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                                                            [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-12722
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 3:15-cr-00312-MHT-TFM-1



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

versus

MICHAEL T. CLEMENTS,

                                                Defendant - Appellant.

                       ________________________

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

                              (April 3, 2017)

Before TJOFLAT, HULL, and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:
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       Defendant Michael Clements appeals his conviction and 60-month

probationary sentence. A jury found Clements guilty on one count of aiding and

abetting the sale of ammunition to an illegal alien, in violation of 18 U.S.C. §§

922(d) and 924(a)(2). On appeal, Clements argues that the government failed to

introduce sufficient evidence to support his conviction. After careful review of the

record and the briefs, we affirm Clements’s conviction and sentence.1

                                   I. BACKGROUND

A.     Jesus Licona Serves As a Confidential Informant

       In 2008, Auburn, Alabama police officer Chris Carver recruited Jesus

Licona to work as a confidential informant. As a twelve-year-old child, Licona

entered the country illegally from Mexico in the early 2000s. Licona learned

English over the years he subsequently spent in the United States.

       In 2008, Licona met Carver by approaching Carver as he was finishing an

unrelated police call in the Auburn community. Licona told Carver that he wanted

to “help [the government] out” in exchange for government assistance with some

traffic tickets that Licona had received, as well as with a few other prior issues

with law enforcement. Carver asked Licona whether he was in the United States

legally. Licona replied that he was not.

       1
        Clements’s advisory guidelines imprisonment range was 15 to 21 months, but the district
court applied a downward variance, making Clements eligible for a probationary sentence. See
U.S.S.G. §§ 5B1.1(a)(2), 5B1.1(c)(3). The parties have challenged neither the advisory
guidelines calculations nor the reasonableness of Clements’s sentence.
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      After the initial meeting with Licona, Carver conducted several additional

interviews of Licona to vet him and to “determine who he was aware of” in the

community. Carver began using Licona as a confidential informant. Since 2008,

the government has paid Licona $12,000 for his work as a confidential informant.

      In 2011, after Licona had worked for Carver for several years, Carver

attempted to help improve Licona’s immigration status in the United States. Carver

contacted a Department of Homeland Security (“DHS”) office in Montgomery,

Alabama and tried to get Licona documented as a legal immigrant. Specifically,

Carver tried to enroll Licona in the Significant Public Benefit Parole program,

which allows illegal aliens who are informants for law enforcement to gain lawful

status in the United States. DHS created a file on Licona, and Carver periodically

checked in with DHS about the status of Licona’s paperwork. However, Carver’s

attempts with DHS were unsuccessful. Carver “never really got a clear answer on

what the status was” before his DHS contact transferred to a different office.

B.    Defendant Clements’s Sales at His Trailer

      In January 2013, while working as a confidential informant, Licona heard

through a friend that defendant Clements was selling stolen electronics and

firearms from a trailer. Licona went to the trailer to purchase several items in an

attempt to “f[i]nd out what he was doing.” At the trailer, Licona purchased a




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television and a few other items from Clements. Licona did not know “if it was

legal or illegal” for Clements to sell them.

      After buying those items, Licona showed Carver where Clements made his

sales, and Carver began an investigation into Clements. Carver coordinated a series

of controlled buys from Clements in order to determine “whether . . . we were

consistently purchasing stuff that we were able to determine was stolen.”

      On March 6, 2013, Carver and Licona set up a controlled buy with defendant

Clements at Clements’s trailer. Licona purchased a stolen laptop from Clements.

During the transaction, Licona asked Clements if he had a gun for sale. Clements

told him that he did not have one but that he would look for one for Licona.

      On February 11, 2014, Licona went to defendant Clements’s trailer to make

another controlled buy. Licona purchased a television from Clements which was

not stolen. Licona took photographs to memorialize the contents of Clements’s

trailer. The photographs did not show any firearms inside the trailer.

      On April 2, 2014, Licona went to defendant Clements’s trailer to make

another controlled buy. Licona purchased another laptop which was not stolen.

Licona repeated his request to purchase a firearm. Clements told Licona that he

could not sell him a firearm but that he would give Licona the name and telephone

number of someone who could.




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       On May 14, 2014, Licona went to defendant Clements’s trailer to make

another controlled buy. Licona purchased a cell phone, a laptop, and a tablet; none

of these items were stolen. Licona again asked Clements about purchasing a

firearm. Clements told Licona that he could not sell him a gun “because he was a

police officer.” Clements told Licona that a colleague named “Willie Arnold”

could sell him a gun, and Clements later called Arnold on the telephone to talk

about it.

