           Case: 19-11339   Date Filed: 04/21/2020   Page: 1 of 18



                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-11339
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 3:17-cr-00225-TJC-MCR-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

HERACLIO GUTIERREZ,
a.k.a. HECTOR,

                                                         Defendant-Appellant.

                      ________________________

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

                             (April 21, 2020)

Before WILLIAM PRYOR, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      After a jury trial, Heraclio Gutierrez was convicted of conspiracy to distribute

methamphetamine, in violation of 21 U.S.C. § 846, and sentenced to 200 months in

prison. He appeals, challenging his conviction and sentence. After careful review,

we affirm.

                                         I.

      Dustin Whittaker was a user and distributor of methamphetamine. Looking

for a better source of supply, Whittaker was put in touch with a man in Texas named

“Hector,” whom Whittaker identified as Gutierrez at trial. At first, Whittaker drove

to Austin, Texas, to buy methamphetamine from Gutierrez.

      Later, Gutierrez arranged for a courier to transport larger quantities of

methamphetamine by vehicle to Whittaker in Jacksonville, Florida. In June 2017,

courier Luisana Ramirez-Chavez arrived in Jacksonville with approximately ten

pounds of methamphetamine, which was hidden within a compartment on the

underside of the vehicle. Gutierrez drove to Jacksonville to oversee the delivery. In

August 2017, Gutierrez arranged for Ramirez-Chavez to deliver another shipment

of methamphetamine. Gutierrez again drove from Austin to oversee the delivery.

This time, Whittaker removed around twelve pounds of methamphetamine from the

vehicle. Whittaker stored most of the second shipment in a storage unit.

      On August 14, 2017, Matthew Yarborough, a special agent with the Florida

Department of Law Enforcement, received information from a confidential source


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that Whittaker had just received a large shipment of methamphetamine that he had

placed in his storage unit. After confirming with management that Whittaker rented

the storage unit in question, Yarborough asked an officer and his drug-detection dog

to conduct an exterior sniff of several units in that area. The dog alerted to

Whittaker’s storage unit.

      Yarborough then applied for, obtained, and executed a search warrant for the

storage unit. In the unit, law enforcement officers found a duffel bag containing

multiple packages of suspected methamphetamine. They seized the packages, and

Yarborough left a copy of the search warrant. Whittaker found the search warrant

the next day, after discovering that the methamphetamine had been taken. Whittaker

then spoke with Yarborough and agreed to cooperate with the investigation. He

testified for the government at Gutierrez’s trial.

      Based on information Whittaker provided, Yarborough was able to identify

Gutierrez as Whittaker’s source of supply. Further investigation revealed that

Gutierrez and coconspirator Mitchell Loor, who was involved in the earlier two

shipments, were planning to have another methamphetamine shipment transported

to Jacksonville by Ramirez-Chavez.             Law-enforcement officers intercepted

Ramirez-Chavez en route to Jacksonville in October 2017, and a drug-detection dog

alerted to the presence of drugs in the car. The car, which Gutierrez and Loor had

purchased in late August, was taken to a shop for further investigation and found to


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contain over five kilograms of methamphetamine. Ramirez-Chavez testified at trial

about the deliveries and her interactions with Gutierrez.

       The government called two forensic chemists employed by the Drug

Enforcement Administration (“DEA”) to testify as experts regarding the substances

recovered. Tyrone Shire testified that the October shipment contained 5,167 grams

of 98% pure methamphetamine. Jose Conde testified that the packages recovered

from the storage unit in August contained 2,185.9 grams of 73% pure

methamphetamine. The district court overruled Gutierrez’s objections that Shire and

Conde were not qualified to testify as experts under Rules 702 and 705, Fed. R.

Evid., and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

       The jury returned a verdict finding Gutierrez guilty of a distribution

conspiracy involving 500 grams or more of meth.

