                                                            [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                         ________________________           FILED
                                                   U.S. COURT OF APPEALS
                                No. 10-10352         ELEVENTH CIRCUIT
                            Non-Argument Calendar    SEPTEMBER   22, 2010
                          ________________________        JOHN LEY
                                                           CLERK
                 D.C. Docket No. 1:07-cr-00279-CAP-GGB-33

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                     versus

JULIO CESAR AVALOS CERPAS,
a.k.a. Cesar,

                                                          Defendant-Appellant.
                         ________________________

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

                              (September 22, 2010)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Julio Cesar Avalos Cerpas appeals his total 300-month sentence imposed based

on a guilty plea for conspiracy to distribute at least 5 kilograms of cocaine, in
violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(ii) and 18 U.S.C. § 2 (Count 1); and

conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (Count

20). On appeal, Cerpas argues that in imposing his sentence, the district court: (1)

clearly erred in finding that he was responsible for at least 50 but less than 150

kilograms of cocaine; (2) plainly erred and violated his due process rights in relying

on the surprise testimony at sentencing of an unreliable witness; (3) clearly erred in

denying him an acceptance-of-responsibility reduction, per U.S.S.G. § 3E1.1(a); (4)

clearly erred in applying a three-level managerial-role enhancement, per U.S.S.G. §

3B1.1(b); (5) clearly erred in denying him safety-valve relief, per U.S.S.G. § 5C1.2

and 18 U.S.C. § 3553(f); and (6) plainly erred in relying on improper evidence to

determine his sentence. After careful review, we affirm.

      We review a district court’s factual findings for clear error and its application

of the Guidelines to those facts de novo. United States v. McGuinness, 451 F.3d

1302, 1304 (11th Cir. 2006). We review alleged discovery violations in a criminal

proceeding for abuse of discretion. United States v. Hastamorir, 881 F.2d 1551, 1559

(11th Cir. 1989). We review the district court’s determination of acceptance of

responsibility under the clear error standard, under which “the sentencing judge is

entitled to great deference on review.” United States v. Williams, 408 F.3d 745,

756-57 (11th Cir. 2005) (quotation omitted). Similarly, we review the district court’s

                                          2
determination that the defendant was entitled to a role enhancement under U.S.S.G.

§ 3B1.1 for clear error. United States v. Ramirez, 426 F.3d 1344, 1355 (11th Cir.

2005). We also review “a district court’s factual determinations and subsequent

denial of ‘safety valve’ relief for clear error.” United States v. Camacho, 261 F.3d

1071, 1073 (11th Cir. 2001).

      Where no objection to an issue was raised in the district court, however, we

review for plain error only. United States v. Neely, 979 F.2d 1522, 1523 (11th Cir.

1992). We may not correct error on plain error review, “unless there is: (1) error, (2)

that is plain, and (3) that affects substantial rights and then only if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006) (quotation, ellipsis, and

alteration omitted). For an error to be plain, it must be “obvious or clear under

current law.” United States v. Candelario, 240 F.3d 1300, 1309 (11th Cir. 2001)

(quotations omitted).

      As background, the government’s case against Cerpas relied heavily on

transcripts of wiretapped conversations, during which a customer, identified as

“Cesar,” allegedly made arrangements to purchase drugs and remit drug proceeds

with the assistance of other individuals at two different stash houses. In anticipation

of trial, the government filed a motion for an order compelling Cerpas to provide a

                                            3
voice exemplar, which the district court granted. Cerpas, however, declined to

provide a voice exemplar, and during the second of four sentencing hearings, the

government called a cooperating co-conspirator witness, who had met Cerpas in jail

and identified Cerpas’ voice as the “Cesar” in the wiretapped conversations. The

government also offered into evidence ledgers seized from other stash houses, which

included various entries for “Cesar de Latin,” and the government called the case

agent, who was qualified as an expert, to interpret both the intercepted conversations

and the ledgers.

      First, we are unpersuaded by Cerpas’ arguments that the district court erred in

applying the preponderance-of-the-evidence standard at sentencing to resolve

disputed facts, and that the government failed to prove by a preponderance of the

evidence the drug quantity attributed to him. “It is by now abundantly clear that once

a defendant objects to a fact contained in the PSI, the government bears the burden

of proving that disputed fact by a preponderance of the evidence.” United States v.

