                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                              May 7, 2008
                              No. 07-13249                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                     D. C. Docket No. 06-00198-CR-2-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

FERNANDO VILLANUEVA-NARANJO,

                                                          Defendant-Appellant.


                        ________________________

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

                               (May 7, 2008)

Before ANDERSON, BIRCH and HULL, Circuit Judges.

PER CURIAM:

     Fernando Villanueva-Naranjo appeals his 188-month sentences imposed
pursuant to a guilty plea for (1) conspiracy to possess at least five kilograms of

cocaine with the intent to distribute, in violation of 21 U.S.C. §§ 841(b)(1)(A)(ii)

and 846, and (2) possession of at least five kilograms of cocaine with the intent to

distribute, in violation of § 841(b)(1)(A)(ii), § 846, and 18 U.S.C. § 2. On appeal,

he argues that the district court erred in considering uncharged evidence of

misconduct at sentencing. We AFFIRM.

                                 I. BACKGROUND

      Villanueva-Naranjo was charged with conspiracy to possess at least five

kilograms of cocaine with the intent to distribute and possession of at least five

kilograms of cocaine with the intent to distribute. At his plea hearing, the

government alleged that the charges stemmed from a Drug Enforcement

Administration (DEA) investigation of a residence in Norcross, Georgia, that was

allegedly used as a “stash house” by co-defendant Alberto Naranjo-Delatorre. R3

at 18. In February 2006, DEA observed Villanueva-Naranjo arrive in an Infiniti

and enter the Norcross residence. Approximately one minute later, DEA observed

Naranjo-Delatorre exit the house and drive away in the Infiniti. DEA observed

Villanueva-Naranjo follow Naranjo-Delatorre in a Ford. Shortly thereafter,

DeKalb County, Georgia, police officers conducted a traffic stop on Villanueva-

Naranjo. After he fled the scene on foot, officers discovered approximately 18



                                           2
kilograms of cocaine hydrochloride in hidden compartments of the Ford. In April

2006, DEA arrested Villanueva-Naranjo and seized over $23,000 in drug proceeds.

Villanueva-Naranjo admitted to the government’s version of the facts and pled

guilty to the charges. The district court accepted the plea.

      The probation officer submitted an expanded version of the facts in the pre-

sentence investigation report (PSI), as follows. Villanueva-Naranjo leased the

residence in Norcross and another residence at Carson Valley Drive in Lilburn,

Georgia. Naranjo-Delatorre, along with his co-conspirators, conducted

transactions involving large amounts of controlled substances. Following the

traffic stop and seizure, DEA continued observing Naranjo-Delatorre who

relocated the stash house from Norcross to a residence at Glacier Run in Lilburn,

Georgia. DEA observed vehicles seen at the Norcross stash house, equipped with

hidden compartments, at both residences in Lilburn. On 12 April, DEA conducted

a search of the Carson Valley Drive residence, retrieving approximately 4,800

grams of methamphetamine, 56 grams of cocaine hydrochloride, and 3 handguns

with ammunition. DEA also later interviewed Anthony Hall, who stated that

Villanueva-Naranjo had previously sold him at least 24 kilograms of cocaine

hydrochloride in 2004 and 2005.

      The probation officer grouped the two counts together pursuant to the



                                           3
Sentencing Guidelines. See U.S.S.G. § 3D1.2(d) (2006) (grouping counts together

when “the offense level is determined largely on the basis of the total amount of . .

. the quantity of a substance involved”). This resulted in a base offense level of 36

including the drugs recovered from the abandoned Ford, the Carson Valley Drive

residence, and the Hall transactions. There was a two-level enhancement pursuant

to U.S.S.G. § 2D1.1(b)(1) for the firearms found at the Carson Valley Drive

residence but no two-level “safety valve” reduction under U.S.S.G. § 2D1.1(b)(9)

also because of the firearms. There was, however, a two-level reduction for

acceptance of responsibility. The probation officer thereby arrived at a total

offense level of 36 and a criminal history category of I, which yielded a Guidelines

range of 188 to 235 months. Villanueva-Naranjo was subject to a statutory

minimum of ten years and a maximum of life imprisonment.

