                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                            No. 11-11228          NOVEMBER 18, 2011
                                        Non-Argument Calendar         JOHN LEY
                                                                        CLERK
                                      ________________________

                          D.C. Docket No. 4:10-cr-00093-WTM-GRS-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                                 versus

ANDRE JAMAAL GUYTON,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

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

                                           (November 18, 2011)

Before CARNES, WILSON and BLACK, Circuit Judges.

PER CURIAM:

         Andre Guyton appeals his convictions for distribution of ecstasy and

cocaine, 21 U.S.C. § 841(a)(1). Guyton argues the evidence was insufficient to
support the jury verdict because there was no direct visual evidence of his alleged

distribution. After review, we affirm Guyton’s convictions.

      To sustain a conviction for distribution of a controlled substance, the

Government had to prove knowing distribution. See United States v. Poole, 878

F.2d 1389, 1391 (11th Cir. 1989). Distribution means “to deliver a controlled

substance,” or the “actual, constructive, or attempted transfer of a controlled

substance.” 21 U.S.C. § 802(11),(8). Both elements can be provided by either

direct or circumstantial evidence. Poole, 878 F.2d at 1391-1392.

      The Government’s evidence against Guyton was overwhelming. A

confidential informant testified she participated in two controlled buys with

Guyton and purchased controlled substances from him on both occasions. Audio

recordings of both controlled buys were presented, as well as recordings of

telephone conversations between the informant and Guyton regarding the price

and amounts of ecstasy and cocaine to be bought. Multiple witnesses identified

Guyton’s voice on the recordings. Moreover, law enforcement officers testified

they observed Guyton at the scene of both controlled buys.




                                          2
       At the close of the Government’s case, Guyton did not move the court for a

judgment of acquittal1 and elected to testify on his own behalf. He claimed the

informant was lying, and denied it was his voice in the audio recordings. On

cross-examination, Guyton admitted he had multiple prior drug convictions as

well as a conviction for theft by receiving stolen property. Guyton also revealed

he was indeed involved in a recorded conversation where he referred to “G”:

       Q:      Who’s the guy you refer to as “G” on the recordings?

       A:      You talking about “G,” a girl?

       Q:      You heard the recording. When you talk about “G”—

       A:      — I know, I was talking about my home girl.

       Q:      Okay, I thought you weren’t there.

       A:      (No response.)

       Q:      I thought you said you weren’t there.

       A:      (No response.)

       Q:      So that was you on the recordings.

       A:      No, that wasn’t me.

       1
          When a defendant fails to challenge the sufficiency of the government’s evidence by a
motion for a judgment of acquittal at the close of the evidence, we will reverse a conviction only
to prevent a manifest miscarriage of justice. United States v. Tagg, 572 F.3d 1320, 1323 (11th
Cir. 2009). “This standard requires the appellate court to find that the evidence on a key element
of the offense is so tenuous that a conviction would be shocking.” Id.


                                                3
      The jury was entitled to conclude Guyton was lying when he denied that he

sold drugs to the informant and denied that his voice was captured on the audio

recordings. See United States v. Brown, 53 F.3d 312, 314 (11th Cir. 1995) (“[A]

statement by a defendant, if disbelieved by the jury, may be considered as

substantive evidence of the defendant’s guilt.”). Even without visual evidence of

the actual transfer that Guyton claims is needed, the evidence was sufficient to

sustain his convictions, regardless of the standard of review applied.

      AFFIRMED.




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