                                                                 [DO NOT PUBLISH]

                       IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT
                               ________________________           FILED
                                                         U.S. COURT OF APPEALS
                                      No. 10-10837         ELEVENTH CIRCUIT
                                  Non-Argument Calendar        JUNE 24, 2011
                                ________________________        JOHN LEY
                                                                 CLERK
                           D.C. Docket No. 9:09-cr-80094-KLR-1

UNITED STATES OF AMERICA,

llllllllllllllllllll                                                lPlaintiff-Appellee,

                                          versus

GENO ROLLE,

llllllllllllllllllll              l                              Defendant-Appellant.

                               ________________________

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

                                       (June 24, 2011)




Before HULL, PRYOR and BLACK, Circuit Judges.

PER CURIAM:
       Geno Rolle appeals his convictions and 135-month sentence after being

found guilty of aiding and assisting aliens to illegally enter the United States, in

violation of 8 U.S.C. § 1327 and 18 U.S.C. § 2, and illegally reentering or

attempting to reenter the United States, in violation of 8 U.S.C. § 1326(a) and

(b)(2). Rolle raises several issues on appeal, which we address in turn. After

review, we affirm Rolle’s convictions and sentence.

                                               I.

       Rolle first asserts the district court erred in “numerous instances” by

permitting the Government to introduce inadmissible evidence. He points to three

specific rulings he suggests are emblematic of a broader failure to police the

admission of evidence throughout the trial. First, he argues the court failed to rule

on his objection to the Government’s leading of a witness. Second, he argues the

court erred in overruling his objection to the introduction of a defense witness’s

prior sworn statements because the prejudicial effect of the statements outweighed

their probative value. Third, he contends the court erred in permitting the

Government to question him about two smuggling trips he took in 2005, since the

Government failed to provide prior notice of its intent to do so.1


       1
        We review a district court’s preserved evidentiary rulings for an abuse of discretion.
United States v. Jernigan, 341 F.3d 1273, 1280 (11th Cir. 2003). However, evidentiary errors

                                                2
A.

       The district court is required to “exercise reasonable control over the mode

and order of interrogating witnesses and presenting evidence so as to . . . make the

interrogation and presentation effective for the ascertainment of the truth.” Fed.

R. Evid. 611(a). The court should generally ensure “[l]eading questions [are] not

used on the direct examination of a witness except as may be necessary to develop

the witness’ testimony.” Fed. R. Evid. 611(c).

       Rolle’s contention that he was substantially prejudiced by a leading

question is without merit. The record shows the prosecutor’s question sought only

to clarify prior testimony, not to improperly supply the witness with new

information. Moreover, the prosecutor immediately rephrased the question upon

objection, rendering a ruling from the court unnecessary.

B.

       Relevant evidence “may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury.” Fed. R. Evid. 403. However, Rule 403 “is an extraordinary

remedy which the district court should invoke sparingly, and the balance . . .


raised for the first time on appeal are reviewed for plain error only. Id. We review the
prejudicial effect of all evidentiary errors, evaluated under both preserved and plain-error
standards, in the aggregate. United States v. Baker, 432 F.3d 1189, 1203 (11th Cir. 2005).

                                                 3
should be struck in favor of admissibility.” United States v. Dodds, 347 F.3d 893,

897 (11th Cir. 2003) (quotations and ellipsis omitted).

      We review Rolle’s challenge to the admission of the prior sworn statements

for plain error only, since he did not specifically object to their prejudicial value at

trial. After review, we find that contrary to Rolle’s contention on appeal, the

statements were not prejudicial at all, but rather were completely consistent with

the defense’s theory.

C.

      Evidence of other crimes, wrongs or acts may be admissible as proof of the

absence of mistake. Fed. R. Evid. 404(b). However, upon the request of the

accused, “the prosecution in a criminal case shall provide reasonable notice in

advance of trial, or during trial if the court excuses pretrial notice on good cause

shown, of the general nature of any such evidence it intends to introduce at trial.”

Id.

      Even if the district court erred in permitting the prosecutor to question Rolle

about the two smuggling trips he made in 2005, the error was ultimately harmless.

The evidence of the two additional trips was largely cumulative, and Rolle

undoubtedly would have been convicted even if the Government had provided

prior notice.

                                           4
                                                 II.

       Next, Rolle argues the district court erred in denying his motion for a

judgment of acquittal. Specifically, he asserts the Government’s evidence was

insufficient to establish that he intentionally sailed toward the United States and

was not merely lost at sea. He also contends the Government failed to establish

that he entered the country while free from Government surveillance, or that he

was aware his passengers were inadmissible.2

       To prevail on an insufficient-evidence claim, the defendant must establish

that no “rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979). Where a criminal indictment charges multiple bases for

conviction under a single statute, a conviction may be upheld so long as sufficient

evidence supports any of the bases. See United States v. Goldsmith, 109 F.3d 714,

716 (11th Cir. 1997).