      Villanueva-Naranjo objected to the PSI, arguing that (1) he should only be

responsible for the cocaine recovered from the traffic stop because the government

had failed to disclose information related to the search of the Carson Valley Drive

residence and the Hall transactions prior to his guilty plea; (2) based on the

quantity of cocaine found in his car as a result of the traffic stop, the offense level

should have been 34; (3) a specific offense characteristic pursuant to U.S.S.G.

§ 2D1.1(b)(1) was inappropriate because he was not connected with the Carson



                                            4
Valley Drive residence and the weapons were not connected to his offense; and (4)

because he had acted only as a courier for Naranjo-Delatorre, a mitigating role

reduction pursuant to U.S.S.G. § 2D1.1(b)(9) was appropriate. At sentencing,

Villanueva-Naranjo renewed his objections to the calculations made by the

probation office. The district court rejected his argument that the government had

a duty to disclose evidence of uncharged misconduct at the plea hearing, relying on

United States v. Behr, 93 F.3d 764 (11th Cir. 1996) (per curiam).

      The district court then held an evidentiary hearing as to Villanueva-

Naranjo’s remaining objections regarding relevant conduct. The government

presented several witnesses, including Charles Stroup, the owner of the Carson

Valley Drive residence. Stroup testified that a person named Carlos “Caudara” (or

Cardona) had leased the property from him since July 2004. R4 at 20. He later

identified Villanueva-Naranjo as that renter. Task Force Agent Frank McCann

testified that, during the raid of the Carson Valley Drive residence, DEA arrested

Eliseo Govino Valdovinos. He also confirmed that DEA discovered 6 pounds of

methamphetamine, 413 grams of marijuana, approximately 30 grams of cocaine,

and 3 guns in the house. On cross examination, Agent McCann testified that

Valdovinos had been staying at the Carson Valley Drive residence as a caretaker

for about four months. Special Agent Ralph Iorio testified that DEA seized two



                                          5
cellular phones from Valdovinos at the time of his arrest. Iorio stated that each

phone contained a directory entry for “Jefe” linked to the telephone number 678-

469-1553. R4 at 39. Further, he identified a note found in Valdovinos’s wallet.

The note contained the name “Pilas” and the telephone number 404-389-5259. Id.

at 40. Special Agent David Wolff testified that “jefe” is the Spanish word for

“boss.” Id. at 41-42. Special Agent James Barnes testified that Villanueva-

Naranjo was known as “Pilas.” Id. at 45. He also noted that, during Villanueva-

Naranjo’s arrest, agents had recovered two pre-paid cell phones which were

assigned the numbers 678-469-1553 and 404-389-5259, matching the numbers

found in the two phones and on the slip of paper recovered from Valdovinos. Id.

at 44-45. Anthony Hall, a known drug dealer, testified that Villanueva-Naranjo

supplied him with approximately 50 kilograms of cocaine from 2003 to 2005. Id.

at 61. He described how Villanueva-Naranjo would deliver the cocaine in vehicles

equipped with “stash spots,” or hidden compartments used to hide the drugs. Id.

at 62. He also identified Valdovinos as someone who had accompanied

Villanueva-Naranjo on at least three occasions.

      The district court found that the government had established by a

preponderance of the evidence that Villanueva-Naranjo sold or delivered at least

24 kilograms of cocaine to Hall and that he had leased the Carson Valley Drive



                                          6
residence. Further, the court determined that a mitigating role reduction was

inappropriate because Villanueva-Naranjo acted not only as a courier but also as a

co-conspirator by storing large quantities of controlled substances at his leased

residences and delivering cocaine to Hall. The district court sentenced Villanueva-

Naranjo to a term of 188 months of imprisonment for both counts, to run

concurrently, and 5 years of supervised release. Villanueva-Naranjo objected to

the sentence, challenging the district court’s findings of fact.

