                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                              No. 09-10244                ELEVENTH CIRCUIT
                                                            JANUARY 20, 2010
                          Non-Argument Calendar
                                                               JOHN LEY
                        ________________________
                                                             ACTING CLERK

                 D. C. Docket No. 06-00297-CR-T-23-MAP

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

IVAN GONZALEZ-BEJARANO,
a.k.a. Ivan B. Gonzalez,
a.k.a. Flaco,
a.k.a. Ivan Gonzalez,
a.k.a. Omar,
                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                             (January 20, 2010)

Before DUBINA, Chief Judge, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Appellant Ivan Gonzalez-Bejarano (“Gonzalez”), through counsel, appeals

his convictions and sentences for conspiracy to import five kilograms or more of

cocaine into the United States, in violation of 21 U.S.C. §§ 952(a),

960(b)(1)(B)(ii), and 963; conspiracy to possess with intent to distribute five

kilograms or more of cocaine, which would be unlawfully imported into the United

States, in violation of 21 U.S.C. §§ 841, 959, 960(b)(1)(B)(ii), and 963; possession

with intent to distribute five kilograms or more of cocaine, in violation of 21

U.S.C. § 841 and 18 U.S.C. § 2; and importation of five kilograms or more of

cocaine into the United States, in violation of 21 U.S.C. §§ 952 and 960 and 18

U.S.C. § 2. On appeal, Gonzalez argues that the district court erred in denying his

motion for a judgment of acquittal because the evidence introduced by the

government at trial was insufficient to support his convictions. He also asserts that

the district court should have excluded testimony concerning Jimmie Lee Byrd’s

role in the conspiracy because it created a conflict of interest with one of his

attorneys at trial, who had previously represented Byrd. Next, Gonzalez contends

that the district court erred in imposing a two-level enhancement pursuant to

U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon. Finally, Gonzalez

argues that the district court should not have imposed a four-level role

enhancement for being a leader or organizer under U.S.S.G. § 3B1.1(a).



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                                          I.

      “We review de novo whether there is sufficient evidence in the record to

support a jury’s verdict in a criminal trial, viewing the evidence in the light most

favorable to the government, and drawing all reasonable factual inferences in favor

of the jury’s verdict.” United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir.

2009). Evidence is sufficient where “a reasonable trier of fact could find that the

evidence established guilt beyond a reasonable doubt.” Id. at 1284-85 (quotation

omitted). We will not disturb a jury’s credibility determinations unless it can be

shown that a witness’s testimony was incredible as a matter of law. United States

v. Calderon, 127 F.3d 1314, 1325 (11th Cir. 1997), modified on other grounds by

United States v. Toler, 144 F.3d 1423 (11th Cir. 1998). Testimony is incredible as

a matter of law if it involves facts that the witness could not possibly have

observed, or events that could not have occurred under the laws of nature. Id. We

have explained that a judgment of acquittal is not mandated simply because “the

government’s case includes testimony by an array of scoundrels, liars and

brigands.” United States v. Hewitt, 663 F.2d 1381, 1385 (11th Cir. 1981)

(quotation omitted). The uncorroborated testimony of a single co-conspirator is

sufficient to support a conviction. United States v. Garcia, 405 F.3d 1260, 1270

(11th Cir. 2005).



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         To convict a defendant of conspiracy, “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). The government may prove the

existence of an illegal agreement through circumstantial evidence, including

inferences drawn from the conduct of the individuals allegedly involved in the

scheme. United States v. Seher, 562 F.3d 1344, 1364 (11th Cir. 2009). “A

defendant is deemed to have knowledge of the illegal agreement if he was aware of

the primary purpose of the conspiracy.” Id.

         In order to convict a defendant under 21 U.S.C. § 841, the government must

show that the defendant knowingly distributed or possessed with the intent to

distribute a controlled substance. See 21 U.S.C. § 841(a)(1); United States v.

Woodard, 531 F.3d 1352, 1360 (11th Cir. 2008). Intent to distribute can be proven

circumstantially from the quantity of drugs involved. United States v. Poole, 878

F.2d 1389, 1392 (11th Cir. 1989). In order to convict a defendant of importation of

controlled substances, the government must show by direct or circumstantial

evidence that the defendant knew that the controlled substances came from outside

the United States. United States v. Champion, 813 F.2d 1154, 1168 (11th Cir.

1987).



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       Because we conclude from the record that the evidence presented at trial was

sufficient for a reasonable juror to conclude beyond a reasonable doubt that

Gonzalez was guilty with respect to all four counts in the indictment, we hold that

the district court did not err in denying Gonzalez’s motion for a judgment of

acquittal.

                                           II.

