                                                                  [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                    ELEVENTH CIRCUIT
                                                                       JUNE 11, 2012
                                            No. 11-13590
                                        Non-Argument Calendar           JOHN LEY
                                                                         CLERK
                                      ________________________

                               D.C. Docket No. 1:10-cr-20602-DLG-2



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                              Plaintiff-Appellee,

                                               versus

ANNERI IZURIETA,

llllllllllllllllllllllllllllllllllllllll                           Defendant-Appellant.

                                     ________________________

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

                                           (June 11, 2012)

Before HULL, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
      Anneri Izurieta appeals the revocation of her probation, 18 U.S.C. §

3565(a)(2), which had been imposed for removing a seal placed on imported

merchandise by customs agents, id. § 549. Izurieta argues that there is insufficient

evidence that she violated a condition of her probation by importing misbranded

food. 21 U.S.C. § 331(a). We affirm.

                               I. BACKGROUND

      In October 2010, Izurieta agreed to plead guilty to breaking a U.S. Customs

seal, fastening, or mark, 18 U.S.C. § 549, in exchange for the dismissal of two

charges that she had conspired to remove and that she had removed merchandise

within the custody and control of customs agents, id. §§ 371, 549. A video

recording of the crime depicted Izurieta in a warehouse directing her three sons,

the owner of the merchandise, and another cohort to remove from a refrigeration

cooler a pallet of hard cheese that had been detained by Immigration and Customs

Enforcement and replacing the pallet of hard cheese with containers of soft cheese

that Izurieta had brought to the warehouse. The recording also depicted Izurieta

and her cohorts removing carefully the shrink wrap bearing the customs seal and

reassuring the owner of the warehouse that the pallet would be “put . . . back

exactly how [it was] found.”

      On December 9, 2010, the district court accepted Izurieta’s plea and

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sentenced her to two years of probation. A condition of Izurieta’s probation

required that she “not commit another federal, state, or local crime.” During the

period of probation, the district court permitted Izurieta to continue importing food

products through her company, Naver Trading Corporation.

      On December 23, 2010, Giddel Casadesus, a customs agent, inspected at the

Port of Miami a shipment of cheese imported by Naver Trading. Although the

entry paperwork declared a shipment of 240 boxes of soft cheese and dairy spread,

Casadesus discovered that the shipment contained 398 boxes of hard cheese.

Casadesus released the shipment “conditionally,” and the shipment was

transported by truck to a refrigerated warehouse. Casadesus followed the delivery

truck and saw Izurieta arrive at the warehouse with one of her sons. As Casadesus

“was coming into the warehouse,” he saw Izurieta “sitting on the steps.” After

Casadesus saw that the doors to the truck had been opened and some boxes had

been placed on the floor of the truck, Casadesus seized the shipment.

      In March 2011, a grand jury charged Izurieta and her husband with one

count of conspiring to smuggle goods into the United States, id. § 371, and six

counts of smuggling into the country dairy products and bread that customs

officials had earlier marked for “export[] and destr[uction] with FDA supervision,”

id. § 545. The indictment stated that Izurieta and her husband committed ten overt

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acts in furtherance of the conspiracy, which included “import[ing] and caus[ing] to

be imported a shipment with entry number BYV-0004551-4 . . . [o]n or about

December 18, 2010,” and “arriv[ing] at a refrigerated warehouse to distribute 158

boxes of dairy products from shipment BYV-0004551-4 without declaring them

on entry paperwork and without making them available for an FDA examination . .

. [o]n or about December 23, 2010.” On May 11, 2011, a jury found Izurieta and

her husband guilty of conspiring to smuggle into the United States the 398 boxes

of hard cheese. The jury also found Izurieta and her husband guilty of smuggling

into the country five other shipments of dairy products and bread, including a

shipment of dairy products delivered in July 2010 and not destroyed by December

7, 2010.

