                                                     NOT PRECEDENTIAL
                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 14-3192
                                      _____________

                            UNITED STATES OF AMERICA

                                             v.

                                    JOEL MORALES,
                                      a/k/a ZONE,


                                           JOEL MORALES,
                                                     Appellant
                                     _______________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                               (D.C. No. 2-11-cr-468-012)
                         District Judge: Hon. Cynthia M. Rufe
                                    _______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  September 6, 2016

           Before: JORDAN, VANASKIE, and NYGAARD, Circuit Judges.

                                 (Filed: October 17, 2016)
                                     _______________

                                        OPINION
                                     _______________



       
        This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.

       Joel Morales appeals his conviction and sentence from the United States District

Court for the Eastern District of Pennsylvania, arguing that the District Court erred in

admitting prejudicial testimony, refusing to grant his requested jury instruction, and

imposing an unreasonable sentence. We will affirm in all respects.

I.     BACKGROUND

       On December 15, 2011, Morales was charged with conspiracy to distribute one

kilogram or more of heroin, in violation of 21 U.S.C. § 846. The charge followed a

lengthy investigation into a drug trafficking organization in North Philadelphia.

According to the testimony at trial, Morales received and distributed 50 to 100 “bundles”

of heroin five or six days per week from mid-2009 to 2011.1 He controlled heroin

distribution on two particular corners in his North Philadelphia neighborhood, and he had

various individuals selling on those corners. Among those doing the selling was Peter

Ramos, the father of Morales’s girlfriend.

       Ramos testified as a witness for the government. He described the operation of

the heroin distribution conspiracy, its participants, and Morales’s role in it. During his

direct examination, Ramos testified that, while he was working for Morales, his

(Ramos’s) daughter and grandchildren, along with Morales, lived with him for a time




       1
        As described at trial, a “bundle” of heroin in this conspiracy was the equivalent
of one-half of a gram.

                                              2
because Morales’s home had “got shot up.”2 (App. 208.) Morales’s counsel immediately

objected to that testimony, saying he did not “know [its] relevance” and that it was also

“extremely prejudicial.” (App. 208.) As to prejudice, counsel claimed that the testimony

would “portray [Morales] as some big drug dealer who somebody wanted to kill for some

reason.” (App. 210.) The government argued that the testimony established Ramos’s

credibility as a witness against Morales, because “[Ramos] took them into his own house

and [Morales] lived with him, and his daughter and the grandchildren lived with him for a

significant period of time after this event.” (App. 209.) The District Court overruled

Morales’s objections, noting that there was already “evidence on this record of people

who suddenly got shot and killed and were replaced,” and that the testimony did not

implicate Morales in the shooting. (App. 210-211.) Although the Court denied

Morales’s request for a contemporaneous limiting instruction, it did provide such an

instruction during its final charge, telling the jury that it must not “use th[e] evidence of a

shooting as any indication at all of Mr. Morales’[s] guilt.” (App. 234.)

       At the close of the final jury charge, defense counsel requested an instruction on

circumstantial evidence that specifically stated such evidence can “be used to prove a

defense.” (App. 259.) The Court had already explained to the jury the difference

between direct and circumstantial evidence, but without drawing a distinction between

evidence offered by the government and any offered by Morales. The Court denied




       2
        In his brief, Morales describes Ramos as having testified that the house was
“riddled with bullets” (Opening Br. at 9), but that language does not appear in the record.
                                               3
Morales’s request for a more specific instruction in his favor, noting that he had not

raised any affirmative defense that he sought to prove with evidence of his own.

       Morales was found guilty of the drug conspiracy charge. During his subsequent

sentencing hearing, the District Court found him responsible for distributing 21 kilograms

of heroin, which resulted in a base level offense of 36. See U.S.S.G. § 2D1.1(a)(5)(c)(2)

(2013) (establishing a base offense level of 36 when the quantity of heroin is between ten

and thirty kilograms). With the government’s agreement, the District Court then reduced

Morales’s base offense level by two, to reflect the then-impending 2014 amendments to

U.S.S.G. § 2D1.1 that reduced the base offense levels for most drug offenses. In

addition, the Court found that Morales was a manager or supervisor in a criminal

conspiracy of five or more individuals, which triggered an additional three-level increase

in his offense level pursuant to U.S.S.G. § 3B1.1(b). With those adjustments, and with

Morales’s criminal history category of III, his guidelines range was determined to be 262

to 327 months.

