           Case: 15-12108   Date Filed: 08/22/2016   Page: 1 of 13




                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-12108
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:14-cr-20282-BB-3



UNITED STATES OF AMERICA,

                                                            Plaintiff -Appellee,

versus

CESAR DANIEL RAMIREZ,

                                                         Defendant -Appellant.

                       ________________________

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

                             (August 22, 2016)

Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Cesar Daniel Ramirez appeals his convictions and sentences for conspiracy

to possess Oxycodone with intent to distribute, in violation of 21 U.S.C. § 846, and

attempt to possess Oxycodone with intent to distribute, in violation of 21 U.S.C. §

846 and 18 U.S.C. § 2. Mr. Ramirez argues that the district court abused its

discretion by admitting unauthenticated photographs of text messages that he had

sent to a co-conspirator. He also argues that the district court erred by allowing a

third-party witness to testify about a conversation she had with Mr. Ramirez’s co-

conspirator. That testimony, according to Mr. Ramirez, was both hearsay and in

violation of his rights under the Confrontation Clause of the Sixth Amendment.

Finally, he argues that his sentence was substantively unreasonable. After review

of the parties’ briefs, we affirm.

                                              I

      We assume the parties are familiar with the background of this case. Thus,

we summarize the proceedings and facts only insofar as necessary to provide

context for our decision.

      Between May and August of 2013, Deivi Mora was the leader of an

Oxycodone and heroin trafficking conspiracy. Mr. Ramirez and his father, Dr.

Ramirez-Hermoso, also participated in the drug trafficking business. In August of

2013, Mr. Mora was forced to leave his position as the leader of the trafficking

organization because he was arrested on unrelated charges. When Mr. Mora was


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arrested, his fiancée Diana Linares, filled Mr. Mora’s leadership role in the

conspiracy. From August of 2013 to November of 2013, Ms. Linares met with Dr.

Ramirez-Hermoso several times to purchase blank prescriptions of Roxicodone.

Ms. Linares gave the blank prescriptions to Yamil Salas, who would recruit people

to fill the prescriptions and then send Ms. Linares information about the recruited

individuals via text message. Once Ms. Linares received the information, she

would text Mr. Ramirez so that he could verify the prescription information when

the pharmacy called his father’s medical office.

      In September of 2013, Mr. Mora called Special Agent Nick Aeschliman of

the Drug Enforcement Administration. Agent Aeschliman went to the Broward

County Jail to interview Mr. Mora about the trafficking conspiracy. During the

interview, Mr. Mora told Agent Aeschliman about how the conspiracy worked, and

Agent Aeschliman suggested that Ms. Linares begin working with the DEA as a

third-party cooperator on Mr. Mora’s behalf.

      In November of 2013, Ms. Linares began working as a third-party

cooperator with the DEA. While under DEA surveillance, Ms. Linares purchased

five fraudulent Oxycodone prescriptions from Dr. Ramirez-Hermoso and

distributed the prescriptions to third-parties.    Ms. Linares also began sending

photographs of her text message conversations with Mr. Ramirez to Agent

Aeschliman. Mr. Ramirez moved in limine to exclude the government’s proposed


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photographs. The motion was denied. At trial, Mr. Ramirez renewed his objection

to the admittance of the photographs.

      Mr. Ramirez also objected to the testimony of Ms. Linares recounting a visit

she and Mr. Mora made to Dr. Ramirez-Hermoso’s medical office in order to see

Mr. Ramirez. At this time, she was not involved in the drug scheme. She waited

in the car while Mr. Ramirez and Mr. Mora met. Ms. Linares testified to a

statement Mr. Mora made to her when he returned to the car, in which he told her

how the drug trafficking conspiracy operated.

                                         II

      We review the district court’s evidentiary ruling, including the admission of

witness testimony, for an abuse of discretion. See United States v. Moran, 778 F.3d

942, 958–59 (11th Cir. 2015).

                                         A

      On appeal, Mr. Ramirez argues that the district court erred by admitting the

photographs of the text messages.       He argues that the photographs were not

properly authenticated. He notes that the government did not conduct any forensic

tests on Ms. Linares’s cell phones.

      Under Rule 901(a) of the Federal Rules of Evidence, to satisfy the

requirement of authenticating or identifying an item of evidence, the proponent

must present “sufficient evidence to make out a prima facie case that the proffered


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evidence is what it purports to be.” United States v. Lebowitz, 676 F.3d 1000,

1009 (11th Cir. 2012). After meeting the prima facie burden, the evidence may be

admitted, and the ultimate question of authenticity is then decided by the jury. See

id. A district court has discretion to determine authenticity and that determination

should not be disturbed on appeal absent a showing that there is no competent

evidence in the record to support it. See id. Evidence may be authenticated

through the testimony of a witness with knowledge. See id. We give particular

deference to credibility determinations of a fact-finder who had the opportunity to

see live testimony. See id.

