                                                                 [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-15560
                                        Non-Argument Calendar
                                      ________________________

                           D.C. Docket No. 6:10-cr-00231-GKS-GJK-2



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                               versus

JOSE NUNEZ-VALENCIA,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

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

                                           (August 8, 2012)

Before CARNES, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:
      A jury convicted Jose Nunez-Valencia of conspiracy to possess with intent

to distribute cocaine and methamphetamine in violation of 21 U.S.C. § 841(a)(1)

and § 846. He appeals that conviction, contending that the government presented

insufficient evidence to support it.

                                          I.

      At trial, the government’s evidence established the following. As part of a

joint Drug Enforcement Agency and Kissimmee Police Department investigation,

an undercover Kissimmee Police Department detective purchased

methamphetamine through a dealer, Rafael Hernandez. Hernandez told the

undercover detective that he was interested in buying “kilogram quantities of

cocaine,” so a DEA confidential source contacted Hernandez and told him that he

had 50 kilograms of cocaine for sale. Police were aware, however, that Hernandez

could not finance the deal on his own and possibly had to “bring in other people

that were capable of purchasing those types of quantities.”

      Hernandez then called Tedoro Gonzalez-Mendiola, who in turn contacted

Nunez-Valencia about the potential drug deal. Gonzalez-Mendiola, who later

pleaded guilty to a conspiracy charge related to this case, testified that Nunez-

Valencia offered to pay Gonzalez-Mendiola $5,000 to drive him from Atlanta,

Georgia to Kissimmee, Florida to see the drugs before purchasing them.

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Gonzalez-Mendiola agreed.

      The Kissimmee detective and the DEA source arranged a meeting at a

Denny’s restaurant near Kissimmee with Nunez-Valencia, Gonzalez-Mendiola,

Hernandez, and another man, Henry Flores, who all arrived in the same Ford

pickup truck. At the meeting, Hernandez indicated that the undercover detective

and DEA source should deal with Nunez-Valencia. The undercover detective

testified: “Every time we asked a question where like a major decision has to be

made, for the most part everybody turned their heads toward [Nunez-Valencia]

kind of like looking for his advice or what he actually wanted.” Nunez-Valencia

demanded to see the cocaine in person before buying it, and at the end of that

meeting, they had discussed that Nunez-Valencia and Gonzalez-Mendiola would

purchase five kilograms of cocaine for $20,000 each and they would get another

two kilograms of cocaine in exchange for providing the undercover detective and

the DEA source two kilos of methamphetamine.

      That group met again later that day in a nearby parking lot. Arriving again

in the same Ford pickup truck were Nunez-Valencia, Gonzalez-Mendiola,

Hernandez, Flores, and a fifth man, Miguel Solorzano-Hernandez. Nunez-

Valencia and Hernandez entered an undercover vehicle that had video and audio

recording devices. Nunez-Valencia again discussed purchasing five kilograms of

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cocaine for $20,000 each and exchanging two kilograms of cocaine for two

kilograms of methamphetamine. Nunez-Valencia eventually said that they only

had $60,000 and offered to trade $40,000 worth of methamphetamine for $40,000

worth of cocaine. Nunez-Valencia said he could get the methamphetamine in

seven hours, precisely the amount of time it takes to drive from Atlanta to

Kissimmee. They agreed to a barter of methamphetamine and cocaine but did not

specify how much. The men decided to do the exchange the next day at an

undetermined location after the methamphetamine arrived. But after that meeting

neither Nunez-Valencia nor any of his co-conspirators arranged to complete the

transaction.

      Gonzalez-Mendiola testified that Nunez-Valencia had told him that

“nothing had been done because there were police officers” and that Nunez-

Valencia had suspected a video camera was located within the rear-view mirror of

the undercover vehicle. He also testified that Nunez-Valencia was nervous after

the second meeting and said he had “messed up because he told them that he was

going to exchange methamphetamine for cocaine.” Solorzano-Hernandez also

testified against Nunez-Valencia at trial, telling the jury that Nunez-Valencia was

nervous after that meeting “[b]ecause he kind of saw that they were like from the

police.”

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      After the government presented its case, Nunez-Valencia moved for a

judgment of acquittal on the grounds that the government failed to make a prima

facie case of conspiracy against him. The court denied that motion. The jury

found him guilty, and the district court entered a judgment of conviction and then

sentenced him to 240 months in prison. Nunez-Valencia now appeals the denial of

his motion for a judgment of acquittal on the grounds that the evidence against

him was insufficient.

                                         II.

      We review de novo a district court’s denial of a motion for judgment of

acquittal. United States v. Hernandez, 433 F.3d 1328, 1332 (11th Cir. 2005). “In

determining whether the government produced sufficient evidence, we must

review the evidence in the light most favorable to the government and draw all

reasonable factual inferences in favor of the jury’s verdict.” United States v.

