               Case: 10-14508       Date Filed: 08/09/2013       Page: 1 of 13


                                                                       [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 10-14508
                              ________________________

                      D.C. Docket No. 2:09-cr-00077-JES-SPC-9

UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,

                                            versus

MANUEL TORRES,

                                                                       Defendant-Appellant.

                              ________________________

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

                                      (August 9, 2013)


Before DUBINA, JORDAN and BALDOCK,* Circuit Judges.

BALDOCK, Circuit Judge:

       A jury convicted Defendant Manuel Torres of conspiracy to possess

       *
         Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth Circuit, sitting
by designation.
             Case: 10-14508     Date Filed: 08/09/2013   Page: 2 of 13


marijuana with intent to distribute as well as a substantive possession count.

Defendant now appeals his conspiracy conviction, challenging the sufficiency of

the evidence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

                                         I.

      In 2004 or sometime prior, Defendant’s brother Herman Torres recruited

him to work in a marijuana growing operation run by Jose Diaz in southern

Florida. The operation involved the conversion of multiple houses into grow

houses, with up to six houses operating at a time. In 2004, Defendant helped set

up a grow house on Everglades Boulevard in Collier County. He then worked as a

caretaker at that house for about a year and a half. During this time he participated

in growing and harvesting five or six crops. In 2006, Defendant helped construct

tables and put up lights at a grow house on Chamberlain Drive in North Port,

Florida. Carlos Graham, who oversaw the Chamberlain Drive house for Diaz,

testified that Defendant “sometimes” helped Graham harvest marijuana at the

Chamberlain Drive house. Record, vol. 7 at 1324–25. Graham said the

organization harvested three crops of 100 plants at the house.

      Later, Defendant became the caretaker at a grow house on Van Camp Street

in North Port. He helped Diaz and Herman Torres steal an electrical transformer

for use in that house. He only worked at this house for two months and, although

                                          2
             Case: 10-14508     Date Filed: 08/09/2013   Page: 3 of 13


he was there for the beginning of the harvest, he did not complete it. In April

2009, police executed a search warrant at a grow house on 8th Avenue (called the

Desoto house at trial). They found Defendant and 162 marijuana plants inside the

house. According to Diaz, the plants at the 8th Avenue house were one week

away from harvesting.

      In a superseding indictment, the Government charged Defendant with (1)

conspiracy to manufacture and possess with intent to distribute 1,000 or more

marijuana plants and to distribute and possess with intent to distribute 100 or more

kilograms of marijuana in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii),

(b)(1)(B)(vii), and 846, and (2) manufacturing and possessing with intent to

distribute 100 or more marijuana plants in violation of 21 U.S.C. § 841(a)(1) and

(b)(1)(B)(vii) and 18 U.S.C. § 2. At trial, Defendant’s counsel moved for

judgment of acquittal, and the district court denied the motion. The jury convicted

Defendant on both counts.

      Defendant’s initial guideline imprisonment range under the Sentencing

Guidelines was 110–137 months, but his conviction on Count One of the

superseding indictment carried a mandatory minimum sentence of ten years.

Accordingly, the district court sentenced Defendant to 120 months in prison on

each count, to be served concurrently.

                                         3
               Case: 10-14508   Date Filed: 08/09/2013    Page: 4 of 13


                                         II.

       On appeal, Defendant only challenges his conviction on the conspiracy

count. His brief identifies eleven “issues,” which all boil down to a challenge to

the sufficiency of the evidence. Specifically, he claims the Government failed to

prove that he joined the conspiracy as early as 2002 and that he remained in it after

his arrest in April 2009. He argues the only “physical evidence” that he conspired

to manufacture and possess marijuana was the 162 plants seized at his arrest.

Appellant’s Br. at 27. He claims Diaz “lied” when he said Defendant was

involved in six harvests and that he later “recanted.” Id. Thus, the only evidence

against him beyond the plants seized at his arrest was the testimony of “a couple of

convicted felons,” Jose Diaz and Carlos Graham, each of whom “were admitted

liars.” Id. at 28.

       Ordinarily, we review a challenge to the sufficiency of the evidence de

novo, viewing the evidence in the light most favorable to the Government. United

States v. Dominguez, 661 F.3d 1051, 1061 (11th Cir. 2011). But the Government

argues we may only review Defendant’s sufficiency challenge for plain error

because he did not “assert in the district court the specific arguments that he

asserts in his brief.” Appellee’s Br. at 29. The Government is correct that

Defendant’s motion for judgment of acquittal was general, rather than specific.

