               Case: 13-10715       Date Filed: 04/18/2014      Page: 1 of 13


                                                                     [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 13-10715
                              ________________________

                        D. C. Docket No. 1:12-cr-20715-DLG-1

UNITED STATES OF AMERICA,

                                                                       Plaintiff – Appellee,

                                           versus

VICENTE ESPINO GARCIA,

                                                                    Defendant – Appellant.

                              ________________________

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

                                      (April 18, 2014)

Before MARCUS, Circuit Judge, and COOGLER * and BOWEN, ** District Judges.

PER CURIAM:
       *
       Honorable L. Scott Coogler, United States District Judge for the Northern District of
Alabama, sitting by designation.
       **
         Honorable Dudley H. Bowen, Jr., United States District Judge for the Southern District
of Georgia, sitting by designation.
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       Vicente Espino Garcia appeals his convictions and 63-month sentence,

following a two-day jury trial, for importing 500 grams or more of cocaine into the

United States (Count 1), in violation of 21 U.S.C. §§ 952(a) and 960(b)(2)(B), and

for possessing with intent to distribute 500 grams or more of cocaine (Count 2), in

violation of 21 U.S.C. § 841(a)(1). On appeal, Garcia argues the following: (1)

there was insufficient evidence to support his convictions; (2) the district court

erred in failing to afford him the opportunity to allocute; (3) the district court erred

in failing to timely or adequately consider his conflicts with counsel and his

counsel’s motion to withdraw; (4) the district court erred in applying a heightened

mandatory minimum sentence to his offenses; and (5) cumulative error from

prosecutorial misconduct and the district court’s faulty instructions to the jury

impaired his rights to a fair trial.

                                            I.

       We review de novo whether there was sufficient evidence to support

Garcia’s convictions, viewing the evidence in the light most favorable to the

verdict. United States v. Thompson, 473 F.3d 1137, 1142 (11th Cir. 2006). “The

jury gets to make any credibility choices, and we will assume that they made them

all in the way that supports the verdict.” Id. The evidence need not “exclude every

reasonable hypothesis of innocence or be wholly inconsistent with every

conclusion except that of guilt.” United States v. Faust, 456 F.3d 1342, 1345 (11th


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Cir. 2006) (citation and internal quotation marks omitted). “[T]he issue is not

whether a jury reasonably could have acquitted but whether it reasonably could

have found guilt beyond a reasonable doubt.” Thompson, 473 F.3d at 1142.

      A conviction under 21 U.S.C. § 841(a)(1) requires the government to prove

that the defendant “(1) knowingly (2) possessed [a controlled substance] (3) with

intent to distribute it.” Faust, 456 F.3d at 1345. To convict the defendant under 21

U.S.C. § 952(a), the government must prove that the defendant knowingly

imported a controlled substance. United States v. Peart, 888 F.2d 101, 104 n.2

(11th Cir. 1989). The government must also prove beyond a reasonable doubt that

500 grams or more of a cocaine mixture was involved in the offenses because it is

a “fact that increases the mandatory minimum” sentence for the offenses. Alleyne

v. United States, 133 S. Ct. 2151, 2155 (2013); see 21 U.S.C. §§ 841(b)(1)(B),

960(b)(2).

      Garcia does not contest on appeal that he imported or was in possession of

the cocaine. Instead, he argues that there was insufficient evidence for a jury to

reasonably conclude beyond a reasonable doubt that 500 grams or more of a

cocaine mixture were involved in the offenses, his knowledge of the cocaine, or

that he intended to distribute the cocaine. Garcia also argues that Alleyne requires

that the jury find beyond a reasonable doubt that he knew the quantity of the

cocaine involved. We disagree.


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                                         A.

      We reject Garcia’s challenge to the sufficiency of the evidence regarding the

quantity of cocaine mixture involved in his offenses. The evidence showed that a

United States Customs and Border Protection officer seized from Garcia’s luggage

74 bars of what was suspected to be cocaine disguised as candy. The bars seized

were substantially identical in size and shape. The bars seized were

distinguishable from the ten actual candy bars found in the luggage in that the bars

seized contained an additional layer of brown wrapping underneath the outer candy

wrapper. Opening some of the bars with the brown wrapping, the officer

discovered a white, powdery substance instead of candy. The powder tested

positive for cocaine.

