                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                     FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                       ________________________   ELEVENTH CIRCUIT
                                                                JAN 24, 2011
                             No. 09-15258                        JOHN LEY
                                                                   CLERK
                         Non-Argument Calendar
                       ________________________

                    D. C. Docket No. 09-20468-CR-PCH

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

OSCAR GONZALEZ,
CORY CORTES,
DARRELL BROWN,

                                                        Defendants-Appellants.


                       ________________________

                Appeals from the United States District Court
                    for the Southern District of Florida
                      _________________________

                             (January 24, 2011)

Before TJOFLAT, CARNES and FAY, Circuit Judges.

PER CURIAM:
      Oscar Gonzalez, Cory Cortes, and Darrell Brown appeal their convictions

and sentences for conspiracy to possess with intent to distribute five kilograms or

more of cocaine, 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A)(ii). On appeal, all

three defendants contend that the evidence introduced at trial was insufficient to

support their convictions. In addition, Cortes and Brown assert that the district

court erred when it: (1) permitted a government witness to offer a legal conclusion

that the defendants had entered into a conspiracy, (2) allowed the government to

introduce Cortes’s prior conviction for conspiracy to steal U.S. mail into evidence

under Fed.R.Evid. 404(b); and (3) denied their motion for disclosure of the

government’s confidential informant (“CI”).1 Cortes and Brown additionally

contend that cumulative error requires that they be given a new trial.

      Brown and Gonzalez also challenge their respective sentences. Brown

argues that he should not have received an enhanced sentence based on a prior drug

conviction because he was not given adequate notice of the government’s 21

U.S.C. § 851 information, and because the § 851 information itself was defective.

Brown also contends that his enhanced sentence violates the Eighth Amendment

because his prior conviction was for a relatively minor offense for which he only

served two days in prison. Gonzalez argues that the district court erred in holding



      1
          Gonzalez has not adopted Cortes’s and Brown’s arguments with respect to these issues.

                                                2
him accountable for 20 kilograms of cocaine and by imposing a 2-level sentencing

enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a dangerous weapon.2

For the reasons stated below, we affirm.

                                            I. Facts

                                      A. Trial Evidence

      A federal grand jury charged Cortes, Brown, and Gonzalez with one count of

conspiracy to possess with intent to distribute five kilograms or more of cocaine, in

violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A)(ii) (Count One), and one

count of attempted possession with intent to distribute five kilograms or more of

cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A)(ii) (Count

Two). The charges in this case arose out of an undercover “reverse sting”

operation conducted by the Bureau of Alcohol, Tobacco, and Firearms (“ATF”)

and the Miami-Dade Police Department. The government’s case was based on the

testimony of an undercover detective, Juan Sanchez, and video and audio

recordings of meetings between Sanchez, the defendants, and a CI.

      On January 7, 2009, the CI introduced Gonzalez to Sanchez, who was

playing the role of a drug courier for a Colombian cocaine-trafficking organization.

Sanchez told Gonzalez that he was upset with his employer because he had not



      2
          Cortes and Brown have not adopted the sentencing issues raised by Gonzalez.

                                                3
been paid for the last two shipments. Sanchez stated that he wanted someone to

rob his employer’s stash house when the next shipment of cocaine arrived.

      Gonzalez indicated that he and his crew were willing and able to carry out

the robbery. He explained that his men would enter the stash house “dressed as

police . . . and with rifles in their hands.” Gonzalez emphasized that his men were

experienced and would be prepared to use force if they encountered resistance.

One week after the initial meeting, however, Gonzalez informed Sanchez that he

could not go through with the robbery because his crew had been arrested by the

police. At that point, the investigation into Gonzalez was terminated.

      Several months later, Gonzalez told the CI that he had gathered a new crew

and was again interested in committing the robbery. On April 24, 2009, the CI

called Cortes in order to arrange a meeting between Cortes and Sanchez. Cortes

stated that he would bring “the people I’m gonna do the job with” to the meeting.

During a subsequent phone conversation, Cortes expressed concern about possible

police involvement. The CI told Cortes that he should not participate if he was

worried about the police. The CI had been instructed to make that statement to

give Cortes an opportunity to withdraw if he did not want to go forward with the

robbery. Cortes told the CI that he was a man of his word, and that the CI should

“call me up when you’re ready to do this . . .”



                                           4
      On April 27, 2009, Sanchez met with the CI, Cortes, and Brown. At the

beginning of the meeting, Sanchez described the robbery scenario to Cortes and

Brown. He explained that his employer shipped cocaine from Colombia to Miami,

and that it was his job to unload the planes and transport the drugs to stash houses.

Sanchez stated that the location of the stash house changed for each delivery.

After unloading the cocaine at the airport, he would take it to his office and call his

employer to get the address of the stash house. Previous shipments had ranged in

size from 15 to 20 kilograms of cocaine, and Sanchez estimated that the next

shipment would include 20 kilograms of cocaine.

      Sanchez suggested that Cortes and Brown could follow him from his office

to the stash house to steal the cocaine. He explained that he wanted the robbery to

occur while he was inside the house so that he would not be forced to pay for the

drugs. He stated that there were usually two or three people in the house, one of

whom was armed. Brown suggested that the best idea would be for him and Cortes

to rob Sanchez as he was getting out of his car. At the conclusion of the meeting,

the CI told Cortes and Brown to let him know if they did not want to be involved

in the robbery, but Brown responded, “Ah, no . . . we going to do it.”

      Sanchez met with Cortes and Brown for a second time on May 6, 2009.