Martinez, 584 F.3d 1022, 1027 (11th Cir. 2009). However, “the preponderance

standard is not toothless,” and the district court must ensure that the government

satisfies its burden with “reliable and specific evidence.” Id. (quotations omitted).

      Once the Government has presented proper evidence, the district court
      must either: (1) make an explicit factual finding as to the allegation; or
      (2) determine that no such finding is necessary because the matter

                                          4
      controverted will not be taken into account in sentencing the defendant.
      If the court declines to resolve a factual challenge because it is not
      relying on the disputed matter in determining the sentence, it must
      expressly set out in writing any disputed facts left unresolved.

United States v. Lawrence, 47 F.3d 1559, 1567-68 (11th Cir. 1995) (citation omitted).

The sentencing court’s failure to make specific findings of fact, however, does not

preclude meaningful appellate review where evidence clearly supports the court’s

determination. United States v. Villarino, 930 F.2d 1527, 1528-29 (11th Cir. 1991);

United States v. Taylor, 88 F.3d 938, 944 (11th Cir. 1996) (declining to remand,

although the district court failed to make individualized findings concerning an

obstruction-of-justice enhancement, because the record clearly reflected the basis for

the enhancement).

      “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 PSI,

or evidence presented during the sentencing hearing.” United States v. Polar, 369

F.3d 1248, 1255 (11th Cir. 2004). A sentencing court may consider any information

with sufficient reliability. United States v. Riley, 142 F.3d 1254, 1258 (11th Cir.

1998); U.S.S.G. § 6A1.3(a). To this end, a witness’s voice identification is competent

evidence when the witness has some basis for comparing the defendant’s voice with




                                          5
the voice identified as the defendant’s and there is evidence corroborating the

identification. Fabacher v. United States, 84 F.2d 602, 604 (5th Cir. 1936).1

       In addition, the district court can consider “reliable hearsay . . ., so long as the

defendant has the opportunity to rebut the evidence or generally to cast doubt upon

its reliability.” United States v. Query, 928 F.2d 383, 385 (11th Cir. 1991) (quotation

omitted). We afford “substantial deference” to the district court “in reaching

credibility determinations with respect to witness testimony.” United States v. Pham,

463 F.3d 1239, 1243-44 (11th Cir. 2006) (quotations omitted). Witness testimony is

incredible as a matter of law if it is “unbelievable on its face.” United States v.

Rivera, 775 F.2d 1559, 1561 (11th Cir. 1985) (quotations omitted). Testimony is

unbelievable on its face when the witness testifies to facts that he “physically could

not have possibly observed or events that could not have occurred under the laws of

nature.” Id. (quotations omitted).

       We have not explicitly addressed what, if any, inferences may be drawn at

sentencing from an individual’s refusal to provide a court-ordered voice exemplar.

We have held, however, that it was not improper for a prosecutor in his closing

arguments to a jury at trial to comment upon the accused’s refusal to provide a


       1
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to the
close of business on September 30, 1981.

                                                6
handwriting exemplar as directed by the court. United States v. Nix, 465 F.2d 90,

93-94 (5th Cir. 1972). We further held that it was not improper for the court to

charge the jury that if it found beyond a reasonable doubt that the accused had failed

to provide a court-ordered exemplar, it might infer that a comparison of such sample

with a questioned signature would have been unfavorable to the defendant. Id.

      For starters, the district court did not err in resolving the factual disputes at

sentencing under the preponderance-of-the-evidence standard because we have

repeatedly affirmed application of that standard at sentencing. Cerpas has also failed

to show that the district court clearly erred in making its findings as to drug quantity.

As the record shows, the testimony identifying Cerpas as a customer in intercepted

conversations was not incredible and was supported by corroborating evidence, and

the transcripts of wiretapped conversations could be interpreted plausibly to identify

the speaker. Moreover, the evidence sufficed to show that intercepted conversations

and ledgers concerned drug transactions, that drug ledger entries corresponded to the

drug quantities and dates of delivery discussed in intercepted conversations, and that

Cerpas operated stash houses. Therefore, the district court did not clearly err in

attributing Cerpas with responsibility for the 50 to 150 kilograms of cocaine

associated with the “Cesar de Latin” cell phone.




