                                                        [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT  OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                         DECEMBER 19, 2011
                             No. 11-12187
                         Non-Argument Calendar               JOHN LEY
                                                              CLERK
                       ________________________

                  D.C. Docket No. 2:10-cr-14094-JEM-4



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

ELIAS ALVARADO,

                                                         Defendant-Appellant.

                      ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________
                           (December 19, 2011)

Before HULL, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
         After a jury trial, Elias Alvarado appeals his conviction and sentence for

possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1).

On appeal, Alvarado challenges: (1) the sufficiency of the evidence supporting his

conviction; (2) the denial of his motion to substitute counsel at sentencing; and (3)

the imposition of an obstruction-of-justice sentencing enhancement based on his

perjured trial testimony. After review, we affirm Alvarado’s conviction and

sentence.

                             I. BACKGROUND FACTS

         A grand jury indicted Defendant Alvarado with conspiracy to possess with

intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 846

(Count 1), and possession with intent to distribute 500 grams or more of cocaine,

in violation of 21 U.S.C. § 841(a)(1) (Count 2). The indictment also charged co-

defendant’s Victor Rodriguez, Juan Sanches and Adolfo Armenta. Alvarado’s co-

defendants pled guilty, and Sanches and Armenta testified against Alvarado at

trial.

A.       Government’s Evidence at Trial

         Beginning in late October 2010, two confidential sources, working for the

Port Saint Lucie Police Department, met with Victor Rodriguez and Juan Sanches

ostensibly to purchase cocaine from them. Rodriguez and Sanches then tried

                                            2
unsuccessfully to have cocaine delivered to Port Saint Lucie, Florida. Sanches

eventually found a man in North Carolina named “Chino” who said he could

deliver four kilograms of cocaine to Florida. Chino told Sanches he would send

“the guys” with the delivery on the weekend. Chino and Sanches agreed the drug

transaction would occur at a McDonald’s restaurant. Chino gave the delivery men

Sanches’s phone number to call when they got close.

      In North Carolina, Chino recruited Adolfo Armenta to drive the cocaine to

Florida and told him someone else would come along with him. On the day

Armenta was to drive to Florida (November 21, 2010), Chino instructed Armenta

to go to an exit off of a highway. There, Defendant Alvarado met Armenta and

took him to a house where Chino was waiting outside.

      While Defendant Alvarado stood near the passenger-side door of Armenta’s

Isuzu Trooper, Chino gave Armenta two packages of cocaine and a bag to put

them in. Armenta put the bag with the cocaine in his Isuzu Trooper. Chino put a

third package of cocaine in a driver’s side compartment in the rear of the Trooper.

Defendant Alvarado then placed his own bags in the Trooper. Chino told

Defendant Alvarado, “Well, you know what you have to do already. Go on and

leave because it is already very late.” Chino told Armenta that all he had to do

was drive. According to Armenta, Defendant Alvarado was supposed to handle

                                         3
the exchange of drugs for money.

      During the November 21 drive to Florida, Defendant Alvarado gave

Armenta directions. Chino called Defendant Alvarado every two hours to ask how

everything was going. During one call, Chino told Defendant Alvarado that the

buyers were waiting and gave Alvarado a phone number. Defendant Alvarado

relayed the number to Armenta and told Armenta they were thirty or forty minutes

away. While Defendant Alvarado continued to speak with Chino, Armenta called

the number and told Sanches that they were very close by.

      About thirty minutes later, Armenta and Defendant Alvarado arrived at the

McDonald’s parking lot, which was under surveillance by law enforcement.

Sanches, Rodriguez and the two confidential sources were waiting outside. As the

Isuzu Trooper pulled in, Sanches signaled with his hand, and Defendant Alvarado

nodded his head in acknowledgment. Defendant Alvarado said, “That’s them,

that’s them. Those are the ones,” and told Armenta to park. Defendant Alvarado

said he was getting out to talk to the men and use the restroom. While Armenta

waited in his vehicle, Defendant Alvarado exited the vehicle and entered the

McDonald’s. At that point, law enforcement arrested Armenta, Alvarado, Sanches

and Rodriguez. A search of Armenta’s Isuzu Trooper revealed the cocaine.