During that meeting, Sanchez stated that the next shipment of cocaine would arrive



                                           5
in two weeks. He reported that the shipment would consist of at least 15 kilograms

of cocaine, and might be even larger. Sanchez asked, “So what do you guys think,

it feel good?” Brown responded, “Yeah.” The group then discussed Brown’s plan

to rob Sanchez as soon as his car pulled up in front of the stash house. Brown

observed that he could shoot at Sanchez’s truck in order to cause a commotion.

      On May 7, 2009, the CI called Gonzalez and asked him whether he

personally would be participating in the robbery. Gonzalez stated that he would be

“supervising outside” while Cortes and Brown carried out the robbery. On May 8,

the CI called Cortes and Gonzalez and informed them that the cocaine would arrive

in Miami the following Thursday. The CI also arranged another meeting between

the defendants and Sanchez.

      On May 13, 2009, Sanchez and the CI met with Cortes and Brown. Sanchez

explained that his employer would be sending a shipment of 20 kilograms of

cocaine to Miami the next day. The CI told Cortes and Brown to let him know if

they did not want to go through with the robbery. Sanchez then asked, “We’re

good, though, right, for tomorrow?” Brown responded, “Yeah.” The CI observed

that Cortes and Brown still had time to change their minds, but Brown stated, “No,

we good.”

      The group then discussed the details of the robbery. Gonzalez arrived at the



                                         6
meeting midway through the discussion. Brown stated that he would be wearing a

t-shirt tied around his face as a mask. He also explained that he would either shoot

at Sanchez or hit him during the robbery attempt. Later, Brown suggested that he

could simply make a screeching sound with his tires. Towards the end of the

meeting, Sanchez repeated that the shipment would include 20 kilograms of

cocaine. Cortes mentioned that he had already found a buyer for his share of the

cocaine.

      On May 14, 2009, the day planned for the robbery, the CI called Cortes and

Gonzalez, and told them to meet him at a Sports Authority parking lot. The plan

was for the CI to drive Cortes, Brown, and Gonzalez to Sanchez’s office. After

Sanchez loaded the cocaine into his vehicle, Cortes and Brown would follow him

to the stash house to carry out the robbery. While the CI was waiting, Cortes called

him and apparently expressed reservations concerning the meeting. When Brown

and Cortes arrived, the CI asked Brown what was wrong with Cortes. Brown

responded, “I don’t know, man.” The CI asked Cortes if he was “straight,” and

Cortes replied, “Yeah.” As they waited for Gonzalez to arrive, the CI again asked

what was wrong with Cortes. Brown stated, “Hey, you know, he ain’t used to it,

I’m ready.”

      After Gonzalez arrived, the CI began driving towards Sanchez’s office.



                                          7
While they were en route, the CI asked whether Cortes was all right, and Cortes

said, “Yeah I’m good bro. I’m good, I’m good, I’m good.” The CI explained that

the cocaine would be split “ten for us and ten for them.” Brown indicated that he

had a buyer who would give him “twenty-eight” for his share.

      After the group arrived at Sanchez’s office, Cortes asked Brown, “You

straight?” Brown responded, “Hey man if they was trying to catch us with a gun

they would have roped us off already . . . Glad we gonna get this money . . . this is

a good call? . . . I don’t know . . . you don’t think it’s a good call?” Cortes replied,

“Yeah it’s a good call.” At that point, agents moved in and placed the defendants

under arrest. As Brown got out of the vehicle, one of the arresting agents noticed a

firearm fall out of his waistband onto the ground. Closer inspection revealed that

the item was a Powerline air pistol. The agents also found gloves and black t-shirts

in the vehicle or on the defendants’ persons.

      After the government rested its case, the defendants moved for a judgment

of acquittal pursuant to Fed.R.Crim.P. 29. The district court denied the motion.

The defendants rested without presenting any evidence. The jury convicted the

defendants with respect to Count One, the conspiracy charged, but acquitted the

defendants with respect to Count Two, the attempt charge.




                                            8
   B. Sanchez’s Testimony That the Defendants Entered into a Conspiracy

       During Detective Sanchez’s direct testimony, the prosecutor asked him why

Cortes and Brown had not been arrested at the April 27 meeting. Sanchez

explained, “At that time they had not committed any overt act to try to do this.

Plus, we want to give them the opportunity to stay out of this.” Later, the

prosecutor asked why the defendants had not been arrested following the May 13

meeting. Sanchez again explained that the defendants had not yet committed an

overt act.

       On cross-examination, Gonzalez’s counsel asked Sanchez whether any of his

client’s conduct prior to the May 13 meeting rose to the level of an overt criminal

act. The prosecutor objected that the question called for a legal conclusion, but the

district court overruled the objection. Sanchez testified that Gonzalez had not

committed an overt act towards the theft of the drugs prior to May 13, but he had

been involved in a conspiracy:

       DET. SANCHEZ:                   Sir, all the time your client was
                                       involved in a conspiracy to commit a
                                       crime. As far as law enforcement is
                                       concerned, we have to take it to the
                                       overt act, which was the day he
                                       showed up to commit the robbery.
                                       All those meetings, that’s a
                                       conspiracy, sir.

       GONZALEZ’S COUNSEL:             Up to that time, if an overt act does

                                          9
                      not happen while meeting in a
                      criminal meeting, it does not rise to
                      the level of a criminal conspiracy.

THE PROSECUTOR:       Objection, calls for a legal conclusion.

THE COURT:            Why don’t you ask it a different way
                      about his personal experience or
                      something that relates to what he
                      knows.

GONZALEZ’S COUNSEL:   Up to the 13th, sir, there was no
                      conduct that rose to the level of an
                      indictment - -

DET. SANCHEZ:         No, sir, you’re wrong. Up to that
                      date, your client was involved in a
                      conspiracy. What I said was he had
                      not committed an overt act.

