                Case: 11-13846       Date Filed: 07/13/2012       Page: 1 of 11

                                                                                 [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT

                               ________________________

                                     No. 11-13846
                               ________________________

                       D. C. Docket No. 6:11-cr-00087-JA-GJK-1

UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                             versus

HECTOR ALMEDINA,

                                                            Defendant-Appellant.

                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Florida
                            ________________________
                                    (July 13, 2012)



Before DUBINA, Chief Judge, JORDAN and ALARCÓN,* Circuit Judges.




       *
        Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.
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DUBINA, Chief Judge:

      A federal grand jury charged Appellant, Hector Almedina, with conspiracy

to import 100 grams or more of heroin from Colombia to the United States, from

January 2011 through February 25, 2011, in violation of 21 U.S.C. § 963 (Count

One); importation of 100 grams or more of heroin from Colombia to the United

States, in violation of 21 U.S.C. § 952(a), Id. § 960(b)(2)(A), and 18 U.S.C. § 2

(Count Two); conspiracy to possess with intent to distribute 100 grams or more of

heroin, from January 2011 through February 25, 2011, in violation of 21 U.S.C. §

846 (Count Three); and possession with intent to distribute 100 grams or more of

heroin, in violation of 21 U.S.C. § 841(a), Id. § 841(b)(1)(B)(I), and 18 U.S.C. § 2

(Count Four). A jury found Almedina guilty on each count and found that each

charged offense involved at least 100 grams of heroin. After a sentencing hearing,

the district court ordered Almedina to serve concurrent 97-month terms of

imprisonment, which Almedina now appeals. After reviewing the record, reading

the parties’ briefs, and having the benefit of oral argument, we affirm Almedina’s

sentence.

                                         I.

      On February 25, 2011, a package containing 485.68 grams of heroin arrived

at the Miami International Airport from Medellín, Colombia. Immigration

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Customs Enforcement (“ICE”) agents performed a controlled delivery of the

package to Almedina in Orlando, Florida. After the controlled delivery, agents

arrested Almedina and he informed the ICE agents that he expected to be paid

$1,000 to receive the package for Victor Salgado (“Salgado”), whom Almedina

knew from playing poker. Almedina also told the agents that he received a

package from Colombia for Salgado the previous month and that he received

$1,300 for accepting it.

      With Almedina’s assistance, ICE agents carried out a controlled delivery of

the package to Salgado. At the conclusion of the delivery, agents arrested

Salgado, who stated that he expected to be paid $5,000 to receive the package and

deliver it to “people from South America.” [PSI ¶ 16.] Salgado also said that he

received a package on a previous occasion for which he was paid a little less than

$5,000.

      At trial, the Government showed that Almedina accepted a package in

January 2011 in the same manner as he accepted the February package. Based on

this similar conduct, the Government and the United States Probation Officer

recommended holding Almedina accountable for the January package. Because

Almedina and Salgado were paid similar amounts for the January and February

packages, the Government approximated that the same amount of heroin was

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shipped in each package. Based on this approximation, the district court found the

January package to contain at least 215 grams of heroin, which is less than half the

485.68 grams of heroin contained in the February package. Thus, the packages

together contained 701 grams of heroin. Therefore, the district court determined

that Almedina’s total offense level was 30 under the United States Sentencing

Guidelines (“U.S.S.G.”), which applies to 700 to 999 grams of heroin, see

U.S.S.G. § 2D1.1(c)(5) (2011), and his criminal history category was I, which

provided a Sentencing Guidelines range of 97 to 121 months in prison. After the

court sentenced Almedina to serve 97 months, the lowest term within the guideline

range, Almedina perfected this appeal.

                                         II.