                                          4
              Case: 10-14508     Date Filed: 08/09/2013    Page: 5 of 13


His attorney simply moved for “judgment of acquittal on behalf of defendant

Manuel Torres,” saying, “I do not think . . . the Government has proved guilty

beyond a reasonable doubt as to Count 1 or Count 2.” Record, vol. 10 at 1832.

We have, on occasion, reviewed only for plain error when the defendant “failed to

move at trial for a directed verdict of acquittal on [the specific] basis” raised on

appeal. United States v. Hurn, 368 F.3d 1359, 1368 (11th Cir. 2004). See also

United States v. Hunerlach, 197 F.3d 1059, 1068 (11th Cir. 1999) (“Since the

record does not show that Appellant raised this issue to the district court, our

review of the district court’s decision to deny the motion for judgment of acquittal

on that basis is only for ‘plain error.’”). In those cases, however, the defendants

raised specific sufficiency-related arguments in the district court, and then raised

other specific arguments on appeal. See Brief of Appellee at *12, United States v.

Hurn, 2003 WL 24191431 (11th Cir. 2003); Brief of Appellee at *34–35, United

States v. Hunerlach, 1998 WL 34078952 (11th Cir. 1998). In contrast, Defendant

here raised a general sufficiency challenge in the district court.

      A number of our sister circuits hold that a general sufficiency challenge is

adequate to preserve specific sufficiency arguments on appeal, but that a defendant

who seeks judgment of acquittal on specific grounds forfeits all other specific

grounds on appeal. See United States v. Cooper, 654 F.3d 1104, 1117 (10th Cir.

                                           5
             Case: 10-14508     Date Filed: 08/09/2013   Page: 6 of 13


2011); United States v. Chance, 306 F.3d 356, 371 (6th Cir. 2002); United States

v. Spinner, 152 F.3d 950, 955 (D.C. Cir. 1998); United States v. Hoy, 137 F.3d

726, 729 (2d Cir. 1998). But see United States v. Clarke, 564 F.3d 949, 953–54

(8th Cir. 2009) (applying plain error review to a specific argument on appeal even

when the defendant filed a general motion for judgment of acquittal). We need not

decide the appropriate standard of review, however, because Defendant’s claim

fails even under de novo review.

      To convict a defendant of conspiracy under 21 U.S.C. § 846, the

Government must prove (1) an agreement existed between the defendant and at

least one other person, (2) the defendant knew the object of the conspiracy and the

object was illegal, and (3) the defendant knowingly and voluntarily participated in

the conspiracy. United States v. Westry, 524 F.3d 1198, 1212 (11th Cir. 2008)

(per curiam). Here, the jury heard evidence that Defendant helped set up two grow

houses, worked as a caretaker at three grow houses, helped steal a transformer to

use at a grow house, and helped harvest five or six marijuana crops. Defendant

engaged in these activities in close association with at least three other members of

the conspiracy, including Diaz, Graham, and Herman Torres. Finally, police

arrested Defendant in a grow house containing 162 marijuana plants. From this

evidence, a jury could easily conclude Defendant was a member of the charged

                                          6
              Case: 10-14508    Date Filed: 08/09/2013   Page: 7 of 13


conspiracy.

      None of Defendant’s counter-arguments gets him far. First, he argues the

Government failed to show he was involved in the conspiracy as early as 2002.

The superseding indictment alleged that the conspiracy lasted “from at least in or

about April 2002, and continuing up through the date of this Indictment.” Record,

vol. 1 at 51. The evidence at trial only linked Defendant to the conspiracy starting

in 2004. But this discrepancy does not matter. “A defendant may be convicted of

conspiracy if he joined the conspiracy after its inception and played only a minor

role within it . . . .” United States v. Hansen, 262 F.3d 1217, 1247 (11th Cir.

2001) (per curiam).

      Next, Defendant makes the related argument that the evidence was

insufficient because the superseding indictment alleged a conspiracy lasting

through October 2009, yet Defendant was arrested in April 2009. Again, however,

our precedent forecloses this argument. A conspirator “is presumed to be a part of

the conspiracy until all conspiracy activity ceases or he proves that he withdrew.”