      Phone records showed numerous calls among Defendant Alvarado, Chino

                                        4
and Armenta. Incoming and outgoing calls between Chino’s two phones and

Defendant Alvarado’s phone began on October 28, 2010, and continued until

November 21, 2010. From November 18 to 21, Defendant Alvarado’s phone

called one of Chino’s phones 37 times and the other phone 11 times. One of

Chino’s phones called Defendant Alvarado’s phone 70 times. Alvarado’s phone

called Armenta’s phone 6 times between November 14 and 18. Armenta’s phone

called Chino’s, Sanches’s and Alvarado’s phones multiple times. On November

21, the day of the cocaine delivery, Chino’s two phones called Defendant

Alvarado’s phone 44 times.1

B.     Defendant Alvarado’s Testimony

       Testifying in his defense, Defendant Alvarado claimed that he was merely

riding as a passenger in Arementa’s vehicle and did not know anything about the

cocaine. According to Defendant Alvarado, he met Chino in Texas in late October

at a neighbor’s house. Alvarado and Chino agreed to travel together from Texas

to North Carolina to find work. They arrived in North Carolina on November 13

or 14, 2010, where Chino introduced Defendant Alvarado to Armenta. Within a

few days, the three men decided to return to Texas to pick up a car for Armenta.


       1
       At trial, Alvarado moved for a judgment of acquittal on both counts after the
government’s case-in-chief. The district court denied the motion.


                                               5
On the return trip to North Carolina, Chino told Defendant Alvarado that he

wanted Alvarado to go with Armenta to Port Saint Lucie, Florida, and put the car

in Alvarado’s name. Alvarado did not agree, but decided to ride with Armenta to

Florida. The men arrived back in North Carolina on November 19 and stayed at

Armenta’s house. Defendant Alvarado said that he did not see any cocaine and

that neither Armenta nor Chino told him they were delivering cocaine to Florida.

      On November 21, 2010, Armenta drove the Isuzu from North Carolina to

Florida. During the drive, Defendant Alvarado spoke with Chino only twice and

never spoke to Sanches. Armenta spoke with Chino on his own phone and also on

Alvarado’s phone. When the government pointed out that phone records showed

that Alvarado was talking to Chino at the same time Armenta was talking to

Sanches, Alvarado said that Armenta used Alvarado’s phone on loud speaker

while speaking to someone else on his own phone.

      When they pulled into the McDonald’s parking lot, Armenta told Defendant

Alvarado they were stopping to eat. Alvarado claimed he was surprised when they

were arrested because he did not know what was going on.

      Following Alvarado’s testimony, the defense rested and renewed Alvarado’s

motion for a judgment of acquittal. The district court again denied the motion.

The jury found Alvarado guilty as to Count 2, but did not reach a verdict as to

                                         6
Count 1. The district court declared a mistrial as to Count 1.

C.    Presentence Investigation Report

      The Presentence Investigation Report (“PSI”) recommended an advisory

guidelines range of 78 to 97 months’ imprisonment, based on a offense level of 28

and a criminal history category of I. The PSI did not recommend a two-level

obstruction-of-justice enhancement, but noted that the government believed

Alvarado had provided false testimony at trial. The PSI stated that the district

court was in the “best position to determine” whether Alvarado’s conduct

obstructed justice for purposes of the enhancement.

      Alvarado filed numerous objections to the PSI, including, inter alia, the

PSI’s recitation of the offense conduct and the failure to give a minor-role

reduction and relief from the statutory mandatory minimum sentence under the

safety-valve provision.

D.    Pro Se Motion to Substitute Counsel

      After filing PSI objections, but before the sentencing hearing, Alvarado

filed a pro se motion asking the district court to appoint new counsel to represent

him at his sentencing. In the motion, Alvarado stated that his trial counsel: (1) did

not spend enough time discussing Alvarado’s case or let Alvarado fully relay his

side of the events that had transpired; (2) failed to review discovery with

                                          7
Alvarado; (3) did not investigate leads or witnesses that would have shown

Alvarado’s innocence; (4) did not take Alvarado’s phone calls; and (5) behaved in

an unprofessional and belligerent manner when Alvarado “expressed [his] feelings

on [counsel’s] defense tactics.”

      Alvarado’s trial counsel then filed a motion for leave to withdraw as

appointed counsel. In his motion, Alvarado’s trial counsel stated that Alvarado

had accused him of unethical and unprofessional conduct, which could possibly

give rise to an actual conflict of interest, and noted that “the attorney/client

relationship is not only incompatible, but apparently non-existent.”

E.    Sentencing

      At the outset of the sentencing hearing, the district court denied Alvarado’s

pro se motion for substitute counsel and his trial counsel’s motion to withdraw.

The court stated that defense counsel had done a good job representing Alvarado

and appeared to be filing all the appropriate motions for the sentencing hearing.

      With regard to his sentence, Alvarado objected, in relevant part, to an

obstruction-of-justice enhancement. Alvarado maintained that he testified only to

his recollection of the events surrounding his drive to Florida and should not

receive the enhancement merely because he testified.

