                                United States Court of Appeals,

                                        Eleventh Circuit.

                                          No. 96-9034.

                        UNITED STATES of America, Plaintiff-Appellee,

                                                v.

    Felix Espinoza GAMBOA, Frederick Healey, Luis Miguel Briones-Muro, Cruz Estrada
Martinez, Defendants-Appellants.

                                         Feb. 10, 1999.

Appeals from the United States District Court for the Northern District of Georgia. (No. 1:95-CR-
513-1), Orinda D. Evans, Judge.

Before TJOFLAT and BARKETT, Circuit Judges, and PROPST*, Senior District Judge.

       TJOFLAT, Circuit Judge:

       Felix Espinoza Gamboa, Frederick Healey, Luis Miguel Briones-Muro, and Cruz Estrada

Martinez challenge their convictions and sentences for conspiracy to possess with the intent to

distribute methamphetamine, as well as several related substantive counts. Finding their claims of

error meritless, we affirm.

                                                I.

       On September 11, 1995, undercover DEA agent James Warner and a confidential informant

went to appellant Healey's residence in Conley, Georgia, to purchase one pound of

methamphetamine. After they entered the residence, Healey introduced them to appellants Gamboa

and Briones-Muro. Warner gave Healey the money for the drugs; Healey, in turn, gave the money

to Gamboa, who produced a plastic bag containing 445.2 grams of methamphetamine. Warner took



   *
     Honorable Robert B. Propst, Senior U.S. District Judge for the Northern District of Alabama,
sitting by designation.
the bag and left the residence. Outside, he spoke briefly to Gamboa and Briones-Muro before they

entered a silver and red pick-up truck and drove away. DEA agents surveilling the premises

followed the truck to a residence located at 317 Heathrow Drive in Riverdale, Georgia, owned by

Gamboa's brother.

       On October 5, Warner, the confidential informant, and another undercover DEA agent went

to Healey's residence to purchase more methamphetamine. Gamboa, Briones-Muro, and appellant

Martinez arrived there around the same time in the silver and red pick-up truck. Healey, who had

been waiting for them, walked to the truck and obtained a package wrapped in duct tape from

Gamboa. Then, with the exception of Martinez (who stayed in the truck), everyone entered Healey's

residence. Once inside, Healey and Warner exchanged the package and money. The package

contained 438 grams of methamphetamine.

       Warner and Healey thereafter arranged for a third methamphetamine transaction to take place

on October 20 at 3:00 p.m. at the Riverdale Holiday Inn. Earlier that day, law enforcement officers

conducting a surveillance of the house at 317 Heathrow Drive saw Gamboa, Briones-Muro, and

Martinez enter and leave the house several times. The silver and red pick-up truck was parked in

front of the house. At 2:15 p.m., Martinez walked to the truck and leaned in toward the console

area. At 3:31 p.m., Gamboa, Briones-Muro, and Martinez left the house and walked to the truck.

Gamboa climbed into the driver's seat and Briones-Muro, standing outside the truck, twice handed

objects to him. Briones-Muro and Martinez then got into the truck and all three drove toward the

Holiday Inn.

       Within a half-mile of the inn, police officers stopped the truck and arrested the three

occupants. One of the officers noted that three of the screws holding the truck's console in place

were missing and the fourth was barely screwed in. Upon removing the console, the officer
discovered 1252 grams of methamphetamine. Later that day, police officers searched the residence

at 317 Heathrow Drive and confiscated two rolls of duct tape, triple beam scales, plastic baggies,

442 grams of marijuana, and several firearms.

        All four appellants were charged with conspiring to possess with intent to distribute

methamphetamine between September 11 and October 20, 1995, in violation of 21 U.S.C. § 846,

and with committing the substantive offense of possession with intent to distribute on October 20,

in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. Healey, Gamboa, and Briones-Muro also were

charged with committing the same substantive offense on September 11 and on October 5.

        The defendants were tried together. During the second day of trial, the Government

dismissed the substantive charges against Gamboa and Briones-Muro, and offered the defendants

a plea bargain: the Government would dismiss the remaining charges against each of the defendants

if all of them would plead guilty to use of a communication facility in committing a drug trafficking

offense. The Government made it clear that its offer would be withdrawn if any of the defendants

rejected it.

        The district court instructed counsel for the parties that if the defendants were going to accept

the Government's offer, they had to tender their acceptances and guilty pleas by 9:00 a.m. the next

day or the court would not consider them. So that defense counsel could have time to confer with

their clients, the court arranged for the Spanish interpreter (who had been attending the trial) to

remain in the courthouse after the court recessed for the day. By the end of the evening, three of the

defendants had decided to accept the Government's offer; Martinez remained undecided. His

attorney therefore arranged to continue his discussion with Martinez early the next morning; the

attorney also arranged for the interpreter to be present, because Martinez did not speak English.

