(A)(ii), (b)(1)(B)(viii).




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                          II. STANDARDS OF REVIEW

      Two standards of review govern this appeal. First, we review a claim that

there was insufficient evidence to convict a defendant de novo. United States v.

Brazel, 102 F.3d 1120, 1131 (11th Cir. 1997). We resolve all reasonable inferences

and credibility determinations in favor of the United States and ask whether a

reasonable jury could have concluded the evidence established the defendant’s

guilt beyond a reasonable doubt. Id. Second, we review an objection first raised on

appeal for plain error. United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.

2005). We may not correct an error that the defendant failed to raise in the district

court unless the defendant establishes that there was an error, that was plain, and

that affected his substantial rights. Id. And even if all three of those conditions are

met, we may correct that error only if it seriously affected the fairness, integrity, or

public reputation of judicial proceedings. Id.

                                 III. DISCUSSION

      We divide our discussion in two parts. First, we explain the three challenges

that Floyd and Rodriguez raise about their judgments of convictions. We conclude

that none of those challenges warrants vacatur of their judgments of convictions.

Second, we address the meritorious challenge that Rodriguez raises about his

sentence and that the United States concedes.




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          A. We Affirm the Judgments of Convictions of Both Defendants.

      Floyd and Rodriguez raise three challenges related to their trial. Floyd

argues that there was insufficient evidence to convict him as a co-conspirator.

Rodriguez argues that comments made by Floyd’s counsel during closing

arguments prejudiced his trial. And Rodriguez argues that the judge should have

sua sponte severed the trials of the co-conspirators. We discuss each in turn.

 1. There Was Sufficient Evidence that Floyd Voluntarily Joined the Conspiracy.

      To establish that Floyd was a member of the conspiracy, the United States

must have proved beyond a reasonable doubt that a conspiracy existed, Floyd knew

of it, and with that knowledge, he voluntarily joined the conspiracy. Brazel, 102

F.3d at 1131. But merely buying drugs from a drug dealer is not punishable as a

conspiracy because that “transaction is simply not probative of an agreement to

join together to accomplish a criminal objective beyond that already being

accomplished by the transaction.” United States v. Mercer, 165 F.3d 1331, 1335

(11th Cir. 1999) (internal quotation mark omitted). We cannot infer a conspiracy

based solely on an isolated instance of a defendant’s distribution of drugs to friends

or houseguests, United States v. Hardy, 895 F.2d 1331, 1335 (11th Cir. 1990), but

repeated purchases of large quantities of drugs might evidence something more

than a buyer-seller relationship, United States v. Gomez, 164 F.3d 1354, 1356 (11th

Cir. 1999).


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      Floyd argues that the evidence against him proves that he was only a buyer

of drugs, but there was sufficient evidence for reasonable jurors to conclude that he

was a member of the conspiracy. Floyd agreed to receive some of the drug

shipments on behalf of the conspiracy. Not only was he present when those large

drug shipments arrived at his trailer, but he also helped unpack some of the drugs

by dismantling the tailgate of a Toyota Tundra loaded with methamphetamine and

taking apart a radio full of cocaine. Moreover, Floyd owed Hernandez-Ramirez

$7,000 or $8,000 for drug purchases made on credit, and Hernandez-Ramirez

testified that, when he would deliver drugs to Floyd, “[Floyd] would ask

[Hernandez-Ramirez] for more because sometimes he’d say the people were

asking for more because the drugs were very good and he would need more.”

Hernandez-Ramirez also testified that the quantity of drugs sold to Floyd were “a

large amount to use at the same time even if a person is a heavy [drug] user.”

      A jury could reasonably infer from this evidence that Floyd knowingly and

voluntarily joined the conspiracy. Floyd performed acts going beyond a

buyer-seller relationship when he received the drug shipments at his trailer,

temporarily stored the drugs there, and purchased drugs in large quantities. The

district court did not err when it denied Floyd’s motion for a judgment of acquittal

because the record, viewed in the light most favorable to the United States,

established that Floyd knowingly participated in the conspiracy.


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    2. Statements by Floyd’s Counsel Did Not Infringe Rodriguez’s Right to a
                                  Fair Trial.

      Rodriguez argues for the first time on appeal that the following statement of

Floyd’s counsel infringed his right to a fair trial:

      [J]ust like any big organization who’s well organized and well run,
      you have team meetings, right? Where did they have their team
      meetings? Well, they had the team meetings when they went to count
      the money.

      It seems everybody who was part of the conspiracy managed to
      stumble in at one point or another and show up at these team
      meetings. Hey, where is Chester by the way? Anybody ever have a
      Chester Floyd sighting at the money meetings?

      [Shaking head negatively] No. He wasn’t part of the conspiracy.

Rodriguez contends that Floyd’s counsel misstated the law because the statement

suggests that Rodriguez’s mere presence at the money meetings was sufficient to

prove Rodriguez’s guilt.

      The remarks by Floyd’s counsel were not improper. The import of the

remarks was not that mere presence suffices for guilt; instead, the import was that

Floyd’s noticeable absence from these meetings was exculpatory evidence tending

to prove that Floyd was not part of the conspiracy. And even if the remarks were

improper, Rodriguez cannot establish that the remarks prejudiced him. The district

court gave limiting instructions that statements by the lawyers are not evidence and

are not binding on the jurors and that mere presence is not sufficient proof that a

defendant is a co-conspirator.