Westry, 524 F.3d 1198, 1210 (11th Cir. 2008) (quotation marks omitted). To

uphold the denial of a motion for judgment of acquittal based upon sufficiency of

the evidence, we need only conclude “that a reasonable fact-finder could have

determined that the evidence proved [Nunez-Valencia’s] guilt beyond a reasonable

doubt.” Id. (quotation marks omitted).

      Under 21 U.S.C. § 841 and § 846, it is illegal for any person to conspire to

                                          5
possess cocaine or methamphetamine with intent to distribute it. 21 U.S.C.

§§ 841, 846. To sustain a conviction for conspiracy, the government must prove

beyond a reasonable doubt that “(1) an [illegal] agreement existed among two or

more persons; (2) the defendant knew of the general purpose of the agreement;

and (3) the defendant knowingly and voluntarily participated in the agreement.”

United States v. Toler, 144 F.3d 1423, 1425 (11th Cir. 1998) (quotation marks and

ellipses omitted).

       The elements of conspiracy are frequently proven by circumstantial, rather

than direct, evidence because conspiracy is “predominantly mental in

composition.” Westry, 524 F.3d at 1212. The government does not need to prove

that a formal agreement existed, “but may instead demonstrate by circumstantial

evidence a meeting of the minds to commit an unlawful act.” Toler, 144 F.3d at

1426 (quotation marks omitted); see also United States v. Badolato, 701 F.2d 915,

920 (11th Cir. 1983) (holding that an agreement to purchase large quantities of

marijuana existed for purposes of § 846 because the record contained substantial

evidence of an agreement even though co-conspirators had not finalized the price,

quantity, or quality of the marijuana ). “[A] plan may be pretty half-baked and

still be a criminal conspiracy if the intentions of the participants are illicit, . . .

[and] sheer impossibility is no defense.” United States v. Jones, 765 F.2d 996,

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1002 (11th Cir. 1985).

                                        III.

      Nunez-Valencia contends that the evidence against him was insufficient to

support a guilty verdict against him for conspiracy for three reasons. First he

contends that the evidence showed only that he negotiated terms of an agreement

to purchase illicit drugs but that no agreement was actually reached. To the

contrary, the evidence at his trial showed that Nunez-Valencia had agreed to

purchase from the DEA source at least five kilograms of cocaine at a total price of

$100,000. Those were the terms that Nunez-Valencia had settled on at the end of

the first meeting with the DEA source, and those were the same terms that existed

at the start and the end of their second meeting later that day. The only open term

to that agreement was how Nunez-Valencia would pay—what part of the agreed

upon amount of cocaine would be bought with cash or exchanged for

methamphetamine. Nunez-Valencia and the DEA source had agreed upon a price

and a quantity of cocaine; an agreement was not absent merely because the method

of payment had not yet been determined. See Badolato, 701 F.2d at 920.

      Next Nunez-Valencia contends that the evidence was insufficient because

there was no proof that he had the resources to purchase the $100,000 in cocaine

that the government said he conspired to buy. As we have previously noted,

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however, “sheer impossibility is no defense” to this conspiracy charge. Jones, 765

F.2d at 1002.

      Nunez-Valencia’s last contention is that the evidence was insufficient to

prove that he conspired to purchase the cocaine because there never was an

exchange of money or drugs. That contention is meritless. “No showing of an

overt act is required in conspiracy cases under 21 U.S.C. § 846.” United States v.

Blasco, 702 F.2d 1315, 1330 (11th Cir. 1983). All the government needed to

prove was that there was an agreement that Nunez-Valencia was aware of and that

he knowingly and voluntarily entered. See Toler, 144 F.3d at 1425.

      The evidence at trial showed that after learning of a possible deal to buy

five kilograms of cheap cocaine in Kissimmee, Nunez-Valencia offered to pay

Gonzalez-Mendiola $5,000 to drive him from Atlanta to Kissimmee so that he

could see the cocaine before purchasing it. Gonzalez-Mendiola did so. Nunez-

Valencia arrived to the first meeting in the same pickup truck as his co-

conspirators. That evidence was probative of Nunez-Valencia’s guilt. See United

States v. Gamboa, 166 F.3d 1327, 1332 (11th Cir. 1999). During that first

meeting, Nunez-Valencia was the designated representative for his co-

conspirators; they deferred to him on the major decisions about the purchase of the

cocaine. He negotiated the price and terms, and stipulated conditions, such as

                                         8
seeing the cocaine before purchasing it.

        At the second meeting, he again arrived in the same pickup truck as his co-

conspirators. During that meeting, police recorded Nunez-Valencia negotiating

the terms of the purchase of the cocaine and later played that recording for the

jury. Gonzalez-Mendiola and Solorzano-Hernandez testified that the only reason

why the agreement was not later carried out was because Nunez-Valencia

discovered that the purported cocaine dealers were actually law enforcement

officers, not because there was no actual agreement to purchase the cocaine.

        Based on all of that evidence, a reasonable jury could find Nunez-Valencia

guilty beyond a reasonable doubt of conspiring to possess cocaine and

methamphetamine for the purpose of distributing them. See Toler, 144 F.3d at

1428.

        AFFIRMED.




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