                      Had we terminated the case before the
                      last meeting, it would have been up to
                      a U.S. Attorney to charge him with a
                      conspiracy. As far as I was
                      concerned, he was involved in a
                      conspiracy.

GONZALEZ’S COUNSEL:   But your testimony was that no overt
                      act occurred prior to 5/13?

DET. SANCHEZ:         No overt act into the theft of the
                      drugs. He had been involved in a
                      conspiracy.

GONZALEZ’S COUNSEL:   But you did not say that prior.

DET. SANCHEZ:         No, the question was, why didn’t we
                      arrest him at the time? I said at that

                        10
                                       time there was no overt act until the
                                       theft of the drugs, sir, but there was a
                                       conspiracy.

Neither Cortes nor Brown objected to this line of questioning.

     C. Admission of Cortes’s Prior Conviction under Fed.R.Evid. 404(b)

      Prior to trial, the government notified the defendants that it intended to

introduce evidence that Cortes had a prior conviction for conspiracy to steal U.S.

mail. The government explained that it would be offering that evidence under

Fed.R.Evid. 404(b) to establish that Cortes knew about the charged crimes, that he

intended to commit the crimes, and that his participation was not the result of an

accident or mistake. The government also observed that Cortes’s prior conviction

would be relevant to rebutting any entrapment defense.

      In his opening statement, Cortes explained that the defendants had

participated in the preliminary meetings concerning the robbery because they were

intrigued by the possibility of making easy money, but he asserted that the

defendants had never reached a final agreement to commit the robbery. He argued

that the government had “dangled a million dollar golden carrot in front of these

two young boys,” and that this case was “about the United States Government

trolling in poor neighborhoods, going after poor kids, offering them a million

dollars for nothing and bringing them into court and prosecuting them.”



                                          11
      At the conclusion of the first day of trial, the government asserted that

Cortes had opened the door with respect to his prior conviction by offering an

entrapment defense in his opening statement. Cortes did not offer any argument in

response. The district court agreed that Cortes’s opening statement “was the

making of a classic entrapment case.” The court ruled that it would admit the prior

conviction, subject to a limiting instruction.

      The next day, Cortes stated that he should have objected to the introduction

of his prior conviction. Cortes argued that he had not opened the door with respect

to that conviction because he had not raised a prima facie case of entrapment in his

opening statement. The government responded that Cortes’s opening statement set

forth a “pseudo layman’s entrapment defense.” The government also argued that

the prior conviction was also admissible under Rule 404(b) because it was relevant

to Cortes’s knowledge and intent. The district court ultimately ruled that it would

admit the prior conviction under Rule 404(b), subject to a limiting instruction.

      At the conclusion of its case, the government introduced the record of

Cortes’s prior conviction into evidence. The district court instructed the jury that it

could not consider the prior conviction in determining whether Cortes committed

the acts charged in the indictment, but it could consider that conviction for the

limited purpose of determining whether Cortes had the state of mind or the intent



                                           12
necessary to commit the charged offenses. The government did not mention

Cortes’s prior conviction during its closing argument. Cortes briefly asserted in his

closing argument that the government brought in his prior theft conviction because

of the weakness of its case against him.

                          D. Motion for Disclosure of CI

      On June 3, 2009, the district court entered a standing discovery order that set

a deadline of 28 days for pretrial motions. On July 23, 2009, after the motions

deadline had run and less than one week before trial, the defendants filed a motion

for disclosure of information concerning the government’s CI. The defendants

argued that the CI’s identity and prior activities were relevant to an entrapment

defense and also could be used for impeachment purposes. The government

opposed the motion, arguing that the defendants’ need for the requested

information did not outweigh its interest in protecting the safety and usefulness of

the CI.

      The district court addressed the motion for disclosure at a July 24, 2009,

hearing. As an initial matter, the court noted that the motion was untimely. The

court observed that the defendants had known about the CI’s existence “from day

one.” Cortes stated that the defense had filed the motion because the government

had been late in providing discovery. He asserted that the government only



                                           13
recently disclosed that the CI had paid money to Cortes without prior authorization

from law enforcement. The government explained that Cortes was referring to an

incident where the CI had given him $20 in gas money. The government argued

that there was no need to disclose the CI’s identity because the case agent would be

available to testify concerning that incident. The government also was willing to

stipulate that the CI was a paid informant. The parties eventually agreed to

stipulate that the CI had given Cortes $20 in gas money without the prior approval

of the case agent.

      Cortes argued that the government should also be required to disclose

information about the CI’s identity and background for impeachment purposes.

Although the CI was not going to be a witness at trial, Cortes noted that certain

hearsay statements made by the CI were going to be introduced into evidence.

Therefore, he asserted, the defense had the right to impeach the CI’s credibility

under Fed.R.Evid. 806.

      The district court concluded that the CI’s statements were not hearsay

because they were being introduced as “representations of the conversations,”

rather than for the truth of the matter asserted. The court stated that it would read

the parties’ stipulation concerning the gas money, but would not allow any

additional disclosure concerning the CI unless the government decided to call the



                                          14
CI as a witness. The court explained that it was denying the motion both on

procedural grounds because it was untimely, and on the merits.

                                E. Sentencing Facts

      Two weeks prior to trial, the government filed a 21 U.S.C. § 851 information

with respect to Brown. The government explained that Brown had two prior

felony drug convictions: a 1996 Florida conviction for felony possession of

cocaine, and a 1998 South Carolina conviction for felony possession of cocaine.

The government attached a certified copy of the judgment for Brown’s 1996

Florida conviction to the information. The judgment reflected that Brown pled

guilty to possession of cocaine, a third-degree felony, and was sentenced to time

served after spending two days in prison. The government filed the § 851

information using the district court’s electronic CM/ECF system.