      On appeal, Villanueva-Naranjo argues that, pursuant to Federal Rule of

Criminal Procedure 16 and “basic tenets of fair play,” the government has an

ongoing duty to disclose all information related to a defendant’s criminal activities

at a plea hearing. Appellant’s Br. at 15. He asserts that the government knew of

the uncharged misconduct at the plea hearing, yet deliberately refused to disclose

the information, violating his substantial rights because he was not aware of the

direct consequences of his guilty plea. Villanueva-Naranjo also argues that the

drugs and guns connected with the Carson Valley Drive house should not be

considered relevant conduct for the purpose of calculating his sentence in this case.

                                  II. DISCUSSION

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

application of law to those facts de novo. United States v. Garcia-Jaimes, 484



                                            7
F.3d 1311, 1320 (11th Cir. 2007), petition for cert. filed (U.S. June 11, 2007)

(No. 06-11863). Under the advisory Sentencing Guidelines, district courts may

consider “not merely the charged conduct, but rather all ‘relevant conduct,’ in

calculating a defendant’s offense level.” United States v. Hamaker, 455 F.3d 1316,

1336 (11th Cir. 2006) (citation omitted). Relevant conduct includes “both

uncharged and acquitted conduct” and even conduct that takes place outside of a

relevant statute of limitations period. Id. (citing Behr, 93 F.3d at 765-66). A

district court’s determination of relevant conduct is governed by the preponderance

of the evidence standard rather than the more demanding standard of proof beyond

a reasonable doubt. United States v. Hristov, 466 F.3d 949, 954 n.6 (11th Cir.

2006).

         In Behr, the defendant pled guilty to one count of wire fraud in the amount

of $12,000. Behr, 93 F.3d at 764-65. As a result of the victim’s internal

investigation, it was discovered that Behr’s conduct resulted in a total loss of over

$300,000. Id. at 765. The probation officer recommended that the sentencing

court consider the additional loss of $300,000 as relevant conduct, which the

district court accepted. Id. On appeal, we rejected Behr’s argument that a district

court may not consider criminal conduct that occurred outside of the statute of

limitations period as relevant conduct for sentencing purposes. Id. at 765-66. We



                                            8
also rejected his contention that “the government has a duty to advise a defendant

before he pleads guilty which relevant conduct the Court will use to enhance his

sentence” because “the relevant conduct that eventually gets considered in the PSI

is unknown to both the government and the defendant when a plea is entered,

because the probation officer has not prepared the PSI at that time.” Id. at 766.

We concluded that “[t]he government does not have a duty to disclose information

it does not possess.” Id.

       Villanueva-Naranjo’s central argument, that the government has a general,

ongoing duty to disclose all information related to a defendant’s criminal activities,

is unpersuasive.1 In support thereof, he cites only Federal Rule of Criminal

Procedure 16 and the “basic tenets of fair play promoted in the federal courts.”

Appellant’s Br. at 15. The Federal Rules of Criminal Procedure, however, do not

provide an unlimited right to discovery of all evidence related to a defendant’s

case. See, e.g., Fed. R. Crim. P. 16(a)(1)(E) (permitting discovery of documents in

the “government’s possession, custody, or control” when “the item is material to


       1
         In as much as Villanueva-Naranjo suggests that the government’s non-disclosure of
uncharged conduct violated Federal Rules of Criminal Procedure 11 or 16, he did not raise either
argument before the district court. Although he made passing references to violations of both
rules in his brief, the references appear as background to his central argument that the
government has a general duty “to disclose all information it has in its possession related to the
defendant’s criminal activities.” See Appellant’s Br. at 15-16. Therefore, both issues are
deemed abandoned. See United States v. Jernigan, 341 F.3d 1273 n.8, 1284 (11th Cir. 2003)
(holding issue abandoned where, although defendant made passing references to issue in brief,
references were undertaken as background to claims that he expressly advanced).

