                    Case: 11-13209         Date Filed: 10/24/2012   Page: 1 of 4

                                                                        [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-13209
                                        Non-Argument Calendar
                                      ________________________

                               D.C. Docket No. 1:10-cr-20581-JLK-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                                 versus

FERNANDO HERNANDEZ,
a.k.a. Cafe,
a.k.a. Bustelo,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

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

                                           (October 24, 2012)

Before TJOFLAT, BARKETT and FAY, Circuit Judges.

PER CURIAM:
              Case: 11-13209     Date Filed: 10/24/2012   Page: 2 of 4

      On May 17, 2011, after a one-day trial, a jury convicted Fernando

Hernandez of conspiracy to possess with intent to distribute five kilograms or

more of cocaine, in violation of 21 U.S.C. § 846, and possession with intent to

distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1). On

July 7, 2011, the District Court sentenced Hernandez to concurrent prison terms of

202 months. He now appeals his convictions and sentences.

                                          I.

      Hernandez appeals his convictions on the grounds that the District Court

failed adequately to instruct the jury on the definition of “possession” and to

respond to a jury question asking for a definition of possession. We find no merit

in either ground. The definition of possession in the court’s instructions to the

jury conformed substantially to the Eleventh Circuit’s Pattern Jury Instructions.

Here is what the court said:

      Possession, there are four kinds of possession I guess. A person [has]
      actual possession, constructive possession, sole possession or joint
      possession. A person can have all of those. Actual possession of a
      thing occurs when a person knowingly has direct, physical control
      over that item.

      Constructive possession is a thing when a person does not have actual
      possession of it but both has the power and the intention to take control of it
      at a later time.

      Sole possession occurs if a person is the only person to possess it.

                                          2
              Case: 11-13209      Date Filed: 10/24/2012   Page: 3 of 4




      Joint possession of a thing occurs when two or more persons share
      possession.

      The term possession includes as we have used it in the instructions means
      [sic] actual[,] constructive[,] sole[,] and joint.

      When the jury sent out a note during deliberations asking for the definition

of possession, the court referred them to page 13 of the written instructions, which

had been given to the jury prior to deliberations. Hernandez’s argument regarding

the court’s handling of the jury’s request is meritless.

                                          II.

      Hernandez challenges his sentences as procedurally unreasonable because

the District Court erred both in estimating the amount of cocaine attributable to

him and in finding that he destroyed material evidence for purposes of a U.S.S.G.

§ 3C1.1 obstruction-of-justice enhancement. The sentences are not procedurally

unreasonable because, in estimating the drug quantity attributable to Hernandez,

the court relied on uncontested evidence. As for the § 3C1.1 enhancement, the

evidence that Hernandez destroyed material evidence was compelling.

      We find no merit in Hernandez’s argument that the sentences are

substantively unreasonable because the court properly took into account the

purposes of a criminal sentence, as set out in 18 U.S.C. § 3553(a), and, in

                                           3
             Case: 11-13209   Date Filed: 10/24/2012   Page: 4 of 4

sentencing Hernandez to concurrent terms of 202 months, varied downward from

the sentence range prescribed by the Guidelines—292 to 365 months.

      AFFIRMED.




                                      4