                                            7
       Next, we find no merit in Cerpas’ claim -- argued for the first time on appeal --

that the district court erred in relying on surprise opinion testimony because the

government’s failure to identify the witness before the sentencing hearing was a

violation of Cerpas’ due process rights.2 The scope of discovery in criminal

prosecutions is narrower than it is in civil cases. United States v. Hancock, 441 F.2d

1285, 1287 (5th Cir. 1971). While we have not addressed the government’s

disclosure obligations at sentencing, “[a] criminal defendant has no absolute right to

a list of the government’s witnesses in advance of the trial.” United States v.

Johnson, 713 F.2d 654, 659 (11th Cir. 1983). Notably, the denial of a motion for a

list of government witnesses “can be challenged only for abuse.” Hancock, 441 F.2d

at 1286. And the violation of a standing discovery order will result in the reversal of

a conviction only if the violation prejudiced the defendant’s “substantial rights.”

United States v. Silien, 825 F.2d 320, 323 (11th Cir. 1987) (quotation omitted).

       The district court did not err, plainly or otherwise, in relying on an

unanticipated witness’s testimony at the second sentencing hearing. Indeed, Cerpas

has not shown that he had any right to a witness list before sentencing, never moved

the court for production of a witness list, and has not demonstrated that he was



       2
         Although Cerpas objected to the lack of advance notice before the district court, he
notably did not argue below that the lack of notice was a violation of his due process rights.

                                                 8
prejudiced by the testimony. Further, since Cerpas raised noncompliance with Fed.

R. Crim. P 16(a)(1)(G) for the first time in his reply brief, he has abandoned that

argument. United States v. Magluta, 418 F.3d 1166, 1185-86 (11th Cir. 2005).

      We likewise reject Cerpas’ argument that the district court erred in denying him

a two-level reduction for acceptance of responsibility, under U.S.S.G. § 3E1.1(a).

The Guidelines provide for a two-level decrease in a defendant’s base offense level

if “the defendant clearly demonstrates acceptance of responsibility for his offense.”

U.S.S.G. § 3E1.1(a); see Williams, 408 F.3d at 756 (“A defendant bears the burden

of showing entitlement to a § 3E1.1 reduction.”). Although a guilty plea constitutes

“significant evidence of acceptance of responsibility[,] . . . this evidence may be

outweighed by conduct of the defendant that is inconsistent with such acceptance of

responsibility.” U.S.S.G. § 3E1.1, comment. (n.3). Consequently, “a defendant who

falsely denies . . . relevant conduct that the court determines to be true has acted in

a manner inconsistent with acceptance of responsibility.” Id., comment. (n.1(a)).

      In this case, the district court did not clearly err in denying Cerpas a two-level

acceptance-of-responsibility reduction, per § 3E1.1(a). Although Cerpas pled guilty,

that fact alone did not automatically entitle him to the reduction. See Williams, 408

F.3d at 756-57. During the fourth sentencing hearing, the district court found that

Cerpas had not been truthful as to his role in the offense and had not truly accepted

                                           9
responsibility. The district court further found that Cerpas’ role was not limited to

delivering drug proceeds, as he had admitted, but also included directing the activities

of at least two other co-conspirators, coordinating the receipt of 20 kilograms of

cocaine, overseeing the stash houses, and laundering drug proceeds. And, notably,

Cerpas admitted that he was not eligible for an acceptance-of-responsibility reduction

if the government had met its burden with respect to his role in the offense. Because

we have concluded that the district court’s findings as to Cerpas’ role in the offense

were not clearly erroneous, and these findings are relevant to the acceptance-of-

responsibility inquiry, the district court did not clearly err in denying the acceptance-

of-responsibility reduction on this basis.

      Cerpas’ next claim -- that the district court erred in applying a three-level

managerial-role enhancement to his offense level, under U.S.S.G. § 3B1.1 -- is also

without merit. Under § 3B1.1, a district court may increase a defendant’s role in the

offense by three levels if “the defendant was a manager or supervisor (but not an

organizer or leader) and the criminal activity involved five or more participants or

was otherwise extensive.” Id. § 3B1.1(b). To qualify for an adjustment under this

section, the defendant must have been the manager or supervisor of one or more

participants. Id. § 3B1.1, comment. (n.2). In United States v. Matthews, 168 F.3d

1234, 1250 (11th Cir. 1999), we held that a defendant who “fronted or directly sold

                                             10
cocaine to numerous ‘runners’ who would then sell the drug to buyers” and give the

defendant the resulting profit justified a § 3B1.1(b) managerial-role enhancement.