        When Martinez and his attorney arrived at the courthouse the next day, however, the
interpreter was not there; he was stuck in traffic. As a result, Martinez and his attorney were unable

to confer. The interpreter eventually arrived, however, and, after consulting counsel, Martinez

agreed to join his co-defendants and accept the Government's plea offer. But he made his decision

too late. By the time counsel were able to inform the court that the defendants were prepared to

tender pleas of guilty, it was 9:40 a.m., forty minutes past the court's deadline. Adhering strictly to

the 9 a.m. deadline, the court refused to accept the proposed plea bargain, and the trial promptly

resumed. The jury subsequently found the defendants guilty as charged.

                                                  II.

       Appellants contend that the district court abused its discretion when it rejected the plea

bargains the Government had offered to them. As a remedy, they ask us to set aside their

convictions and to remand the case to the district court with the instruction that it accept their pleas

to a charge of using a communication facility in committing a drug trafficking offense.

         The district court provided three reasons for its refusal to accept the tendered plea

agreements. First, Healey's plea (which carried a maximum sentence of four years) did not

adequately reflect the seriousness of the offenses he had committed. Consequently, under

Sentencing Guidelines section 6B1.2(a),1 Healey's plea was unacceptable. Second, the facts would

not support a finding by the court that Gamboa, Briones-Muro, and Martinez had used a

communication facility to facilitate a drug trafficking offense. Third, the pleas were tendered after

the 9:00 a.m. deadline. The court set the deadline so that the guilty pleas, if they were to be

tendered, could be taken before the jury reported for duty. By taking the pleas before the jury

reported, the court could conserve the jurors' time and avoid unnecessary disruption of the court's


   1
    Because the Government's offer to the defendants was to be withdrawn unless all of the
defendants tendered pleas of guilty, and their pleas were accepted, the court's rejection of
Healey's plea meant that the offer was withdrawn.
trial docket.

        We find no abuse of discretion here.2 Sentencing Guidelines section 6B1.2(a) states that a

court may accept a plea agreement "if the court determines ... that the remaining charges adequately

reflect the seriousness of the actual offense behavior." See also United States v. Bean, 564 F.2d 700,

704 (5th Cir.1977) ("A decision that a plea bargain will result in the defendant's receiving too light

a sentence under the circumstances of the case is a sound reason for a judge's refusing to accept the

agreement.").3 In this case, Healey was charged with one count of conspiracy to possess with intent

to distribute methamphetamine and with three substantive counts—charges that carried a minimum

statutory penalty of twenty years imprisonment per count. If Healey had been allowed to plead

guilty to use of a communication facility in committing a drug offense, however, he would have

been subject to a maximum of four years incarceration. Furthermore, there was a substantial

quantity of drugs involved in Healey's crime—a total of 2134 grams of methamphetamine and 442

grams of marijuana. It was therefore well within the district court's discretion to hold that the

negotiated guilty plea did not reflect the seriousness of Healey's offense behavior.

        We further conclude that it was not an abuse of discretion to reject the guilty pleas because

they were tendered after the court-imposed deadline. We have held that the prerogative of

prosecutors and defendants to negotiate guilty pleas is "outweighed by judicial discretion to control

the scheduling of trial procedures in ongoing prosecutions, plus the broad interests of docket control

and effective utilization of jurors and witnesses." United States v. Ellis, 547 F.2d 863, 868 (5th



   2
    Abuse of discretion is the proper standard for reviewing a court's decision to reject a guilty
plea. See United States v. Gomez-Gomez, 822 F.2d 1008, 1010 (11th Cir.1987).
   3
   In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.
Cir.1977). Thus, courts may reject guilty pleas that are tendered after a deadline set by the court.

See id.

          The district court in this case concluded that the 9:00 a.m. deadline was necessary to prevent

the needless waste of the jury's time and for effective management of its docket. In setting this

deadline, the court provided sufficient opportunity for the defendants to discuss the Government's

offer with their attorneys; it arranged for the defendants, their attorneys, and the interpreter to stay

after the court recessed for the day in order to reach a decision. Three of the defendants, in fact,

decided to accept the Government's offer before the deadline expired. The court did not abuse its

discretion by rejecting the guilty pleas when the fourth defendant failed to meet the deadline.4

                                                   III.

