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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-11065
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 0:14-cr-60259-WPD-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

MARIO ALBERTO CERVANTE-SANCHEZ,

                                                          Defendant-Appellant.

                       ________________________

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

                             (August 10, 2016)

Before TJOFLAT, WILSON and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Mario Alberto Cervante-Sanchez was convicted of conspiring to possess

methamphetamine with intent to distribute and possessing methamphetamine with

intent to distribute. The district court sentenced him to 180 months’ imprisonment.

He now appeals his convictions and sentence, arguing that the district court (1)

abused its discretion when it denied his motion for a new trial, (2) improperly

imposed a two-level enhancement pursuant to § 3B1.4 of the United States

Sentencing Guidelines (the Guidelines) for using a minor in the commission of a

crime, (3) erroneously denied him safety-valve relief under §§ 2D1.1 and 5C1.2 of

the Guidelines, and (4) imposed a substantively unreasonable sentence. We affirm.

                                          I

      Cervante-Sanchez first argues that the district court erred in denying his

motion for a new trial. During trial, the Government offered into evidence text

messages obtained from Cervante-Sanchez’s cell phone between Cervante-Sanchez

and an alleged co-conspirator. However, the Government had not provided those

messages to Cervante-Sanchez in discovery. In his motion for new trial, Cervante-

Sanchez claimed that a new trial was warranted because the Government’s failure

to provide the text messages in discovery substantially prejudiced his defense.

Specifically, he asserted that the introduction of the text messages was a surprise

and crucially undercut his argument that he did not conspire with any individuals

who were not undercover law enforcement officers or informants.


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      We review a district court’s decision not to grant a motion for a new trial for

abuse of discretion. See United States v. Sweat, 555 F.3d 1364, 1367 (11th Cir.

2009) (per curiam). A discovery violation is only grounds for a new trial if it

violated the defendant’s “substantial rights.” See United States v. Camargo-

Vergara, 57 F.3d 993, 998 (11th Cir. 1995). A defendant’s substantial rights are

violated if the defendant is “unduly surprised and lacks an adequate opportunity to

prepare a defense,” or “if the mistake substantially influences the jury.” See id. at

998–99.

      The district court did not abuse its discretion in denying Cervante-Sanchez’s

motion for a new trial. It was within the district court’s discretion to find that the

Government’s failure to produce the text messages during discovery did not

substantially prejudice Cervante-Sanchez.

      First, the record belies the notion that Cervante-Sanchez was unduly

surprised by the text messages at trial. The text messages were Cervante-

Sanchez’s own correspondences, “which he should have had some knowledge of.”

See United States v. Rivera, 944 F.2d 1563, 1566 (11th Cir. 1991) (holding that a

defendant was not unduly surprised by the delayed disclosure of evidence showing

that he made an inculpatory statement). And, “[m]ore importantly, if [Cervante-

Sanchez] had, in fact, been prejudiced by the delayed disclosure of th[e] [text

messages], he should have” raised a discovery violation objection at trial. See id.


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However, he lodged no such objection. Instead, he only complained about the

violation in his motion for new trial—which he filed after the jury rendered a

guilty verdict.

      Second, the record shows that the Government’s mistake did not have a

substantial influence on the jury. As the district court found, the text message

evidence of a conspiracy with non-law-enforcement actors was cumulative of other

evidence offered at trial. For example, the Government put forth evidence that,

during a conversation with an undercover law enforcement officer about a drug

transaction, Cervante-Sanchez stated that he would obtain drugs for the transaction

from his drug supplier source. Given that the text messages were cumulative of

other evidence showing that Cervante-Sanchez conspired with persons not

affiliated with law enforcement, the Government’s late disclosure of the evidence

did not have a substantial effect on the jury. See id. at 1566–67.

      Accordingly, the district court did not abuse its discretion when it denied

Cervante-Sanchez’s motion for a new trial.

                                          II

      Cervante-Sanchez next asserts that the district court erroneously imposed a

two-level enhancement pursuant to § 3B1.4 of the Guidelines for using a minor in

the commission of a crime. Cervante-Sanchez drove to the city where the relevant

drug transaction was to be conducted, bringing three children on the trip. The


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children included an infant and a baby. And, during the trip, Cervante-Sanchez hid

drugs in diaper boxes in his car. He also packed substances in the diaper boxes

that are typically used to conceal the scent of drugs. The district court imposed the

§ 3B1.4 enhancement after concluding that Cervante-Sanchez used the children to

avoid detection by law enforcement. The court determined that Cervante-Sanchez

brought the children on the trip because the combination of the diaper boxes and

the children in his car would make it less likely that law enforcement would be

suspicious of him.

      “We review a sentencing court’s findings of fact for clear error and its

application of the [G]uidelines de novo.” United States v. Victor, 719 F.3d 1288,

1290 (11th Cir. 2013). “For a finding to be clearly erroneous, this Court must be

left with a definite and firm conviction that a mistake has been committed.”

United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir. 2010) (internal quotation

marks omitted).

      The Guidelines provide for a two-level upward adjustment if “the defendant

used or attempted to use a person less than eighteen years of age to commit the

offense or assist in avoiding detection of, or apprehension for, the offense.”

U.S.S.G. § 3B1.4. This adjustment is designed “to protect minors as a class from

being solicited, procured, recruited, counseled, encouraged, trained, directed,

commanded, intimidated, or otherwise used to commit crime.” United States v.