       Morales sought a downward departure from the guidelines under U.S.S.G.

§ 4A1.3, on the ground that his placement in criminal history category III overstated the

seriousness of his criminal record. He argued that two of the crimes in his record were

“low-grade misdemeanors” that did not merit the criminal history points that he received

for them. (App. 298.) The District Court denied that motion, but noted that it would

consider a “similar argument” when deciding whether to grant Morales a downward

variance. After considering information about Morales, his background, and the



                                             4
sentences received by his co-conspirators, the Court did, in fact, vary downward from the

guidelines and imposed a sentence of 222 months’ imprisonment.

       Morales filed this timely appeal from his conviction and sentence.

II.    DISCUSSION3

       Morales argues that the District Court erred by (1) admitting Ramos’s testimony

about the shooting at his home; (2) refusing to grant his requested jury charge about

circumstantial evidence; and (3) imposing a substantively unreasonable sentence. We

consider those arguments in turn.

       A.     Prejudicial Testimony

       Morales first contends that the District Court erred in admitting Ramos’s

testimony regarding the shooting at Morales’s home because its probative value was

substantially outweighed by its prejudicial effect, in violation of Federal Rule of

Evidence 403. Pursuant to Rule 403, the District Court may exclude evidence “if its

probative value is substantially outweighed by a danger of one or more of the following:

unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” Fed. R. Evid. 403. We review decisions to

admit evidence under Rule 403 for an abuse of discretion. United States v. Saada, 212

F.3d 210, 220 (3d Cir. 2000). Indeed, we have repeatedly stated that the District Court

deserves “very substantial discretion” when weighing the probative value of evidence

against its prejudicial effect and that “Rule 403 creates a presumption of admissibility.”


       3
         The District Court had jurisdiction under 18 U.S.C. § 3231; we exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                             5
United States v. Universal Rehabilitation Servs. (PA), Inc., 205 F.3d 657, 665 (3d Cir.

2000) (en banc); see also United States v. Caldwell, 760 F.3d 267, 284 (3d Cir. 2014)

(“When a court engages in a Rule 403 balancing and articulates on the record a rational

explanation, we will rarely disturb its ruling” (internal quotation marks omitted).). Only

an “arbitrary or irrational” application of Rule 403 will justify reversing the District

Court’s decision. Universal Rehabilitation, 205 F.3d at 665; see also United States v.

Starnes, 583 F.3d 196, 214 (3d Cir. 2009) (noting that an abuse of discretion occurs when

“no reasonable person would adopt the district court’s view” (internal quotation marks

omitted)).

        Morales’s claim of error falls far short of that high standard. He says only that he

“was not involved in any shooting or assaults with a deadly weapon,” and that the

testimony was admitted with the malign intent “to demonstrate that [he] was involved in

murder in addition to drug dealing and should be convicted on unproven crime evidence.”

(Opening Br. at 10.) But that is a strange twist on the evidence. It is difficult to imagine

that the jury heard Ramos’s testimony and thought that Morales had shot up his own

home, endangering his wife and children. There was no such prejudice from what Ramos

said.

        The better argument, and one that Morales made below, is that Ramos’s testimony

poisons the well against him by making it seem as though some unidentified parties

might have had a lethal vendetta against him, perhaps making it more likely that he

himself was engaged in illegal activity, like the drug trafficking conspiracy with which he

was charged. Though that argument has more force, the District Court did not abuse its

                                              6
discretion by rejecting it because the government’s counterargument is stronger. It

contends that Ramos’s testimony established that there was a close and trusting

relationship between him and Morales, and that Ramos therefore would not falsely

implicate Morales as a co-conspirator. According to the government, the fact that

Morales moved his family to live with Ramos after someone fired upon Morales’s home

shows that there was that kind of relationship. The testimony thus had probative value

insofar as it strengthened Ramos’s credibility. See Universal Rehabilitation, 205 F.3d at

665 (identifying as an example of probative value evidence that “allow[s] the jury

accurately to assess the credibility of the witness”).

