          Case: 17-15583   Date Filed: 03/15/2019   Page: 1 of 14


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 17-15583
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:17-cr-20153-RNS-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

JOSE PABLO ORTIZ-SANTIZO,

                                                         Defendant-Appellant.

                      ________________________

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

                            (March 15, 2019)




Before MARCUS, ROSENBAUM, and EDMONSON, Circuit Judges.
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PER CURIAM:



      Juan Ortiz-Santizo appeals his convictions for (1) conspiracy to possess with

intent to distribute 50 grams or more of methamphetamine, in violation of 21

U.S.C. § 846; (2) distribution of 50 grams or more of methamphetamine, in

violation of 21 U.S.C. § 841(a)(1); and (3) possession with intent to distribute 50

grams or more of methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Ortiz-

Santizo also appeals his total 151-month sentence for his offenses. No reversible

error has been shown; we affirm.

      Briefly stated, this appeal arises from these facts. In December 2016 and

January 2017, the Broward County Drug Task Force used a confidential informant

(“CI”) to arrange two controlled drug buys from Ortiz-Santizo. During the first

controlled drug buy, the CI purchased 82.9 grams of methamphetamine from Ortiz-

Santizo. During the second controlled drug buy -- at Ortiz-Santizo’s direction --

the CI purchased 54.22 grams of methamphetamine from Ortiz-Santizo’s brother.

      Ortiz-Santizo was later arrested on 16 February 2017, after his car broke

down and was blocking traffic on the highway. When Sergeant Berthet

approached the car, he smelled marijuana and noticed that Ortiz-Santizo appeared

nervous and was hugging a backpack. Shortly thereafter, a second officer arrived


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on the scene with a narcotics-detecting dog, who alerted on the interior of the car

and on the backpack. The officers conducted a warrantless search of the car and

seized 111.6 grams of methamphetamine and 11.5 grams of marijuana from the

backpack.



                                          I.



      On appeal, Ortiz-Santizo contends that the district court erred in denying his

motion to suppress evidence seized during the warrantless search of his car. Ortiz-

Santizo argues that -- because his car was disabled at the time of the search -- the

automobile exception is inapplicable.

      We review the district court’s denial of “a motion to suppress evidence

under a mixed standard of review, reviewing the court’s findings of fact for clear

error and the application of law to those facts de novo.” United States v. Pierre,

825 F.3d 1183, 1191 (11th Cir. 2016). We will construe the facts in the light most

favorable to the party who prevailed below. United States v. Nixon, 918 F.2d 895,

902 (11th Cir. 1990). In considering a ruling on a motion to suppress, we may

consider the evidence presented at the suppression hearing as well as evidence




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presented at trial. United States v. Villabona-Garnica, 63 F.3d 1051, 1056 (11th

Cir. 1995).

      Under the automobile exception to the Fourth Amendment’s warrant

requirement, police may perform a warrantless search of a car if probable cause

exists to believe the car contains contraband or evidence of criminal activity.

California v. Acevedo, 500 U.S. 565, 569 (1991). For the exception to apply, there

must be both probable cause and exigent circumstances necessitating a search or

seizure. Nixon, 918 F.2d at 903. We have said, however, that “the requirement of

exigent circumstances is satisfied by the ‘ready mobility’ inherent in all

automobiles that reasonably appear to be capable of functioning.” Id. (emphasis in

original). “The vehicle does not have to be moving at the moment when the police

obtain probable cause to search.” United States v. Alexander, 835 F.2d 1406, 1409

(11th Cir. 1988).

      The district court committed no error in denying Ortiz-Santizo’s motion to

suppress the drugs found during the warrantless search of his car. Sergeant Berthet

testified that when he first approached Ortiz-Santizo’s car, he detected the odor of

marijuana and observed that Ortiz-Santizo appeared nervous. Later, a narcotics-

detecting dog alerted to the interior of the car and then, to the backpack that Ortiz-

Santizo had been holding. Based on the totality of the circumstances, there existed

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a fair probability contraband would be found in Ortiz-Santizo’s car. Probable

cause existed to search both the car and the backpack. See United States v.

Tamari, 454 F.3d 1259, 1264-65 (“We have long recognized that ‘probable cause

arises when a drug-trained canine alerts to drugs.’”).

      Exigent circumstances also justified the warrantless search. Although Ortiz-

Santizo’s car was non-operational at the time of the search, it was reasonable to

believe that the car could soon become mobile. The car was stopped in the middle

of the highway, evidencing that it had been operational moments before. Ortiz-

Santizo also commented that he had just had the car repaired and the officer

noticed that the car had a brand-new battery. Besides, Ortiz-Santizo had already

arranged to have the car towed before the officers arrived on the scene; the car was

about to become movable. Under these circumstances, it was reasonable to

conclude that Ortiz-Santizo’s car was readily mobile and, thus, that a warrantless

search was justified under the automobile exception. See Nixon, 918 F.2d at 903.