       Gutierrez’s presentence investigation report (“PSR”) determined that he was

accountable for 4.54 kilograms of methamphetamine, based on the ten-pound

shipment of unknown purity in July 2017, and 9.03 kilograms of “methamphetamine

(actual),” based on the twelve-pound shipment of 73% purity in August and the

5,167-gram shipment of 98% purity in October.1 The PSR then converted these



       1
         “Methamphetamine (actual)” means as the “weight of the controlled substance, itself,
contained in the mixture or substance.” U.S.S.G. § 2D1.1(c) n.(B). To determine the weight of
pure methamphetamine, the PSR multiplied the weight of each shipment by its purity percentage.
Because the purity of the first shipment was unknown, the PSR treated that quantity as a mixture
or substance containing methamphetamine.
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amounts to their marijuana equivalents and combined them to derive a single offense

level. See U.S.S.G. § 2D1.1 cmt. n.8(B). The combined converted drug weight was

189,680 kilograms of marijuana, which corresponded to a base offense level of 38.

      Gutierrez objected to the drug-quantity finding and argued that he should be

held accountable for only the quantity of methamphetamine recovered from the

storage unit. The district court overruled the objection at sentencing. The court

found that the drug quantity was supported by trial testimony and that, even if it was

exaggerated to some degree, it was still well above the amount necessary to trigger

the highest base offense level of 38. The court’s rulings resulted in a total offense

level of 38 and a corresponding guideline range of 235 to 293 months. The court

ultimately sentenced Gutierrez to 200 months in prison. Trial counsel was permitted

to withdraw, and new counsel was appointed for appeal. This appeal followed.

                                         II.

      First, Gutierrez argues that his trial counsel was constitutionally ineffective.

In Gutierrez’s view, trial counsel committed numerous procedural and substantive

legal errors, failed to prepare adequately for trial, and gave inadequate guilty plea

advice. Gutierrez maintains that the record of counsel’s deficiencies is sufficiently

developed to resolve these claims on direct appeal.

      “Except in the rare instance when the record is sufficiently developed, we will

not address claims for ineffective assistance of counsel on direct appeal.” United


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States v. Verbitskaya, 406 F.3d 1324, 1337 (11th Cir. 2005). As the Supreme Court

has explained, because the trial record is “devoted to issues of guilt or innocence,”

it ordinarily will not disclose the facts necessary to judge the reasons for counsel’s

actions or omissions. Massaro v. United States, 538 U.S. 500, 504–05 (2003).

“Without additional factual development, moreover, an appellate court may not be

able to ascertain whether the alleged error was prejudicial.” Id. at 505.

      For these reasons, “in most cases a motion brought under § 2255 is preferable

to direct appeal for deciding claims of ineffective assistance.” Id. at 504. That’s

true “even if the record contains some indication of deficiencies in counsel’s

performance.” Id. In a § 2255 proceeding, the “court may take testimony from

witnesses for the defendant and the prosecution and from the counsel alleged to have

rendered the deficient performance.” Id. at 505. Moreover, the § 2255 motion will

often be decided by the same district judge who presided at trial, so the judge will

have a better perspective for determining counsel’s effectiveness and whether any

deficiencies were prejudicial. Id. at 506.

      Here, we decline to consider Gutierrez’s ineffective-assistance-of-counsel

claims on direct appeal because the record is not sufficiently developed. Although

the record contains instances where counsel’s inexperience in federal court is

apparent, the record is silent on a number of key matters, including counsel’s reasons

for taking certain actions challenged by Gutierrez and the substance of counsel’s


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advice with respect to a guilty plea. See id. at 504–05. Moreover, without further

factual development and the benefit of the trial judge’s perspective, we are not in a

position at this time to thoroughly analyze counsel’s performance and determine

whether any deficiencies in counsel’s performance were prejudicial. See id. at 506.

Gutierrez is free to raise these claims in a 28 U.S.C. § 2255 motion.

