                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 10-15127         ELEVENTH CIRCUIT
                                        Non-Argument Calendar     NOVEMBER 8, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                          D.C. Docket No. 8:09-cr-00248-SDM-TGW-1

UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,



                                                versus



NEY AYBAR,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.

                                     ________________________

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

                                           (November 8, 2011)

Before EDMONDSON, MARTIN, and KRAVITCH, Circuit Judges.

PER CURIAM:
      Ney Aybar appeals his conviction and 131-month sentence for conspiracy to

possess with intent to distribute cocaine, 21 U.S.C. § 846. Aybar argues that: (1)

defense counsel was ineffective at various stages of his proceedings before the

district court; (2) the evidence was insufficient to convict him as charged; (3) the

district court abused its discretion in admitting evidence of his prior drug

trafficking activities; (4) the district court abused its discretion in admitting co-

conspirators’ out-of-court statements without assessing their admissibility under

hearsay rules; (5) the district court abused its discretion in denying his motion for

substitute counsel; and (6) his sentence was unreasonable. After careful review of

the record and the parties’ briefs, we affirm Aybar’s conviction and sentence.

                                           I.

      Aybar first argues that defense counsel, for a number of reasons, was

ineffective at various stages of his proceedings before the district court. Where

appropriate, we will review claims of ineffective assistance of counsel de novo as

mixed questions of law and fact. Caderno v. United States, 256 F.3d 1213,

1216–17 (11th Cir. 2001). The Supreme Court has explained, however, that in

most cases the record will be inadequate to raise an ineffective-assistance claim on



                                           2
direct appeal because the trial evidence would be devoted to guilt-or-innocence

issues, as opposed to the reasoning behind counsel’s actions. Massaro v. United

States, 538 U.S. 500, 504–05, 123 S. Ct. 1690, 1694 (2003). As such, the record

“may contain no evidence of alleged errors of omission, much less the reasons

underlying them.” Id. at 505, 123 S. Ct. at 1694. Therefore, as a general matter,

“an ineffective assistance of counsel claim is properly raised in a collateral attack

on the conviction under 28 U.S.C. § 2255,” as opposed to direct appeal. United

States v. Merrill, 513 F.3d 1293, 1308 (11th Cir. 2008) (quotation marks and

alteration omitted). Here, the majority of Aybar’s ineffective-assistance claims

allege errors of omission, and the record provides little insight into defense

counsel’s tactical justifications, if any, for these omissions.1 Thus, we decline to

reach the merits of Aybar’s ineffective-assistance challenge.2

1
  Specifically, Aybar contends that his trial counsel was ineffective for failing to: (a) conduct an
adequate pretrial investigation of potentially exculpatory evidence; (b) communicate with him
about the case; (c) obtain translations of trial recordings; (d) move to suppress questions related
to a traffic stop in North Carolina; (e) submit proposed voir dire questions or inquire into juror
bias; (f) object to Rule 404(b) evidence; (g) effectively cross-examine the government’s
witnesses at trial; (h) move for judgment of acquittal; (i) submit jury instructions; (j) move for a
new trial following the verdict; (k) object to the PSI; (l) file a sentencing memorandum; (m)
support Aybar’s motion for new counsel; and (n) advocate for a guideline reduction or variance
based on his minimal role.
2
  The government argues that the record is sufficiently developed for this Court to reject many of
Aybar’s ineffective-assistance claims on the merits. Given that most of these claims allege errors
of omission, we are not convinced that the record is adequately developed to decide them on the
merits in this direct appeal. However, even if the record were sufficient to adjudicate some of
these claims, the government concedes that others need further development, and we decline to
consider this challenge piecemeal.

                                                 3
                                         II.

      We next consider Aybar’s argument that the evidence at trial was

insufficient to support his conviction. To support a conviction for conspiracy

under 21 U.S.C. § 846, the government must prove beyond a reasonable doubt

that: (1) a conspiracy existed; (2) the defendant knew of the conspiracy; and (3) he

voluntarily joined the conspiracy. United States v. Freyre-Lazaro, 3 F.3d 1496,

1502 (11th Cir. 1993). Ordinarily, we review the sufficiency of the government’s

evidence at trial de novo as a question of law, inquiring whether a reasonable jury

could find the defendant guilty based on the evidence presented. United States v.

Spoerke, 568 F.3d 1236, 1244 (11th Cir. 2009). But where, as here, a defendant

fails to timely move for judgment of acquittal, we will review the evidence only

for a manifest miscarriage of justice. United States v. Edwards, 526 F.3d 747,

755–56 (11th Cir. 2008). Under this standard, we will not set aside a conviction

unless “the evidence on a key element of the offense is so tenuous that a

conviction would be shocking.” Id. (quotation marks omitted).