                                         II.



      Ortiz-Santizo next challenges the district court’s denial of his motions for a

judgment of acquittal. “We review de novo a district court’s denial of judgment of

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acquittal on sufficiency of evidence grounds.” United States v. Rodriguez, 732

F.3d 1299, 1303 (11th Cir. 2013). In determining the sufficiency of the evidence,

“we consider the evidence in the light most favorable to the government, drawing

all reasonable inferences and credibility choices in the government’s favor.” Id.

We cannot overturn a jury’s verdict unless no “reasonable construction of the

evidence would have allowed the jury to find the defendant guilty beyond a

reasonable doubt.” Id.



                                        A.



      About his conspiracy conviction, Ortiz-Santizo contends the evidence

produced at trial was insufficient to demonstrate the existence of an agreement

between Ortiz and another party.

      To obtain a conviction for conspiracy to distribute a controlled substance

under 21 U.S.C. § 846, the government must prove, in pertinent part, that a

conspiracy or agreement existed between the defendant and others. United States

v. Holt, 777 F.3d 1234, 1259 (11th Cir. 2015). “The existence of a conspiracy may

be demonstrated by circumstantial evidence such as inferences from the conduct of




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the defendant or circumstances indicating a scheme or plan.” United States v.

Bascaro, 742 F.2d 1335, 1359 (11th Cir. 1984).

      Viewed in the light most favorable to the government, the evidence

presented at trial was sufficient to permit a reasonable factfinder to conclude

beyond a reasonable doubt that Ortiz-Santizo conspired with others to possess with

intent to distribute a controlled substance. First, officers observed Ortiz-Santizo

obtain methamphetamine from a man named Guevara during a controlled buy

between Ortiz-Santizo and the CI. The government also introduced an email Ortiz-

Santizo sent after his arrest, in which he demanded that his brother convince

Guevara to clear his name and threatened to expose Guevara and Guevara’s

family’s involvement in the conspiracy. This evidence supported a finding that an

ongoing agreement existed between Ortiz-Santizo and Guevara, who was known to

the officers as a methamphetamine distributor.

      Evidence also supported a finding that an agreement existed between Ortiz-

Santizo and his brother. Because Ortiz-Santizo was out of town when the CI

contacted him about the second controlled buy, Ortiz-Santizo arranged for his

brother to complete the sale while Ortiz-Santizo helped facilitate the transaction.

      We acknowledge that a mere buyer-seller relationship or an agreement with

a CI -- by itself -- is insufficient to establish a conspiracy. See United States v.

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Wright, 63 F.3d 1067, 1072 (11th Cir. 1995) (explaining that “it takes at least two

to conspire neither of which may be government agents or informers.”); Bascaro,

742 F.2d at 1359 (“the existence of a simple buyer-seller relationship alone does

not furnish the requisite evidence of a conspiratorial agreement.”). The evidence

produced at trial, however, was sufficient to support a finding that Ortiz-Santizo

had an agreement with Guevara and with his brother to sell drugs to third persons.

That the two controlled drug buys involved sales to a CI did not frustrate the

existence of that conspiracy.

      Laboratory results also confirmed that the quantity of methamphetamine

involved in each of the controlled buys satisfied the 50-gram threshold; thus, each

of the controlled buys would support the conspiracy charged in the indictment.



                                         B.



      About Ortiz-Santizo’s conviction for possession with intent to distribute, he

contends that insufficient evidence existed to establish that he knew about the

drugs found in his backpack.

      To sustain a conviction for possession with intent to distribute

methamphetamine, the government must establish three elements: knowledge,

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possession, and intent to distribute. United States v. Gamboa, 166 F.3d 1327, 1331

(11th Cir. 1999). All three elements may be proven by circumstantial evidence.

United States v. Poole, 878 F.2d 1389, 1391-92 (11th Cir. 1989).

      Sufficient evidence existed from which a reasonable jury could conclude

that Ortiz-Santizo possessed with intent to distribute 50 grams or more of

methamphetamine. Ortiz-Santizo admitted that the backpack belonged to him.

Sergeant Berthet also testified that, when he first observed Ortiz-Santizo, Ortiz-

Santizo appeared nervous and was clutching the backpack in front of him. Based

on this evidence, a jury could infer reasonably that Ortiz-Santizo knew the

methamphetamine was in his backpack. Moreover, because the drugs were found

inside Ortiz-Santizo’s backpack and inside Ortiz-Santizo’s car, the jury could also

infer reasonably that Ortiz-Santizo had constructive possession over the drugs. See

United States v. Hernandez, 433 F.3d 1328, 1333 (11th Cir. 2005) (“Constructive

possession exists when a defendant has ownership, dominion, or control over an

object itself or dominion of control over the premises or the vehicle in which the

object is concealed.”). Although Ortiz-Santizo testified that the drugs “weren’t

supposed to be there” and did not belong to him, the jury was free to reject that

testimony and to infer that the opposite was true. See United States v. Hasner, 340




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F.3d 1261, 1272 (11th Cir. 2003) (“A proper inference the jury can make from

disbelieved testimony is that the opposite of the testimony is true.”).



