                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                            No. 09-14804                 ELEVENTH CIRCUIT
                                                           JANUARY 18, 2011
                        Non-Argument Calendar
                                                              JOHN LEY
                      ________________________
                                                               CLERK

                D. C. Docket No. 07-00279-CR-1-CAP-31

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

JOSE MAGANA ZAVALA,
JOSE MACIAS MARTINEZ,


                                                       Defendants-Appellants.


                      ________________________

               Appeals from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                            (January 18, 2011)


Before BLACK, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
      Jose Magana Zavala appeals his convictions and sentences for conspiring to

possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846 and

841(b)(1)(A)(ii) (Count 1), conspiring to launder money, in violation of 18 U.S.C.

§ 1956(h) (Count 20), and possessing a firearm in furtherance of a drug trafficking

crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 6). Zavala was sentenced to

324 months’ imprisonment on Count 1, 240 months’ imprisonment on Count 20, to

be served concurrently with the sentence on Count 1, and 60 months’

imprisonment on Count 6, to be served consecutively with the sentences on Counts

1 and 20, for a total sentence of 384 months’ imprisonment. On appeal, Zavala

argues that: (1) the entry and search of his residence with an arrest warrant for a

third-party suspect, rather than a search warrant for the premises, violated his

Fourth Amendment rights; and (2) statutory mandatory minimum sentences in both

capital and noncapital cases violate the Eighth Amendment.

      In this same case, Jose Macias Martinez appeals his convictions for

conspiring to possess with intent to distribute cocaine, in violation of 21 U.S.C.

§§ 846 and 841(b)(1)(A)(ii) (Count 1), and conspiring to launder money, in

violation of 18 U.S.C. § 1956(h) (Count 20). Macias Martinez was sentenced to

292 months’ imprisonment on Count 1 and 240 months’ imprisonment on Count

20, to be served concurrently, for a total sentence of 292 months’ imprisonment.



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Macias Martinez argues on appeal that the government provided insufficient

evidence to convict him because the evidence established only his presence with

others who were engaging in criminal conduct. After careful review, we affirm

both Zavala’s convictions and sentences, and Macias Martinez’s convictions.

      Review of a denial of a motion to suppress is a mixed question of law and

fact. United States v. Delancy, 502 F.3d 1297, 1304 (11th Cir. 2007). The district

court’s application of the law to the facts, including whether the police reasonably

believed that a suspect resides at a particular location, is reviewed de novo. See

United States v. Magluta, 44 F.3d 1530, 1536-37 (11th Cir. 1995). The factual

findings of the district court are reviewed for clear error. Id. at 1536, 1537 n.14.

When, as in Macias Martinez’s case, a defendant does not move the district court

for a judgment of acquittal at the close of the evidence, we may reverse the

conviction only to prevent a manifest miscarriage of justice.      United States v.

Hamblin, 911 F.2d 551, 556-57 (11th Cir. 1990). This standard requires that “the

evidence on a key element of the offense is so tenuous that a conviction would be

shocking.”    United States v. Tapia, 761 F.2d 1488, 1492 (11th Cir. 1985)

(quotation omitted). In making this determination, we must view the evidence in

the light most favorable to the government and accept all reasonable inferences and




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credibility determinations that support the jury’s verdict. Hamblin, 911 F.2d at

557.

       First, we reject Zavala’s claim that the district court erred in finding the

entry and search of his residence constitutional. Warrantless searches and seizures

inside a home are presumptively unreasonable. United States v. Bervaldi, 226 F.3d

1256, 1262 (11th Cir. 2000). Nonetheless, an arrest warrant for a suspect carries a

“‘limited authority to enter a dwelling in which the suspect lives when there is

reason to believe the suspect is within.’” Id. at 1263-64 (quoting Payton v. New

York, 445 U.S. 573 (1980)).      When entering a residence pursuant to an arrest

warrant, the police must have: (1) “a reasonable belief that the location to be

searched is the suspect’s dwelling,” and (2) “‘reason to believe’ that the suspect is

within the dwelling.” Id. at 1263 (quotation omitted). “The fact that a suspect may

live somewhere else from time to time does not categorically prevent a dwelling

from being the suspect’s residence.” United States v. Bennett, 555 F.3d 962, 965

(11th Cir. 2009). The reasonableness of the belief is evaluated based on “the facts

and circumstances within the knowledge of the law enforcement agents, when

viewed in the totality. . . .” Magluta, 44 F.3d at 1535. In evaluating the agents’

determination that the suspect lives at the residence and is within at the time of the

search, “courts must be sensitive to common sense factors indicating a resident’s



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presence.” Id.; see Bervaldi, 226 F.3d at 1263 (expanding the review of “common

sense factors” to both prongs of the reasonableness inquiry). In Steagald v. United

States, law enforcement agents, with an arrest warrant for a third party, entered a

defendant’s home and discovered cocaine.         451 U.S. 204, 206 (1981).      The

Supreme Court held that, under the Fourth Amendment, the arrest warrant for the

third party was insufficient to justify the entry into the defendant’s home. Id. at

222.