      Here, the district court did not clearly err in applying a three-level

enhancement, per § 3B1.1(b), for Cerpas’ managerial role in the offense. As the

preponderance of the evidence showed, Cerpas was the manager or supervisor of at

least one other participant in the conspiracy, and Cerpas does not dispute that the

conspiracy involved at least five participants or was otherwise extensive.

      Nor are we convinced by Cerpas’ argument that the district court erred in

denying him safety-valve relief under U.S.S.G. § 5C1.2 and 18 U.S.C. § 3553(f). The

safety-valve provision permits the court to impose a sentence below a

statutory-minimum sentence if a defendant meets the five criteria set forth in the

statutory subsection. 18 U.S.C. § 3553(f); U.S.S.G. § 5C1.2; United States v.

Brownlee, 204 F.3d 1302, 1304 (11th Cir. 2000). The “defendant has the burden of

proving his eligibility for relief under § 5C1.2.” United States v. Cruz, 106 F.3d

1553, 1557 (11th Cir. 1997).

      Relevant to this appeal, to satisfy the safety-valve requirements, the defendant

must show that he (1) did not have more than one criminal-history point, (2) was not

an organizer, leader, manager, or supervisor of others in the offense, and (3) truthfully

provided the government with all the information and evidence he had “concerning

                                           11
the offense or offenses that were part of the same course of conduct or of a common

scheme or plan.” 18 U.S.C. § 3553(f)(1), (4)-(5); U.S.S.G. § 5C1.2(a)(1), (4)-(5).

With respect to the third factor identified above, “[t]he burden is on the defendant to

come forward and to supply truthfully to the government all the information that he

possesses about his involvement in the offense, including information relating to the

involvement of others and to the chain of the narcotics distribution.” Cruz, 106 F.3d

at 1557. A district court cannot apply the safety valve if it determines that the

defendant “withheld or misrepresented information.” United States v. Figueroa, 199

F.3d 1281, 1282-83 (11th Cir. 2000).

      On this record, the district court did not clearly err in denying Cerpas

safety-valve relief, per § 5C1.2 and § 3553(f). As discussed above, the district court

did not clearly err in finding that (1) Cerpas’ role in the offense was considerably

broader than he had admitted and (2) Cerpas was the manager or supervisor at least

one other co-conspirator. Because Cerpas failed to satisfy at least two of the five

criteria for safety-valve relief, U.S.S.G. § 5C1.2(a)(4)-(5), he was not eligible for this

relief. His remaining arguments concerning his satisfaction of the safety-valve

disclosure requirements by written submission and his receipt of two additional

criminal-history points, per § 4A1.1(d), are therefore irrelevant.




                                           12
       Finally, we remain unpersuaded by Cerpas’ claim -- made for the first time on

appeal -- that the district court erred in failing to specify the evidence that it relied on

to support its general factual findings. We recognize that sentencing courts should

make explicit findings of fact to facilitate judicial review. United States v. Wise, 881

F.2d 970, 972-73 (11th Cir. 1989). As we have noted, however, the sentencing

court’s failure to make specific findings of fact, however, does not preclude

meaningful appellate review where evidence clearly supports the court’s

determination. Villarino, 930 F.2d at 1528-29.

       Here, the district court did not plainly err in failing to specify the evidence that

it relied on to support its general factual findings and remand is unwarranted because,

as discussed above, there is more than adequate evidence to support the district

court’s findings. Id.; Taylor, 88 F.3d at 944. Furthermore, Cerpas’ argument that the

district court erred in considering unspecified or undisclosed evidence fails because

Cerpas has not provided any factual support for the allegation. And, contrary to

Cerpas’ argument, we can in fact presume that the district court credited the

government witness’s testimony. See Pham, 463 F.3d at 1243-44 (reviewing whether

the government carried its burden as to the issue of drug weight and concluding that

it had based on proffered witness testimony, which the district court “obviously”

found credible, although it did not explicitly say so). Lastly, we cannot agree that the

                                            13
district court simply adopted the government’s theory of the case because Cerpas

raises this argument for the first time in his reply brief, see Magluta, 418 F.3d

at 1185-86, and moreover, the argument is not supported by the record, which shows

that the district court presided over four sentencing hearings and articulated numerous

findings that supported its sentence.

      AFFIRMED.




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