                                               III.



         Ortiz-Santizo next contends that the district court abused its discretion in

permitting the government to impeach him on cross-examination with a suppressed

prior statement.

         Before trial, Ortiz-Santizo moved to suppress a statement he made to police

after his arrest, in which he admitted he had purchased two ounces of

methamphetamine the night before. The government conceded the statement was

inadmissible during the government’s case-in-chief because the statement was

obtained after Ortiz-Santizo invoked his Miranda * rights. Accordingly, the district

court granted the motion to suppress but reserved ruling on whether the statement

could be introduced for impeachment purposes.

         We review for an abuse of discretion the district court’s decision to allow the

introduction of suppressed evidence for purposes of impeachment. United States

v. Quesada-Rosadal, 685 F.2d 1281, 1283 (11th Cir. 1982). A “defendant’s


*
    Miranda v. Arizona, 384 U.S. 436 (1966).
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statements made in response to proper cross-examination reasonably suggested by

the defendant’s direct examination are subject to otherwise proper impeachment by

the government,” including by suppressed evidence inadmissible in the

government’s case-in-chief. United States v. Havens, 446 U.S. 620, 627-28

(1980).

      The district court abused no discretion in allowing the government to

impeach Ortiz-Santizo on cross-examination with his suppressed statement. On

direct examination, Ortiz-Santizo testified that he was no drug dealer, had never

sold methamphetamine before the controlled buys, and was merely a drug addict

who was coerced into acquiring methamphetamine by the CI, who was also his

romantic partner. On cross-examination, the government -- staying within the

scope of Ortiz-Santizo’s direct examination -- questioned Ortiz-Santizo about his

relationship with the CI, about the quantity of drugs he sold to the CI, about his

text messages with the CI arranging drug sales, and about his association with

Guevara.

      The government also questioned Ortiz-Santizo about conduct pertinent to the

credibility of his direct testimony, including that he was later arrested with nearly

four ounces of methamphetamine in his backpack. When Ortiz-Santizo denied

knowledge and possession of those drugs, he opened the door for the government

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to rebut that testimony, including with Ortiz-Santizo’s suppressed statement that he

had purchased two ounces of methamphetamine at Guevara’s house the night

before his arrest. On this record, the district court abused no discretion in allowing

the introduction of the suppressed statement to impeach Ortiz-Santizo’s credibility.



                                         IV.



      Ortiz-Santizo next challenges the district court’s decision permitting the

government’s expert witness to testify that the quantity of drugs seized from Ortiz-

Santizo was consistent with the distribution of methamphetamine.

      We review the district court’s rulings on the admissibility of expert

testimony under an abuse-of-discretion standard. United States v. Frazier, 387

F.3d 1244, 1258 (11th Cir. 2004) (en banc). Under this standard, we will not

reverse unless the district court’s ruling was “manifestly erroneous.” Id. We must

affirm unless the district court made a clear error of judgment or applied the

incorrect legal standard. See id. at 1259.

      An expert witness in a criminal case may not state expressly a conclusion

about the defendant’s mental state at the time of the offense. United States v.

Alvarez, 837 F.2d 1024, 1031 (11th Cir. 1988) (interpreting Fed. R. Evid. 704(b)).

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This rule does not, however, preclude expert testimony that would support an

inference about the defendant’s mental state, provided that the testimony leaves it

to the jury to draw the inference. See id.

      The district court abused no discretion in allowing Officer Passman to testify

that -- based on his experience investigating methamphetamine cases -- the

quantity of methamphetamine seized from Ortiz-Santizo’s car (111.6 grams) was

consistent with distribution, not personal use. Officer Passman testified that, on

average, the amount of methamphetamine sold for personal use is between 0.5 and

1 gram, and no more than 3.5 grams. Based on his experience, a quantity of 3 or 4

ounces of methamphetamine would be consistent with distribution. Officer

Passman expressed no opinion about Ortiz-Santizo’s state of mind in this case.

Because the jury was left to decide the ultimate issue of whether Ortiz-Santizo had

the requisite intent to distribute the methamphetamine seized from his car, the

testimony was permissible under Rule 704(b). See id.



                                          V.



      Ortiz-Santizo challenges his 151-month sentence. He contends that the

district court erred in calculating the drug quantity attributable to him and, thus in

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enhancing his base offense level from 32 to 36. We need not address this

argument, however, because the district court said expressly that it would impose

the same sentence regardless of whether Ortiz-Santizo’s base offense level was 32

or 36. See United States v. Barner, 572 F.3d 1239, 1247-48 (11th Cir. 2009)

(“Where a district judge clearly states that he would impose the same sentence,

even if he erred in calculating the guidelines, then any error in the calculation is

harmless.”).

      AFFIRMED.




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