Id. To withdraw, a conspirator must prove he has “taken affirmative steps to

defeat the objectives of the conspiracy” and either “made a reasonable effort to

communicate these acts to his co-conspirators or disclosed the scheme to law

enforcement authorities.” United States v. Arias, 431 F.3d 1327, 1340–41 (11th

                                          7
              Case: 10-14508     Date Filed: 08/09/2013   Page: 8 of 13


Cir. 2005) (quoting United States v. Young, 39 F.3d 1561, 1571 (11th Cir. 1994)).

This circuit’s settled law says that “neither arrest nor incarceration automatically

triggers withdrawal from a conspiracy.” United States v. Gonzalez, 940 F.2d

1413, 1427 (11th Cir. 1991). Defendant has not shown that he withdrew from the

conspiracy upon or after his April 2009 arrest. So the jury could conclude

Defendant was responsible for the conspiracy’s actions up through the date of the

indictment.

      Defendant next claims Diaz “recanted” testimony that Defendant had helped

with harvests at the 8th Avenue and Van Camp houses. Appellant’s Br. at 27.

The record refutes this claim. In fact, Diaz clarified under cross-examination that

Defendant did not actually complete the harvest at the Van Camp house (though

he was there at the start) and was arrested before he could harvest the crop at the

8th Avenue house. Record, vol. 9 at 1753–54. But regardless of whether

Defendant actually harvested the plants, he possessed the plants during his time as

caretaker at these houses. See United States v. Thompson, 473 F.3d 1137, 1142

(11th Cir. 2006) (“Constructive possession exists where the defendant had

dominion or control over the drugs or over the premises where the drugs were

located.”).

      Defendant also argues Diaz and Graham were “admitted liars” and not

                                          8
              Case: 10-14508     Date Filed: 08/09/2013   Page: 9 of 13


worthy of belief. Appellant’s Br. at 28. This argument is entirely frivolous.

When reviewing the sufficiency of the evidence we are bound by the jury’s

credibility determinations unless the testimony is “incredible as a matter of law.”

United States v. Flores, 572 F.3d 1254, 1263 (11th Cir. 2009) (per curiam)

(quoting United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997)).

“Testimony is only incredible if it relates to facts that the witness could not have

possibly observed or events that could not have occurred under the laws of

nature.” Id. (internal quotation marks omitted) (quoting Calderon, 127 F.3d at

1325). “The fact that a witness has consistently lied in the past, engaged in

various criminal activities, and thought that his testimony would benefit him does

not make his testimony incredible.” United States v. Thompson, 422 F.3d 1285,

1292 (11th Cir. 2005) (brackets and ellipsis omitted) (quoting United States v.

Cravero, 530 F.2d 666, 670 (5th Cir. 1976)).

      Finally, Defendant challenges the sufficiency of the evidence regarding the

number of marijuana plants. The Government argues we should not consider this

argument because the number of plants is only relevant to Defendant’s sentence,

which he has not challenged. It is true “the specific amount and type of drugs are

not elements of [a 21 U.S.C. § 841(a)(1)] offense” and that “the government’s

failure to prove the amount or type charged in the indictment does not merit

                                          9
             Case: 10-14508     Date Filed: 08/09/2013   Page: 10 of 13


reversal” of a defendant’s conviction. United States v. Baker, 432 F.3d 1189,

1133 (11th Cir. 2005). So the jury could have convicted Defendant of conspiracy

to violate 21 U.S.C. § 841(a)(1)—manufacturing or possessing with intent to

distribute a controlled substance—without any proof of drug quantity. But the

indictment in this case charged Defendant with conspiracy to violate not only

§ 841(a)(1), but also subsections (b)(1)(A)(vii) (1,000 or more marijuana plants)

and (b)(1)(B)(vii) (100 kilograms or more of marijuana). These subsections

increase the statutory maximum sentence from a default of 20 years, see

§ 841(b)(1)(C), to either life imprisonment (for 1,000 or more marijuana plants) or

40 years (for 100 kilograms or more of marijuana). After Apprendi v. New Jersey,

530 U.S. 466, 490 (2000), “[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed statutory maximum must

be submitted to a jury, and proved beyond a reasonable doubt.”