       On July 17, 2014, Licona called Clements to discuss a possible gun

purchase. Clements told Licona that he would “rather you deal directly with

[Arnold]” to conduct the gun purchase. Licona responded by asking Clements to

“help [him] with the buy” and to set up a gun purchase at Clements’s trailer.

       On July 18, 2014, defendant Clements arranged for Licona to buy a Smith

and Wesson .357 magnum from Arnold later that day. The purchase occurred at

Clements’s trailer. Clements, Arnold, and Licona were present. Licona recorded

the purchase.

       During the recording, Arnold asked Licona if he had ever been arrested or

had run into trouble with the police. Licona lied and said that he had not. Neither

Arnold nor Clements asked about Licona’s immigration status. After Arnold

finished asking Licona about his background, Licona purchased an unloaded gun




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from Arnold for $350. Defendant Clements prepared the bill of sale to memorialize

the transaction and signed it as a witness.

      Following the July 18, 2014 gun purchase, Carver sought an indictment of

defendant Clements with the U.S. Attorney’s Office. Carver’s inquiry led him to

believe that the gun purchase alone would be insufficient to sustain a conviction.

Almost a year later, in April 2015, Carver “reengage[d]” his investigation of

Clements. Carver sent Licona back out to Clements’s trailer to obtain additional

evidence and “to . . . secure more specific language to demonstrate that Mr.

Clements knew that Mr. Licona was illegal.”

      On April 30, 2015, Licona made a recorded visit to Clements’s trailer.

Licona told Clements that: (1) he was “[t]rying to grab some bullets that I can

buy,” and; (2) he could not buy bullets from other people because, as he described

it, “I was illegal.” Upon disclosure of Licona’s immigration status, defendant

Clements did not ask Licona why he had not revealed this fact earlier. Clements

also did not ask Licona to return the gun to Arnold. Rather, Clements continued

with the discussion of ammunition, stating that Licona should have his wife buy

him bullets.

      Licona then asked defendant Clements if Arnold might have bullets for sale.

Clements told Licona that he had not seen Arnold “in a minute.” Licona asked if

Clements would talk to Arnold about a possible sale of bullets. Clements


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responded by asking Licona to provide his phone number for future contact.

Clements also mentioned to Licona that he had already done “the hard part” by

coordinating the purchase of the gun.

       About a week later, on May 8, 2015, defendant Clements called Arnold and

put Licona in touch with Arnold over the phone to discuss the sale of bullets. Prior

to Licona coming on the line, Clements asked Arnold what price he would want for

the bullets. Licona then came on the line. Licona spoke with Arnold, and the two

agreed to meet at Clements’s trailer later that day for a sale.

       Later that day, Licona and Arnold met outside defendant Clements’s trailer.

At the beginning of their recorded meeting, Clements was inside his trailer. Licona

asked Clements to come outside and waited until Clements was present before

conducting the purchase. Licona later testified that he wanted Clements to be

present at this meeting so that Clements could tell him “how much [to] pay” for the

bullets.

       With Clements now outside, Arnold produced a box of bullets and gave it to

Clements for inspection. Clements “looked at” the box and handed it to Licona.

The box was missing several bullets, but Licona accepted the box. Licona paid

Arnold $20 to complete the purchase. Defendant Clements told Licona that he

would “see if he could find [Licona] some more bullets.”




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C.    Indictment and Trial

      On July 8, 2015, a grand jury indicted Clements with, while aiding and

abetting and being aided and abetted by others, knowingly selling a firearm to an

illegal alien, in violation of 18 U.S.C. §§ 922(d) and 924(a)(2) (“count one”), and,

while aiding and abetting and being aided and abetted by others, knowingly selling

ammunition to an illegal alien, in violation of 18 U.S.C. §§ 922(d) and 924(a)(2)

(“count two”). A three day jury trial ensued from January 4 to 6, 2016.

D.    Licona’s Immigration Status

      During its case-in-chief, the government called DHS special agent David

Chamberlin to testify about Licona’s immigration status. Chamberlin had reviewed

all of the DHS files on Licona. Chamberlin testified that: (1) Licona was an illegal

alien even though he was first brought to DHS’s attention in 2011, and; (2) Licona

had not been brought before an immigration judge and had not otherwise received

a designation of lawful status from the Attorney General. Notwithstanding,

Chamberlin testified that Licona was designated as having a “special class

deferred” status within the DHS. This meant that Licona had “been brought to the

attention of the Department of Homeland Security, . . . specifically someone with

immigration authority, [but] at this particular time DHS [was] not taking any action

against that person for removal proceedings from the United States.”