      The district court did not abuse its discretion by admitting the photographs

of the text messages between Mr. Ramirez and Ms. Linares. Ms. Linares testified

at trial that the photographs of the text messages were pictures from her phone.

She explained that the images were text messages between her and Mr. Ramirez.

Agent Aeschliman testified that he was present for some of the text messages

between Ms. Linares and Mr. Ramirez and that the photographs were screenshots

of the text messages that Ms. Linares had captured and sent to him, which fairly

and accurately represented the text messages. Agent Aeschliman further testified

that the subscriber information listed Mr. Ramirez as the user of the phone number.

Because competent evidence supported the district court’s conclusion, it did not

abuse its discretion. See Lebowitz, 676 F.3d at 1009. Although Mr. Ramirez


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argues that Ms. Linares and Agent Aeschliman were not credible, we give

particular deference to the district court’s determination of credibility.          Mr.

Ramirez has not demonstrated why we should not do so here. See id.

                                            B

      On appeal, Mr. Ramirez argues that the best evidence rule weighed in favor

of exclusion of the photographs of the text messages because of the questionable

authenticity of the photographs.

      The best evidence rule provides that the original documents must be

produced to prove the content of any writing, recording, or photograph. See

United States v. Flanders, 752 F.3d 1317, 1336 (11th Cir. 2014). An original is

not required if it is lost or destroyed, unless it is unavailable through bad faith. See

Fed. R. Evid. 1004. A duplicate is admissible to the same extent as an original,

unless there is a genuine question of authenticity or it would be unfair to admit the

duplicate. See Fed. R. Evid. 1003.

      The admission of the photographed text messages did not violate the best

evidence rule.      The government explained that, while the investigation was

continuing, the original phone had dropped in water and was rendered inoperable.

There was no evidence of bad faith and the photographs’ authenticity was

supported by the testimony of Ms. Linares and Agent Aeschliman. See Flanders,

752 F.3d at 1336.


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                                         C

      On appeal, Mr. Ramirez contends that the rule of completeness weighed in

favor of the photographs’ exclusion because he was without the ability to provide

any context that would serve to rebut the government’s evidence.

      The rule of completeness provides that when “a writing or recorded

statement or part thereof is introduced by a party, an adverse party may require the

introduction at that time of any other part or any other writing or recorded

statement which ought in fairness to be considered contemporaneously with it.”

Fed. R. Evid. 106. The rule of completeness does not automatically make the

entire document admissible. See United States v. Lanzon, 639 F.3d 1293, 1302

(11th Cir. 2011). Rather, “the rule permits introduction only of additional material

that is relevant and is necessary to qualify, explain, or place into context the

portion already introduced.” Id.

      The district court’s admission of photographs of the text messages did not

violate the rule of completeness. First, the district court made clear that Mr.

Ramirez was permitted to introduce material to “give the conversation context”

and Mr. Ramirez did not do so. See D.E. 165 at 4. Second, Mr. Ramirez has failed

to demonstrate how additional material would “qualify, explain, or place into

context” the text messages that were admitted. See Lanzon, 639 F.3d at 1302.

                                         D


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      On appeal, Mr. Ramirez argues that the district court erred by admitting Ms.

Linares’s testimony regarding the subject of the meeting between Mr. Ramirez and

Ms. Mora. He contends that allowing the testimony violated the Confrontation

Clause of the Sixth Amendment.

      Generally, hearsay evidence is inadmissible. See Fed. R. Evid. 802. But an

out-of-court statement offered against an opposing party is not hearsay if it “was

made by the party’s co-conspirator during and in furtherance of the conspiracy.”

Fed. R. Evid. 801(d)(2)(E).      As a prerequisite to the admission of a co-

conspirator’s statement, the government, as the proponent, “must prove by a

preponderance of the evidence that (1) a conspiracy existed, (2) the conspiracy

included the declarant and the defendant against whom the statement is offered,

and (3) the statement was made during the course of and in furtherance of the

conspiracy.” United States v. Underwood, 446 F.3d 1340, 1345–46 (11th Cir.

2006). The court applies a liberal standard in determining whether a statement is

made in furtherance of a conspiracy. See United States v. Santiago, 837 F.2d 1545,

1549 (11th Cir. 1988). Hearsay errors are harmless if, viewing the proceedings in

their entirety, a court determines that the error did not affect the verdict, or had

only a slight effect. See United States v. Carter, 776 F.3d 1309, 1328 (11th Cir.

2015).




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         The Confrontation Clause provides that, “[i]n all criminal cases, the accused

shall enjoy the right . . . to be confronted with the witnesses against him.” U.S.

Const. Amend. VI. The Confrontation Clause protects a defendant’s right to

confront those individuals who make “testimonial” statements against him unless

the declarant is unavailable and the defendant had a prior opportunity for cross-

examination.      See Crawford v. Washington, 541 U.S. 36, 53–54, 68. (2004).

