              Case: 17-15505     Date Filed: 11/02/2018   Page: 1 of 8


                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 17-15505
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 7:17-cr-00081-LSC-JHE-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff - Appellee,

                                           versus

SILVERIO CANALES-LICONA,
a.k.a. Silveiio Canales-Licona,

                                                              Defendant - Appellant.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                          ________________________

                                (November 2, 2018)

Before MARCUS, ROSENBAUM and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Silverio Canales-Licona appeals his conviction and 170-month total sentence

imposed after a jury found him guilty of one count of possession of cocaine with

intent to distribute, in violation of 21 U.S.C. § 841(a)(1). On appeal, Canales argues
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that: (1) the district court abused its discretion at trial by permitting a cooperating

individual to testify that he had previously acted as a drug courier, in violation of

Fed. R. Evid. 404(b) and 403; and (2) the district court erred at sentencing by not

applying a minor-role downward adjustment to his offense level, pursuant to

U.S.S.G. § 3B1.2(b). After thorough review, we affirm.

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

States v. Docampo, 573 F.3d 1091, 1096 (2009). We will reverse an erroneous

evidentiary ruling only if the error was not harmless. United States v. Langford, 647

F.3d 1309, 1323 (11th Cir. 2011). An error is harmless unless there is a reasonable

likelihood that it affected the defendant’s substantial rights. Id. We will not reverse

if sufficient evidence uninfected by error supports the verdict, and the error did not

have a substantial influence on the outcome of the case. Id.

      We review a district court’s denial of a role reduction for clear error. United

States v. Bernal-Benitez, 594 F.3d 1303, 1320 (11th Cir. 2010). We give great

deference to the court for this factual inquiry, since the court “is in the best position

to weigh and assess both the defendant’s role in [his] relevant conduct and the

relative degrees of culpability of the other participants in that conduct.” United

States v. De Varon, 175 F.3d 930, 938 (11th Cir. 1999) (en banc).

      First, we are unpersuaded by Canales’s claim that the district court abused its

discretion by allowing a cooperating individual to testify at trial in violation of


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Federal Rules of Evidence 404(b) and 403. Federal Rule of Evidence 404(b) forbids

the admission of evidence of “a crime, wrong, or other act . . . to prove a person’s

character in order to show that on a particular occasion the person acted in

accordance with the character.” Fed. R. Evid. 404(b). However, this evidence may

be admissible for other purposes, including proof of intent, knowledge, or absence

of mistake. Id. To be admissible, the Rule 404(b) evidence must (1) be relevant to

an issue other than the defendant’s character, (2) be sufficiently proven to allow a

jury to find that the defendant committed the extrinsic act, and (3) possess probative

value that is not substantially outweighed by its undue prejudice under Fed. R. Evid.

403. United States v. Barron-Soto, 820 F.3d 409, 417 (11th Cir. 2016).

      Federal Rule of Evidence 403 permits a court to “exclude relevant 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.

Rule 403 “is an extraordinary remedy which the district court should invoke

sparingly, and the balance should be struck in favor of admissibility.” United States

v. Lopez, 649 F.3d 1222, 1247 (11th Cir. 2011) (quotation omitted).

      In reviewing issues under Rule 403, we “look at the evidence in a light most

favorable to its admission, maximizing its probative value and minimizing its undue

prejudicial impact.” United States v. Edouard, 485 F.3d 1324, 1344 n.8 (11th Cir.


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2007) (quotation omitted). Relevant circumstances for determining if the danger of

unfair prejudice substantially outweighs the probative value of Rule 404(b) evidence

include: whether the defendant would contest the issue of knowledge or intent, the

overall similarity of the extrinsic act and the charged offense, and the temporal

remoteness between the extrinsic act and the charged offense. United States v.

Jernigan, 341 F.3d 1273, 1281-82 (11th Cir. 2003).

        Canales challenges the district court’s admission of testimony from Epifanio

Acosta, an individual who had cooperated with the government and who testified

about Canales’s prior involvement in transporting drugs, and claims that Acosta’s

testimony was not probative of Canales’s knowing possession of the drugs, and was

prejudicial. But, as the record reveals, the district court did not abuse its discretion

in admitting Acosta’s testimony under Rule 404(b). For starters, Canales disputed

his intent and knowledge in the drug smuggling. Id. at 1282. As for temporal

proximity, Acosta testified that he used Canales to transport drugs in the summer of

2016 and Canales was arrested for the instant offense shortly thereafter, in December