      In the meantime, Izurieta’s probation officer petitioned the district court to

revoke Izurieta’s probation based on a new federal offense. The petition to revoke

alleged that Izurieta had “committed the offense of the introduction or delivery for

introduction into interstate commerce of any food, drug, device, or cosmetic that is

adulterated or misbranded, with the intent to defraud or mislead, in violation of 21

U.S.C. § 331(a) and 333(a)(2).” At a hearing on the petition to revoke, Casadesus

testified that he had inspected the shipment of cheese because, based on the size of

the container and the weight of the boxes, “it almost seemed like the container was

                                          4
half empty.” Casadesus explained that the bill of lading declared a shipment of

44,000 pounds of merchandise, but that was considerably heavier than the usual

weight of 240 boxes of soft cheese. On cross-examination, defense counsel

suggested that Izurieta should have been permitted to amend the entry paperwork,

but Casadesus responded that customs regulations allow an importer to make

“minor adjustments” to correct only “minor clerical issues.” Casadesus testified

that Izurieta had arrived at the warehouse about 10 to 12 minutes after the delivery

truck and that her husband had “showed up later.” Casadesus stated that he did

not see who had opened the truck, but that when he had entered the warehouse, the

cargo doors of the truck had been opened and Izurieta had been sitting alone on a

nearby set of steps.

      Casadesus’s testimony suggested that Izurieta attempted to smuggle the

shipment into the United States because she knew it would not pass an inspection

by the Food and Drug Administration. Casadesus testified that, in July 2010,

Naver Trading received a shipment of cheese from supplier Cooproleche that

customs agents seized after determining that the cheese was tainted with

salmonella, and later the Administration sent a refusal notice to Naver Trading and

instructed Izurieta to destroy the July shipment by December 7, 2010.

Notwithstanding this problem, Izurieta again ordered cheese from Cooproleche.

                                         5
Casadesus testified that the cheese seized on December 23, 2010, contained “very

high levels of E. Coli and staph.”

      Izurieta’s husband, Yuri, testified and assumed responsibility for the July

and December shipments. Yuri said that he had received the refusal notice for the

July shipment, but he did not tell Izurieta about the notice “because [he] [did]n’t

want her to get involved in the same situation that she had before.” With respect

to the December shipment, Yuri testified that he waited at the warehouse for the

shipment of hard cheese to arrive and accepted the shipment. Yuri made

conflicting statements about his access to the shipment of cheese. Yuri first

testified that, after he accepted the shipment, he opened the doors of the delivery

truck and cut the seal on the pallet of cheese, but Yuri later testified that he was

denied an “opportunity to inspect the contents of the trailer.” Yuri stated that

Izurieta arrived at the warehouse “no more than 20 to 25 minutes after [he] opened

the trailer” and “was asked to get out of the car and moved . . . [to] the back of the

trailer by one of the agents.” Yuri also testified that the customs regulations

provided 20 days to amend entry paperwork for shipments, but neither he nor

Izurieta were “allowed to make that amendment.”

      Izurieta also introduced an acknowledgement dated January 23, 2011, by the

owner of Cooproleche, Roberto Carlos Mora Valle. Valle stated, “[b]y means of

                                           6
[his] letter, [he] acknowledge[d] [his] responsibility in the misunderstanding and

lack of communication with my client Anneri Izurieta.” Valle then explained that,

“[o]n December 9,” he had changed the shipment to Izurieta without her

knowledge or permission. Valle stated that Izurieta had not known about the

modification of the shipment because Valle had encountered “communication

problems due to the distance in as much as an ideal communication infrastructure

does not exist where we are located, the Internet is accessed by means of a cellular

service which when the signal is weak, [and] there is much difficulty in getting

connected because the service fails.” In closing, Valle “ask[ed] for forgiveness for

the lack of communication and . . . making a decision that has affected my client

Anneri Izurieta (Naver Trading) . . . [and] ask[ed] that Mrs. Izurieta be relieved of

any responsibility for the inconveniences caused.”

      The district court revoked Izurieta’s probation. The district court, “having

considered the record and having heard argument of counsel, . . . [found] that

[Izurieta] [had] violated the terms and conditions of Probation.” The district court

sentenced Izurieta to ten months of imprisonment, followed by two years of

supervised release.

                         II. STANDARDS OF REVIEW

      “Probation revocation is entrusted to the sound discretion of the district

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court,” and “[o]nly upon a clear showing of abuse of that discretion will the

district court’s decision be disturbed.” United States v. Robinson, 893 F.2d 1244,

1245 (11th Cir. 1990). “Further, in evaluating the decision to revoke probation,

we will accept all findings of fact made by the district court unless we determine

they are clearly erroneous,” United States v. Holland, 874 F.2d 1470, 1473 (11th

Cir. 1989), “whether those findings are based on witness testimony or on

documentary evidence,” Stano v. Butterworth, 51 F.3d 942, 944 (11th Cir. 1995).