       Moreover, the District Court reduced any potential for unfair prejudice by

instructing the jury not to “use th[e] evidence of a shooting as any indication at all of Mr.

Morales’[s] guilt.” (App. 234.) We generally “presume that juries follow their

instructions.” United States v. Lee, 573 F.3d 155, 162 (3d Cir. 2009). We also note that

Morales did not offer any stipulation or alternative that might have limited any prejudice.

We cannot say the District Court’s decision to admit the testimony was arbitrary or

irrational, and thus the decision was not an abuse of discretion.

       B.     Jury Instructions

       Morales next argues that the District Court erred in refusing his request to instruct

the jury that a defense to a criminal charge can be established by circumstantial evidence.

As with our review of the issue regarding Rule 403, we review for an abuse of discretion

the Court’s refusal to give a particular jury instruction. United States v. Jimenez, 513

F.3d 62, 74 (3d Cir. 2008). We will reverse “only when the requested instruction was

                                              7
correct, not substantially covered by the instructions given, and was so consequential that

the refusal to give the instruction was prejudicial to the defendant,” United States v.

Leahy, 445 F.3d 634, 651 (3d Cir. 2006), abrogated in part on other grounds by

Loughrin v. United States, 134 S. Ct. 2384 (2014). Morales has failed to establish those

elements.

       The District Court instructed the jury to “consider all of the evidence that is

presented in this trial, direct and circumstantial.” (App. 227.) It defined circumstantial

evidence as “evidence which, if you believe it, indirectly proves a fact.” (App. 226.) The

Court also told the jury that it could draw reasonable inferences from the evidence

presented, and that “[t]he government may ask you to draw one inference and the defense

may ask you to draw another.” (App. 227.) In the jury instructions on circumstantial

evidence and reasonable inferences, the Court did not make any reference to an

affirmative defense advanced by Morales. That may have been because he advanced

none. In response to Morales’s belated request for an additional circumstantial evidence

instruction, the Court noted that, had Morales presented an affirmative defense, a more

specific instruction might have been warranted, but, as it was, Morales’s requested

instruction was adequately covered by the general instruction about circumstantial

evidence.

       Morales asserts that his “defense theory” was that he “was not directly involved in

the drug conspiracy.” (Opening Br. at 11.) That, of course, is not an affirmative defense.

And Morales presents no examples of how he attempted to support that defense theory

with any evidence, circumstantial or otherwise. His “theory” was simply a reliance upon

                                              8
the government’s burden to prove its case beyond a reasonable doubt and his assertion

that they had failed to meet that burden. Because he did not advance an affirmative

defense, or otherwise present a defense theory supported by evidence, his requested

instruction was entirely unnecessary, and the District Court did not abuse its discretion in

refusing to give it.

       C.      Sentencing Appeal

       Lastly, Morales argues that his sentence was substantively unreasonable. We

review a district court’s legal conclusions concerning the application of the sentencing

guidelines de novo, its application of the guidelines to the facts for abuse of discretion,

and its factual findings for clear error. United States v. Blackmon, 557 F.3d 113, 118 (3d

Cir. 2009). In making his substantive unreasonableness claim, Morales advances three

subsidiary arguments.

       First, he argues that the District Court’s finding of fact that the conspiracy

involved 21 kilograms of heroin – when the charge itself only required the jury to find

that the conspiracy involved more than one kilogram of heroin4 – violated his Sixth


       4
         Morales’s crime of conviction required that the jury find that the conspiracy
involved “1 kilogram or more of a mixture or substance containing a detectable amount
of heroin … .” 21 U.S.C. § 841(b)(1)(A)(i). The Sentencing Guidelines specify varying
offense levels based upon the quantity of controlled substances involved in that criminal
offense. U.S.S.G. § 2D1.1(c). District courts often make factual determinations about
drug quantities, in order to calculate a defendant’s offense level and thus the advisory
guidelines range. Here, the Guidelines in effect at the time of Morales’s sentencing
called for a base offense level of 36 because the offense involved 21 kilograms of heroin,
which is at least 10 but less than 30 kilograms of heroin. See U.S.S.G.
§ 2D1.1(a)(5)(c)(2) (2013). At the time of Morales’s sentencing, however, an
amendment to the sentencing guidelines was pending (but not yet in effect) that would
revise the Drug Quantity Table in U.S.S.G. § 2D1.1 and reduce by two levels the offense
                                              9
Amendment rights pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000). Apprendi

held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for

a crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” Id. at 490; see also Alleyne v. United States, 133 S.

