                                                      [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                    FEBRUARY 20, 2008
                                                    THOMAS K. KAHN
                              No. 07-12805
                                                         CLERK
                          Non-Argument Calendar
                        ________________________

                  D. C. Docket No. 06-00137-CR-RWS-3-1

UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                   versus

ROMONA JOSEFINA ESPINOSA-MEJIA,
a.k.a. Josefina,

                                                    Defendant-Appellant.

                        ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                             (February 20, 2008)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:

     Appellant Romona Josefina Espinosa-Mejia (“Espinosa”) pleaded guilty to
conspiring to possess with intent to distribute at least five kilograms of a substance

containing more than a detectable amount of cocaine in violation of 21 U.S.C. §§

841(a)(1), 841(b)(1)(A)(ii), and 846. She appeals both her sentence and the district

court’s accompanying forfeiture order. After reviewing the record and reading the

parties’ briefs, we affirm Espinosa’s sentence and the district court’s forfeiture

order.

                                   I. BACKGROUND 1

         Sometime in January 2005, the FBI began investigating a drug conspiracy

headed by Carlos Gomez, also known as Abel Aranda-Salgado (“Gomez”). For six

months, the FBI monitored a telephone used by Gomez, and in several calls

Espinosa and Gomez discussed distribution of multiple kilograms of cocaine. In

December 2005, the FBI witnessed Espinosa deliver approximately three

kilograms of cocaine to Edwin Parker. The FBI subsequently arrested Espinosa.

         After her arrest, Espinosa admitted to a relationship with Gomez and

admitted that she learned about Gomez’s drug-related activities in 2004. Espinosa

further admitted that, after a burglary at Gomez’s apartment, she obtained two safe

deposit boxes in which to store Gomez’s drug proceeds. She acted as

courier—storing and retrieving drug proceeds from the safe deposit boxes at


         1
       The Court derives the facts from the uncontested portion of the plea colloquy, R. Vol. 4,
DE 286 at 6-9, and the admitted facts in the Presentence Investigation Report (“PSI”).

                                               2
Gomez’s request—but also kept her own money in the safe deposit boxes.2 She

also admitted that, in addition to the transaction the FBI witnessed, she had picked

up drug proceeds from Parker on numerous other occasions. At sentencing, over

Espinosa’s objection, the district court admitted testimonial statements from a co-

defendant detailing four other drug transactions, involving a total of 30 to 40

kilograms of cocaine, in which Espinosa participated. After her arrest, the agents

seized approximately $120,000 from the safe deposit boxes, $25,000 of which

Espinosa claimed was her own, earned by making small loans in her community

and by “slow dancing.”

       Based on the above facts, Espinosa pleaded guilty to participating in

Gomez’s drug conspiracy. The PSI concluded that Espinosa’s relevant conduct

included the conspiracy’s full amount of cocaine—more than the Guidelines

maximum of 150 kilograms.3 Therefore, her base offense level was 38. See

U.S.S.G. § 2D1.1(c)(1) (2005). Espinosa qualified for a two-level safety valve

reduction, U.S.S.G. §§ 2D1.1(b)(7) & 5C1.2 (2005), and a three-level reduction for

acceptance of responsibility, U.S.S.G. § 3E1.1 (2005). Given her criminal history



       2
         The PSI notes that Espinosa accessed one safe deposit box 28 times and the other 11
times, but only identifies three instances where a trip to a safe deposit box correlates with a
phone call from Gomez directing her to deposit or withdraw funds.
       3
        She did not contest that one member of the Gomez conspiracy alone, viz. her sister
“Reyna,” trafficked more than 150 kilograms of cocaine.

                                                 3
category of I, and the total offense level 33, the PSI calculated a Guidelines range

of 135 to 168 months imprisonment.