2016.    As for the offenses’ similarities, in both occasions: (1) Canales was

transporting cocaine; (2) Canales was using his legitimate employment as a trucker

in order to conceal his transportation of quantities of cocaine; and (3) Canales was

using refrigerated trailers to transport the drugs. Even though the drugs were

concealed in the truck trailer this time and the truck cab last time, the knowledge


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element of Canales’s offense of conviction, 21 U.S.C. § 841(a)(1), requires only that

Canales knew he was possessing a controlled substance, not that he knew every

detail of the contraband. Cf. United States v. Sanders, 668 F.3d 1298, 1310-13 (11th

Cir. 2012). On this record, the district court neither violated Rule 404(b) nor Rule

403 in concluding that the probative value of the evidence substantially outweighed

any danger of unfair prejudice. Edouard, 485 F.3d at 1344 n.8; Lopez, 649 F.3d at

1247.

        We also find no merit to Canales’s claim that the district court clearly erred at

sentencing by not applying a minor-role reduction. The Sentencing Guidelines

provide for a two-level decrease to a base offense level if a defendant was a minor

participant in the criminal activity. U.S.S.G § 3B1.2(b). A minor participant is one

who is less culpable than most other participants, “but whose role could not be

described as minimal.”       Id., comment. (n.5).     In determining whether a role

adjustment is applicable, the district court: (1) must compare the defendant’s role

against the relevant conduct for which he was held accountable, and (2) may also

measure the defendant’s role against the other discernable participants in that

relevant conduct. De Varon, 175 F.3d at 945.                However, “[t]he fact that a

defendant’s role may be less than that of other participants engaged in the relevant

conduct may not be dispositive of role in the offense, since it is possible that none

are minor or minimal participants.” Id. at 944.


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      The determination of whether to apply a mitigating-role adjustment “is

heavily dependent upon the facts of the particular case.”         U.S.S.G. § 3B1.2,

comment. (n.3(C)). Among other things, the district court may consider the degree

to which the defendant understood the scope and structure of the criminal activity,

participated in planning or organizing the criminal activity, exercised decision-

making authority, and stood to gain from the transaction, as well as the nature and

extent of the defendant’s participation in the commission of the criminal activity,

including the acts the defendant performed, and the defendant’s responsibility and

discretion in performing them. Id.; see also De Varon, 175 F.3d at 945 (instructing

courts to consider similar factors in drug courier context).

      We’ve recognized that “when a drug courier’s relevant conduct is limited to

her own act of importation, a district court may legitimately conclude that the courier

played an important or essential role in the importation of those drugs.” De Varon,

175 F.3d at 942-43; U.S.S.G. § 3B1.2, comment. (n.3(A)) (“[A] defendant who is

convicted of a drug trafficking offense, whose participation in that offense was

limited to transporting or storing drugs and who is accountable under [U.S.S.G.] §

1B1.3 only for the quantity of drugs the defendant personally transported or stored

may receive an adjustment under this guideline). However, we’ve declined to

“create a presumption that drug couriers are never minor or minimal participants,

any more than that they are always minor or minimal”; rather, “the district court


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must assess all of the facts probative of the defendant’s role in [his] relevant conduct

in evaluating the defendant’s role in the offense.” De Varon, 175 F.3d at 943; see

id. at 942 (“[C]ourier status in and of itself is not dispositive of whether a defendant

is entitled to or precluded from receiving a downward adjustment for role in the

offense”). The defendant bears the burden of establishing his minor role in the

offense by a preponderance of the evidence. Bernal-Benitez, 594 F.3d at 1320.

      Here, the district court did not clearly err in denying Canales the minor role

adjustment. As the record reflects, the relevant conduct attributable to Canales was

the transportation of more than 70 kilograms of cocaine, which means that his base

offense level accounted for the actual amount of drugs involved in his offense, and

that the relevant conduct attributed to him is identical to his actual conduct. Thus,

under De Varon, Canales was involved with the full amount of drugs for which he

was held accountable. The record further reveals that Canales had leeway and

discretion in transporting the drugs -- he essentially acted as an “independent

contractor,” obtaining the truck, developing an alibi, and preparing the paperwork to

make his trip seem legitimate. There was no evidence that his truck or trailer was

equipped with a GPS or other monitoring apparatus, so the source of the cocaine

placed a great deal of trust in him. Finally, Canales has failed to prove that he played

a lesser role in his offense than the conduct attributed to him in calculating his base




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offense level. Thus, it was not clear error for the district court to weigh Canales’s

culpability in the scheme of his own conduct, and we affirm.

      AFFIRMED.




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