      Brown initially was represented by an appointed attorney, Charles Everett.

On July 20, 2009, one week before trial, Brown moved to substitute David Pettus

as his defense counsel. Pettus explained that he already had familiarized himself

with the case and had reviewed the docket sheet and all previously filed motions.

Pettus stated that he would be ready to try the case on July 27. The district court

granted the motion to substitute counsel and directed Everett to forward

immediately all of his information concerning the case to Pettus.



                                          15
      In calculating Gonzalez’s guideline range, the presentence investigation

report (“PSI”) determined that he was responsible for 20 kilograms of cocaine,

giving him a base offense level of 34 under U.S.S.G. § 2D1.1. The PSI then

imposed a two-level enhancement for possession of a dangerous weapon under

§ 2D1.1(b)(1). The PSI also applied a 2-level role enhancement under U.S.S.G.

§ 3B1.1(c) for being a leader, organizer, manager, or supervisor of a criminal

activity, giving Gonzalez a total offense level of 38. Gonzalez had a criminal

history category of I. These calculations resulted in a guideline range of 235-293

months’ imprisonment.

      Gonzalez objected to the PSI’s calculation of drug quantity. He explained

that the meetings and discussions only referenced 15 kilograms of cocaine, rather

than 20 kilograms. Next, Gonzalez argued that he should have received a

reduction for acceptance of responsibility. He additionally asserted that the

two-level enhancement under § 2D1.1(b)(1) for possession of a dangerous weapon

was inappropriate because he had not been aware that one of his codefendants was

carrying an air gun. Gonzalez also objected to the two-level role enhancement

under § 3B1.1(c).

      At the sentencing hearing, the district court afforded the defendants an

opportunity to make a statement accepting responsibility for their offense, and then



                                         16
granted all three defendants a two-level reduction under U.S.S.G. § 3E1.1(a). The

government then observed that it had filed a 21 U.S.C. § 851 information with

respect to Brown, and, as a result, Brown was facing an enhanced mandatory

minimum sentence of 20 years. Brown’s counsel, Pettus, responded that he had

not been aware of the § 851 information because he was not retained until shortly

before trial. Pettus was unsure whether the information had been properly filed. In

addition, Pettus explained that Brown’s former attorney, Everett, had never told

Brown that he would be facing an enhanced sentence. Pettus argued that the § 851

information was invalid because Brown had not been given proper notice of it.

      The district court ruled that Brown had been given sufficient notice of the

information because it had been filed on the court’s docket sheet, and was available

for Brown or his counsel to review. Pettus acknowledged that he had been remiss

in not reviewing all of the previously filed documents after he was retained as

counsel. The district court noted that Brown might be able to raise a claim with

respect to the § 851 information in a collateral proceeding, but it concluded that it

was bound by the § 851 information for the purpose of determining Brown’s

sentence. The district court sentenced Brown to the mandatory minimum term of

imprisonment, 240 months.

      With respect to Gonzalez’s sentence, the court first addressed Gonzalez’s



                                          17
objection to the enhancement for possession of a dangerous weapon. The court

observed that the black air pistol recovered by law enforcement qualified as a

dangerous weapon because it resembled a firearm. In addition, the court concluded

that it was reasonably foreseeable to Gonzalez that one of his codefendants would

be carrying a firearm because he was involved in a conspiracy to rob a substantial

amount of cocaine from a drug dealer.

      Next, the district court considered Gonzalez’s objection to the PSI’s

calculation of drug quantity. Gonzalez asserted that the only amount mentioned in

the preliminary meetings was 15 kilograms, and that no one had referred to 20

kilograms until the CI and the defendants were driving towards the purported stash

house. In response, the government noted that Detective Sanchez had referred to

20 kilograms of cocaine at the May 13, 2009, meeting, and that the CI had

referenced 20 kilograms of cocaine on May 14, the day when the defendants were

arrested. The district court also observed that the CI told Gonzalez that the

cocaine would be split “ten for us, ten for them.” The court recognized that

various amounts of cocaine had been discussed during the meetings, but it

concluded that the defendants had believed that the actual robbery would involve a

total of 20 kilograms.

      The district court sustained Gonzalez’s objection to the PSI’s role



                                         18
enhancement. In light of the court’s rulings at sentencing, Gonzalez had a

guideline range of 121-151 months’ imprisonment. The district court also

determined that Gonzalez was eligible for safety valve relief. After hearing

arguments concerning the 18 U.S.C. § 3553(a) factors, the court varied downward

from the guideline range and sentenced Gonzalez to 110 months’ imprisonment.

                          II. Sufficiency of the Evidence

      We review de novo whether there is sufficient evidence to support the jury’s

verdict in a criminal case. United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir.

2009). We “view[] the evidence in the light most favorable to the government, and

draw[] all reasonable factual inferences in favor of the jury’s verdict.” Id.

Evidence is sufficient to support a conviction where “a reasonable trier of fact

could find that the evidence established guilt beyond a reasonable doubt.” Id. at

1284-85 (quotation omitted).

      To convict a defendant of conspiracy, the government must show: “(1) an

agreement between the defendant and one or more persons, (2) the object of which

is to do either an unlawful act or a lawful act by unlawful means.” United States v.

Toler, 144 F.3d 1423, 1426 (11th Cir. 1998). The government may prove the

existence of an illegal agreement through circumstantial evidence, including the

conduct of the individuals allegedly involved in the scheme. United States v.