      An expert forensic chemist for the Drug Enforcement Administration

(“DEA”) testified at trial about her analysis of the bars seized from Garcia. She

selected 9 of the 74 bars to determine their net weight and extrapolated that the

weight of the suspected drugs totaled 1,980 grams. The chemist then randomly

selected and tested 30 bars for their chemical composition. All thirty bars tested

positive for cocaine. The chemist concluded with a 95 percent degree of certainty

that 90 percent of the remaining 44 bars contained cocaine and testified that her

methodology complied with DEA policy and protocol. Further, Garcia’s counsel

conducted a thorough cross-examination of the chemist regarding her methodology


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and findings. In light of the foregoing, sufficient evidence supports the jury’s

verdict that 500 grams or more of a cocaine mixture was involved in the offenses.

                                          B.

      In addition, the direct and circumstantial evidence at trial sufficiently

establishes Garcia’s knowledge and intent. The evidence showed that Garcia

acknowledged that the contents of his luggage belonged to him and that he packed

his luggage. The quantity of cocaine mixture, nearly two kilograms, also supports

the jury’s verdict. See United States v. Quilca-Carpio, 118 F.3d 719, 722 (11th

Cir. 1997) (“A reasonable jury could infer from the quantity of drugs seized that a

‘prudent smuggler’ is not likely to entrust such valuable cargo to an innocent

person without that person’s knowledge.” (quoting United States v. Cruz-Valdez,

773 F.2d 1541, 1547 (11th Cir. 1985))); United States v. Montes-Cardenas, 746

F.2d 771, 778-79 (11th Cir. 1984) (“Intent to distribute may be inferred from the

quantity of cocaine seized.”). Moreover, as evidenced by its verdict, the jury

plainly rejected Garcia’s testimony explaining his suspicious behavior. See United

States v. Jiminez, 564 F.3d 1280, 1285 (11th Cir. 2009) (“[T]he jury was permitted

to reject [the defendant’s] testimony, as we must assume it did, and consider that

testimony ‘as substantive evidence of the defendant’s guilt.’” (emphasis in

original) (quoting United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995))).

Finally, Garcia admitted to the law enforcement officers that he had lied about the


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purpose of his trip when they questioned him about the inconsistencies in his story.

Based on this evidence, a reasonable jury could conclude beyond a reasonable

doubt that Garcia was not a blissfully ignorant courier who was manipulated into

importing a cocaine mixture into the United States.

      Garcia’s argument that the government failed to establish his intent to

distribute due to the low quality of the cocaine also misses the mark. Garcia

ignores evidence at trial that the cocaine mixture, at its level of purity, was still

marketable and would fetch a sizeable return of between $50,000 and $70,000.

See United States v. Segura-Baltazar, 448 F.3d 1281, 1293 (11th Cir. 2006)

(leaving undisturbed the district court’s rejection of the defendant’s argument that

the methamphetamine mixture, which was less than one percent pure, was so

diluted that it would not be marketable); United States v. Rolande-Gabriel, 938

F.2d 1231, 1236 (11th Cir. 1991) (“Congress adopted a ‘market-oriented’ approach

to punishing drug trafficking, under which the total quantity of what is distributed,

rather than the amount of pure drug involved, is used to determine the length of

sentence. . . . It intended the penalties for drug trafficking to be graduated

according to the weight of the drugs [in] whatever form they [are] found—cut or

uncut, pure or impure, ready for wholesale or ready for distribution at the retail

level.” (emphasis and alterations in original) (quoting Chapman v. United States,

500 U.S. 453, 461 (1991))). Accordingly, because there was sufficient evidence


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that the cocaine mixture was marketable, Garcia’s argument regarding intent

founders.

                                          C.