When “there are two permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.” Anderson v. City of Bessemer City,

470 U.S. 564, 573, 105 S. Ct. 1504, 1511 (1985).

                                III. DISCUSSION

      Izurieta argues that there is insufficient evidence to establish that she

violated a condition of her probation. Izurieta contends that she was unaware that

the contents of the shipment differed from her entry paperwork and she was denied

the opportunity to amend that paperwork. These arguments fail.

      A district court has the authority to revoke probation whenever it finds by a

preponderance of the evidence that the defendant violated a condition of her

probation. Johnson v. United States, 529 U.S. 694, 700, 120 S. Ct. 1795, 1800

(2000). “‘The burden of showing something by a preponderance of the evidence .

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. . simply 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 S. Cal., 508 U.S. 602, 622, 113 S. Ct. 2264, 2279

(1993)). “Evidence of a probation violation presented by the government must

‘reasonably satisfy the judge that the conduct of the probationer has not been as

good as required by the conditions of probation; evidence that would establish

guilt beyond a reasonable doubt is not required.’” Holland, 874 F.2d at 1472–73

(quoting United States v. Rice, 671 F.2d 455, 458 (11th Cir. 1982)).

      Izurieta was charged with violating her probation by committing an offense

punishable under the Federal Food, Drug, and Cosmetic Act. The Act prohibits

“[t]he introduction or delivery for introduction into interstate commerce of any

food, drug, device, tobacco product, or cosmetic that is adulterated or

misbranded,” 21 U.S.C. § 331(a), which if committed “with the intent to defraud

or mislead,” provides a punishment of “not more than three years [of

imprisonment],” id. § 333(a). “A food . . . [is] deemed to be misbranded . . . [i]f . .

. its labeling is false or misleading in any particular.” Id. § 343(a)(1).

      The district court did not clearly err when it found that Izurieta imported

cheese that she knew to be misbranded. Izurieta submitted entry paperwork

                                            9
declaring a lesser quantity and different type of cheese than what was imported.

Izurieta’s witnesses attributed the disparities to mistakes and to a lack of

communication, but the district court was entitled to discredit that testimony. Just

a few months earlier, the district court had accepted Izurieta’s plea of guilty to

removing from a shipment a seal designating that the shipment had been detained

by Immigration and Customs Enforcement, and Izurieta’s husband, Yuri,

suggested that Izurieta would be likely to commit a similar misdeed. Yuri testified

that he withheld from Izurieta information that one of her shipments had been

refused entry “because [he] [did]n’t want her to get involved in the same situation

that she had before.”

      Although Izurieta submitted an acknowledgement in which her supplier

accepted responsibility for the disparities, the district court was entitled to

discredit the acknowledgement. See Stano, 51 F.3d at 944; see also Meader ex rel.

Long v. United States, 881 F.2d 1056, 1061 n.12 (11th Cir. 1989) (“A fact-finder

does not have to accept unrebutted evidence as correct, but can instead draw his

own conclusions from such evidence.”). Izurieta obtained the acknowledgement

for purposes of the hearing and, although the supplier stated that he experienced

“communication problems,” he did not state that those problems thwarted entirely

his ability to contact Izurieta. The district court reasonably could have found

                                           10
unbelievable that a supplier would ship an entirely different product to a customer.

      Izurieta argues that she was entitled to amend her entry paperwork, but the

district court did not clearly err in rejecting that argument. Although Yuri testified

that customs regulations allowed an importer 20 days to amend shipping

paperwork, the district court reasonably could have found more credible Agent

Casadesus’s testimony that customs regulations allow an importer only to make

“minor adjustments” to correct “minor clerical issues.” Izurieta cites, for the first

time on appeal, a regulation about correcting entry documents, but the regulation

does not provide for an importer to revise entry documents to reflect that a

shipment contained an entirely different product. See 19 C.F.R. § 141.64.

      The district court did not abuse its discretion when it revoked Izurieta’s

probation. The mislabeling of the shipment, Izurieta’s recent criminal activity,

and the testimonies of Izurieta’s husband and Agent Casadesus, established by a

preponderance of the evidence that Izurieta, acting “with the intent to defraud or

mislead,” 21 U.S.C. § 333(a), had “deliver[ed] for introduction into interstate

commerce . . . [a shipment of cheese that was] misbranded,” id. § 331(a). The

district court did not abuse its discretion when it determined that it was more

probable than not that Izurieta committed a new crime and, in so doing, violated a

condition of her probation.

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                       IV. CONCLUSION

We AFFIRM the revocation of Izurieta’s probation.

AFFIRMED.




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