      The district court overruled Alvarado’s objection. The district court stated

                                           8
that it “would not have been amenable to” imposing the enhancement if Alvarado

had merely denied that he had done anything wrong. But, “the details of

[Alvarado’s] alternate universe that he testified about at the trial” seemed to the

district court “to be not founded in any . . . basis other than this is a good story.”

The district court noted Alvarado’s testimony that Armenta drove down the

highway while talking simultaneously on two different phones was “near

ludicrous.” The district court found that Alvarado’s testimony contradicted the

physical facts of the case, including the telephone records.

       With the addition of an obstruction-of-justice enhancement, Alvarado’s

advisory guidelines range became 97 to 121 months’ imprisonment. The district

court imposed a 100-month sentence. Alvarado filed this appeal.

                                      II. DISCUSSION

A.     Sufficiency of the Evidence

       In reviewing the sufficiency of the evidence, “we will not disturb a guilty

verdict unless, given the evidence in the record, no trier of fact could have found

guilt beyond a reasonable doubt.” United States v. Hill, 643 F.3d 807, 856 (11th

Cir. 2011) (internal quotation marks omitted).2 Further, a defendant’s own


       2
        We review the sufficiency of the evidence de novo, viewing the evidence in the light
most favorable to the verdict and drawing all reasonable inferences and resolving all credibility
questions in the verdict’s favor. United States v. Hill, 643 F.3d 807, 856 (11th Cir. 2011).

                                                 9
testimony can undermine a sufficiency challenge to the evidence presented at trial.

See United States v. Mateos, 623 F.3d 1350, 1362 (11th Cir. 2010), cert. denied,

131 S. Ct. 1540 (2011). “A defendant who chooses to testify runs the risk that the

jury will disbelieve [his] testimony” and instead conclude that the opposite of his

testimony is true. Id. This risk is especially high when a case turns on subjective

elements, such as the defendant’s intent or knowledge. Id.

      To secure a conviction under 21 U.S.C. § 841(a)(1), the government had to

prove that Alvarado “(1) knowingly (2) possessed cocaine (3) with intent to

distribute it.” See United States v. Faust, 456 F.3d 1342, 1345 (11th Cir. 2006)

(quotation marks omitted). The defendant’s “[p]ossession may be either actual or

constructive.” Id. A defendant has constructive possession by maintaining

“dominion or control over the drugs or over the premises where the drugs are

located.” Id. (quotation marks omitted). “Constructive possession can be

established by either direct or circumstantial evidence and by inferences arising

from the surrounding circumstances.” Id. at 1345-46.

      The trial record contains ample evidence from which a reasonable jury

could conclude that Alvarado knowingly possessed cocaine with the intent to

distribute it. It is undisputed that Alvarado traveled from North Carolina to

Florida in a vehicle carrying three kilograms of cocaine. The testimony of

                                         10
Armenta (Alvarado’s co-defendant) established that Alvarado knew the cocaine

was in the vehicle, that Alvarado had constructive possession of the cocaine while

they traveled to Florida and that Alvarado intended to sell the cocaine.

      According to Armenta, Alvarado stood by while Chino and Armenta loaded

the cocaine into a bag and concealed it in the Isuzu and Chino told Armenta that

Alvarado would handle the transaction when they arrived in Port Saint Lucie.

While they drove, Alvarado was constantly on the phone with Chino, Alvarado

told Armenta where to go, and Alvarado told Armenta to call Sanches and reassure

him that they would arrive soon. When they arrived, Alavarado acknowledged

Sanches and Rodriguez with a nod, told Armenta he would talk with them and got

out of the vehicle, while Armenta remained in the vehicle with the cocaine.

      While Alvarado testified that he never saw the cocaine and did not know

they were delivering cocaine, the jury was entitled to disbelieve him, which they

obviously did. Moreover, Alvarado’s discredited testimony is further evidence of

his guilt. The evidence, viewed in the light most favorable to the government, is

more than sufficient to support the jury’s verdict on Count 1.

B.    Motion for Substitute Counsel

      A defendant has a right to counsel, but not an unqualified right to the

appointed counsel of his choice. Therefore, an indigent defendant has no right “to

                                         11
demand a different appointed lawyer except for good cause.” United States v.