Testimony is “typically a solemn declaration or affirmation made for the purpose

of establishing or proving some fact.” Id. at 51. This means that testimonial

statements are statements that declarants would reasonably expect to be used

prosecutorially, including ex parte in-court testimony or its functional equivalent,

such as affidavits. See id. The admission of statements made by co-conspirators in

furtherance of a conspiracy, however, does not violate a defendant’s constitutional

right to confrontation because such statements are not testimonial in nature. See id.

at 55.

         A reasonable jury could have found that the statements Mr. Mora made to

Ms. Linares were statements made by a co-conspirator during and in furtherance of

a conspiracy. This is because Ms. Linares did, in fact, take over the Oxycodone

trafficking operation when Mr. Mora was incarcerated and before she became a

third-party cooperator. Therefore, the district court did not abuse its discretion. If

there is an abundance of evidence, even if hearsay statements were improperly


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admitted, their admission does not constitute reversible. See Santiago, 837 F.2d at

1549.

        Additionally, Ms. Linares’ testimony regarding Mr. Mora’s statements did

not violate the Confrontation Clause. Mr. Mora’s statements to Ms. Linares—the

conversation in which Mr. Mora described a meeting he had with Mr. Ramirez and

the details of the ongoing conspiracy—occurred prior to either Mr. Mora’s or Ms.

Linares’ involvement with law enforcement. There is no evidence that Mr. Mora

would have reasonably expected that his statements to Ms. Linares, his fianceé,

would be used prosecutorially. The statements plainly were not made with the

primary purpose of aiding in a criminal investigation, as they were from a private

conversation the co-conspirator had with his fianceé outside the trial context. See

Crawford, 541 U.S. at 51.

                                        III

        We review the reasonableness of a sentence under a deferential abuse-of-

discretion standard. See Gall v. United States, 552 U.S. 38, 41 (2007). The party

who challenges the sentence bears the burden to show that the sentence is

unreasonable in light of the record and the § 3553(a) factors. See United States v.

Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). We will reverse only if “left with the

definite and firm conviction that the district court committed a clear error of

judgment in weighing the § 3553(a) factors by arriving at a sentence that lies


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outside the range of reasonable sentences dictated by the facts of the case.” See

United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc).

      We examine whether a sentence is substantively reasonable in light of the

totality of the circumstances. See Gall, 552 U.S. at 51. The district court must

impose a sentence “sufficient, but not greater than necessary, to comply with the

purposes” listed in § 3553(a)(2), including the need to reflect the seriousness of the

offense, promote respect for the law, provide just punishment for the offense, deter

criminal conduct, and protect the public from the defendant’s future criminal

conduct. See 18 U.S.C. § 3553(a)(2). The court must also consider the need to

avoid unwarranted sentencing disparities. See id. § 3553(a)(6). The fact that a

sentence is within the advisory guideline range and well below the statutory

maximum are both factors indicative of reasonableness. See United States v.

Cubero, 754 F.3d 888, 898 (11th Cir. 2014).

      The sentencing court need not weigh each factor equally, but instead may

give greater weight to one factor over the other. See United States v. Rosales-

Bruno, 789 F.3d 1249, 1254 (11th Cir. 2015). The decision about how much

weight to assign a particular factor is left to the discretion of the district court. See

id. Absent clear error, we will not reweigh the § 3553(a) factors. See United

States v. Langston, 590 F.3d 1226, 1237 (11th Cir. 2009). A district court should

not focus on one factor “single-mindedly” to the detriment of other factors, and a


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court’s unjustified reliance on any one § 3553(a) factor may be a symptom of an

unreasonable sentence. See United States v. Crisp, 454 F.3d 1285, 1292 (11th Cir.

2006). A district court can abuse its discretion when it (1) fails to consider

relevant factors that were due significant weight, (2) gives an improper or

irrelevant factor significant weight, or (3) commits a clear error of judgment by

balancing the proper factors unreasonably. See Irey, 612 F.3d at 1189.

      Mr. Ramirez’s sentences were not substantively unreasonable. There was

substantial evidence of Mr. Ramirez’s participation in the conspiracy, including

Ms. Linares’s testimony and the text messages between Ms. Linares and Mr.

Ramirez. Although Mr. Ramirez’s involvement was minimal, there is testimony

that he participated continuously in the scheme from August of 2012 until

November of 2013. Furthermore, given that the district court held Mr. Ramirez

responsible for only five prescriptions—not for all the other transactions outside

the indictment—the sentence is reasonable.

                                        IV

      The district court did not abuse its discretion by admitting the screenshots of

the text message conversations nor by admitting the third-party cooperator’s

testimony regarding her conversation with a co-conspirator. And Mr. Ramirez’s

sentences were not substantively unreasonable because there was substantial

evidence of his continuous participation in the conspiracy.


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We affirm Mr. Ramirez’s conviction and sentence.

AFFIRMED.




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