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      Upon hearing that Licona had received “special class deferred” status,

government counsel asked Chamberlin whether this impacted Licona’s status as an

illegal alien. Chamberlin replied: “No. He has no status in the United States. At

any given time, an immigration officer could go to him and put him back into

removal proceedings.”

      Following Chamberlin’s testimony, the parties agreed to a stipulation that

Licona did not have deferred action status under the Deferred Action for

Childhood Arrivals (“DACA”) program. The district court read the stipulation to

the jury, as follows:

            The parties agree and stipulate that the definition of deferred
      action read by Agent Chamberlin only applies to aliens who have
      applied for deferred action under Deferred Action for Childhood
      Arrivals, that is, DACA.

             There is further agreement and stipulation between the parties
      that there is no evidence that Jesus Licona applied for deferred action
      status under DACA. Furthermore, no other definition of deferred
      action can be found within the Department of Homeland Security web
      site.

      Without objection, the district court also read the

pattern jury instruction on the definition of an illegal alien, as follows:

             An alien is any person not a citizen or national of the United
      States.

            An alien is illegally or unlawfully in the United States if he is
      present in the United States after the expiration of the period of stay
      authorized by the United States Attorney General or is present in the


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      United States without being admitted or paroled into the United States
      by an appropriate governmental authority.

             Reasonable cause to believe that someone is an alien then
      illegally or unlawfully in the United States means knowing facts that
      would cause a reasonable person to conclude that the other person is
      an alien then illegally or unlawfully in the United States.

E.    Rule 29 Motion and Conviction

      At the close of the government’s case-in-chief, defendant Clements made an

oral motion under Federal Rule of Criminal Procedure 29 for a judgment of

acquittal. Clements argued that his motion should be granted on both counts

because the government failed to establish all of the elements of the two offenses.

      The district court granted defendant Clements’s motion as to count one,

finding that there was insufficient evidence to prove that Clements knew that

Licona was an illegal alien at the time he coordinated the gun sale in 2014.

However, prior to ruling on count two, the district court heard additional argument

from the government. The government highlighted that Chamberlin reviewed

Licona’s immigration files and testified that: (1) Licona never received legal

immigration status, and; (2) Licona’s “special class deferred status” did not change

his illegal status or the restrictions imposed on others for selling ammunition to

him. The district court denied defendant Clements’s motion for a judgment of

acquittal as to count two.




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      The jury found defendant Clements guilty on count two. Clements timely

filed this appeal.

                         II. STANDARD OF REVIEW

      This Court reviews “de novo a District Court’s denial of judgment of

acquittal on sufficiency of [the] evidence grounds, considering the evidence in the

light most favorable to the Government, and drawing all reasonable inferences and

credibility choices in the Government’s favor.” United States v. Capers, 708 F.3d

1286, 1296 (11th Cir. 2013). “A jury’s verdict cannot be overturned if any

reasonable construction of the evidence would have allowed the jury to find the

defendant guilty beyond a reasonable doubt.” United States v. Herrera, 931 F.2d

761, 762 (11th Cir. 1991). “The evidence need not be inconsistent with every

reasonable hypothesis except guilt, and the jury is free to choose between or

among the reasonable conclusions to be drawn from the evidence presented at

trial.” United States v. Poole, 878 F.2d 1389, 1391 (11th Cir. 1989). Where “the

government relies on circumstantial evidence, reasonable inferences, not mere

speculation, must support the conviction.” United States v. Mendez, 528 F.3d 811,

814 (11th Cir. 2008).

      Arguments raised for the first time on appeal are reviewed for plain error.

See United States v. Hunerlach, 197 F.3d 1059, 1068 (11th Cir. 1999) (concluding

that plain error review applies to a sufficiency of the evidence argument when a


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defendant moved for a judgment of acquittal on sufficiency of the evidence

grounds, but failed to articulate the specific sufficiency of the evidence claim later

raised on appeal). To demonstrate plain error, the defendant must show (1) an

error, (2) that is plain, and (3) that affected his substantial rights. United States v.

Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). If the defendant satisfies these three

conditions, we may exercise our discretion to recognize the error if that error

“seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.” Id. (quoting United States v. Vonn, 535 U.S. 55, 63, 122 S. Ct. 1043,

1048 (2002)).

