                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                            No. 10-15289          NOVEMBER 28, 2011
                                        Non-Argument Calendar         JOHN LEY
                                                                        CLERK
                                      ________________________

                          D.C. Docket No. 8:09-cr-00373-RAL-TGW-1

UNITED STATES OF AMERICA,

lllllllllllllllllllllllllllllllllllllll                              lPlaintiff-Appellee,

    versus

MACIEJ MAREKWAZNY,

lllllllllllllllllllllllllllllllllllllll                            lDefendant-Appellant.

                                     ________________________

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

                                          (November 28, 2011)

Before HULL, MARCUS and BLACK, Circuit Judges.

PER CURIAM:

         Maciej Wazny appeals his convictions and 240-month total sentence for

conspiracy to import Gamma-Butyrolactone (“GBL”) for human consumption into
the United States from outside of the United States, in violation of 21 U.S.C. §§ 963

and 960(b)(3); of importation of GBL for human consumption into the United States

from a place outside of the United States, in violation of 21 U.S.C. §§ 952, 802(32),

813 and 960(b)(3); and possession and distribution of GBL, for human consumption,

after unlawfully importing the substance into the United States from a place outside

the United States, in violation of 21 U.S.C. §§ 959, 802(34)(X), 813, 802(32) and

960(b)(3).1 On appeal, Wazny argues that: (1) the district court erred in admitting

hearsay evidence under the statements of a co-conspirator exception; (2) his

convictions were not supported by sufficient evidence; (3) the district court abused

its discretion in giving a deliberate ignorance instruction; (4) and his sentence was

procedurally and substantively unreasonable. After careful review, we affirm.

       We review a district court’s evidentiary rulings for abuse of discretion. United

States v. Massey, 89 F.3d 1433, 1441 (11th Cir. 1996). We review a challenge to the

sufficiency of the evidence de novo, viewing the evidence in the light most favorable

to the government. United States v. Jones, 601 F.3d 1247, 1267 (11th Cir. 2010).

While we review the legal correctness of a jury instruction actually given de novo,



       1
         “If taken for human consumption, common industrial chemicals such as gamma
butyrolactone [GBL] . . . are swiftly converted by the body into GHB,” commonly known as the
“date rape drug.” United States v. Fisher, 289 F.3d 1329, 1331, 1335 (11th Cir. 2002) (quoting
Pub. Law No. 106-172, § 2(4) (2000)).

                                               2
jury instructions are subject to harmless error review. United States v. Webb, __ F.3d

__, 2011 WL 4011023 n.8 (11th Cir. 2011); Fed.R.Civ.P. 61. An error is harmless

unless “there is a reasonable likelihood that [it] affected the defendant’s substantial

rights.” United States v. Hawkins, 905 F.2d 1489, 1493 (11th Cir.1990). We review

the district court’s application and legal interpretations of the Guidelines de novo, and

the district court’s factual determinations for clear error. United States v. Zaldivar,

615 F.3d 1346, 1350 (11th Cir. 2010), cert. denied, 131 S.Ct. 959 (2011). Lastly, we

review the sentence a district court imposes for “reasonableness,” which “merely asks

whether the trial court abused its discretion.” United States v. Pugh, 515 F.3d 1179,

1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. 338, 351 (2007)).

      First, we are unpersuaded by Wazny’s claim that the district court erred in

admitting hearsay evidence. All relevant evidence is presumed to be admissible. See

Fed.R.Evid. 402. While evidence may constitute hearsay -- an out-of-court statement

introduced to prove the truth of the matter asserted -- certain exceptions to the hearsay

rule exist. See Fed.R.Evid. 801, 802. Moreover, evidence which is not hearsay need

not fit into any exception to the rule excluding hearsay. See Untied States v. Mateos,

623 F.3d 1350, 1364 (11th Cir. 2010), cert. denied, 131 S.Ct. 1540 (2011). One

exception to the hearsay rule applies to statements of a co-conspirator. In order to

introduce these statements under Fed.R.Evid. 801(d)(2)(E), the government must

                                           3
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 Federal Rules of Evidence provide that evidence is properly authenticated

when there is “evidence sufficient to support a finding that the matter in question is

what its proponent claims.” Fed.R.Evid. 901(a). Authentication under Rule 901 only

requires the presentation of “sufficient evidence to make out a prima facie case that

the proffered evidence is what it purports to be. Once that prima facie showing has

been made, the evidence should be admitted” and the trier of fact permitted to

determine whether the proffered evidence is what it purports to be. United States v.

Caldwell, 776 F.2d 989, 1001-02 (11th Cir. 1985). The district court’s determination

of authenticity should not be disturbed unless there is no competent evidence in the

record to support it. United States v. Munoz, 16 F.3d 1116, 1120-21 (11th Cir. 1994).