Ct. 2151, 2163 (2013) (holding, by extension of Apprendi, that “facts that increase

mandatory minimum sentences must be submitted to the jury”). Here, the District

Court’s drug quantity finding did not affect Morales’s mandatory minimum of ten years

and did not increase Morales’s statutory maximum penalty – nor could it, since his

maximum penalty was life in prison. 21 U.S.C. § 841(b)(1)(A). Instead, the District

Court’s quantity finding affected only his non-binding guidelines range, rendering

Apprendi entirely inapplicable. United States v. Vazquez, 271 F.3d 93, 98 (3d Cir. 2001)

(en banc). The Apprendi argument is meritless.5

       Next, Morales argues that the evidence was insufficient to support the District

Court’s finding that he was a supervisor or manager in a criminal conspiracy of five or

more participants, a factual finding that triggered a three-level enhancement in his

offense level. See U.S.S.G § 3B1.1(b). He contests both findings implicit in the three-

level role enhancement: that the conspiracy involved five or more participants, and that


level applicable to many federal drug trafficking offenses. During sentencing, Morales
received the benefit of that pending two-level reduction, on the government’s motion.
       5
        Morales also says in passing that the District Court’s drug quantity finding was
“speculative” and did not meet the preponderance of the evidence standard. (Opening Br.
at 16.) We disagree. The District Court’s finding was a conservative estimate based on
the government’s calculations from testimony admitted at trial. It was not clearly
erroneous.
                                              10
he had a managerial role in it. We do not believe the District Court’s finding on either

point was clearly erroneous. As to the finding that more than five individuals were

involved, the record is clear that Morales was a participant in a significant heroin

distribution conspiracy in North Philadelphia that involved many more than five people.

As for his role as a manager, the application notes to the guidelines state that, to qualify

for the enhancement, “the defendant must have been the organizer, leader, manager, or

supervisor of one or more other participants.” Id., app. note 2. A defendant is a

supervisor or manager of criminal activity if he or she “exercise[s] some degree of

control over others involved in the offense.” United States v. Chau, 293 F.3d 96, 103 (3d

Cir. 2002) (citation omitted). Morales controlled two corners in North Philadelphia, and

managed the heroin sales at those corners by Ramos and others. The District Court’s

factual findings underlying the three-level role enhancement were not clearly erroneous.

       Third and finally, Morales argues – in a single sentence – “that his criminal history

of IV over-represents the seriousness of his criminal history and should be reduced.”6

(Opening Br. at 17.) One problem with that contention is that Morales’s criminal history

category was III, not IV. Setting that aside, we lack jurisdiction to review a district

court’s refusal to grant an overrepresentation departure when the district court recognizes

its authority to depart but exercises its discretion not to do so. United States v. Stevens,

223 F.3d 239, 247 (3d Cir. 2000). Here, the District Court declined to grant Morales’s


       6
        Such a reduction may be warranted “[i]f reliable information indicates that the
defendant’s criminal history category substantially over-represents the seriousness of the
defendant’s criminal history or the likelihood that the defendant will commit other
crimes.” U.S.S.G. § 4A1.3(b).
                                              11
request for a downward departure because it believed that the Guidelines’ assessment of

Morales’s criminal history was “very accurate.” (App. 302.) In refusing Morales’s

request, the Court never said or implied that it was without legal authority to grant the

downward departure. Because the Court exercised its discretion when deciding whether

to grant the downward departure, we are without jurisdiction to review that decision.7

       In short, the District Court acted within its discretion in imposing Morales’s

sentence.

III.   CONCLUSION

       For the foregoing reasons, we will affirm the District Court’s judgment of

conviction and sentence.




       7
        We also note that the District Court took the same overrepresentation arguments
into account when crafting Morales’s sentence, which represented a forty-month
downward variance from the bottom of his guidelines range.
                                             12