      We conclude that Aybar’s conviction was not “shocking.” Multiple

government witnesses testified to facts that established the elements of the § 846

conspiracy offense for which he was charged. Specifically, these witnesses

                                         4
testified to Aybar’s involvement in a group that attempted to purchase kilogram

quantities of cocaine from undercover law enforcement officers in 2008. In

addition, several government witnesses, including indicted co-conspirators,

testified about drug trafficking activities that Aybar knowingly performed on

behalf of this group prior to the undercover operation.

      The jury apparently found this testimony credible, and that credibility

determination must stand unless the testimony is incredible as a matter of law. See

United States v. Steele, 178 F.3d 1230, 1236 (11th Cir. 1999). Testimony is

legally “incredible” only if it is “unbelievable on its face” and relates to facts that

the witness “could not have possibly observed or events that could not have

occurred under the laws of nature.” Id. (quotation marks omitted). Further, when

a criminal defendant chooses to testify on his own behalf, his statements, “if

disbelieved by the jury, may be considered as substantive evidence of [his] guilt,”

meaning that the jury may conclude that the opposite of his testimony is true.

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

      Aybar has provided no basis for holding that these witnesses were

incredible as a matter of law. To the contrary, the testimony of the government’s

witnesses was generally consistent, and it directly contradicted Aybar’s testimony

that he did not know that he was participating in his co-conspirator’s drug

                                           5
trafficking scheme. As stated, the jury was entitled to disbelieve Aybar’s

testimony on his own behalf and construe it as substantive evidence of his guilt.

See Brown, 53 F.3d at 314. Thus, the jury verdict did not represent a manifest

miscarriage of justice.

                                                III.

       Aybar argues that the district court abused its discretion in admitting

evidence at trial of his prior drug trafficking activities. We ordinarily review

evidentiary rulings, including the admission of evidence under Federal Rule of

Evidence 404(b), for abuse of discretion. See United States v. Jernigan, 341 F.3d

1273, 1280 (11th Cir. 2003). However, where, as here, a party fails to object to

the admission of evidence at trial, we review only for plain error. Id. at 1289.3

Under the plain error standard, reversal is warranted only where the defendant

demonstrates: “(1) an error occurred; (2) the error was plain; (3) it affected his

substantial rights; and (4) it seriously affected the fairness of the judicial

proceedings.” Id. (quotation marks omitted). “It is the law of this circuit that, at

least where the explicit language of a statute or rule does not specifically resolve

an issue, there can be no plain error where there is no precedent from the Supreme


3
 Aybar filed a motion in limine to exclude some of this evidence, but did not renew his objection
at trial, and therefore failed to preserve the issue. See United States v. Gari, 572 F.3d 1352, 1356
n.2 (11th Cir. 2009).

                                                 6
Court or this Court directly resolving it.” United States v. Lejarde-Rada, 319 F.3d

1288, 1291 (11th Cir. 2003).

      Under Rule 404(b), evidence of a prior bad act may not be admitted as proof

of bad character. Of course, this Rule does not bar the admission of evidence of

the charged criminal conduct at issue during the trial. See United States v. Lane,

323 F.3d 568, 579 (7th Cir. 2003). Similarly, Rule 404(b) does not apply to

evidence of uncharged criminal activity that is: “(1) an uncharged offense which

arose out of the same transaction or series of transactions as the charged offense,

(2) necessary to complete the story of the crime, or (3) inextricably intertwined

with the evidence regarding the charged offense.” United States v. Edouard,

485 F.3d 1324, 1344 (11th Cir. 2007).

      As developed at trial, from 2003 through 2007, Aybar engaged in prior drug

trafficking activity on behalf of the same individuals with whom he was arrested

during the 2008 undercover operation. The indictment did not allege either a start

date or any specific acts as part of the charged conspiracy. The government argues

that as a result, the evidence that Aybar now characterizes as evidence of prior

criminal conduct was actually evidence of the charged conspiracy itself, and

therefore not subject to Rule 404(b). But, even assuming that the evidence was

uncharged conduct, we cannot say that the district court plainly erred in admitting

                                          7
the evidence. Given the similarity and relatively short time period between

Aybar’s prior drug trafficking activity and the scheme to purchase cocaine that

resulted in his arrest, the district court did not plainly err in concluding that the

prior criminal conduct was inextricably related to the charged conspiracy, and that

Rule 404(b) therefore did not apply. See United States v. Ramsdale, 61 F.3d 825,

829–30 (11th Cir. 1995) (holding that Rule 404(b) did not apply to evidence

relating to a stop where drugs were uncovered, during the time frame of the

conspiracy to distribute methamphetamine as charged, because that evidence was

both inextricably intertwined with the charged offense and necessary to complete

the story of the defendant’s role).