       Espinosa challenged two aspects to the PSI Guidelines calculation. First,

she argued that she was only responsible for five to fifteen kilograms of cocaine,4

so her base offense level should have been much lower. Second, she urged the

court to grant her a two to four level minor/minimal role adjustment. U.S.S.G. §

3B1.2 (2005). The district court rejected her first argument, finding that though

“the specific connection of [Espinosa] to actual discrete instances may not rise to

the level of 150 [kilograms], her participation in an enterprise that did involve that

level of drugs was known to her.” R. Vol. 8, DE 290 at 171. The court agreed with

her second argument, however, reasoning that “having held her accountable for all

of the activities of the conspiracy, I should gauge her conduct and her role in

looking at the conspiracy as a whole.” Id. at 171-72. The court therefore granted

Espinosa a two-level adjustment for her minor role in the conspiracy, and the

incident four-level reduction in base-offense level. Id. at 172; see U.S.S.G. §§

3B1.2(b) & 2D1.1(a)(3) (2005). With a total offense level of 27 and a criminal



       4
         Espinosa apparently bases this figure on the amount of cocaine the cash deposited in the
safe deposit boxes would have purchased—approximately six kilograms. R. Vol. 8, DE 290 at
162; see also United States v. Tokars, 95 F.3d 1520, 1542 (11th Cir. 1996) (holding “that money
attributable to . . . drug transactions may be converted to the equivalent amount of drugs for
purposes of determining the drug quantity”).

                                                4
history category of I, Espinosa’s Guidelines range was 70 to 87 months

imprisonment. The district court, considering the admitted facts, the Guidelines,

and the factors set forth in 18 U.S.C. § 3553(a), sentenced Espinosa to 87 months

imprisonment.

      Espinosa raises five issues on appeal: (1) whether the district court erred in

finding her accountable for more than 150 kilograms of cocaine; (2) whether the

district court violated her Sixth Amendment rights by sentencing her based on

more than 150 kilograms of cocaine when the facts were found by a preponderance

of the evidence rather than beyond a reasonable doubt; (3) whether the district

court violated her Sixth Amendment rights, or evidentiary rules applicable at

sentencing, when it admitted the out-of-court statements of her codefendant; (4)

whether the 87-month prison sentence was unreasonable; and (5) whether the

forfeiture order was supported by sufficient evidence.

                         II. STANDARDS OF REVIEW

      We review for clear error the district court’s factual determination of the

drug quantity for which Espinosa is accountable. United States v. Rodriguez, 398

F.3d 1291, 1296 (11th Cir. 2005).

      We review de novo Espinosa’s Sixth Amendment challenges—one to the




                                          5
standard for fact-finding in the post-Booker5 federal sentencing scheme, and one

based on the admission of testimonial hearsay during sentencing. United States v.

Yates, 438 F.3d 1307, 1311 (11th Cir. 2006).

      We review a criminal sentence for a procedural or substantive abuse of

discretion. Gall v. United States, 128 S. Ct. 586, 597 (2007).

      When a district court orders a criminal forfeiture, we review its findings of

fact for clear error and its conclusions of law de novo. United States v. Kennedy,

201 F.3d 1324, 1329 (11th Cir. 2000).

                                     III. DISCUSSION

A. Drug Quantity

      Espinosa argues that the district court clearly erred when it concluded that

her relevant conduct included the full amount of drugs in Gomez’s conspiracy. The

Guidelines define “Relevant Conduct” for sentencing purposes to include “in the

case of a jointly undertaken criminal activity . . ., all reasonably foreseeable acts

and omissions of others in furtherance of the jointly undertaken criminal activity.”

U.S.S.G. § 1B1.3 (2005).

      The Application Notes clarify that, in the case of contraband, the

conspirator’s relevant conduct includes amounts directly attributable to the



      5
          United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).

                                                6
conspirator and “all reasonably foreseeable quantities of contraband that were

within the scope of the criminal activity that [the conspirator] jointly undertook.”

Id. cmt. n.2. The “scope of the criminal activity that [the conspirator] jointly

undertook,” however, is not the same as the scope of the entire conspiracy; rather,

the jointly undertaken criminal activity is limited to “the scope of the specific

conduct and objectives embraced by the defendant’s agreement.” Id. Similarly,

“the criminal activity that the defendant agreed to jointly undertake, and the

reasonably foreseeable conduct of others in furtherance of that criminal activity,

are not necessarily identical.” Id. For this reason, we have held that

      to determine a defendant’s liability for the acts of others, the district
      court must first make individualized findings concerning the scope of
      criminal activity undertaken by a particular defendant. Once the extent
      of a defendant’s participation in the conspiracy is established, the
      court can determine the drug quantities reasonably foreseeable in
      connection with that level of participation.

United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993) (citations omitted).