      The Confrontation Clause bars the admission of “testimonial” hearsay unless

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

cross-examination. Crawford v. Washington, 541 U.S. 36, 68 (2004). Hearsay

statements are testimonial when, among other things, they are “made under

circumstances which would lead an objective witness reasonably to believe that the


                                          4
statement would be available for use at a later trial.” Id. at 52 (quotation omitted).

Statements made in private conversation are generally nontestimonial because there

is no reason to believe that the statements will be used at trial. See United States v.

US Infrastructure, Inc., 576 F.3d 1195, 1209 (11th Cir. 2009).

      Here, the district court did not err in admitting hearsay evidence under the

co-conspirator’s statements exception. As for the undated video and the statements

contained therein, a co-conspirator’s t-shirt and the apparent container of GBL were

enough to establish that the video was made during the course of and in furtherance

of the charged conspiracy. This conclusion was further supported by the audible

word “GBL” along with Wazny’s statement expressing concern about driving on it.

      As for the letter written by co-conspirator Brian Lang to Wazny, the letter was

properly authenticated by a customs investigator, who testified as to how the letter

was intercepted by prison officials and given to the investigator. Additionally, the

introduction of Lang’s letter did not violate Wazny’s Sixth Amendment rights. The

letter was comparable to a private conversation and there is no evidence whatsoever

that Lang believed it would later be available for use at trial when he wrote it.

Therefore, the letter was not testimonial in nature and Wazny’s inability to

cross-examine Lang did not violate his Sixth Amendment rights. Accordingly, the

district court did not abuse its discretion in admitting this evidence.


                                           5
      Next, we find no merit in Wazny’s argument that the evidence was insufficient

to support his convictions. In considering the sufficiency of the evidence, we must

decide whether any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. United States v. Hernandez, 433 F.3d 1328,

1335 (11th Cir. 2005). “[A] statement by a defendant, if disbelieved by the jury, may

be considered as substantive evidence of the defendant’s guilt.” United States v.

Brown, 53 F.3d 312, 314 (11th Cir. 1995).

      “To sustain a conviction for conspiracy [under 21 U.S.C. § 963], the

government must prove beyond a reasonable doubt that (1) an illegal agreement

existed; (2) the defendant knew of it; and (3) the defendant, with knowledge,

voluntarily joined it.” Hernandez, 433 F.3d at 1333. The required elements of a

conspiracy can be established by inference from the actions of the conspirators or by

circumstantial evidence. United States v. Gianni, 678 F.2d 956, 959 (11th Cir. 1982).

To sustain a conviction for possession and distribution of GBL for human

consumption, the government must prove that the defendant sold the GBL with the

intention that it be used for human consumption, or the knowledge that it was being

purchased for human consumption. See 21 U.S.C. § 813.

      Viewing the evidence in the light most favorable to the government, there was

sufficient evidence presented at trial to support the jury’s conclusion that Wazny was


                                          6
guilty beyond a reasonable doubt. First, there is sufficient evidence to support the

conspiracy conviction. Wazny himself testified that he ran his internet business

Cleanstar Poland with the help of his brother, and undisputed evidence showed that

his wife also assisted in the running of the business, which essentially started

following dissolution of Cleanstar Germany, which had sold GBL as a purported glue

remover. The evidence further showed that Wazny was involved in some way with

Brian Lang and Cleanstar Germany, and either Wanzy or someone on the video asked

about taking GBL while driving in the company of Brian Lang and two of Wazny’s

cousins. Taken together, these things provided sufficient evidence for a rational trier

of fact to find a conspiracy, since the fact that Wazny ran Cleanstar Poland with his

family would be enough to satisfy the definition of a conspiracy.

      There was also sufficient evidence to support the jury’s conclusion that Wazny

was selling his product for human consumption. Wazny himself admitted that he

knew GBL could be used for human consumption, and the video established that he

had personal knowledge of that fact. In addition, Wazny testified in his own defense,

and the jury was entitled to use his testimony against him and conclude that he was

lying and therefore guilty. Thus the evidence was sufficient to sustain his convictions

on each of the substantive counts.




                                          7
      We are likewise unpersuaded by Wazny’s argument that the district court

abused its discretion in giving a deliberate ignorance instruction. A deliberate

ignorance instruction is warranted when the facts “support the inference that the

defendant was aware of a high probability of the existence of the fact in question and

purposely contrived to avoid learning all of the facts in order to have a defense in the

event of a subsequent prosecution.” United States v. Rivera, 944 F.2d 1563, 1571

(11th Cir. 1991) (quotation omitted). We have held that instructing the jury on

deliberate ignorance is harmless error where the jury was also instructed and could

have convicted on an alternative, sufficiently supported theory of actual knowledge.

United States v. Kennard, 472 F.3d 851, 858 (11th Cir. 2006).