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Futch, 518 F.3d 887, 896 (11th Cir. 2008) (internal quotation marks omitted). The

adjustment is “warranted only where the defendant takes some affirmative step to

involve a minor in the commission of the criminal activity.” Id. (internal quotation

mark omitted).

      Here, the district court did not err in applying the § 3B1.4 enhancement.

Cervante-Sanchez took the affirmative steps of (1) bringing young children with

him on a trip in which he was transporting drugs to a city for the purpose of selling

the drugs and (2) hiding the drugs in diaper boxes—boxes that, due to their

association with young children, would seem normal in a car full of children.

Moreover, Cervante-Sanchez put substances that are normally used to conceal the

scent of drugs from law enforcement canine in the boxes, demonstrating that he

contemplated that he might be stopped by law enforcement during the trip. That

decision supports the district court’s finding that Cervante-Sanchez also brought

the children on the trip to avoid detection of his illicit activity. Taking these

circumstances together, “[w]e cannot say the district court clearly erred in its

factfinding that [Cervantes-Sanchez] was using the [children] to . . . conceal” drugs

or that the court “committed legal error in its conclusion that the § 3B1.4

enhancement applied to the facts here.” See id. at 897 (holding that the § 3B1.4

enhancement was appropriate where the defendant placed a baby on top of cocaine

to hide the cocaine).


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                                          III

      Cervante-Sanchez also claims that the district court erred in denying his

request for safety-valve relief. He argues that he is entitled to such relief because

he fully and completely confessed to law enforcement at the time of his arrest. The

district court rejected Cervante-Sanchez’s request for safety-valve relief after

finding that he was not truthful about his role in his offenses.

      We review a district court’s factual determinations in denying safety-valve

relief for clear error. United States v. Cruz, 106 F.3d 1553, 1557 (11th Cir. 1997).

Section 2D1.1(b)(17) of the Guidelines provides that a defendant may receive a

two-level reduction if he meets the safety-valve criteria set forth in § 5C1.2(a) of

the Guidelines. See U.S.S.G. § 2D1.1(b)(17). The defendant has the burden of

proving that he meets all of the safety-valve criteria. See Cruz, 106 F.3d at 1557.

Among those criteria is the requirement that: “not later than the time of the

sentencing hearing, the defendant has truthfully provided to the Government all

information and evidence the defendant has concerning the offense or offenses that

were part of the same course of conduct or of a common scheme or plan.”

U.S.S.G. § 5C1.2(a)(5). Under this requirement, “[t]he burden is on the defendant

to come forward and to supply truthfully to the [G]overnment all the information

that he possesses about his involvement in the offense, including information

relating to the involvement of others. . . .” Cruz, 106 F.3d at 1557. “[L]ies and


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omissions do not, as a matter of law, disqualify a defendant from safety-valve

relief so long as the defendant makes a complete and truthful proffer not later than

the commencement of the sentencing hearing.” United States v. Brownlee, 204

F.3d 1302, 1305 (11th Cir. 2000).

      There is sufficient evidence to support the district court’s conclusion that

Cervante-Sanchez did not satisfy the safety-valve provision’s “complete and

truthful proffer” requirement. Although Cervante-Sanchez substantially

cooperated with law enforcement at the time of his arrest, he ultimately claimed

that he did not know he was transporting illegal drugs in his car. That is, he

asserted that he was unaware of the exact contents of the packages inside the

diaper boxes. However, there was substantial evidence at trial that suggested

Cervante-Sanchez knew the packages contained illegal drugs. Under these

circumstances, the district court did not clearly err in finding that Cervante-

Sanchez failed to “come forward and . . . supply truthfully to the [G]overnment all

the information that he possesse[d] about his involvement in the offense.” See

Cruz, 106 F.3d at 1557 (affirming denial of safety-valve relief because the

defendant denied “that he knew that [his vehicle] contained illegal drugs,” despite

“substantial evidence to suggest that [he] knew the [vehicle] contained illegal

drugs”). Therefore, the district court properly denied Cervante-Sanchez safety-

valve relief.


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                                         IV

      Finally, Cervante-Sanchez asserts that his 180-month sentence is

substantively unreasonable in light of various mitigating factors and because he

was subjected to a guideline range of 151 to 188 months even though the

Government, at the plea negotiation stage, viewed a range of 70 to 87 months as

appropriate.

      We review the reasonableness of a sentence under a deferential abuse-of-

discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591

(2007). The party who challenges the substantive reasonableness of a sentence

must show that the sentence is unreasonable in light of the 18 U.S.C. § 3553(a)

factors and the record. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir.

2010).

      Cervante-Sanchez has not demonstrated that his sentence is substantively

unreasonable. His sentence is within the guideline range and is substantially below

the statutory maximum. We ordinarily expect such a sentence to be reasonable.

See United States v. Docampo, 573 F.3d 1091, 1101 (11th Cir. 2009); United

States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008) (per curiam). In addition,

the district court addressed the § 3553(a) factors and found that a within-guideline-

range sentence of 180 months’ imprisonment was appropriate. The district court

considered Cervante-Sanchez’s lack of criminal history and other mitigating


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factors. Nevertheless, it found that a guideline sentence was appropriate in light

of, inter alia, the total amount of drugs involved in his offenses. Thus, the district

court did not abuse its discretion in imposing a 180-month sentence.

      AFFIRMED.




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