      The judge overruled Espinosa’s relevant-conduct objection because

      [Though] the specific connection of the defendant to actual discrete
      instances may not rise to the level of 150 [kilograms], her
      participation in an enterprise that did involve that level of drugs was
      known to her. She was aware enough of what was going on, of the
      money that was moving through the organization. She continued to
      derive benefits from that and to facilitate that such that she was
      connected sufficiently to the conspiracy and its activities, that she is
      accountable for the entirety of the conspiracy and its activities.



                                           7
R. Vol. 3, DE 290 at 171. In other words, the district court found that her multiple

individual acts in support of the conspiracy were sufficient to find that she agreed

to the conspiracy in its entirety. Espinosa challenges that finding as clear error

because she claims she participated in the conspiracy on a favor-by-favor basis,

agreeing only to the specific favors, so she only jointly undertook the specific acts

and objectives of each favor.

      We have held that “the Guidelines establish that the fact that the defendant

knows about the larger operation, and has agreed to perform a particular act, does

not amount to acquiescence in the acts of the criminal enterprise as a whole.”

United States v. Hunter, 323 F.3d 1314, 1320 (11th Cir. 2003). The Guidelines

provide a concrete illustration:

      Defendant O knows about her boyfriend’s ongoing drug-trafficking
      activity, but agrees to participate on only one occasion by making a
      delivery for him at his request when he was ill. Defendant O is
      accountable under subsection (a)(1)(A) for the drug quantity involved
      on that one occasion. Defendant O is not accountable for the other
      drug sales made by her boyfriend because those sales were not in
      furtherance of her jointly undertaken criminal activity (i.e., the one
      delivery).

U.S.S.G. § 1B1.3, illus. (c)(5) (2005). The question here is whether it is clear error

for the district court to find, where Defendant O performs more than 38 individual




                                           8
favors for her boyfriend,6 that she agreed to join the boyfriend’s entire operation.

We hold that such a finding is not clear error. At some point, where a defendant

knows the scope of a large operation and agrees to multiple acts assisting that

operation, the discrete acts can be aggregated to constitute assent to jointly

undertake the operation as a whole. In essence, at some point the defendant ceases

to be performing favors for her boyfriend, and is instead performing tasks for the

conspiracy. Therefore, though the conclusion was not compelled by the record, it

was not clear error for the district court to find that Espinosa agreed to jointly

undertake Gomez’s entire conspiracy.

B. Fact-finding Standard

       Espinosa argues that the district court’s fact-finding at sentencing, based on

a preponderance of the evidence standard, violated her Sixth Amendment right to a

jury trial. Espinosa concedes that the argument is foreclosed by binding circuit

precedent. See United States v. Smith, 480 F.3d 1277, 1281 (11th Cir. 2007)

(“Because the court understood it was operating under an advisory [Guidelines]

scheme, its fact-finding did not implicate the Sixth Amendment.”).



       6
         We note that if each favor was simply another drug delivery, Defendant O would be
equivalent to a “street-level drug dealer” or a middle-man as discussed in § 1B1.3, illustrations
(c)(6) and (c)(7). In such situations, it would be clear error to include the entire conspiracy’s
drug quantity in Defendant O’s relevant conduct. Here, however, Espinosa not only made at
least one drug delivery, she also handled money for the operation.

                                                 9
C. Hearsay Declarations

      Espinosa argues that the district court violated her Sixth Amendment right to

confront the witnesses against her by admitting her codefendant’s testimonial

statement at her sentencing hearing . This argument is also foreclosed by binding

circuit precedent. United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir.

2005); see also United States v. Smith, 480 F.3d 1277, 1281 (11th Cir. 2007)

(“Because the court understood it was operating under an advisory [Guidelines]

scheme, its fact-finding did not implicate the Sixth Amendment.”).

      In the alternative, Espinosa argues that the district court erroneously

admitted her codefendant’s testimonial statements despite a lack of sufficient

indicia of reliability to support its probable accuracy. We need not address the

issue because, even if the district court erred by admitting the statement into

evidence, the error was harmless. As detailed above, the district court attributed

more than 150 kilograms of cocaine, the Guidelines maximum, to Espinosa

because it found that she agreed to jointly undertake Gomez’s entire conspiracy,

and because she knew the conspiracy involved a massive amount of cocaine—100

to 200 kilograms per month. That conclusion rests on grounds entirely separate

from her codefendant’s statement, which implicated her in four drug transactions

totaling 30 to 40 kilograms. In short, the district court’s findings, unrelated to the



                                           10
codefendant’s statement, require that she be held to the maximum Guidelines

range, so any error in admitting the statement was harmless.