                                III. 18 U.S.C. § 922(d)

        On appeal, Clements argues that: (1) Arnold, not Clements, sold the

ammunition, and; (2) Clements did not know or have reason to know that Licona

was an illegal alien. We review these arguments for plain error only, because

Clements did not raise them before the district court. See Hunerlach, 197 F.3d at

1068.

A.      Clements Knowingly Aided and Abetted the Sale of Ammunition to
        Licona

        Under 18 U.S.C. § 922(d), it is unlawful for any person to sell any “firearm

or ammunition to any person knowing or having reasonable cause to believe that




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such person” either: (1) “is illegally or unlawfully in the United States,” or; (2)

“has been admitted to the United States under a nonimmigrant visa.”2 18 U.S.C.

§ 922(d)(5).

       A defendant who is indicted as a principal may be convicted on evidence

showing only that he aided and abetted the offense. United States v. Iglesias, 915

F.2d 1524, 1528 (11th Cir. 1990); see also 18 U.S.C. § 2. In order to find that a

defendant aided and abetted the offense under 18 U.S.C. § 2, the government must

establish that the defendant “in some way associated himself with the criminal

venture, that he wished to bring it about, and that he sought by his actions to make

it succeed.” United States v. Broadwell, 870 F.2d 594, 608 (11th Cir. 1989). A

defendant may be convicted for aiding and abetting, even if he did not commit all

of the acts that constitute the elements of the substantive offense, if: (1) someone

committed the substantive crime; (2) the defendant contributed to and furthered

that crime, and; (3) the defendant intended to aid in the commission of that crime.

United States v. Sosa, 777 F.3d 1279, 1292 (11th Cir. 2015).

       Here, the evidence showed that Arnold actually sold the ammunition to

Licona. However, the evidence also sufficiently showed that Clements aided and

abetted Arnold’s sale. Clements took Licona’s phone number after Licona asked


       2
        This restriction is subject to certain exceptions for, among others, aliens admitted to the
United States for purposes such as hunting or foreign relations. See 18 U.S.C. § 922(y)(2). These
exceptions are not applicable to this case.
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where he could get some ammunition and if Arnold had some. The day of the sale,

Clements initiated the phone call to Arnold, and before Licona came on the line,

Clements asked Arnold what price Arnold wanted for the ammunition. Later, at the

trailer, Clements handled the box of ammunition Arnold brought and examined it

before ultimately giving it to Licona. Clements also remarked to Licona that he

would see if he could find more ammunition for Licona to purchase. Clements’s

indictment charged him under an aiding and abetting theory, but, even if it had not,

he could still be convicted based on evidence showing that he merely aided and

abetted the offense. See Iglesias, 915 F.2d at 1528. Therefore, there is no error as

to this element, much less plain error.

      The evidence is also sufficient to show that Clements knew or had reason to

know that Licona was an illegal alien, as Licona informed him of his illegal status

prior to the ammunition sale. Consequently, in this regard, there is also no error,

much less plain error.

B.    Licona’s Illegal Status

      Clements also argues that Licona was given “special class deferred status”

and thus was lawfully in the United States at the time of the sale. We review this

argument de novo, as Clements raised this argument during trial. Capers, 708 F.3d

at 1296.




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      Clements does not dispute that Licona entered the United States illegally.

Clements also does not object to the district court’s pattern jury instruction on the

definition of an illegal alien, which described an illegal alien as someone “present

in the United States without being admitted or paroled into the United States by an

appropriate governmental authority.”

      Rather, Clements argues that Licona’s “special class deferred status” granted

him lawful immigration status in the United States. However, the record evidence

shows otherwise. Specifically, DHS special agent Chamberlin reviewed Licona’s

immigration file and expressly testified that Licona’s “special class deferred

status” did not change his designation as an illegal alien. This meant only that DHS

was not starting removal proceedings against Licona but that, at any given time, an

immigration officer could put Licona into removal proceedings. See Reno v. Am.-

Arab Anti-Discrimination Comm., 525 U.S. 471, 483-84, 119 S. Ct. 936, 943-44

(1999) (explaining that deferred action is a discretionary decision by immigration

authorities in the executive branch, developed without express statutory

authorization, to decline to institute, continue, or execute the removal of an

“apparently deportable” alien). There is no evidence that Licona was legally

admitted or paroled into the United States. Accordingly, sufficient evidence

supports the finding that Licona was, in fact, an illegal alien when Clements aided

and abetted the sale of ammunition to him.


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                        III. CONCLUSION

For all of these reasons, we affirm Clements’s conviction and sentence.

AFFIRMED.




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