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  3. The District Court Did Not Err When It Did Not Sever the Trial Sua Sponte.

      “There is a preference in the federal system for joint trials of defendants who

are indicted together.” Zafiro v. United States, 506 U.S. 534, 537, 113 S. Ct. 933,

937 (1993); see Fed. R. Crim. P. 8(b) (stating that defendants charged in the same

indictment may be tried together “if they are alleged to have participated in the

same act or transaction, or in the same series of acts or transactions, constituting an

offense or offenses.”). A district court has “substantial discretion” to decide

whether to sever the trials of two or more co-defendants. United States v.

Blankenship, 382 F.3d 1110, 1120 (11th Cir. 2004) (internal quotation mark

omitted). For a defendant to establish that his trial should have been severed from

his co-defendant’s, the defendant must first establish that he was prejudiced by the

joint trial. Id. at 1122. If a defendant establishes that he was prejudiced, we then

determine whether severance was the correct remedy for that prejudice. Id. There

are only two circumstances in which severance is the only permissible remedy:

first, when serious risk that a joint trial would compromise a specific trial right of

one of the defendants; and second, when a joint trial prevents the jury from making

a reliable judgment about guilt or innocence. Id.at 1123.

      Rodriguez argues that the closing and opening statements of Floyd’s counsel

required the district court to sever his trial from Floyd’s. Rodriguez objects to the

opening statement of Floyd’s counsel, in which he remarked to the jurors that


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“while you may hear a lot of evidence regarding Mr. Rodriguez, uh, we would like

for you, as you’re considering this, that Mr. Floyd is a separate defendant,”

because that statement “trumped up” the evidence against Rodriguez. He also

objects to the same closing statement regarding Floyd’s absence at the money

meetings that we discussed above. But these statements neither trumped up the

evidence against Rodriguez nor misstated the law.

      Rodriguez has not established that the district court plainly erred when it did

not sever the trials sua sponte. Floyd’s counsel stated only that the jurors “may

hear a lot of evidence regarding Mr. Rodriguez.” Moreover, he correctly restated

basic tenants of the law of conspiracy—that jurors must make independent

determinations of the guilt of each defendant even if tried together and that mere

presence among conspirators is not sufficient evidence of guilt. And severing the

trial of Floyd and Rodriguez was not the only option available to the district court

to remedy any prejudice from the remarks. The district court gave a limiting

instruction to the jury that “[it] must consider the case of each defendant separately

and individually. If [the jurors] find a defendant guilty of one crime, that must not

affect [the jury’s] verdict for any other crime or any other defendant.” The court

also instructed that “[a]nything the lawyers say is not evidence and is not binding

on [the jurors],” and that mere presence is not sufficient proof that a defendant is a

co-conspirator. As the Supreme Court stated in Zafiro, these limiting instructions


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“often will suffice to cure any risk of prejudice,” which might have resulted from

the statements of Floyd’s counsel. 506 U.S. at 539, 113 S. Ct. at 938.

      B. We Vacate the Sentence of Rodriguez Because His Prior Conviction
                               Was Not “Final.”

      Rodriguez did not object to his life sentence at his sentencing hearing, but,

as the United States concedes, the district court plainly erred when it sentenced

Rodriguez to a mandatory life sentence based on two prior drug convictions, one of

which was not final before the drug conspiracy ended on July 20, 2011. The statute

that mandates a life sentence for repeat drug offenders provides, “If any person

commits a violation of this subparagraph or of section 849, 859, 860, or 861 of this

title after two or more prior convictions for a felony drug offense have become

final, such person shall be sentenced to a mandatory term of life imprisonment

without release and fined in accordance with the preceding sentence.” 21 U.S.C.

§ 841(b)(1)(A)(ii), (b)(1)(B)(viii) (emphasis added). One of Rodriguez’s prior

convictions was a Florida conviction for possession of methamphetamine. A

Florida court convicted Rodriguez on June 29, 2011, but that conviction was not

final until July 29, 2011, when Rodriguez’s time to appeal that conviction expired.

See Fla. R. App. P. 9.140(b)(3). Because the indictment alleges that the conspiracy

ended on July 20, 2011, nine days before the time to appeal the prior conviction

expired, Rodriguez did not violate section 841 “after” his prior offense became

“final” as the statute requires. See United States v. Lippner, 676 F.2d 456, 467

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(11th Cir. 1982) (“[F]or the purposes of enhanced sentencing under § 841(b)(1)(B),

a conviction is not final until all avenues of direct attack have been exhausted.”).

Rodriguez is entitled to resentencing so that the district court may consider the

correct mandatory minimum sentence, which would be a 20-year sentence and not

a life sentence. See 21 U.S.C. § 841(b)(1)(A)(ii), (b)(1)(B)(viii).

                                IV. CONCLUSION

      We AFFIRM the judgments of convictions of Floyd and Rodriguez. We

VACATE the sentence of Rodriguez and REMAND for resentencing.




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