                                                9
preparing the defense” or “the government intends to use the item in its case-in-

chief at trial”). Further, Behr flatly rejected any “duty to advise a defendant before

he pleads guilty which relevant conduct the Court will use to enhance his sentence”

because that information is unknown to the government at the time of the plea

hearing. Behr, 93 F.3d at 766.

      Villanueva-Naranjo attempts to distinguish Behr on the basis that the

government knew of his “expanded role” at the time he pled guilty. See

Appellant’s Br. at 16; Reply Br. at 2. However, Behr did not turn on the

government’s actual knowledge of the facts that might be used to enhance a

defendant’s sentence. See Behr, 93 F.3d at 766. Rather, we rejected Behr’s

argument because, at the time of the plea hearing, the government could not

identify which relevant conduct the probation officer would use in the PSI. See id.

Similarly, the government could not predict that the probation officer in this case

would include additional evidence concerning Villanueva-Naranjo’s other offense

conduct.

      Villanueva-Naranjo also seeks to distinguish Behr on the basis that Behr

“had an inkling that the additional loss amount could be used as relevant conduct

before he decided to plead guilty.” See Reply Br. at 5. However, as Villanueva-

Naranjo admits, Behr “does not make issue of whether or when the evidence



                                          10
became known to the parties.” Id. at 5 n.2. Thus, it is uncertain whether Behr

knew of the additional loss amount and equally unclear how Behr was in a

different position than Villanueva-Naranjo at the time of his plea. See Behr, 93

F.3d at 765. Because, as in Behr, the government could not identify whether his

“expanded role” would be considered by the probation officer as relevant conduct

for the purposes of preparing the PSI, it had no duty to disclose evidence of

uncharged misconduct at Villanueva-Naranjo’s plea hearing. See id. at 766.

Accordingly, the district court did not err in admitting this evidence.

      Villanueva-Naranjo also argues that the district court erred in applying two

enhancements and denying a role reduction based on uncharged misconduct.

Under the Guidelines, a district court may hold a defendant accountable “not just

for the ‘offense of conviction,’ but for all ‘offense conduct,’ which ‘refers to the

totality of the criminal transaction in which the defendant participated and which

gave rise to his indictment, without regard to the particular crimes charged in the

indictment.’” United States v. Fuentes, 107 F.3d 1515, 1522 (11th Cir. 1997).

“Under U.S.S.G. § 1B1.3, the district court must consider ‘relevant conduct’ when

calculating a defendant’s base offense level, including ‘all acts and omissions

committed, aided, abetted, counseled, commanded, induced, procured, or willfully

caused by the defendant.’” United States v. Alvarez-Coria, 447 F.3d 1340, 1344



                                           11
(11th Cir. 2006) (per curiam). This also includes “all reasonably foreseeable acts

and omissions of others in furtherance of the jointly undertaken criminal activity,

that occurred during the commission of the offense of conviction, in preparation

for that offense, or in the course of attempting to avoid detection or responsibility

for that offense.” U.S.S.G. § 1B1.3(a)(1)(B).

      When sentencing a defendant for an offense covered by U.S.S.G.

§ 3D1.2(d), relevant conduct includes acts “that were part of the same course of

conduct or common scheme or plan as the offense of conviction.” United States v.

Pham, 463 F.3d 1239, 1246 (11th Cir. 2006) (per curiam) (citing U.S.S.G.

§ 1B1.3(a)(2)). In determining whether uncharged conduct is relevant conduct, we

evaluate the “‘similarity, regularity, and temporal proximity’ between the offense

of conviction and the uncharged conduct.” United States v. Maxwell, 34

F.3d 1006, 1011 (11th Cir. 1994) (citation omitted); see also United States v.