      Garcia also argues that the government failed to establish his knowledge as

to the quantity of cocaine that he was carrying. However, the offenses here do not

include such a knowledge component. See 21 U.S.C. § 841(b)(1)(B), 960(b)(2);

United States v. Sanders, 668 F.3d 1298, 1310 (11th Cir. 2012) (“Unlike § 841(a),

§ 841(b)’s penalty scheme imposes no mens rea requirement. Rather, § 841(b)

refers only to a violation of § 841(a) ‘involving’ certain quantities and types of

controlled substances.”); see also United States v. Tinoco, 304 F.3d 1088, 1099

(11th Cir. 2002) (“[T]he penalties framework found in § 841(b) is very similar to

the framework found in § 960(b); indeed, the two provisions contain virtually

identical language.”). Despite Garcia’s arguments to the contrary, Alleyne does

not alter this framework.

      In short, there was ample evidence from which a jury could find beyond a

reasonable doubt Garcia’s guilt on all counts and the quantity of cocaine involved

in the offenses.

                                          II.

      Garcia next argues the district court erred at his sentencing hearing. First,

Garcia contends that the district court failed to afford him the opportunity to


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allocute. Second, Garcia contends that the district court failed to timely address his

conflicts with counsel and improperly refused to consider his counsel’s motion to

withdraw until after imposing the sentence. Third, Garcia asserts that the district

court improperly applied a heightened mandatory minimum sentence to his

offenses. As explained below, these arguments are without merit.

                                          A.

       Because Garcia did not object to the district court’s alleged failure to permit

allocution, we review for manifest injustice, which is equivalent to plain error

review. United States v. Quintana, 300 F.3d 1227, 1231-32 (11th Cir. 2002).

Under the plain error standard, we will reverse only if: (1) there was error (2) that

was plain, (3) that affected the defendant’s substantial rights, and (4) that seriously

affected the fairness, integrity, or public reputation of a judicial proceeding.

United States v. Perez, 661 F.3d 568, 583 (11th Cir. 2011). Rule 32 of the Federal

Rules of Criminal Procedure requires that the district court address the defendant

personally at the sentencing hearing “in order to permit the defendant to speak or

present any information to mitigate the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii).

The district court need not use magic words such as “mitigation,” but the record

must show that the district court, prosecutor, and defendant have at least interacted

in a manner “that shows clearly and convincingly that the defendant knew he had a

right to speak on any subject of his choosing prior to the imposition of sentence.”


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Perez, 661 F.3d at 585 (emphasis in original) (citation and internal quotation marks

omitted).

      During the sentencing hearing, the district court spoke directly to Garcia,

explaining that he would have the opportunity to speak “with regard to the

sentence or any other matters” that he would like to present. Later, the district

court noted that Garcia had matters that he would like to present and informed him,

“This is now your opportunity to do so.” This broad language communicated to

Garcia that he had the right to present any matter to the district court, including

information to potentially mitigate his sentence. Garcia clearly understood that he

had been granted the opportunity to address the district court and thanked the court

twice for allowing him to speak. The record leaves no doubt that the district court

allowed Garcia the opportunity to speak on his own behalf and that Garcia was

aware of his right to speak freely. The district court therefore did not commit

reversible error regarding Garcia’s right of allocution.

                                          B.

      We review a district court’s ruling on counsel’s motion to withdraw for an

abuse of discretion. United States v. Calderon, 127 F.3d 1314, 1343 (11th Cir.

1997). In reviewing whether a district court abused its discretion, the most

relevant factors include: “1) the timeliness of the motion; 2) the adequacy of the

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


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

counsel thereby preventing an adequate defense.” Id. Here, the record shows that

defense counsel did not move to withdraw until Garcia’s sentencing hearing; the

district court adequately inquired into the reasons for Garcia’s dissatisfaction with

trial counsel; and Garcia and counsel remained in communication regarding

sentencing. The Calderon factors thus weigh against a finding of abuse of

discretion.