                                         III.

      Second, Gutierrez contends that the district court erred by overruling his

objections to Agent Yarborough’s description of statements made to him by a

confidential source. Specifically, Yarborough explained that the investigation into

the drug conspiracy began when a confidential source informed him that Whittaker

had taken her to his storage unit and, after asking her “what’s the most meth that you

ha[ve] ever seen,” told her he had just deposited approximately twelve pounds of

methamphetamine. Gutierrez argues that this testimony was hearsay within hearsay

and that it violated his rights under the Confrontation Clause.

      We review evidentiary rulings for an abuse of discretion. United States v.

Cooper, 926 F.3d 718, 730 (11th Cir.), cert. denied, 140 S. Ct. 613 (2019). We

review unpreserved Confrontation Clause challenges for plain error only. United

States v. Jiminez, 564 F.3d 1280, 1286 (11th Cir. 2009).

      The Confrontation Clause, which provides that a defendant has the right to be

confronted with the witnesses against him, “only applies to testimonial statements,


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specifically testimonial hearsay.” United States v. Curbelo, 726 F.3d 1260, 1272

(11th Cir. 2013) (quotation marks omitted). Hearsay is an out-of-court statement

offered in evidence to prove the truth of the matter asserted. Fed. R. Evid. 801(c).

Hearsay within hearsay is admissible only if each part of the combined statements

conforms with an exception to the hearsay rule. Fed. R. Evid. 805.

      If a statement is not offered for its truth, however, it’s not hearsay and does

not violate the Confrontation Clause. Jiminez, 564 F.3d at 1287; see Curbelo, 726

F.3d at 1272 (“The Confrontation Clause only applies to testimonial statements that

are used to establish the truth of the matter asserted.” (quotation marks omitted)).

And “this Circuit has long recognized that [s]tatements by out of court witnesses to

law enforcement officials may be admitted as non-hearsay if they are relevant to

explain the course of the officials’ subsequent investigative actions,” provided the

“probative value of the evidence’s non-hearsay purpose is not substantially

outweighed by the danger of unfair prejudice caused by the impermissible hearsay

use of the statement.” Jiminez, 564 F.3d at 1288 (quotation marks omitted).

      Here, Yarborough’s testimony about the cooperating source’s out-of-court

statements that Whittaker had methamphetamine in his storage unit was admissible

as non-hearsay because Yarborough was explaining how the investigation of the

drug conspiracy began. See id. The statements—including the cooperating source’s

description of Whittaker’s comments to her—were relevant to explain subsequent


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investigative actions. See id.; Fed. R. Evid. 805. And the probative value of the

statements was not substantially outweighed by the danger of unfair prejudice

because Yarborough further explained how he verified the cooperating source’s

statements. See Jiminez, 564 F.3d at 1288. Because the statements were not offered

for their truth, they were not hearsay and did not violate the Confrontation Clause.

      But even assuming the district court erred, any error was harmless beyond a

reasonable doubt.    See Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)

(Confrontation Clause errors do not warrant reversal if they are “harmless beyond a

reasonable doubt”). Whittaker testified about these matters, explaining that he

received via a courier a twelve-pound shipment of methamphetamine, which he then

placed in his storage unit. And evidence established that nearly five pounds of

methamphetamine was found during a search of that unit, which Yarborough

confirmed was leased to Whittaker. So the cooperating source’s statements, which

did not identify or implicate Gutierrez, were merely cumulative of other evidence

and of little importance to the government’s case. See id.

                                        IV.

      Third, Gutierrez argues that the government failed to prove the reliability of

the methodology used by the government’s two forensic chemistry experts, Shire

and Conde, who testified as to the nature, weight, and purity of the substances

recovered from the storage unit in August 2017 and the car in October 2017. In


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Gutierrez’s view, the district court abused its discretion by allowing these witnesses

to testify as experts because they could not answer “vital reliability questions

regarding the methodology and the machines that actually performed the testing.”