       We review a district court’s evidentiary rulings for an abuse of discretion.

United States v. Hands, 184 F.3d 1322, 1326 (11th Cir. 1999). Even if the district

court made an erroneous evidentiary ruling, we need not reverse the defendant’s

conviction if we conclude that the error was harmless. Id. at 1329. An evidentiary

error is harmless if it “had no substantial influence on the outcome and sufficient

evidence uninfected by error supports the verdict.” Id. (quotation omitted). We

have explained, in the context of ineffective-assistance-of-counsel claims, that an

actual conflict of interest occurs when a lawyer represents “inconsistent interests.”

Freund v. Butterworth, 165 F.3d 839, 859 (11th Cir. 1999) (en banc). To establish

inconsistent interests, the defendant “must make a factual showing of inconsistent

interests or point to specific instances in the record to suggest an actual impairment

of his or her interests.” Id. (quotations omitted).

       Here, Gonzalez has not shown that he and Byrd had inconsistent interests,



                                           5
nor has he explained how the asserted conflict of interest hindered his counsel’s

representation. In addition, Gonzalez has not asserted that his co-counsel,

Hernandez, faced a similar conflict of interest. Thus, there does not appear to be

any reason that Hernandez could not have handled the cross-examination of the

witnesses who mentioned Byrd in their testimony. Under these circumstances, we

conclude that the district court did not abuse its discretion in admitting testimony

concerning Byrd’s role in the conspiracy.

                                          III.

      We review the district court’s factual findings under U.S.S.G. § 2D1.1(b)(1)

for clear error, and its application of the Sentencing Guidelines to those facts de

novo. United States v. Pham, 463 F.3d 1239, 1245 (11th Cir. 2006). Section

2D1.1(b)(1) of the Sentencing Guidelines provides that a defendant’s base offense

level should be increased by two “[i]f a dangerous weapon (including a firearm)

was possessed.” A defendant’s sentence may be enhanced under § 2D1.1(b)(1)

based upon a co-conspirator’s possession of a firearm if the government can show

by a preponderance of the evidence that: “(1) the possessor of the firearm was a

co-conspirator, (2) the possession was in furtherance of the conspiracy, (3) the

defendant was a member of the conspiracy at the time of possession, and (4) the

co-conspirator possession was reasonably foreseeable by the defendant.” United



                                            6
States v. Gallo, 195 F.3d 1278, 1284 (11th Cir. 1999) (emphasis omitted). We

have recognized that it is “reasonably foreseeable that a co-conspirator would

possess a firearm where the conspiracy involved trafficking in lucrative and illegal

drugs.” Pham, 463 F.3d at 1246.

      In this case, several witnesses testified that some of Gonzalez’s

co-conspirators possessed firearms in furtherance of the drug conspiracy. In

addition, the possession of firearms was reasonably foreseeable to Gonzalez

because the conspiracy involved tens of thousands of kilograms of cocaine.

Accordingly, we conclude that the district court did not clearly err in imposing a

two-level enhancement pursuant to § 2D1.1(b)(1).

                                         IV.

      We review for clear error a district court’s determination of a defendant’s

role in the offense. United States v. Gupta, 463 F.3d 1182, 1197 (11th Cir. 2006).

Section 3B1.1 of the Sentencing Guidelines provides that a defendant’s offense

level should be enhanced by four levels if he “was an organizer or leader of a

criminal activity that involved five or more participants or was otherwise

extensive.” U.S.S.G. § 3B1.1(a). There can be more than one individual who

qualifies as a leader or organizer of a criminal conspiracy. Id., comment. (n.4);

United States v. Vallejo, 297 F.3d 1154, 1169 (11th Cir. 2002) (“The defendant



                                          7
does not have to be the sole leader or kingpin of the conspiracy in order to be

considered an organizer or leader within the meaning of the Guidelines”). In

determining whether a defendant qualifies a leader or organizer, relevant factors

include:

      (1) the exercise of decision making authority, (2) the nature of
      participation in the commission of the offense, (3) the recruitment of
      accomplices, (4) the claimed right to a larger share of the fruits of the
      crime, (5) the degree of participation in planning or organizing the
      offense, (6) the nature and scope of the illegal activity, and (7) the
      degree of control and authority exercised over others.

Gupta, 463 F.3d at 1198 (quoting U.S.S.G. § 3B1.1, comment. (n.4)).

      We conclude from the record here that the district court did not clearly err in

imposing a four-level enhancement for being a leader or organizer because the

evidence established that Gonzalez played a leading role in a large drug-trafficking

conspiracy.

      Based on our review of the record and consideration of the parties’ briefs,

we affirm Gonzalez’s convictions and sentences.

      AFFIRMED.




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