      This court “must review [a challenged] sentence under an abuse-of-

discretion standard” and, in doing so, “must first ensure that the district court

committed no significant procedural error.” Gall v. United States, 552 U.S. 38,

51, 128 S. Ct. 586, 597 (2007). A district court procedurally errs if it improperly

calculates the sentencing guidelines range, among other things. Id. This court

reviews for clear error the district court’s underlying determination of the drug

quantity attributable to a defendant. United States v. Chavez, 584 F.3d 1354, 1367

(11th Cir. 2009).

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                                        III.

      Almedina argues that the district court improperly speculated in determining

the drug quantity attributable to him. He admitted that he received two packages

for Salgado. However, there was no evidence as to what the first package

contained; therefore, he argues it was speculative to presume that the first package

contained heroin just because the second package contained heroin. He contends

that because the street value of heroin was $40,000 to $50,000 and he was paid

$1,300 to accept the package, it is plausible that the first package contained no

contraband and was simply a dry run. Almedina also contends that it is unlikely

that drug dealers would send that amount of contraband to an unknown person

without first determining that the person was reliable and trustworthy. Further,

even if the first package did contain contraband, there was no evidence as to the

type or amount of contraband it might have contained.

      In response, the Government contends in its brief that the district court did

not merely speculate. Rather, the Government argues the district court correctly

calculated the amount of drugs for which Almedina was accountable, because it

was unlikely that drug dealers would have paid Almedina $1,300 and Salgado

$5,000 for an empty package. The Government contends that the court did not

commit clear error in concluding that the first package contained at least 215

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grams of heroin based on the similarities between the first and second packages.

Further, the Government argues that the district court’s estimate that the first

package contained half of the amount of heroin found in the second package was

fair and conservative.

       Where a fact pattern gives rise to two reasonable and different

constructions, “the factfinder’s choice between them cannot be clearly erroneous.”

United States v. Izquierdo, 448 F.3d 1269, 1278 (11th Cir. 2006) (quoting

Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 574, 105 S. Ct. 1504, 1511

(1985)). “For a finding to be clearly erroneous, this Court must be left with a

definite and firm conviction that a mistake has been committed.” United States v.

Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010) (internal quotation marks

omitted). The Government bears the burden of establishing drug quantity by a

preponderance of the evidence. United States v. Rodriquez, 398 F.3d 1291, 1296

(11th Cir. 2005). This burden “requires the trier of fact to believe that the

existence of a fact is more probable than its nonexistence.” United States v.

Trainor, 376 F.3d 1325, 1331 (11th Cir. 2004) (quoting Concrete Pipe & Prods.

of Cal., Inc. v. Constr. Laborers Pension Trust for So. Cal., 508 U.S. 602, 622,

113 S. Ct. 2264, 2279 (1993)). The preponderance of the evidence standard is not

toothless, however. United States v. Lawrence, 47 F.3d 1559, 1566 (11th Cir.

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1995). The district court must ensure that the Government carries its burden by

presenting reliable and specific evidence. Id.

      When the drug amount that is seized does not reflect the scale of the

offense, the district court must approximate the drug quantity. United States v.

Frazier, 89 F.3d 1501, 1506 (11th Cir. 1996); see also U.S.S.G. § 2D1.1 cmt. n.12

(2011). In making this determination, the court may rely on evidence

demonstrating the average frequency and amount of a defendant’s drug sales over

a given period of time. Frazier, 89 F.3d at 1506. This determination “may be

based on fair, accurate, and conservative estimates of the quantity of drugs

attributable to a defendant, [but it] cannot be based on calculations of drug

quantities that are merely speculative.” United States v. Zapata, 139 F.3d 1355,

1359 (11th Cir. 1998) (per curiam).

      In United States v. Chavez, officers found in the defendant’s house $17,500

in cash and a receipt for the cash purchase of a Chevrolet Tahoe for the amount of

$15,179. 584 F.3d at 1366. The defendant admitted that he participated in the

drug conspiracy at issue, and the court found that he was the source of 27.7 grams

of methamphetamine. Id. The district court then inferred that the cash constituted

proceeds from methamphetamine trafficking and determined drug quantity by

converting the quantity of cash into the quantity of drugs, finding that one pound

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of methamphetamine was worth $14,000. Id. Based on this evidence, this court

determined that the district court made a reasonable inference that was not

speculative to the point of being clearly erroneous. Id. at 1367.