       We review the district court’s decisions regarding the admissibility of expert

testimony and the reliability of an expert opinion for an abuse of discretion. United

States v. Barton, 909 F.3d 1323, 1330 (11th Cir. 2018). “This abuse-of-discretion

standard recognizes the range of possible conclusions the trial judge may reach, and

thus affords the district court considerable leeway in evidentiary rulings.” Id.

(citation and quotation marks omitted). We must affirm the district court unless it

has applied the wrong legal standard or made a clear error of judgment that resulted

in substantial prejudice to the defendant. Id. at 1330–31.

       Rule 702 of the Federal Rules of Evidence governs the admission of expert

testimony.2 Fed. R. Evid. 702. The district court is the gatekeeper for expert

testimony and is tasked with ensuring that expert testimony is sufficiently reliable



       2
           Rule 702 states in full,

                 A witness who is qualified as an expert by knowledge, skill,
                 experience, training, or education may testify in the form of an
                 opinion or otherwise if: (a) the expert’s scientific, technical, or other
                 specialized knowledge will help the trier of fact to understand the
                 evidence or to determine a fact in issue; (b) the testimony is based
                 on sufficient facts or data; (c) the testimony is the product of reliable
                 principles and methods; and (d) the expert has reliably applied the
                 principles and methods reliably to the facts of the case.

Fed. R. Evid. 702.
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and relevant to be considered by the jury. Kumho Tire Co., Ltd. v. Carmichael, 526

U.S. 137, 147–48 (1999). The Supreme Court in Daubert listed four factors for

determining whether expert testimony is sufficiently reliable for admission under

Rule 702. Daubert, 509 U.S. at 592–94. They include the following: (1) whether

the expert’s methodology can be and has been tested; (2) whether it has been

subjected to peer review and publication; (3) what its known or potential rate of error

is, and whether standards controlling its operation exist; and (4) whether it is

generally accepted in the field. Id.

      Nevertheless, the inquiry is “flexible,” and Daubert’s list of specific factors

neither necessarily nor exclusively applies to all experts or in every case. United

States v. Brown, 415 F.3d 1257, 1267 (11th Cir. 2005). Whether the Daubert factors

are relevant to “assessing reliability in a given case will depend[] on the nature of

the issue, the expert’s particular expertise, and the subject of his testimony.” Id. at

1268 (quotation marks omitted). So expert testimony that does not meet all or most

of the Daubert factors may sometimes be admissible. Id.

      In Brown, for example, we upheld the admission of expert testimony that met

only the “general acceptance” Daubert factor. Id. at 1267. The experts in Brown

“conceded that their method and conclusions were not quantitative or testable by the

scientific method,” but were instead “based on visual comparisons of the molecular

models combined with expert knowledge of chemistry.” Id. Moreover, “[t]he


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government produced no papers or studies in which the methodology or opinions of

[the experts] were subjected to peer review.” Id. But because the district court

credited testimony that the experts’ method was generally accepted, we concluded

that, in light of the flexible nature of the gatekeeping inquiry, the court did not abuse

its discretion in admitting their expert opinions. Id. at 1267–68.

      The district court did not abuse its discretion in admitting the testimony of the

government’s experts. Gutierrez does not question the experts’ experience or

background, but he argues that their testimony was unreliable because they did not

know the rate of error regarding the techniques they used and were unable to identify

any experts or studies that supported or discredited the methods they used. But as

we have explained, expert testimony does not necessarily need to meet all or most

of the Daubert factors to be admissible. Id.

      And here, as in Brown, the “general acceptance” Daubert factor was met.

