          Case: 10-15855   Date Filed: 03/01/2013   Page: 1 of 7

                                                       [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 10-15855
                     ________________________

              D.C. Docket No. 3:10-cr-00067-RV-EMT-4


UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                versus

FRANCISCO TORRES-RODRIGUEZ,

                                                        Defendant-Appellant.
                     ________________________

                           No. 10-15955
                     ________________________

              D.C. Docket No. 3:10-cr-00067-RV-EMT-3


UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,

                                versus

JUAN JALOMO-RUIZ
                Case: 10-15855        Date Filed: 03/01/2013      Page: 2 of 7

                                                                        Defendant-Appellant.
                               ________________________

                                     No. 11-10083
                               ________________________

                      D.C. Docket No. 3:10-cr-00067-RV-EMT-1

UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                            versus

ALEJANDRINO POPOCA,
a.k.a. Alex,
a.k.a. Alejandrino Rodriguez-Popoca,

                                                                        Defendant-Appellant.

                               ________________________

                     Appeals from the United States District Court
                         for the Northern District of Florida
                           _________________________
                                   (March 1, 2013)

Before DUBINA, Chief Judge, HULL and ALARCÓN,* Circuit Judges.

PER CURIAM:

                                                I

       Defendant-Appellants Francisco Torres-Rodriguez (“Torres-Rodriguez”),

       *
        Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Circuit, sitting
by designation.

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Juan Jalomo-Ruiz (“Jalomo-Ruiz”), and Alejandrino Popoca (“Popoca”) appeal

their convictions and sentences imposed by the United States District Court for the

Northern District of Florida.

      Torres-Rodriguez was convicted of (1) conspiracy to distribute and

possession with intent to distribute five kilograms or more of cocaine, in violation

of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), and 846; and (2) possession with intent

to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1)

and 841(b)(1)(B)(ii). Torres-Rodriguez received a 162-month sentence, which

included an enhancement for a co-conspirator’s possession of a firearm.

      Jalomo-Ruiz was convicted of (1) conspiracy to distribute and possession

with intent to distribute less than five kilograms of cocaine, in violation of

21 U.S.C. § 841(a)(1) and 846; and (2) possession of a firearm while unlawfully in

the United States, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). He

received a 78-month sentence.

      Popoca was convicted of (1) conspiracy to distribute and possession with

intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A)(ii), and 846; (2) possession with intent to distribute 500

grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and

841(b)(1)(B)(ii); (3) use, carrying, or possession of a firearm in furtherance of a

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drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and (4) possession of

a firearm while unlawfully in the United States, in violation of 18 U.S.C.

§§ 922(g)(5)(A) and 924(a)(2). Popoca received a 360-month sentence, which

included enhancements for obstruction of justice and drug quantity.

                                          II

                                          A

      Torres-Rodriguez raises two issues on appeal:

      (1) Whether the evidence was sufficient to support his conviction for

possession with intent to distribute 500 grams or more of cocaine; and

      (2) Whether the district court erred in enhancing his sentence for possession

of a firearm.

                                          B

      Jalomo-Ruiz raises two issues on appeal:

      (1) Whether the district court erred by omitting the lesser-included offense of

conspiracy to distribute and possession with intent to distribute 500 grams or less

of cocaine from the jury instructions; and

      (2) Whether the evidence was sufficient to support his conviction for

conspiracy to distribute and possession with intent to distribute less than five

kilograms of cocaine.

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                                          C

      Popoca raises three issues on appeal:

      (1) Whether the jury instructions and the Government’s closing argument

constructively amended the indictment;

      (2) Whether the evidence was sufficient to establish Popoca’s convictions for

use, carrying, or possession of a firearm in furtherance of a drug trafficking crime

and for possession of a firearm while unlawfully in the United States; and

      (3) Whether the district court violated Fed. R. Crim. P. 32(i)(1)(C) and his

due process right to notice when it relied on evidence outside of the Presentence

Investigation Report in enhancing his sentence for obstruction of justice and drug

quantity.

                                         III

      Several standards of review govern this appeal. “We review sufficiency of

the evidence de novo, viewing the evidence in the light most favorable to the

government and drawing all reasonable inferences and credibility choices in favor

of the jury’s verdict.” United States v. Trujillo, 146 F.3d 838, 845 (11th Cir. 1998).

When weighing the sufficiency of the evidence, “[i]t is not necessary that the

evidence exclude every reasonable hypothesis of innocence or be wholly

inconsistent with every conclusion except that of guilt, provided a reasonable trier

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of fact could find that the evidence establishes guilt beyond a reasonable doubt.”

United States v. Young, 906 F.2d 615, 618 (11th Cir. 1990).

      We review the “district court’s factual findings for clear error and their

application of the Sentencing Guidelines to those facts de novo.” United States v.

Bradford, 277 F.3d 1311, 1312 (11th Cir. 2002). “We review de novo challenges

to the constitutionality of a defendant’s sentence,” assuming they are properly

preserved. United States v. Ghertler, 605 F.3d 1256, 1268 (11th Cir. 2010).

      “[W]hen a party agrees with a court’s proposed instructions, the doctrine of

invited error applies, meaning that review is waived even if plain error would

result.” United States v. Frank, 599 F.3d 1221, 1240 (11th Cir. 2010).

      When a defendant fails to raise a argument before the district court, we

review only for plain error. United States v. Dortch, 696 F.3d 1104, 1110 (11th

Cir. 2012). Reviewing for plain error, “we will not correct an error raised for the

first time on appeal unless there is an error that is plain; that affects substantial

rights; and that seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Id. at 1112.

                                           IV

      After carefully reviewing the record in this case and reading the parties’

briefs, we conclude that each of Defendant-Appellants’ claims lack merit. We

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affirm their convictions and sentences.

      AFFIRMED.




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