      On this record, the district court did not abuse its discretion by instructing the

jury on deliberate ignorance. For starters, there was evidence that Wazny had actual

knowledge that his product was being used for human consumption. Conversely,

because he denied any intent to sell GBL for personal consumption, a jury could have

concluded that he was avoiding the knowledge that his product was being used for

human consumption. But even assuming arguendo that the evidence was insufficient

to show purposeful avoidance, any error by the district court was harmless, since

there was sufficient evidence in this case to support a finding that Wazny had actual

knowledge that his product was being used for human consumption.


                                           8
       Finally, we reject Wazny’s argument that his sentence was procedurally and

substantively unreasonable. In reviewing sentences for reasonableness, we perform

two steps. Pugh, 515 F.3d at 1190. First, we “‘ensure that the district court

committed no significant procedural error, such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as mandatory, failing to

consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts,

or failing to adequately explain the chosen sentence -- including an explanation for

any deviation from the Guidelines range.’” Id. (quoting Gall v. United States, 552

U.S. 38, 51 (2007)).2

       “[F]actual findings used to support a sentencing enhancement must be based

on reliable and specific evidence and cannot be based on speculation.” United States

v. Newman, 614 F.3d 1232, 1238 (11th Cir. 2010). The government bears the burden

of proving the applicability of a Guidelines enhancement, while the defendant bears

the burden of proving the applicability of a Guidelines reduction. United States v.




       2
          The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).

                                                 9
Belfast, 611 F.3d 783, 823 (11th Cir. 2010), cert. denied, 131 S.Ct. 1511 (2011);

Zaldivar, 615 F.3d at 1352.

      Under U.S.S.G. § 2D1.1, the base offense level for a drug offense is generally

calculated by determining the quantity of drugs attributable to a defendant. In cases

“[w]here there is no drug seizure or the amount seized does not reflect the scale of the

offense, the court shall approximate the quantity of the controlled substance.” United

States v. Frazier, 89 F.3d 1501, 1506 (11th Cir. 1996) (quotation omitted). The court

may base its approximation on evidence of the average frequency and amount of the

defendant’s drug sales. Id. Nevertheless, the court’s approximation of the drug

amount must be “fair, accurate, and conservative,” and not “merely speculative.”

United States v. Zapata, 139 F.3d 1355, 1359 (11th Cir. 1998).

      Under U.S.S.G. § 3C1.1, the district court may increase the defendant’s

guideline range by two levels if “(A) the defendant willfully obstructed or impeded,

or attempted to obstruct or impede, the administration of justice with respect to the

investigation, prosecution, or sentencing of the instant offense of conviction, and (B)

the obstructive conduct related to (i) the defendant’s offense of conviction and any

relevant conduct; or (ii) a closely related offense.” A “sentencing judge clearly has

the authority to enhance a defendant’s offense level if the judge makes an




                                          10
independent factual finding that the defendant willfully lied in trial testimony.”

United States v. Husky, 924 F.2d 223, 224 (11th Cir. 1991).

      If we conclude that the district court did not procedurally err, we must consider

the   “‘substantive   reasonableness     of    the   sentence   imposed    under    an

abuse-of-discretion standard,’” based on the “‘totality of the circumstances.’” Pugh,

515 F.3d at 1190 (quoting Gall, 552 U.S. at 51). This review is “deferential,”

requiring us to determine “whether the sentence imposed by the district court fails to

achieve the purposes of sentencing as stated in section 3553(a).” United States v.

Talley, 431 F.3d 784, 788 (11th Cir. 2005). We will “vacate the sentence if, but only

if, we are 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 outside the range of reasonable sentences dictated by the facts of the case.”

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

omitted), cert. denied, 131 S. Ct. 1813 (2011). “The party challenging the sentence

bears the burden to show it is unreasonable in light of the record and the § 3553(a)

factors.” United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010), cert. denied,

131 S.Ct. 674 (2010).

      Wazny has not shown that his sentence was procedurally unreasonable. For

starters, the district court did not clearly err in calculating the amounts of GBL


                                          11
attributed to Wazny since this amount was undisputed, and derived from Wazny’s

testimony and business records, which showed that he purchased 4600 kilograms of

GBL from his supplier during the time period that he operated Cleanstar Poland.

There was also no error in calculating this amount since, as noted above, the

government presented sufficient evidence at trial to show that Wazny knew the

product was being used for human consumption. Nor did the district court clearly err

in applying the obstruction of justice enhancement. The district court’s finding that

Wazny willfully lied at trial, in conjunction with the jury’s verdict of guilty, was

enough for the district court to properly apply an obstruction of justice enhancement.

      Wazny’s sentence was also substantively reasonable. Wazny’s sentence, at the

statutory maximum, was still 120 months below the guideline range. And while

Wazny’s total sentence was higher than his co-conspirator’s, Wazny was also held

accountable for a much larger quantity of GBL. Moreover, the record shows that the

district court clearly considered all of the § 3553(a) factors when it imposed the

sentence. Accordingly, his sentence was reasonable, and we affirm.

      AFFIRMED.




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