Shire testified that the various techniques he and Conde used in the DEA labs to

identify substances—including gas chromatography, mass spectrometry, and

infrared spectroscopy—were “commonly used in the industry for identifying

compounds.” The district court was permitted to credit this testimony that the

experts’ testing methods were generally accepted and to conclude that the methods

were, therefore, sufficiently reliable to be considered by the jury. See id. The

reliability of the expert testimony was further supported by Shire’s testimony that


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DEA chemists employed “multiple testing using a variety of techniques,” as well as

testing multiple samples of the substance, which provided multiple results that could

be compared with “authenticated reference materials from an outside source” and

which permitted identification with confidence. Given the flexible nature of the

gatekeeping inquiry, Gutierrez has not shown that the court abused its discretion in

admitting the expert testimony as to the nature, purity, and weight of the substances.

See id.

                                         V.

      Next, Gutierrez challenges the district court’s determination of drug quantity

at sentencing. He argues that the drug-quantity finding was not supported by a

preponderance of the evidence and that the court failed to determine whether the

drugs attributed to him were reasonably foreseeable.

      We review for clear error a district court’s determination of the drug quantity

attributable to a defendant. United States v. Almedina, 686 F.3d 1312, 1315 (11th

Cir. 2012). “The district court’s factual findings for purposes of sentencing may be

based on, among other things, evidence heard during trial, undisputed statements in

the PS[R], or evidence presented during the sentencing hearing.” United States v.

Polar, 369 F.3d 1248, 1255 (11th Cir. 2004).

      The base offense level for a conspiracy drug offense is ordinarily calculated

by determining the quantity of drugs attributable to a defendant.           U.S.S.G.


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§ 2D1.1(a). To determine that quantity, the district court must consider “all acts and

omissions committed, aided, abetted, counseled, commanded, induced, procured, or

willfully caused by the defendant.” U.S.S.G. § 1B1.3(a)(1)(A). Additionally, “[i]n

the case of a conspiracy, the district court must consider all acts by other participants

that were both reasonably foreseeable and in furtherance of the conspiracy.” United

States v. Ryan, 289 F.3d 1339, 1348 (11th Cir. 2002); see U.S.S.G. § 1B1.3(a)(1)(B).

       A defendant’s base offense level is 38, the highest level available, if the

offense involved more than 90,000 kilograms of converted drug weight. U.S.S.G.

§ 2D1.1(c)(1). The same base offense level applies if the offense involves 4.5

kilograms or more of methamphetamine (actual). Id.

       Here, the district court did not clearly err in holding Gutierrez accountable for

the drug quantity calculated in the PSR. Trial testimony established that Gutierrez

personally directed the three drug shipments that were used to calculate that drug

quantity. 3 See U.S.S.G. § 1B1.3(a)(1)(A). In other words, the base offense level

was based solely on conduct with which Gutierrez was directly involved. So the

court did not need to consider whether he was also accountable for the reasonably

foreseeable acts of others. See Ryan, 289 F.3d at 1348. In any case, the three drug




       3
          Gutierrez suggests that chain-of-custody issues undermined the government’s drug-
quantity evidence, but the district court overruled his objections at trial, and he does not challenge
those rulings on appeal.
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shipments plainly were reasonably foreseeable to Gutierrez because he orchestrated

them.

        Further, the drug amounts involved in each of the shipments were supported

by trial testimony from Whittaker and the government’s experts. Whittaker testified

that the shipments in July 2017 and August 2017 involved ten pounds of

methamphetamine and twelve pounds of methamphetamine, respectively. And the

government seized 5,167 grams of 98% pure methamphetamine—or 5.06 kilograms

of methamphetamine (actual)—from Ramirez-Chavez’s car in October 2017. That

shipment alone would have qualified Gutierrez for the highest base offense level of

38. See U.S.S.G. § 2D1.1(c)(1) (base offense level 38 for 4.5 kilograms or more of

methamphetamine (actual)). And combined with the other shipments, and even

assuming the earlier amounts were overstated to some degree, the drug quantity

involved in Gutierrez’s offense was clearly sufficient to qualify him for level 38.