                                          19
Seher, 562 F.3d 1344, 1364 (11th Cir. 2009).

      The fact that an agreement is subject to a condition precedent “does not

make it any less an agreement.” United States v. Grassi, 616 F.2d 1295, 1302 (5th

Cir. 1980) (affirming conspiracy conviction where defendant helped to plan a

marijuana importation scheme, but stated that he would not follow through with

the plan until he was satisfied that he was not dealing with an undercover officer).

On the other hand, no conspiratorial agreement arises when a party merely offers

proposals that are never accepted by the other party. United States v. Jones, 765

F.2d 996, 1003 (11th Cir. 1985). In Jones, we held that no conspiratorial

agreement came into being where the alleged conspirators agreed amongst

themselves to submit proposals for a drug conspiracy to an undercover agent, but

there was no evidence that the conspirators agreed to go forward with the plan after

the agent rejected their proposals. Id. at 1001-03.

      Here, a reasonable fact-finder could conclude that Cortes and Brown entered

into an agreement to commit the cocaine robbery. During the preliminary

meetings, Detective Sanchez and the CI offered Cortes and Brown several

opportunities to back out of the scheme, but they repeatedly stated that they were

prepared to go forward with the plan. Specifically, at the April 27 meeting, the CI

told Cortes and Brown to let him know if they were not interested in the proposal,



                                          20
but Brown responded that they were “going to do it.” On May 6, Sanchez asked

Brown and Cortes if the plan felt good, and Brown responded, “Yeah.” During the

May 13 meeting, Brown again assured Sanchez that he and Cortes were prepared

to go forward with the robbery.

      Although Cortes and Brown expressed some doubts about the scheme at

various points, a jury could infer from their actions that they still intended to carry

out the robbery despite their concerns. The plan called for Cortes and Brown to

follow Sanchez from his office to the location to the stash house. On May 14, the

day scheduled for the robbery, Cortes and Brown met with the CI and drove to

Sanchez’s office. They brought with them an air gun and black t-shirts that they

planned to use as masks. Because Cortes and Brown took all of the preliminary

steps necessary to carry out the robbery, a reasonable jury could infer that they had

reached an agreement to go forward with the plan. See Seher, 562 F.3d at 1364.

Also, Brown and Cortes mentioned that they already had found buyers for their

portions of the cocaine, which further demonstrates that they intended to proceed

with the robbery.

      A reasonable fact-finder also could conclude that Gonzalez agreed to

commit the cocaine robbery. In January 2009, Gonzalez told the undercover

detective, Sanchez, that he and his crew would carry out a home invasion-style



                                           21
robbery of the stash house. After that initial plan fell through due to his crew’s

arrest, Gonzalez gathered a new crew and informed the CI that he was still

interested in committing the robbery. Although Gonzalez did not participate in the

initial meetings between Cortes, Brown, and Sanchez, he later told the CI that he

would be “supervising” the robbery from outside. On May 14, the day when the

cocaine was supposed to be delivered, Gonzalez met with Cortes and Brown and

traveled with them to Sanchez’s office. Because Gonzalez expressed continued

interest in committing the robbery, and because he joined Cortes and Brown as

they carried out the initial step in the plan, a reasonable jury could conclude that

Gonzalez intended to go forward with the robbery scheme. See Seher, 562 F.3d at

1364.

        The fact that the defendants suggested alternative methods of committing the

robbery does not indicate that there never was a conspiratorial agreement. See

Grassi, 616 F.2d at 1302. To the contrary, a jury could conclude from the

defendants’ willingness to make detailed plans that they were serious about

committing the robbery. This case is distinguishable from Jones because the

defendants did more than submit proposals to an undercover detective. See 765

F.2d at 1001-03. They affirmatively agreed to Sanchez’s proposal, planned how

the robbery would be carried out, and were in the process of following through



                                           22
with the early stages of the plan when they were arrested. Because a reasonable

jury could have concluded that the defendants entered into a conspiratorial

agreement to possess cocaine, their convictions were supported by sufficient

evidence. See Jiminez, 564 F.3d at 1284-85.

                      III. Admission of Sanchez’s Testimony

      Because Cortes and Brown did not object when Gonzalez asked Sanchez

whether the defendants had committed a criminal act, we are reviewing that portion

of Sanchez’s testimony only for plain error. See United States v. Habel, 613 F.2d

1321, 1326-27 (5th Cir. 1980) (applying the plain-error standard where the

prosecutor, but not the defendant alleging error on appeal, objected to a

codefendant’s proposed line of cross-examination). Under the plain-error standard,

the defendant must show “(1) error, (2) that is plain and (3) that affects substantial

rights.” United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007) (quotation

omitted). If all three of those conditions are met, we have discretion to correct an

error that “seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotation omitted).

      To demonstrate that an error affected his substantial rights, a defendant must

show that it had a significant influence on the outcome of the case. Id. We will

not reverse an evidentiary ruling under the plain-error standard if the other



                                            23
evidence of the defendant’s guilt was overwhelming. See id. at 1278-80

(concluding that the district court’s error in admitting testimony did not affect the

defendant’s substantial rights because there was overwhelming independent

evidence that the defendant was part of the charged conspiracy). Also, when a

party chooses not to object to evidence for tactical reasons, we generally will not

conclude that the admission of that evidence was plain error. See Habel, 613 F.2d

at 1327-28 (“When a lawyer, for strategic reasons, chooses to by-pass the

appropriate procedures for informing the trial court of contemporaneous errors, he

will not be heard to complain when his strategy backfires.”).

      Under the Federal Rules of Evidence, a witness may testify concerning an

ultimate issue of fact, but may not “tell the jury what result to reach.” See

Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990)

(addressing the permissible scope of expert testimony under Fed.R.Evid. 704). “A

witness also may not testify to the legal implications of conduct; the court must be

the jury’s only source of law.” Id. Thus, a government witness may not offer an

opinion as to whether the defendant committed the offenses with which he is

charged. Cf. United States v. Gutierrez-Farias, 294 F.3d 657, 662-63 (5th Cir.