      Even where Rule 404(b) does not apply, the evidence still must satisfy the

requirements of Federal Rule of Evidence 403. Edouard, 485 F.3d at 1344.

Similarity between the prior conduct and the charged conduct will make the other

offense highly probative of a defendant’s criminal intent in the charged offense.

United States v. Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005). Here, the

evidence of the prior drug trafficking was highly relevant to the government’s case

and very similar to the charged conduct. Thus, we also conclude that the district

court did not plainly err in determining that the evidence was not prohibited by

Rule 403. See id.

                                            8
                                         IV.

      Aybar next argues that the district court abused its discretion in admitting

co-conspirators’ out-of-court statements without assessing their admissibility

under hearsay rules. As a general matter, hearsay is inadmissible in federal trials,

subject to a number of exceptions. Fed. R. Evid. 801(c), 802. However, if a

“statement is offered against a party and is . . . [made] by a coconspirator of a party

during the course and in furtherance of the conspiracy,” it is not considered

hearsay. Fed. R. Evid. 801(d)(2)(E). Aybar appears to argue that the district court

erred in admitting his co-conspirators out-of-court statements without determining

whether those statements were “during the course and in furtherance of the

conspiracy,” and therefore inadmissible hearsay. However, Aybar did not object

to the challenged testimony at trial, so we review the admission of this evidence

only for plain error. Jernigan, 341 F.3d at 1289. With respect to hearsay

statements reviewed under the plain error standard, however, we are “unwilling to

say that a trial court’s failure to sua sponte redact a defendant’s statement to

remove hearsay is error.” United States v. Campbell, 223 F.3d 1286, 1288 (11th

Cir. 2000). Thus, we conclude that the district court did not plainly err by

admitting alleged hearsay statements to which Aybar did not object. See id.




                                           9
                                          V.

      Aybar also argues that the district court abused its discretion in denying his

motion for substitute counsel. “Where, as here, the district court conducts an

inquiry into the merits of a criminal defendant’s motion for new counsel, we

review the district judge’s ruling for abuse of discretion.” United States v.

Calderon, 127 F.3d 1314, 1343 (11th Cir. 1997). Indigent criminal defendants

ordinarily “must either accept the counsel appointed to represent them or represent

themselves.” United States v. Garey, 540 F.3d 1253, 1263–64 (11th Cir. 2008)

(en banc). However, upon a showing of good cause, an indigent defendant may

receive substitute appointed counsel. Id. at 1263. “Good cause in this context

means a fundamental problem, such as a conflict of interest, a complete

breakdown in communication or an irreconcilable conflict which leads to an

apparently unjust verdict.” Id. (quotation marks omitted). “Good cause for

substitution of counsel cannot be determined solely according to the subjective

standard of what the defendant perceives.” Thomas v. Wainwright, 767 F.2d 738,

742 (11th Cir. 1985) (quotation marks omitted). Thus, “[a] defendant’s general

loss of confidence or trust in his counsel, standing alone, is not sufficient.” Id.

Instead, when reviewing a district court’s ruling on a motion for substitute court-

appointed counsel, we consider as especially relevant: “[1] the timeliness of the

                                          10
motion; [2] the adequacy of the court’s inquiry into merits of the motion; and [3]

whether the conflict was so great that it resulted in a total lack of communication

between the defendant and his counsel thereby preventing an adequate defense.”

Calderon, 127 F.3d at 1343.

      About a week prior to sentencing, Aybar moved for substitute counsel.

During the sentencing hearing, the district court inquired into Aybar’s motion for

substitute counsel. The court concluded that Aybar’s counsel was able and willing

to represent him effectively at the sentencing proceeding. The court’s inquiry into

Aybar’s motion revealed that Aybar apparently became dissatisfied with his

counsel’s performance only upon learning of the United States Sentencing

Guidelines calculation contained in the presentence report (“PSR”). The record of

the sentencing hearing thus does not reflect a “conflict . . . so great that it resulted

in a total lack of communication between the defendant and his counsel thereby

preventing an adequate defense.” Id. Instead, that record reflects Aybar’s own

unwillingness to communicate any concerns regarding the PSR to his counsel.