       8 U.S.C. § 1326(a) generally prohibits individuals who have been

previously removed from the United States from reentering, attempting to reenter,

or being “found in” in the United States. See 8 U.S.C. § 1326(a). To sustain an


       2
        We review insufficient evidence claims de novo, viewing the evidence in the light “most
favorable to the verdict . . . [and making] all inferences and credibility determinations in favor of
the verdict.” United States v. Chirino-Alvarez, 615 F.3d 1344, 1346 (11th Cir. 2010).

                                                  5
illegal attempted reentry conviction under § 1326(a), the Government must prove

the defendant: (1) was an alien at the time of the offense; (2) had previously been

removed; (3) had not received the express consent of the Attorney General to

apply for readmission; and (4) attempted to enter the United States. United States

v. Marte, 356 F.3d 1336, 1345 (11th Cir. 2004).      To sustain a conviction under §

1327 for aiding or assisting aliens to illegally enter the United States, the

Government must prove: (1) the defendant aided and assisted an alien to enter the

United States; (2) the alien was inadmissible under 8 U.S.C. § 1182(a)(2) due to a

prior felony conviction; and (3) the defendant engaged in his act of aiding or

assisting knowing that the alien was inadmissible. See 8 U.S.C. § 1327. Section

1327 allows for conviction if the defendant knew that the alien was inadmissible

for any reason; it does not require the defendant specifically knew about the

alien’s prior felony conviction. United States v. Lopez, 590 F.3d 1238, 1254 (11th

Cir. 2009), cert. denied, 131 S.Ct. 413 (2010).

      Rolle’s convictions are supported by sufficient evidence. As to his

conviction under § 1326(a), the superseding indictment charged both reentry and

attempted reentry, and the conviction can be upheld on the basis of attempted

reentry. The first three elements of attempted reentry are undisputed. As to the

fourth element, the Government introduced overwhelming evidence Rolle

                                           6
attempted to reenter the United States, including a videotape that showed him

sailing directly toward the coast of Florida at high speed.

       As to § 1327, the same evidence that established Rolle’s attempt to reenter

the country also established his effort to assist his passengers in doing likewise.

Further, the evidence at trial showed his passengers were inadmissible under

8 U.S.C. § 1182(a)(2), and Rolle was aware they were not carrying valid reentry

documents. Accordingly, the district court did not err in denying Rolle’s motion

for a judgment of acquittal.

                                                III.

       Rolle argues the district court abused its discretion by denying his motion

for a new trial. He argues the alleged evidentiary errors discussed above

prejudicially affected his trial. He further contends prejudice is evident because

the jury inconsistently convicted him of assisting two of his passengers in illegally

entering the United States, but acquitted him of identical conduct with respect to

the three other passengers.3

       Here, the district court did not abuse its discretion in denying Rolle’s

motion. Rolle’s theory as to why he deserves a new trial is based primarily upon



       3
        We review a district court’s denial of a motion for a new trial for an abuse of discretion.
United States v. Campa, 459 F.3d 1121, 1151 (11th Cir. 2006) (en banc).

                                                 7
the previously discussed claims of evidentiary error, which do not warrant relief.

Further, to the extent Rolle argues “the interest of justice” requires a new trial

where the jury reaches an inconsistent verdict, that argument is foreclosed by

precedent. See United States v. Odom, 252 F.3d 1289, 1298 (11th Cir. 2001)

(stating inconsistencies in a jury’s verdict do not open a defendant’s convictions to

attack).

                                        IV.

      Rolle argues his trial counsel was ineffective during trial and at sentencing,

and he should therefore be granted a new trial. “[A] claim of ineffective assistance

of counsel may not be raised on direct appeal where the claim has not been heard

by the district court nor a factual record developed.” United States v. Khoury, 901

F.2d 948, 969 (11th Cir. 1990), modified on other grounds, 910 F.2d 713 (11th

Cir. 1990). The preferred method of raising the issue of ineffective assistance of

counsel is not on direct appeal, but instead in a 28 U.S.C. § 2255 motion to vacate.

Massaro v. United States, 538 U.S. 500, 504-05, 123 S.Ct. 1690, 1694 (2003).

Only when the record is sufficiently developed will we consider an ineffective-

assistance claim on direct appeal. United States v. Bender, 290 F.3d 1279, 1284

(11th Cir. 2002).




                                           8
      Roll’s trial counsel has not had an opportunity to develop the record

regarding his alleged deficiencies. Without a factual record revealing the reasons

for counsel’s choices, we cannot effectively decide Rolle’s claims. Accordingly,

we dismiss the claims without prejudice to Rolle’s remedy under 28 U.S.C.

§ 2255.

                                         V.

      Finally, Rolle challenges his 135-month total sentence on a number of

grounds. We address each in turn.

A.

      First, Roll argues the sentence violates his rights under the Fifth and Sixth

Amendments because it was increased based on facts that were not charged in the

indictment or presented to the jury. “When the district court applies the

Guidelines in an advisory manner, nothing in Booker prohibits district courts from

making, under a preponderance-of-the-evidence standard, additional factual

findings that go beyond a defendant’s admissions.” United States v. Smith, 480

F.3d 1277, 1281 (11th Cir. 2007). We have held that there is no constitutional

right to have all sentence-enhancing facts found by a grand jury and charged in the

indictment. United States v. Thomas, 446 F.3d 1348, 1355 (11th Cir. 2006).