       Here, based on the presence of the suspect’s car, the early hour, and the

absence of the suspect at his other suspected residence, the agents had a reasonable

belief that the suspect was within the dwelling at the time that they executed the

arrest warrant. Furthermore, the agents had a reasonable belief that the dwelling

was the suspect’s residence based on these factors and the fact that the suspect’s

car had been located at the dwelling in the week before the search. Therefore, the

district court did not err in denying Zavala’s motion to suppress.

       We likewise find no merit in Zavala’s argument that statutory mandatory

minimum sentences -- which his drug and firearms convictions carried -- violate

the Eighth Amendment. A sentence that is not otherwise cruel and unusual does

not violate the Eighth Amendment simply because it is mandatory. Harmelin v.

Michigan, 501 U.S. 957, 995 (1991); see United States v. Farley, 607 F.3d 1294,



                                          5
1343 (11th Cir.) (holding that “the mandatory nature of a non-capital penalty is

irrelevant for proportionality purposes”), cert. denied, 131 S.Ct. 369 (2010). The

Supreme Court has “drawn the line of required individualized sentencing at capital

cases.”   Harmelin, 501 U.S. at 996.    In noncapital cases involving a statutory

minimum sentence, “the Eighth Amendment encompasses, at most, only a narrow

proportionality principle.” United States v. Raad, 406 F.3d 1322, 1323 (11th Cir.

2005) (quotation omitted). Only sentences that are “grossly disproportionate” to

the crime violate the Eighth Amendment. See Farley, 607 F.3d at 1343 (citing

Harmelin, 501 U.S. at 1001 (Kennedy, J., concurring)). We have rejected Eighth

Amendment challenges to the imposition of mandatory minimum sentences where

the sentence imposed was within statutory limits.     See, e.g., United States v.

Holmes, 838 F.2d 1175, 1178-79 (11th Cir. 1988) (holding that the mandatory

minimum sentences found in 21 U.S.C. § 841(b) were not unconstitutional under

the Eighth Amendment); United States v. Reynolds, 215 F.3d 1210, 1214 (11th

Cir. 2000) (holding that a mandatory sentence of 15 years under 18 U.S.C.

§ 924(e) did not violate the Eighth Amendment).

      Here, Zavala has failed to demonstrate that his mandatory minimum

sentences were unconstitutional, as he makes no argument as to proportionality.

Moreover, his argument that mandatory minimum sentences in general violate the



                                        6
Eighth Amendment is foreclosed by caselaw from this Circuit and the Supreme

Court.

         We also are unpersuaded by Macias Martinez’s challenge to his conviction.

“To sustain a conviction for conspiracy to possess cocaine with intent to distribute,

the government must prove beyond a reasonable doubt that (1) an illegal agreement

existed; (2) the defendant knew of it; and (3) the defendant, with knowledge,

voluntarily joined it.” United States v. McDowell, 250 F.3d 1354, 1365 (11th Cir.

2001). To convict a defendant of conspiracy to commit money laundering, the

government must prove that (1) there was an agreement to launder money, and (2)

the defendant, knowing the unlawful plan, voluntarily joined the conspiracy. See

United States v. Johnson, 440 F.3d 1286, 1294 (11th Cir. 2006).

         “Although mere presence at the scene of a crime is insufficient to support a

conspiracy conviction, presence nonetheless is a probative factor which the jury

may consider in determining whether a defendant was a knowing and intentional

participant in a criminal scheme.” McDowell, 250 F.3d at 1365. A defendant’s

participation in a criminal conspiracy may be inferred from circumstantial

evidence.     See United States v. Khoury, 901 F.2d 948, 962 (11th Cir. 1998).

However, where the case is based on circumstantial evidence, “reasonable




                                           7
inferences, not mere speculation, must support the jury’s verdict.” United States

v. Perez-Tosta, 36 F.3d 1552, 1557 (11th Cir. 1994).

      Based on the evidence at trial, the jury could have reasonably concluded that

Macias Martinez knew that nearly $2.4 million, which was hidden in hollowed-out

doors on top of his business’s truck, came from the sale of cocaine.        As the

evidence showed, Macias Martinez was at a drug stash house earlier that day,

multiple kilograms of cocaine were delivered to that house, and Macias Martinez

helped package and load a substantial amount of money into the doors on top of

the truck.   Accordingly, he fails to show that his conviction was a manifest

miscarriage of justice.

      AFFIRMED.




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