2002) (agent’s testimony that, in most cases, individuals who transport drugs know

that the drugs are in the vehicle crossed the line between a permissible expert



                                          24
opinion and an improper legal conclusion); United States v. Scop, 846 F.2d 135,

138-43 (2d Cir. 1988) (investigator’s testimony that a scheme to defraud existed

and that the defendants were active participants in the scheme was an improper

legal conclusion concerning the defendants’ guilt).

      In this case, neither Cortes nor Brown objected when Gonzalez’s counsel

asked Detective Sanchez whether Gonzalez had committed a criminal act before

May 13. Because the record shows that Cortes’s and Brown’s counsel were

attentive throughout trial, it appears that they chose not to object to this line of

questioning for tactical reasons. See Habel, 613 F.2d at 1327 (concluding that,

where counsel had been attentive throughout trial, counsel’s failure to object was

for strategic reasons). Presumably, they believed that the line of questioning

would be helpful to their defense. Having made an affirmative decision not to

object, Cortes and Brown cannot argue that the admission of this testimony was

plain error. See id.

      Even if Cortes and Brown had not waived this issue by failing to object, any

error did not affect the defendants’ substantial rights because the government

introduced considerable independent evidence of their guilt. See Turner, 474 F.3d

at 1278-80. In particular, the government established that Cortes and Brown

repeatedly stated that they wished to go forward with the robbery scheme. Also, at



                                            25
the time of their arrest, Cortes and Brown were at Sanchez’s office preparing to

follow him to the purported stash house, and they were in possession of an air

pistol and black t-shirts that Brown planned to use as a mask. Given this evidence,

the outcome of the trial would not have changed had the district court excluded

Sanchez’s testimony that the defendants entered into a conspiracy.

                             IV. Rule 404(b) Evidence

      We review a district court’s admission of prior crimes or bad acts under Rule

404(b) for an abuse of discretion. United States v. Phaknikone, 605 F.3d 1099,

1107 (11th Cir. 2010), petition for cert. filed, (U.S. July 30, 2010) (No. 10-5864).

A district court’s evidentiary rulings are subject to a harmless-error analysis. Id. at

1109. An evidentiary error is harmless if it did not have a substantial and injurious

effect on the jury’s verdict. Id. “Overwhelming evidence of guilt is one factor that

may be considered in finding harmless error.” United States v. Guzman, 167 F.3d

1350, 1353 (11th Cir. 1999).

      Federal Rule of Evidence 404(b) provides that extrinsic evidence “of other

crimes, wrongs, or acts is not admissible to prove the character of a person in order

to show action in conformity therewith.” Fed.R.Evid. 404(b). Such evidence

“may, however, be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake



                                           26
or accident.” Id. Evidence of prior crimes or acts may be admitted under Rule

404(b) if three requirements are met. Phaknikone, 605 F.3d at 1107. “First, the

evidence must be relevant to an issue other than the defendant’s character.” Id.

(quotation omitted). Second, “there must be sufficient proof so that a jury could

find that the defendant committed the extrinsic act.” Id. (quotation omitted).

Third, the probative value of the evidence must not be substantially outweighed by

the danger of undue prejudice. Id.; see also Fed.R.Evid. 403.

      We have explained that “[i]n every conspiracy case . . . a not guilty plea

renders the defendant’s intent a material issue.” United States v. Roberts, 619 F.2d

379, 383 (5th Cir. 1980). Therefore, when a defendant goes to trial on a

conspiracy charge, the government may introduce evidence of prior extrinsic acts if

they are relevant to the defendant’s state of mind, and if the defendant has not

taken affirmative steps to take the issue of intent out of the case. Id. For a prior

conviction to be relevant to the issue of intent, there must be a level of factual

similarity between the prior conviction and the charged offense. Compare United

States v. Matthews, 431 F.3d 1296, 1311 (11th Cir. 2005) (prior convictions for

drug offenses are admissible to establish intent where the defendant is charged with

another drug offense), with United States v. Young, 39 F.3d 1561, 1572-73 (11th

Cir. 1994) (evidence that the defendant was involved in the illegal production of



                                           27
alcohol was not probative of a defendant’s intent to enter into a marijuana

conspiracy because the two offenses were factually and legally distinct).

      In this case, we need not decide whether the district court abused its

discretion by admitting Cortes’s prior conviction for conspiracy to steal U.S. mail

because we agree with the government that any such error was harmless given the

substantial evidence of the defendants’ guilt. See Guzman, 167 F.3d at 1353. The

government introduced numerous video and audio recordings of meetings where

the defendants expressed a willingness to carry out the proposed drug robbery and

discussed the details of how the robbery would be committed. When the

defendants were arrested, they were carrying an air pistol and black t-shirts that

Brown planned to use as a mask during the robbery.

      It is also notable that Cortes’s prior conviction did not form a critical part of

the government’s case. The government simply introduced the conviction into

evidence at the conclusion of its case, and did not refer to it during closing

arguments. Cortes even attempted to use the prior conviction to his advantage by

arguing that the government had introduced that conviction because the other

evidence of his guilt was weak. Under the particular facts of this case, the

admission of Cortes’s prior conviction did not have a substantial and injurious

effect on the jury’s verdict. See Phaknikone, 605 F.3d at 1109. Accordingly, any



                                           28
error in admitting the prior conviction was harmless.