      More importantly for this case, subsections (b)(1)(A)(vii) and (b)(1)(B)(vii)

also create statutory minimum sentences of ten and five years, whereas a simple

violation of § 841(a)(1) has no minimum sentence. The Supreme Court recently

expanded Apprendi’s rule, and held that “any fact that increases the mandatory

minimum is an ‘element’ that must be submitted to the jury.” Alleyne v. United

States, 133 S. Ct. 2151, 2155 (2013). Thus, for Defendant to receive the

                                         10
              Case: 10-14508     Date Filed: 08/09/2013     Page: 11 of 13


mandatory minimum sentence of ten years, which he did, the jury had to find

beyond a reasonable doubt that he conspired to manufacture or possess with intent

to distribute more than 1,000 marijuana plants or more than 100 kilograms of

marijuana.

      The Government concedes it needed to prove these drug quantities for

purposes of sentencing, but argues that Defendant has not “challenge[d] his

sentence . . . in his brief.” Appellee’s Br. at 43. In fact, the title page of

Defendant’s brief asserts that he appeals the district court’s judgment and

sentence, and his brief concludes by asking that his sentence be reversed.

Appellant’s Br. at 31. True, he does not make the kind of sentencing argument we

usually see—that the district court abused its discretion by imposing an

unreasonable sentence. See Gall v. United States, 552 U.S. 38, 41 (2007). But

that is because the district court could not exercise its discretion; it was bound by

the jury’s findings, which required imposition of the statutory minimum. Simply

because Defendant is challenging the jury’s findings rather than the district court’s

discretionary decisions does not mean he is not challenging his sentence. Thus,

Defendant has not waived his argument that the evidence was insufficient with

respect to the number of plants.

      Nevertheless, ample evidence supported the jury’s finding that Defendant

                                           11
               Case: 10-14508       Date Filed: 08/09/2013      Page: 12 of 13


conspired to manufacture and possess 1,000 or more marijuana plants. The

evidence did not need to show Defendant himself possessed with intent to

distribute 1,000 or more marijuana plants, as long as the conspiracy’s overall goal

was to possess that amount. See Salinas v. United States, 522 U.S. 52, 63–64

(1997) (“The partners in the criminal plan must agree to pursue the same criminal

objective and may divide up the work, yet each is responsible for the acts of each

other.”). Here, even the marijuana plants with which Defendant was directly

involved total over 1,000 plants, regardless of the other plants grown by

Defendant’s co-conspirators. Diaz testified that Defendant was caretaker at the

Everglades Boulevard house for five or six harvests and that the Everglades house

yielded about 200 plants per harvest. Thus, while Defendant was at the

Everglades Boulevard house, he cared for 1,000 to 1,200 plants. Graham testified

that Defendant “sometimes” helped him harvest plants at the Chamberlain Road

house, which yielded 300 plants over three harvests.1 The Van Camp house,


       1
          Defendant says Jose Diaz directly contradicted this testimony. On cross-examination,
counsel asked Diaz about a grow house in Charlotte County (apparently the Chamberlain Drive
house) that Graham was going to set up with a friend called “Beavus.” Diaz testified that he
visited the house “a couple times” while it was being set up and did not see Defendant there.
Counsel then asked if Defendant was working at that grow house, and Diaz replied, “He was
not.” Record, vol. 9 at 1769. Counsel then asked, “And if you were told that Carlos Graham
said that Manuel Torres was working on that grow house, would you say that’s true or false?” Id.
Diaz responded, “That’s false.” Id. The jury could have resolved this apparent conflict by
concluding Defendant helped at the Chamberlain Drive house at times when Diaz was not
visiting. But even if Graham indeed lied and the jury disbelieved him, the other evidence was

                                              12
               Case: 10-14508       Date Filed: 08/09/2013       Page: 13 of 13


where Defendant served as caretaker for two months but did not complete the

harvest, contained 34 lights with three or four plants per light. Record, vol. 8 at

1582. So during his time at that house, Defendant cared for between 102 and 136

plants. Finally, police arrested Defendant at the 8th Avenue house, which

contained an additional 162 plants. From all this evidence, a reasonable jury could

conclude Defendant conspired to manufacture or possess more than 1,000

marijuana plants.

       AFFIRMED.




more than adequate to establish Defendant’s responsibility for over 1,000 plants.

                                               13