          Martinez challenges the sufficiency of the evidence supporting his convictions. In order to

convict Martinez of possession with the intent to distribute methamphetamine, the Government had

to establish three elements: "(1) knowledge; (2) possession; and (3) intent to distribute." United

States v. Hernandez, 896 F.2d 513, 520 (11th Cir.1990) (citations omitted). Constructive possession

is sufficient to satisfy the possession element, and is proven "by showing ownership or dominion

and control over the drugs or over the premises on which the drugs are concealed." Id. (citations

omitted). In order to convict Martinez of the conspiracy charge, the Government was required to



   4
    The court also rejected the guilty pleas because it believed that there was an inadequate
factual basis for Gamboa, Briones-Muro, and Martinez to plead guilty to use of a communication
facility in committing a drug offense. A court cannot accept a guilty plea unless it is satisfied
that the conduct to which the defendant admits constitutes the offense charged. See McCarthy v.
United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969). Because the
district court refused to entertain the proposed guilty pleas, however, the record does not reveal
what, if anything, the Government would have offered as a factual basis for the pleas. Because
the court had other sound bases for rejecting the tendered pleas, as explained above, we need not
address the question whether the court was correct in concluding that the tendered pleas lacked a
factual basis.
prove that he agreed with one or more persons to violate the narcotics laws. See United States v.

Toler, 144 F.3d 1423, 1426 (11th Cir.1998). We review the sufficiency of the evidence de novo,

drawing all reasonable inferences in the Government's favor. See id. at 1428.

        Martinez contends that the evidence was insufficient to convict him of either the conspiracy

or the possession charge. According to Martinez, the evidence did nothing more than establish his

mere presence on the scene—specifically, his presence in the pick-up truck—on October 5 and

October 20; hence, it did not prove that he agreed to participate in the conspiracy or that he had

control of the drugs. Because mere presence at the crime scene is insufficient to prove guilt beyond

a reasonable doubt, see Hernandez, 896 F.2d at 518, Martinez asserts that his convictions should be

reversed.

        We are not persuaded. Although mere presence is inadequate to establish guilt, we have

held that "it is material, highly probative, and not to be discounted." United States v. Freeman, 660

F.2d 1030, 1035 n. 1 (5th Cir. Unit B Nov.1981).5 The evidence showed that Martinez drove (in the

pick-up truck) with Gamboa and Briones-Muro to the scene of the October 5 transaction, and that

he was riding (in the same truck) with Gamboa and Briones-Muro—with the drugs—to the scene

of the Holiday Inn transaction on October 20, after spending most of the day at the Heathrow Drive

residence where triple beam scales, firearms, marijuana, and other drug paraphernalia were found.

This evidence gave "rise to a permissible inference of participation in the conspiracy." United States

v. Calderon, 127 F.3d 1314, 1326 (11th Cir.1997).

       A small, but significant, piece of evidence buttresses this conclusion. On October 20, before

Martinez, Gamboa, and Briones-Muro left the Heathrow Drive residence in the pick-up truck for the


   5
    In Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir.1982), this court adopted as
binding precedent all decisions of Unit B of the former Fifth Circuit handed down after
September 30, 1981.
Holiday Inn, Martinez walked from the house to the truck and leaned in toward the truck's

console—the place where the drugs were stored and were discovered by the police after they stopped

the vehicle. This evidence suggests that Martinez took an active role in concealing the drugs before

they were driven to the October 20 rendevous.

       In addition to the foregoing, the jury had before it evidence, introduced under Federal Rule

of Evidence 404(b), that Martinez had been part of another drug trafficking conspiracy and had been

arrested in 1994 for selling drugs on several occasions to an undercover police officer.6 This

evidence suggested both that Martinez had the intent to possess and distribute the methamphetamine

on October 20 and that he had the intent to conspire with the other defendants as alleged in the

indictment.

       In sum, we conclude that a reasonable jury could find both that Martinez possessed the

methamphetamine with the intent to distribute it on October 20 and that he agreed with Gamboa,

Briones-Muro, and Healey to participate in the alleged drug trafficking conspiracy.7

                                                IV.


   6
   The arrest led to a formal charge against Martinez in state court. He failed to appear for trial,
and was a fugitive at the time of his arrest in the instant case on October 20, 1995.
   7
    Appellants raise a number of challenges to their convictions and sentences not mentioned
above. They contend that their convictions should be set aside on the following grounds: (1)
comments made by a juror during jury selection unduly prejudiced their case; (2) the court erred
in refusing to ask the venire persons certain questions regarding identification; (3) the court
abused its discretion both in refusing to grant appellants a continuance and in admitting or
excluding certain evidence; (4) the court erred in denying a motion for mistrial after a witness
gave perjured testimony; (5) the prosecutor's remarks in final summation before the jury were
improper and unduly prejudicial; and (6) with respect to the appellants Healey, Gamboa, and
Briones-Muro (and Martinez, as indicated in the text) the evidence was insufficient to convict.
Appellants also attack their sentences on the grounds that the court sentenced them for
trafficking D-methamphetamine rather than L-methamphetamine. Martinez, in addition,
questions the court's attribution to him of 1452 grams of methamphetamine and its failure to
depart downward from the Guidelines sentencing range. We find each of these claims of error
meritless.
For the foregoing reasons, the district court's judgment is AFFIRMED.