       Although Chavez is instructive, it is not on point. In Chavez, the defendant

had a significant amount of cash, $17,500, and no explanation as to where he

received that money. Based on the money alone, this court inferred drug quantity.

Almedina, on the other hand, was to receive two payments totaling $2,300. While

he admitted this money was payment for the receipt of two parcels, the payment

received by Almedina alone does not appear to be enough to estimate drug

quantity. Unlike the defendant in Chavez, who appeared to be selling drugs,

Almedina only received a package and, therefore, that same inference and strong

link between cash received and drug quantity are not present.

       In an unpublished opinion of this court, United States v. Curry, 188 F.

App’x 863, 876 (11th Cir. 2006) (per curiam),1 we held that the district court did

not clearly err where it estimated drug quantity based on the seizure of one of four

packages sent to the defendant. The packages were all sent from the same source,

were labeled similarly, and weighed approximately the same amount. Id. at


       1
         In this circuit, “unpublished opinions are not binding precedent but they may be cited as
persuasive authority.” See 11TH CIR. R. 36-2; United States v. Rodriguez-Lopez, 363 F.3d 1134,
1138 n.4 (11th Cir. 2004).

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875–76. We concluded that the evidence was sufficient to find that the three

unseized packages also contained a similar amount of contraband, and thus could

be counted as relevant conduct of a common scheme. Id. at 876.

      In a similar case, United States v. Hollins, 498 F.3d 622 (7th Cir. 2007), the

Seventh Circuit permitted some amount of reasoned speculation and reasonable

estimation by the sentencing court. In Hollins, the district court estimated drug

quantity for one drug-smuggling trip using a closely analogous trip in which the

same specific smuggling method had been used. Id. at 632. On appeal, the

Seventh Circuit determined that it was not baseless speculation for the district

court to look at the most closely analogous trip to approximate drug quantity. Id.

at 631. Although Hollins is not binding in our circuit, we find it to be persuasive.

      In this case, the Government demonstrated that Almedina received two

packages from Colombia approximately four weeks apart, both packages were to

go to Salgado, and both Almedina and Salgado were to be paid similarly for

receiving each of the parcels. While it is plausible that the first package was a dry

run and contained no contraband, since the fact pattern gives rise to two

reasonable and different constructions, the district court’s choice between them

cannot be clearly erroneous. See Izquierdo, 448 F.3d at 1278. The present case is

similar to Curry because Almedina received more than one package from the same

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source, Colombia. The authorities only seized one of the two packages and used

the seized package to estimate the contents of the first package. The district

court’s fair and reasonable estimation to infer drug quantity of the first package is

permitted by the Sentencing Guidelines and thus was not clear error.

      Additionally, Almedina argues that he was only convicted for possession

and importation of heroin and that the first package could have contained a

different type of contraband, such as cocaine. This court has determined that a

defendant need not know the type of drug involved in a drug offense to receive a

base offense level based on that type of drug. United States v. Alvarez-Coria, 447

F.3d 1340, 1344 (11th Cir. 2006) (per curiam); see also, U.S.S.G. § 1B1.3 cmt.

n.2(a)(1) (2011) (noting that a defendant who transports a suitcase knowing that it

contains a controlled substance is accountable for the substance in the suitcase

regardless of the actual type or amount of that controlled substance). Therefore,

even if Almedina did not know the type or quantity of the drugs he received, the

district court would not be precluded from attributing heroin to him for sentencing

purposes.




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                                         IV.

      For the foregoing reasons, we conclude that the district court did not abuse

its discretion by sentencing Almedina to 97 months’ imprisonment, and we

therefore affirm his sentence.

      AFFIRMED.




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