Simpson, 228 F.3d 1294, 1301 (11th Cir. 2000). We must consider “whether there

are distinctive similarities between the offense of conviction and the remote

conduct that signal that they are part of a single course of conduct rather than

isolated, unrelated events that happen only to be similar in kind.” Maxwell, 34

F.3d at 1011.

      Villanueva-Naranjo pled guilty to two counts involving a cocaine



                                          12
distribution scheme with Naranjo-Delatorre, and unknown others, from

February 2006 to April 2006. Villanueva-Naranjo’s admissions at the plea hearing

connect the distribution scheme to the stash house in Norcross, involving the use of

vehicles with hidden compartments to conceal cocaine. The undisputed portion of

the PSI showed that Villanueva-Naranjo leased the residence in Norcross.

Naranjo-Delatorre moved the stash house from Norcross to the Glacier Run

residence after Villanueva-Naranjo’s arrest. DEA observed similar vehicles

equipped with hidden compartments for narcotics at this residence as well as the

Carson Valley Drive residence. The testimony at the sentencing hearing showed

that Villanueva-Naranjo maintained a lease on the Carson Valley Drive residence

and conducted prior cocaine dealings in the company of its caretaker, Valdovinos,

dating back to 2003, again using vehicles equipped with hidden compartments.

The cellular phones recovered from Valdovinos and Villanueva-Naranjo prove that

they maintained contact until Valdovinos’s arrest at the Carson Valley Drive

residence. Witness testimony established that police recovered 6 pounds of

methamphetamine, 413 grams of marijuana, approximately 30 grams of cocaine,

and 3 guns from the Carson Valley Drive residence in April 2006. Further, Hall’s

testimony showed that, between 2003 and 2005, Villanueva-Naranjo distributed at

least 50 kilograms of cocaine, utilizing vehicles equipped with hidden



                                         13
compartments.

      Based on this evidence, the district court did not commit error in finding that

the drugs and weapons seized from the Carson Valley Drive residence were

relevant conduct for the purposes of Villanueva-Naranjo’s sentencing. The raid at

Carson Valley Drive occurred within the time frame of the indicted conspiracy, so

there is temporal proximity between the uncharged conduct and the offense of

conviction. See id. Further, the evidence indicates sufficient regularity and

similarity between the uncharged conduct and the indicted offense. See id.;

Simpson, 228 F.3d at 1301. Villanueva-Naranjo leased both the stash house in

Norcross and the Carson Valley Drive residence during the time of the indicted

conspiracy. Further, he had prior dealings and maintained current contact with the

caretaker of the Carson Valley Drive residence. Both the Norcross and Carson

Valley Drive operations employed similar methods of delivering drugs, using

vehicles equipt with hidden compartments, a delivery method Villanueva-Naranjo

was known to have used in the past. Additionally, Villanueva-Naranjo had a

history of acting as more than a courier as evidenced by his prior dealings with

Hall from 2003 to 2005. Because “there are distinctive similarities between the

offense of conviction and the remote conduct that signal that they are part of a

single course of conduct,” the district court did not error in concluding that it was



                                          14
relevant conduct for the purposes of sentencing. See Maxwell, 34 F.3d at 1011.

                                III. CONCLUSION

      Villanueva-Naranjo appeals his 188-month sentences imposed for

conspiracy to possess and possession of at least five kilograms of cocaine with the

intent to distribute. Because the government could not identify whether

Villanueva-Naranjo’s “expanded role” would be considered by the probation

officer as relevant conduct for the purposes of preparing the PSI, it had no duty to

disclose evidence of any uncharged misconduct at Villanueva-Naranjo’s plea

hearing, and the district court did not err in admitting it. Additionally, because

sufficient distinctive similarities exist between the offense of conviction and the

uncharged misconduct to signal that they are part of a single course of conduct, the

district court did not err in concluding that the uncharged conduct was relevant for

the purposes of sentencing. Accordingly, we AFFIRM.




                                          15