                      V. Denial of Motion for Disclosure of CI

       A district court’s denial of a motion as untimely is reviewed for an abuse of

discretion. United States v. Snipes, 611 F.3d 855, 864 (11th Cir. 2010). The

Federal Rules of Criminal Procedure provide that a district court may set a

deadline for the filing of all pretrial motions and requests. Fed.R.Crim.P. 12(c).

Any motions not filed by the deadline are considered to be waived. Fed.R.Crim.P.

12(e). The waiver rule applies even if the district court made an alternative ruling

on the merits of the motion. United States v. Milian-Rodriguez, 828 F.2d 679,

683-84 (11th Cir. 1987). The district court may grant relief from the waiver if the

party is able to show good cause for the late filing. Fed.R.Crim.P. 12(e).

       In this case, the district court did not abuse its discretion in finding that the

defendants’ motion for disclosure of the CI was untimely. See Fed.R.Crim.P.

12(e). The district court’s June 3, 2009, scheduling order set a deadline of 28 days

for the filing of all motions. The defendants’ motion for disclosure was not filed

until July 23, 2009, three weeks after the deadline had run and less than one week

before trial.

       Furthermore, the defendants did not offer good cause to excuse the late

filing. See Fed.R.Crim.P. 12(e). Cortes’s counsel explained that the motion was



                                            29
late because the government had only recently disclosed that the CI had given gas

money to Cortes. As the district court observed, however, the defendants had

known about the CI’s involvement “since day one.” If the defendants believed that

information concerning the CI was relevant to their defense, they should have filed

the motion for disclosure at an earlier date. Because the district court properly

denied the motion for disclosure as untimely, we need not address the district

court’s alternative conclusion that the motion failed on the merits.

                                VI. Cumulative Error

       “The cumulative error doctrine provides that an aggregation of

non-reversible errors (i.e., plain errors failing to necessitate reversal and harmless

errors) can yield a denial of the constitutional right to a fair trial, which calls for

reversal.” United States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005) (quotation

omitted). Where there are no errors or only a single error, there can be no

cumulative error. United States v. Waldon, 363 F.3d 1103, 1110 (11th Cir. 2004).

In this case, Cortes and Brown possibly have shown one potential harmless error

concerning the admission of Cortes’s prior conviction, but they have not

established that the district court committed any other errors. Accordingly, Cortes

and Brown have failed to establish cumulative error. See id.




                                            30
                               VII. Sentencing Issues

                   A. Brown’s Mandatory Minimum Sentence

      We review the adequacy of a 21 U.S.C. § 851 information de novo. United

States v. Ramirez, 501 F.3d 1237, 1239 (11th Cir. 2007). The notice requirements

of § 851 are jurisdictional. United States v. Jackson, 544 F.3d 1176, 1184-85 (11th

Cir. 2008). In this case, Brown did not challenge the contents of the § 851

information at the sentencing hearing, but the jurisdictional nature of the § 851

notice requirement allows Brown to challenge the contents of the notice at any

time. See United States v. Giraldo-Prado, 150 F.3d 1328, 1329 (11th Cir. 1998)

(noting that “a party may raise jurisdiction at any time during the pendency of the

proceedings”). Because Brown did not raise an Eighth Amendment objection

before the district court, that argument is subject to plain-error review. United

States v. Raad, 406 F.3d 1322, 1323-24 (11th Cir. 2005).

      Section 851(a)(1) provides, in relevant part:

      No person who stands convicted of an offense under this part shall be
      sentenced to increased punishment by reason of one or more prior
      convictions, unless before trial, or before entry of a plea of guilty, the
      United States attorney files an information with the court (and serves
      a copy of such information on the person or counsel for the person)
      stating in writing the previous convictions to be relied upon.

21 U.S.C. § 851(a)(1). We have explained that the government must strictly

comply with the requirements of § 851(a)(1). Ramirez, 501 F.3d at 1239. If the

                                          31
government fails to do so, the district court lacks jurisdiction to impose an

enhanced sentence. Id. A prior conviction may serve as the basis for a sentencing

enhancement only if it is final, meaning that “all avenues of direct attack have been

exhausted.” United States v. Lippner, 676 F.2d 456, 467 (11th Cir. 1982). We

have not, however, specifically held that an § 851 information must list the date on

which the prior conviction became final.

      We have determined that lengthy mandatory minimum sentences for

recidivist drug offenders do not violate the Eighth Amendment. See United States

v. Willis, 956 F.2d 248, 251 (11th Cir. 1992) (upholding mandatory life sentence

for defendant with two prior felony drug convictions). More generally, the

Supreme Court has indicated that the Eighth Amendment does not prohibit severe

sentences for recidivist offenders even where the defendant’s prior convictions are

not particularly serious. See Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63

L.Ed.2d 382 (1980). In Rummel, the Supreme Court upheld the constitutionality of

a mandatory life sentence imposed on a defendant who had committed three

fraud-related offenses that involved a total of less than $250. Id. at 265-66, 285,

100 S.Ct. at 1134-35, 1145. The Court explained that the state had an interest not

only in punishing the particular crimes at issue, but also in incapacitating repeat

offenders who have proved themselves incapable of conforming their conduct to



                                           32
the law. Id. at 276, 100 S.Ct. at 1140. The Supreme Court also has held that

lengthy sentences for first-time drug offenders do not violate the Eighth

Amendment. See Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115

L.Ed.2d 836 (1991) (holding that a mandatory sentence of life imprisonment

imposed on a first-time offender who was convicted of possessing 672 grams of

cocaine did not violate the Eighth Amendment).