See id. We therefore affirm Gutierrez’s sentence.

                                          VI.

        Finally, Gutierrez contends that relief is warranted under the cumulative-error

doctrine. He asserts that he was deprived of a fair trial due to several factors: (a) the

district court’s conduct in repeatedly stopping defense counsel from speaking,

admonishing counsel, or providing instruction to counsel in the presence of the jury;

(b) the court’s failure to instruct the jury that it was required to assess the weight of


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evidence regarding drug quantity; (c) counsel’s ineffectiveness; and (d) the other

alleged errors discussed above.4

       We review the record de novo to determine the cumulative effect of any

alleged errors. Cooper, 926 F.3d at 739. The cumulative-error doctrine provides

that an aggregation of non-reversible errors can result in an unfair trial, which calls

for reversal. Id. We determine whether an error had substantial influence on the

outcome of the trial by weighing the whole record and examining the facts, the trial

context of the error, and the prejudice thereby created as juxtaposed against the

strength of the evidence of the defendant’s guilt. Id. at 740.

       Here, Gutierrez has not established cumulative error warranting a new trial.

First, our review of the record shows that the district court acted appropriately and

within its discretion. See United States v. Verbitskaya, 406 F.3d 1324, 1337 (11th

Cir. 2005) (“We review a district judge’s conduct during trial for abuse of

discretion.”). The court demonstrated patience and professionalism in handling what

was defense counsel’s first federal criminal trial. The court’s interruptions and

statements did not show bias against counsel and, in the main, were directed towards

“maintain[ing] the pace” and structure of the trial. Id. Moreover, the court instructed


       4
          Gutierrez’s standalone arguments regarding the jurisdiction of state courts to issue
warrants for “ping” data are not properly before us because he raised them for the first time in his
reply brief. See United States v. Coy, 19 F.3d 629, 632 n.7 (11th Cir. 1994) (“Arguments raised
for the first time in a reply brief are not properly before a reviewing court.”). Although he
addressed these issues in the context of his claims of ineffective assistance of counsel, we decline
to reach those claims at this time.
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the jury that the interruptions did not reflect its opinions on the case. See id. (relying

on a similar comment to conclude that the defendant was not denied a fair trial).

Accordingly, Gutierrez has not shown that he was prejudiced by the court’s conduct.

      Second, Gutierrez’s chain-of-custody arguments are off the mark. The district

court overruled his objections regarding the chain of custody for the drug evidence,

and he concedes that “the district court was correct to admit the evidence.” See

Appellant’s Br. at 54. Nor did Gutierrez request the instruction he claims the court

should have given. And in any case, he was free to explore these matters on cross

examination and in arguments to the jury. In short, the court committed no error by

proceeding as it did.

      Third, Gutierrez’s claims of ineffective assistance are not properly before us

for review, for the reasons we have explained above.

      Finally, Gutierrez has not shown that the district court erred in admitting the

hearsay evidence or permitting the government’s experts to testify, for the reasons

explained above. And “[w]here there is no error or only a single error, there can be

no cumulative error.” United States v. Gamory, 635 F.3d 480, 497 (11th Cir. 2011).

The evidence of Gutierrez’s guilt was strong, if not overwhelming, and he has failed

to show that any single error or combination of errors had a substantial influence on

the outcome of the trial. See Cooper, 926 F.3d at 739–40. Gutierrez received not a




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perfect trial, but a fair one. See Van Arsdall, 475 U.S. at 681 (“[T]he Constitution

entitles a criminal defendant to a fair trial, not a perfect one.”).

                                               VII.

       In sum, we AFFIRM Gutierrez’s conviction and sentence for conspiracy to

possess 500 grams or more of methamphetamine. 5




       5
       Gutierrez’s motion for leave to file a supplemental appendix out of time is GRANTED.
The motion to withdraw as Gutierrez’s counsel, filed by appointed attorney Percy A. King, is
GRANTED.
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