           Case: 16-16822   Date Filed: 12/19/2017   Page: 1 of 15


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-16822
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 2:15-cr-00149-SPC-MRM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,


                                  versus


NORRIS WILLIAMS,

                                                          Defendant-Appellant.

                       ________________________

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

                            (December 19, 2017)

Before WILSON, MARTIN, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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       Norris Williams appeals his convictions and sentences for distributing heroin

and possessing heroin with intent to distribute, in violation of 21 U.S.C.

§§ 841(a)(1) and (b)(1)(C), and for attempting to possess a kilogram or more of

heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(A)(i), and 21 U.S.C. § 846. 1 On appeal, Williams argues that the district

court erred in denying his motion for a judgment of acquittal, abused its discretion

in permitting the government to introduce testimony at trial, erred in relying on the

jury’s determination of the amount of heroin at sentencing, and erred in applying

the career offender enhancement pursuant to U.S.S.G. § 4B1.1. Further, he argues

that his total 360-month sentence of imprisonment was substantively unreasonable.

After careful review of the record and the parties’ briefs, we affirm.

                                               I.

       We review de novo a district court’s denial of a motion for judgment of

acquittal. United States v. Seher, 562 F.3d 1344, 1364 (11th Cir. 2009). When the

motion challenges the sufficiency of the evidence, we review de novo the

sufficiency of the evidence, drawing all reasonable inferences in favor of the

government. Id. We will affirm the denial if we conclude that a reasonable

factfinder could find that the evidence established guilt beyond a reasonable doubt.
1
 21 U.S.C. § 846 makes it a crime to attempt to commit an offense defined in Title 21, including
§ 841. 21 U.S.C. § 841(a)(1) makes it unlawful to knowingly or intentionally distribute a
controlled substance or possess a controlled substance with the intent to distribute it. Section
841(b)(1)(A)(i) increases the penalties when the offense involves one kilogram or more of
heroin. 21 U.S.C. § 841(b)(1)(A)(i).
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Id. Additionally, credibility questions are answered by the jury, and we will

assume that the jury resolved all such questions in a manner supporting its verdict.

United States v. Lebowitz, 676 F.3d 1000, 1013-14 (11th Cir. 2012) (per curiam).

       To support a conviction for attempted possession with intent to distribute

heroin, the government must prove beyond a reasonable doubt that the defendant

(1) acted with the kind of culpability required to commit the underlying offense,

that is to knowingly and willfully possess heroin with the intent to distribute; and

(2) took a substantial step toward committing the crime under circumstances

strongly corroborating criminal intent. See United States v. Bernal-Benitez, 594

F.3d 1303, 1310 (11th Cir. 2010). 2 To support a conviction for possession of a

controlled substance with intent to distribute, the government must prove beyond a

reasonable doubt that the defendant knowingly possessed the controlled substance

and intended to distribute it. United States v. Albury, 782 F.3d 1285, 1293 (11th

Cir. 2015).

       Here, the district court did not err in denying Williams’s motion for a

judgment of acquittal because there was sufficient evidence to prove beyond a

reasonable doubt that Williams attempted to purchase a kilogram of heroin with



2
  The important factor in proving attempt is the defendant’s intent to commit the underlying
crime, not whether the underlying crime was actually possible. See United States v. Bernal-
Benitez, 594 F.3d 1303, 1310 (11th Cir. 2010) (stating that the government did not have to prove
the substance in question was actually cocaine, just that the defendant was intending to obtain
cocaine).
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the intent to distribute. 3 The government presented ample evidence through

Detective Victor Chica’s testimony and through the video and audio recordings of

Williams’s negotiations with Detective Chica that Williams intended to purchase a

whole kilogram of heroin from Detective Chica for the purpose of reselling it, and

that Williams took a substantial step toward purchasing the kilogram of heroin.