      The district court imposed Rolle’s 135-month sentence while treating the

                                         9
Guidelines as advisory, and the total sentence did not exceed the statutory

maximum. Accordingly, Rolle’s constitutional challenges to his sentence are

foreclosed by precedent.4

B.

       Second, Rolle contends the district court abused its discretion by applying

enhancements for obstructing justice, U.S.S.G. § 3C1.1, endangering others,

U.S.S.G. § 2L1.1(b)(6), and using a special skill in the commission of a crime,

U.S.S.G. § 3B1.3. The Guidelines provide for a two-level increase in the offense

level where “the defendant willfully obstructed or impeded, or attempted to

obstruct or impede, the administration of justice with respect to the investigation,

prosecution, or sentencing of the instant offense of conviction, and . . . the

obstructive conduct related to . . . the defendant’s offense of conviction and any

relevant conduct.” U.S.S.G. § 3C1.1. A defendant is subject to a two-level

increase in his offense level if his conduct involved “intentionally or recklessly

creating a substantial risk of death or serious bodily injury to another person.”

U.S.S.G. § 2L1.1(b)(6). Finally, U.S.S.G. § 3B1.3 provides for a two-level

enhancement if the defendant “used a special skill, in a manner that significantly



       4
         Where, as here, a party fails to object to an error before the district court, we review for
plain error only. United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005).

                                                  10
facilitated the commission or concealment of the offense.” U.S.S.G. § 3B1.3. The

term “‘special skill’ refers to a skill not possessed by members of the general

public and usually requiring substantial education, training or licensing.” Id.

comment. (n.4).

       The district court did not abuse its discretion in applying the disputed

guideline enhancements.5 First, Rolle’s testimony at trial was irreconcilable with

the Government’s evidence; therefore, the district court reasonably concluded

Rolle committed perjury. See United States v. Singh, 291 F.3d 756, 763 (11th Cir.

2002) (stating a § 3C1.1 enhancement may be applied when a defendant commits

perjury, defined as “false testimony concerning a material matter with the willful

intent to provide false testimony, rather than as a result of confusion, mistake, or

faulty memory”). Second, the district court reasonably concluded Rolle

endangered his passengers because the facts showed his boat was ill-equipped

with safety equipment and he operated it at a high speed without navigation lights.

See United States v. Caraballo, 595 F.3d 1214, 1230-31 (11th Cir. 2010)

(upholding a § 2L1.1(b)(6) enhancement because the defendant smuggled eleven

aliens from the Bahamas to Florida on a 25-foot fishing boat that was equipped


       5
       We review the district court’s findings of fact for clear error and its application of the
Sentencing Guidelines de novo. United States v. Lopez-Garcia, 565 F.3d 1306, 1323 (11th Cir.
2009).

                                                11
with only three life jackets). Third, the application of the “special skill”

enhancement was warranted because, as we have previously recognized, a member

of the general public is incapable of captaining a voyage from the Bahamas to

Florida without a compass. See United States v. Calderon, 127 F.3d 1314, 1339-

40 (11th Cir. 1997) (holding the ability to navigate a 38-foot boat from the

Bahamas to Florida in the dark without navigation lights qualifies as a “special

skill”).

C.

           Finally, Rolle argues these guideline errors, as well as the court’s failure to

properly consider the statutory sentencing factors, rendered his total sentence both

procedurally and substantively unreasonable. In reviewing the reasonableness of a

sentence, we conduct a two-step review. First, we ensure the sentence was

procedurally reasonable, meaning the district court properly calculated the

guideline range, treated the guidelines as advisory, considered the 18 U.S.C

§ 3553(a) factors, did not select a sentence based on clearly erroneous facts, and

adequately explained the chosen sentence. Gall v. United States, 552 U.S. 38, 51,

128 S. Ct. 586, 597 (2007). Then, we examine whether the sentence was

substantively reasonable in light of the record and the § 3553(a) factors. Id. at 56,

128 S.Ct. at 600. Although we do not apply a presumption of reasonableness,

                                              12
“when the district court imposes a sentence within the advisory Guidelines range,

we ordinarily will expect that choice to be a reasonable one.” United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005).

       Rolle’s total sentence of 135 months was both procedurally and

substantively reasonable.6 Procedurally, the district court correctly calculated

Rolle’s guideline range and adequately discussed the reasoning behind its chosen

sentence. Substantively, the district court reasonably concluded that a low-end

guideline sentence was appropriate, relying on § 3553(a) factors such as Rolle’s

history of recidivism.

       Based on a review of the record and consideration of the parties’ briefs on

appeal, we affirm Rolle’s convictions and sentences.

       AFFIRMED IN PART, DISMISSED IN PART.




       6
         We ordinarily review the reasonableness of a district court’s sentence under a deferential
abuse-of-discretion standard. Gall, 552 U.S. at 41, 128 S. Ct. at 591. When a party fails to
object to an error before the district court, however, we review for plain error only. Raad, 406
F.3d at 1323.

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