      However, even assuming arguendo that the district court abused its

discretion, Garcia fails to demonstrate that he was prejudiced by trial counsel

continuing to represent him. See id. To demonstrate prejudice, Garcia must show

that his “counsel’s performance was ‘not within the range of competence

demanded of attorneys in criminal cases’ and that ‘but for’ counsel’s continued

representation at the sentencing hearing, ‘the result of the proceeding would have

been different.’” Id. (quoting United States v. Zillges, 978 F.2d 369, 372-73 (7th

Cir. 1992)).

      Garcia offers only conclusory assertions that, but for his counsel’s continued

representation, the mandatory minimum sentence would not have been applied to

his sentence and that, in the alternative, the district court would have reduced

Garcia’s sentence of 63 months to the mandatory minimum sentence of 60 months.

Garcia’s first argument fails because the issue of whether 500 grams or more of a


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cocaine mixture was involved in Garcia’s offenses was properly submitted to and

found by the jury beyond a reasonable doubt. See supra, Part I.A. As for his

second argument, we are not persuaded that the district court would have departed

from the advisory guideline range. The district court sentenced Garcia to the

lowest term of imprisonment recommended by the advisory guidelines, and Garcia

fails to articulate any reason to support his conclusion that the sentence would have

been reduced past the lowest end of the guideline range. Cf. United States v.

Chavez, 584 F.3d 1354, 1365 (11th Cir. 2009) (“[O]rdinarily we would expect a

sentence within the Guidelines range to be reasonable.” (citation and internal

quotation marks omitted)). Thus, because Garcia cannot demonstrate any

prejudice, his arguments regarding his conflicts with counsel fail.

                                         C.

      Garcia reiterates his arguments that the district court improperly applied a

60-month mandatory minimum sentence. However, we have already rejected these

arguments supra, Parts I.A. & I.C. His convictions properly qualify for the

mandatory minimum sentence.

                                         III.

      Finally, Garcia argues that cumulative error arising from the district court’s

instructions to the jury and prosecutorial misconduct impinged on his Fifth and

Sixth Amendment Rights. Garcia contends that the district court impermissibly


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emphasized the word “possible” in its instructions to the jury that the government

“doesn’t have to prove a defendant’s guilt beyond all possible doubt.” However,

“[t]he district court has broad discretion in formulating its charge as long as the

charge accurately reflects the law and the facts.” United States v. Spoerke, 568

F.3d 1236, 1244 (11th Cir. 2009). Here, the district court’s instructions in the jury

charge, when viewed in context, “accurately express[ed] the law applicable to the

case without confusing or prejudicing the jury.” United States v. Beasley, 72 F.3d

1518, 1525 (11th Cir. 1996).

      Garcia’s arguments regarding prosecutorial misconduct also fail. Garcia

failed to challenge all but one of the government’s statements during trial that he

now alleges were improper, and even as to the one purported error he objected to,

Garcia ultimately agreed with the district court’s curative action. Garcia’s

misconduct claims are thus reviewed for plain error. See United States v. Schmitz,

634 F.3d 1247, 1259 (11th Cir. 2011). “To establish prosecutorial misconduct, ‘(1)

the remarks must be improper, and (2) the remarks must prejudicially affect the

substantial rights of the defendant.’” United States v. Eckhardt, 466 F.3d 938, 947

(11th Cir. 2006) (quoting United States v. Eyster, 948 F.2d 1196, 1206 (11th Cir.

1991)). “A defendant’s substantial rights are prejudicially affected when a

reasonable probability arises that, but for the remarks, the outcome of the trial

would have been different.” Id. Here, none of the challenged comments was


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improper. Moreover, even assuming arguendo that the remarks were improper,

there was sufficient evidence at trial to support the jury’s guilty verdict as to both

counts. See id. (“When the record contains sufficient independent evidence of

guilt, any error is harmless.”). Thus, Garcia fails to demonstrate that, absent the

comments, the outcome of the trial would have differed.

                                          IV.

      Upon the foregoing, we affirm Garcia’s convictions and sentence.

      AFFIRMED.




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