D. Sentence Reasonableness

      Espinosa attacks her sentence as substantively unreasonable and as the

product of procedural error. First, we reject Espinosa’s procedural argument. The

Supreme Court summarized the proper sentencing procedure as follows:

      As we explained in Rita [v. United States, 127 S. Ct. 2456, 168 L. Ed.
      2d 203 (2007)], a district court should begin all sentencing
      proceedings by correctly calculating the applicable Guidelines range.
      As a matter of administration and to secure nationwide consistency,
      the Guidelines should be the starting point and the initial benchmark.
      The Guidelines are not the only consideration, however. Accordingly,
      after giving both parties an opportunity to argue for whatever sentence
      they deem appropriate, the district judge should then consider all of
      the [18 U.S.C.] § 3553(a) factors to determine whether they support
      the sentence requested by a party. In so doing, he may not presume
      that the Guidelines range is reasonable. He must make an
      individualized assessment based on the facts presented.

Gall v. United States, 128 S. Ct. 586, 596-97 (2007). The sentencing transcript

demonstrates that the district court followed this procedure precisely. R. Vol. 8,

DE 290. The court calculated the applicable Guidelines range, id. at 171-73, heard

Espinosa’s argument in favor of a lenient sentence, id. at 158-170, considered the §

3553(a) factors, id. at 173-75, afforded the Guidelines no presumption of

reasonableness, id. at 174-75 (“I have considered both the Sentencing Guidelines

and the [§] 3553 factors in arriving at this sentence and believe that this is a

                                           11
reasonable sentence under all the circumstances.”), and explained the sentence, id.

at 173-75. The law requires nothing more.

         Likewise, an 87-month prison sentence for substantial involvement in a

massive drug conspiracy is not substantively unreasonable. A district court, taking

account of the totality of the circumstances in an individual defendant’s case, has

broad discretion to craft “a sentence sufficient, but not greater than necessary,” 18

U.S.C. § 3553(a), to satisfy the purposes of criminal punishment set forth in §

3553(a)(2). Espinosa’s 87-month prison sentence is well within that discretionary

range.

E. Forfeiture Order

         Finally, Espinosa argues that the district court failed to make adequate

findings to support its order that the $25,000 recovered from a safe deposit box,

and claimed by her, be forfeited. She maintains that there was insufficient evidence

to establish that she obtained this money during the period of the conspiracy, or

that there was no other source aside from Gomez’s drug-related business from

which this money could have been derived, and therefore, the presumption under

21 U.S.C. § 853(d) was not triggered. Further, she argues, even if the presumption

did arise, it was rebutted by her post-arrest statements, as well as the findings in the

presentence report, and the wire recordings, which corroborated that she obtained



                                            12
funds independently of Gomez.

      We review the legality of a forfeiture order de novo and the court’s factual

findings for the sufficiency of the evidence. See United States v. Hasson, 333 F.3d

1264, 1275 (11th Cir. 2003). Section § 853(a)(1) subjects to forfeiture “any

property constituting, or derived from, any proceeds the person obtained, directly

or indirectly, as the result of [a narcotics] violation.” 21 U.S.C. § 853(a)(1).

Because forfeiture is part of sentencing and not an element of the offense, the

elements of criminal forfeiture under section 853(a)(1), must be proven only by a

preponderance of the evidence. United States v. Elgersma, 971 F.2d 690, 697

(11th Cir. 1992). Section 853(d) creates a rebuttable presumption that any property

of a person convicted of a narcotics violation is subject to forfeiture if the

government establishes by a preponderance of the evidence that such property was

acquired during the period of a narcotics violation, or within a reasonable time

after such period, and there was no likely source for such property other than that

violation. 21 U.S.C. § 853(d).

      Testimony at sentencing, which established that Espinosa was not engaged

in any employment during the pendency of the investigation, was sufficient to

trigger the presumption under § 853(d). Because Espinosa failed to rebut that

presumption, the district court’s finding that the $25,000 was subject to forfeiture



                                           13
was based on sufficient evidence.

                              IV. CONCLUSION

      For the above-stated reasons, we affirm Espinosa’s sentence and the district

court’s forfeiture order.

      AFFIRMED.




                                       14