Garey, 540 F.3d 1253, 1263 (11th Cir. 2008) (en banc). Good cause for

substitution of counsel exists where there is “a fundamental problem, such as a

conflict of interest, a complete breakdown in communication or an irreconcilable

conflict which leads to an apparently unjust verdict.” Id. (quotation marks

omitted). Because good cause for substitution of counsel cannot be solely based

on a defendant’s perception, a defendant’s general loss of confidence or trust in

his counsel, standing alone, is not sufficient. Thomas v. Wainwright, 767 F.2d

738, 742 (11th Cir. 1985).3

       In reviewing a district court’s denial of a motion for new counsel at

sentencing, we consider: “1) the timeliness of the motion; 2) the adequacy of the

court’s inquiry into [the] merits of the motion; and 3) whether the conflict was so

great that it resulted in a total lack of communication between the defendant and

his counsel thereby preventing an adequate defense.” United States v. Calderon,

127 F.3d 1314, 1343 (11th Cir. 1997). Even if the district court abused its

discretion in denying the motion, the error is harmless unless the defendant shows

“that, in the context of the sentencing hearing, he was somehow prejudiced by trial



       3
         We review a district court’s ruling on a defendant’s motion for new counsel for abuse of
discretion. United States v. Calderon, 127 F.3d 1314, 1343 (11th Cir. 1997).

                                               12
counsel continuing to represent him.” Id.

       We reject Alvarado’s argument that the district court did not conduct an

adequate inquiry about the merits of his motion for substitute counsel. Although

not conducting a separate hearing, the district court was fully apprised of the

grounds by Alvarado’s motion and in his counsel’s motion to withdraw. Also, the

district court witnessed the relationship between counsel and Alvarado over the

course of his trial.

       Further, the record does not show the kind of serious breakdown in

communication warranting substitute counsel in the sentencing phase. Despite

any problems Alvarado and his counsel were having, counsel was able to prepare

and file extensive written objections to the PSI. Instead, Alvarado’s motion was

founded on a general lack of confidence in his counsel’s representation, which

does not meet the good-cause standard.

       Even assuming arguendo that the district court erred, any error was harmless

because Alvarado has not shown prejudice in his sentencing. Alvarado argues that

his counsel failed to obtain and present exculpatory evidence—primarily potential

witnesses who could verify Alvarado’s trial testimony—that “probably would

have affected the district court’s rulings” as to whether Alvarado was entitled to a

minor-role reduction, an obstruction-of-justice enhancement and safety-valve

                                         13
relief. However, the district court was bound by the jury’s finding of guilt in

calculating the guidelines range. Thus, any alleged failure to present evidence of

Alvarado’s innocence at sentencing did not prejudice him.

C.    Obstruction-of-Justice Enhancement

      Under U.S.S.G. § 3C1.1, a defendant’s offense level is increased by two

levels if “the defendant willfully obstructed or impeded, or attempted to obstruct

or impede, the administration of justice with respect to the investigation,

prosecution, or sentencing of the instant offense of conviction . . . .” U.S.S.G.

§ 3C1.1. One type of conduct that obstructs justice is “committing, suborning, or

attempting to suborn perjury.” U.S.S.G. § 3C1.1, cmt. n.4; see also United States

v. Williams, 627 F.3d 839, 845 (11th Cir. 2010) (concluding that a defendant’s

trial testimony that is irreconcilable with the evidence credited by the jury

constitutes obstruction of justice for purposes of § 3C1.1’s enhancement). Perjury

occurs when a defendant offers “false testimony concerning a material matter with

the willful intent to provide false testimony, rather than as a result of confusion,

mistake, or faulty memory.” United States v. Dunnigan, 507 U.S. 87, 94, 113 S.

Ct. 1111, 1116 (1993). Where the basis for the obstruction-of-justice

enhancement is perjury, “a general finding that an enhancement is warranted

suffices if it encompasses all of the factual predicates for a perjury finding.”

                                          14
United States v. Singh, 291 F.3d 756, 763 (11th Cir. 2002).4

       Here, the district court’s findings that Alvarado’s “testimony was not

truthful” and “apparently perjurious” were not clearly erroneous. As the district

court pointed out, Alvarado’s sworn testimony that he knew nothing about the

cocaine and talked with Chino only once during the trip directly contradicted

Armenta’s testimony and the physical evidence, including phone records. In

addition, Alvarado’s sworn version of events was irreconcilable with the evidence

credited by the jury, and thus the district court did not err in imposing the

obstruction-of-justice enhancement.

       AFFIRMED.




       4
          When a district court imposes an enhancement for obstruction of justice, we review the
district court’s factual findings for clear error and its application of the guidelines to those facts
de novo. United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006). Where the district court
bases an obstruction-of-justice enhancement on perjury, we “accord great deference to the district
court’s credibility determinations.” United States v. Singh, 291 F.3d 756, 763 (11th Cir. 2002)
(internal quotation marks omitted).

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