      In this case, Brown was given sufficient notice of the government’s intent to

seek an enhanced sentence based on his prior Florida drug conviction. There is no

merit to Brown’s suggestion that the defendant personally must be served with a

copy of the information because § 851(a)(1) specifically provides that the

government may serve the information on either the defendant or his counsel. See

21 U.S.C. § 851(a)(1). Approximately two weeks before the trial began, the

prosecutor filed an § 851 information using the district court’s CM/ECF system.

Brown’s counsel at the time, Elliot, should have received an electronic notification

that the information had been filed. Brown’s sentencing counsel, Pettus, ultimately

conceded that the notice was available via the district court’s docket sheet. The

district court did not err in concluding that the government had complied with the

statutory notice requirements.

      Next, Brown has not established error with respect to the contents of the



                                         33
§ 851 information. The information set forth the date of Brown’s Florida

conviction, and a copy of the judgment was attached to the information. Brown is

correct that the information did not refer to 21 U.S.C. § 841(b)(1)(A), nor did it

state that the government would be seeking a 20-year sentence. However, the fact

that the information listed two prior convictions put Brown on notice that the

government would be requesting at least a 20-year sentence. Section 851(a) does

not require that the information include the statutory section that authorizes an

enhanced penalty or the exact length of the sentence that the government intends to

seek. See 21 U.S.C. § 851(a)(1). Although the information did not list the date on

which Brown’s conviction became final, neither the statutory language nor this

Court’s case law requires such notice. See id. Moreover, Brown has not even

argued that his prior Florida conviction was not final. Thus, Brown has not shown

that the § 851 information was inadequate.

      Finally, Brown’s Eighth Amendment argument is foreclosed by precedent.

Although Brown’s prior conviction for third-degree felony possession of cocaine

may have been relatively minor compared with other drug offenses, the Supreme

Court has indicated that the Eighth Amendment does not prohibit a substantial

term of imprisonment for recidivist offenders whose prior convictions are not

serious. See Rummel, 445 U.S. at 276, 100 S.Ct. at 1140. Moreover, in Harmelin,



                                          34
the Supreme Court upheld a sentence of life imprisonment without the possibility

of parole for a first-time offender who possessed only 672 grams of cocaine. 501

U.S. 957, 111 S.Ct. 2680. Unlike Harmelin, Brown had a prior drug conviction,

and he also was held accountable for a larger amount of cocaine than Harmelin. If

Harmelin’s sentence of life without parole did not violate the Eighth Amendment,

Brown cannot show that his 20-year sentence violates the Eighth Amendment

either, regardless of whether Brown’s prior conviction was serious. Brown has

failed to establish that his enhanced sentence constitutes cruel and unusual

punishment, and, therefore, he cannot satisfy the plain-error standard with respect

to his Eighth Amendment claim.

           B. Calculation of Drug Quantity Attributable to Gonzalez

      We review a district court’s calculation of drug quantity for clear error.

United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005). In a case where

no drugs are actually seized, a district court should make a reasonable estimate

based on the available facts. Id. Sentencing errors are harmless if they do not have

a substantial effect on the defendant’s sentence. United States v. Foley, 508 F.3d

627, 634 (11th Cir. 2007).

      Here, during the May 13, 2009, meeting, Sanchez informed Gonzalez,

Brown, and Cortes that the next shipment would include a total of 20 kilograms of



                                          35
cocaine. On May 14, as the defendants and the CI were heading towards

Sanchez’s office, the CI explained that the cocaine would be split “ten for us and

ten for them.” Thus, the district court did not clearly err by concluding that

Gonzalez was accountable for 20 kilograms of cocaine. See Rodriguez, 398 F.3d at

1296. Moreover, any error in the district court’s calculation would be harmless

because Sanchez never mentioned any amount below 15 kilograms, and, under the

Sentencing Guidelines, a defendant responsible for 15 kilograms of cocaine is

subject to the same offense level as a defendant who is accountable for 20

kilograms of cocaine. See U.S.S.G. § 2D1.1(c)(3); Foley, 508 F.3d at 634.

      C. Gonzalez’s Enhancement for Possession of a Dangerous Weapon

      We review a district court's factual findings at sentencing for clear error, and

the court’s 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 offense level should be

increased by two “[i]f a dangerous weapon (including a firearm) was possessed.”

A dangerous weapon is “an instrument capable of inflicting death or serious bodily

injury,” or any object that “closely resembles such an instrument.” U.S.S.G.

§ 1B1.1 comment (n.1(D)). A defendant may be held liable for a co-conspirator's

possession of a dangerous weapon if:



                                          36
      (1) the possessor of the [weapon] 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 States v. Gallo, 195 F.3d 1278, 1284 (11th Cir. 1999). When a conspiracy

involves “trafficking in lucrative and illegal drugs,” it is reasonably foreseeable

that one of the conspirators may possess a firearm. Pham, 463 F.3d at 1246.

      In this case, Gonzalez’s co-conspirator, Brown, was found to be in

possession of an air pistol that closely resembled a firearm at the time of his arrest.

It was reasonably foreseeable to Gonzalez that one of his co-conspirators might

possess a weapon because the conspiracy involved a plan to steal a large amount of

cocaine. See Pham, 463 F.3d at 1246. During the January 7, 2009, meeting,

Gonzalez explained that his crew would enter the house “dressed as police . . . with

rifles in their hands,” and would be prepared to use force if necessary. Although

that initial plan fell through after Gonzalez’s first crew was arrested, Gonzalez’s

statements show that he was aware that the robbery would be dangerous. We

conclude that the district court did not err by enhancing Gonzalez’s offense level

for possession of a dangerous weapon.

                                  VIII. Conclusion

      Upon review of the record on appeal and the parties’ briefs, we affirm the



                                           37
defendants’ convictions and sentences.

      AFFIRMED.




                                         38