       First, the evidence shows that during their negotiations, Detective Chica

agreed to sell a half kilogram of heroin to Williams at $40,000 or a full kilogram of

heroin at $75,000. Although Williams initially told Detective Chica that he could

buy a half kilogram but not a whole kilogram of heroin “right now,” once

Detective Chica offered to front or advance Williams the full kilogram for a down

payment of $50,000, Williams unequivocally agreed to that arrangement and

demonstrated that agreement on multiple occasions. For instance, during a

recorded conversation between Williams and Detective Chica, Detective Chica

stated, “Like I said . . . we got to come up with at least a down payment which will

be 50 and then go from there,” and Williams responded, “Okay, okay, okay, that’s

a number, okay, that’s a number I’m looking for.” Detective Chica also testified

that Williams wanted to purchase a kilogram of heroin and agreed to pay $50,000

as a down payment.



3
 Williams does not appeal his convictions for Counts 1 through 3, which involve lower
quantities of heroin.
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         Second, Williams took a substantial step toward committing the underlying

offense under circumstances strongly corroborating his criminal intent. Williams

arranged a meeting with Detective Chica to exchange a full kilogram of heroin for

the $50,000 down payment, and Williams brought approximately $50,000 in a

shoebox to that meeting. Williams then gave Detective Chica the shoebox.4 This

belies the argument that Williams had not intended to buy a full kilogram of heroin

because the price agreed to for the half kilogram was $40,000. Williams also

conceded during his trial that he believed Detective Chica would give him a

kilogram of heroin at this meeting. A reasonable jury could therefore infer that

when Williams showed up to the meeting with approximately $50,000—the price

Detective Chica required to front Williams the entire kilogram of heroin—that

Williams intended to purchase the entire kilogram of heroin.

                                                II.

         We review a district court’s evidentiary rulings under an abuse of discretion

standard. United States v. House, 684 F.3d 1173, 1197 (11th Cir. 2012). A district

court abuses its discretion if it applies an incorrect legal standard or makes clearly

erroneous findings of fact. Id. However, even when the district court abused its

discretion, we will only reverse when there is a reasonable likelihood that a non-

constitutional evidentiary error affected the defendant’s substantial rights. Id. We


4
    The audio and video of this transaction was captured by the government and shown to the jury.
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will not reverse when the non-constitutional error had no substantial influence and

there is enough evidence to support the verdict without the error. Id. When a

defendant claims cumulative error, we consider all preserved errors on appeal, as

well as all plain errors, within the context of the entire trial to determine whether

the defendant had a fundamentally fair trial. Id. When there is no error or there is

only one error, there is no cumulative error. Id. at 1210. The district court can

allow the prosecution to redirect a witness as to testimony elicited on cross-

examination. United States v. Willner, 795 F.3d 1297, 1320 (11th Cir. 2015).

       The district court did not abuse its discretion in admitting the challenged

testimony about the slang Williams used and the evidentiary shipping and handling

procedures, because the testimony was relevant to the charges against Williams

and because Williams invited the additional testimony through his cross-

examination of a witness. First, although Williams objected to Sergeant Samuel

Gonzalez’s testimony about what Williams meant when he said, “If you make

money, I make money” as speculative and calling for a conclusion, Williams did

not object that the testimony constituted an improper expert opinion or that

Sergeant Gonzalez did not qualify as an expert or had not been properly qualified

as an expert. 5



5
 Because Williams failed to object before the district court as to this testimony constituting an
improper expert opinion, Williams’s argument is reviewed for plain error. United States v.
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       The district court did not err because Sergeant Gonzalez’s testimony was

relevant to Williams’s intent to distribute heroin, a controlled substance, see

Bernal-Benitez, 594 F.3d at 1310, and Williams made the statement in a recorded

video of a drug transaction, see Fed. R. Evid. 401. Additionally, as a police

officer, Sergeant Gonzalez could testify as a lay witness as to his understanding of

the slang Williams used in the video in order to help the jury understand his

testimony about the conversation that occurred during the first heroin transaction.

See Fed. R. Evid. 701; United States v. Jayyousi, 657 F.3d 1085, 1102–04 (11th

Cir. 2011).