Because Aybar’s “general loss of confidence or trust in his counsel, standing

alone, is not sufficient” to establish good cause for substitution of court-appointed

counsel, we conclude that the district court did not abuse its discretion in denying

Aybar’s motion to substitute counsel. Thomas, 767 F.2d at 742; see also

                                           11
Calderon, 127 F.3d at 1343 (holding that a total breakdown in communication did

not occur where the defendant’s accusations showed that he was merely displeased

with counsel, and counsel attested that he did not take these accusations personally

and could effectively argue sentencing issues).

                                                VI.

       Finally, Aybar argues that his sentence was unreasonable. Where

appropriate, we review a final sentence imposed by the district court for

“reasonableness.” United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir.

2008). Ordinarily, we examine a defendant’s sentence for both procedural and

substantive reasonableness under an abuse of discretion standard, taking into

account the totality of the circumstances. Gall v. United States, 552 U.S. 38, 51,

128 S. Ct. 586, 597 (2007). The party challenging the sentence carries the burden

of establishing unreasonableness. Gonzalez, 550 F.3d at 1324. Aybar did not

object to the reasonableness of his sentence, however, so we review this issue only

for plain error. See United States v. Bonilla, 579 F.3d 1233, 1238 (11th Cir.

2009).4



4
  Aybar argues that plain error review should not apply, because the district court failed to elicit
objections to the sentence. The record of the sentencing hearing flatly refutes this claim, as the
district court asked if either side had “an objection to the sentence or manner of its
announcement.” Aybar’s counsel responded: “No, your honor.”

                                                 12
      Aybar appears to argue that his sentence was procedurally unreasonable

because his guideline calculation should have been reduced on the basis of his

“minimal role in the offense.” A sentence is procedurally unreasonable if the

district court improperly calculates the guideline range. United States v. Livesay,

525 F.3d 1081, 1091 (11th Cir. 2008). The guidelines provide for a four-level

reduction if the defendant was a “minimal” participant, and a two-level reduction

if the defendant was a “minor” participant. U.S.S.G. § 3B1.2(b). A minor

participant is someone “who is less culpable than most other participants.” Id.

cmt. n.5. “The 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.” United

States v. Docampo, 573 F.3d 1091, 1099 (11th Cir. 2009). The record reveals that

the district court determined that Aybar was more culpable than two of his co-

conspirators, but less culpable than one of them, and the court attempted to

sentence Aybar to a term of imprisonment that reflected his culpability relative to

that of his co-conspirators. The district court did not plainly err in refusing to

reduce the guideline range sua sponte based solely on the fact that Aybar was not

the most culpable member of the conspiracy. See id.




                                          13
      Aybar also appears to argue that his sentence is substantively unreasonable

because it did not fully account for his “lack of criminal history and medical

situation,” and because his sentence was ultimately much longer than his co-

conspirators’ sentences. A sentence is substantively unreasonable “if it does not

achieve the purposes of sentencing stated in [18 U.S.C.] § 3553(a).” United States

v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quotation marks omitted). We

defer to the district court’s judgment regarding the weight given to each § 3553(a)

factor, unless the district court has made “a clear error of judgment” under the

facts of a particular case. Gonzalez, 550 F.3d at 1324 (quotation marks omitted).

Aybar received a 131-month sentence, which represented a downward variance

from his applicable guideline range of 151 to 188 months imprisonment. The

district court explained that it imposed the below-guideline sentence because of

Aybar’s deteriorating physical condition, and his relative culpability compared to

his convicted co-conspirators. As such, we find no merit in Aybar’s arguments

that the district court plainly erred in imposing a below-guideline sentence,

particularly given that the court expressly took into account the same




                                         14
considerations Aybar advances in this appeal. 5 We conclude that the district court

did not plainly err in sentencing Aybar to 131 months imprisonment.

       For all of these reasons, Aybar’s conviction and sentence are AFFIRMED.

       AFFIRMED.




       5
          At the time of Aybar’s sentencing, Reynoldo Lopez, the co-conspirator that the district
court in this case found most culpable, had been sentenced to 151 months imprisonment by a
different district judge. However, shortly after Aybar’s sentencing, the government moved under
Federal Rule of Criminal Procedure 35 to reduce the sentences of two of Aybar’s co-
conspirators, including Lopez, in part, because they testified against Aybar. As a result, the other
district judge reduced Lopez’s sentence to 70 months. While this development certainly
frustrated the attempt by the district court in this case to sentence Aybar in a way that reflected
his culpability relative to Lopez and the other co-conspirators, we cannot say that the district
court plainly erred in failing to vary more extensively downward from the guideline range in
order to account for a different district judge’s later reduction of the co-conspirators’ sentences
under Rule 35.


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