       Second, to the extent that Williams argues that Agent Mark Strang’s

testimony about the Drug Enforcement Administration’s (DEA) shipping

procedures and duties of handling evidence was admitted in error, it was error that

Williams invited. See United States v. Carpenter, 803 F.3d 1224, 1236 (11th Cir.

2015) (explaining that this court will not review an issue challenged as error on

appeal when a party induced or invited the district court into making that error).

On cross-examination, Williams invited the challenged testimony by questioning

Agent Strang extensively about the DEA’s procedures for shipping and handling

evidence. The district court therefore did not abuse its discretion in allowing the




Perez, 661 F.3d 568, 583 (11th Cir. 2011) (per curiam). For an error to be plain it must
obviously conflict with current law. Id. at 585.
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government to question Agent Strang briefly about the shipping procedures and

duties Agent Strang testified about on cross-examination. See Willner, 795 F.3d at

1320. Additionally, Agent Strang’s testimony was related to establishing the chain

of custody for the seized evidence, which Williams argued was relevant at trial.

      Third, the district court did not abuse its discretion in admitting Detective

Chica’s testimony because the challenged testimony was relevant. As discussed

above, Williams was charged with attempting to obtain a kilogram of heroin in

order to sell it. Detective Chica’s testimony about the importance of high-quality

heroin to the distribution chain was relevant to the question of Williams’s intent in

obtaining the heroin to sell it because the testimony helped establish that Williams

wanted to obtain a higher quality of heroin in order to make more money when

selling the heroin. See Fed. R. Evid. 401; Bernal-Benitez, 594 F.3d at 1310.

Further, as a police officer, Detective Chica could testify as to his understanding of

the slang Williams used, including what it meant to have “money” somewhere, in

order to help the jury understand his testimony about their recorded conversations.

See Fed. R. Evid. 701; Jayyousi, 657 F.3d at 1102-04.

      Finally, relevant evidence should only be excluded if unfair prejudice

substantially outweighs the evidence’s probative value. United States v. Spoerke,

568 F.3d 1236, 1251 (11th Cir. 2009). Here, none of the challenged testimony was

unfairly prejudicial, as it went to either helping the jury understand Detective


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Chica and Sergeant Gonzalez’s testimony about their conversations with Williams

or to redirecting a witness as to questions Williams asked on cross-examination.

The recorded conversations were played for the jury and we assume that the jury

resolved any credibility questions in a manner consistent with their guilty verdict.

Lebowitz, 676 F.3d at 1014.

      Thus, the district court did not err in admitting the challenged testimony.

Because the district court did not err in admitting this testimony, there was also no

cumulative error. House, 684 F.3d 1173 at 1210.

                                         III.

      When the drug quantity used at sentencing was found by the jury, we review

the jury’s findings de novo, asking whether, “after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.” United States v.

Curbelo, 726 F.3d 1260, 1267 (11th Cir. 2013) (internal quotation marks omitted).

Quantities of drugs not specified in the count of conviction can be used as relevant

conduct at sentencing to determine the offense level. U.S.S.G. § 2D1.1, cmt. n.5.

When an offense involved the arranged sale of drugs in a government sting

operation, the district court uses the quantity the defendant agreed upon, unless the

defendant can show that he “did not intend to provide or purchase, or was not

reasonably capable of providing or purchasing, the agreed-upon quantity of the


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controlled substance.” Id. In that case, the court should exclude the amount the

defendant establishes that he did not intend to purchase or was not reasonably

capable of purchasing. Id.

        The jury found Williams guilty of attempting to possess one kilogram or

more of heroin with the intent to distribute it. As discussed earlier, the government

presented the jury with sufficient evidence to determine that Williams intended to

purchase the entire kilogram of heroin and not just half a kilogram. Because the

jury determination of the quantity of heroin was supported by sufficient evidence,

the district court did not err in relying on it at sentencing. Curbelo, 726 F.3d at

1267.

                                          IV.

        We review de novo a district court’s application and interpretation of the

Sentencing Guidelines, including whether the defendant qualifies as a career

offender. United States v. Gibson, 434 F.3d 1234, 1243 (11th Cir. 2006). Factual

findings in support of a guideline enhancement are reviewed for clear error.

United States v. Creel, 783 F.3d 1357, 1359 (11th Cir. 2015). We will conclude

that a factual finding is clearly erroneous only if we are left with a “definite and

firm conviction that a mistake has been committed.” Id. (internal quotation marks

omitted).




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       As an initial matter, although Williams objected to the application of the

career offender enhancement in district court, he did not object that his prior

offenses under Florida Statute § 893.13 and under § 841(a) and § 846 did not

qualify as controlled substance offenses.6 Because Williams failed to object

below, we review for plain error. Perez, 661 F.3d at 583. For an error to be plain

it must obviously conflict with current law. Id. at 585.

       The district court did not plainly err in applying the career offender

enhancement. First, the government was not required to prove Williams’s prior

convictions to the jury beyond a reasonable doubt in order for the district court to

consider them at sentencing. United States v. Smith, 775 F.3d 1262, 1266 (11th

Cir. 2014). Second, Williams met the three requirements to be considered a career

offender. 7 Williams was 44 years old at the time of the offense conduct and was


6
  The record does not specify the applicable statutes for the predicate state conviction and federal
conviction at issue. The parties, however, agree that the state conviction was under Florida
Statute § 893.13 and do not dispute that the charges for the federal conviction were under 21
U.S.C. §§ 841(a) and § 846. Williams also does not object to the accuracy of the convictions as
stated in the Presentence Investigation Report; thus, he is deemed to have admitted to those facts.
United States v. Bennett, 472 F.3d 825, 833–34 (11th Cir. 2006) (per curiam).
7
  A defendant is considered a career offender if “(1) the defendant was at least eighteen years old
at the time the defendant committed the instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence or a controlled substance offense; and (3)
the defendant has at least two prior felony convictions of either a crime of violence or a
controlled substance offense.” U.S.S.G. § 4B1.1(a). A controlled substance offense is an
“offense under federal or state law, punishable by imprisonment for a term exceeding one year,
that prohibits the manufacture, import, export, distribution, or dispensing of a controlled
substance (or a counterfeit substance) or the possession of a controlled substance (or a
counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.”
U.S.S.G. § 4B1.2(b). A prior felony conviction is a prior adult federal or state conviction
punishable by death or imprisonment for more than one year, regardless of whether the offense is
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therefore over 18 years old at the time. The instant offense involved a conviction

for a felony controlled substance offense under §§ 841(a), 841(b), and 846.

Williams had at least two prior felony convictions involving controlled substance

offenses, including a Florida state conviction for purchasing cocaine base, in

violation of Florida Statute § 893.13, see United States v. Pridgeon, 853 F.3d 1192,

1198 (11th Cir. 2017), cert. denied, 583 U.S. ___, No. 17-5135 (Oct. 2, 2017), and

a federal conviction for conspiracy to possess with intent to distribute 5 kilograms

or more of cocaine and 50 kilograms or more of cocaine base, in violation of §§

841(a) and 846, see United States v. Evans, 358 F.3d 1311, 1312 (11th Cir. 2004).

Therefore, the district court appropriately applied the career offender enhancement.

                                                V.

       We review a sentence’s substantive reasonableness by taking into account

the totality of the circumstances and the 18 U.S.C. § 3553(a) factors. 8 Gall v.

United States, 552 U.S. 38, 51 (2007). A district court imposes a substantively



specifically designated a felony or what sentence was actually imposed. U.S.S.G. § 4B1.2(b),
cmt. n.1.
8
  The district court must impose a sentence “sufficient, but not greater than necessary, to comply
with the purposes” listed in § 3553(a)(2), including the needs to reflect the seriousness of the
offense, to promote respect for the law, to provide just punishment for the offense, to deter
criminal conduct, and to protect the public from the defendant’s future criminal conduct. 18
U.S.C. § 3553(a)(2). In imposing a particular sentence, the district court must also consider the
nature and circumstances of the offense, the history and characteristics of the defendant, the
kinds of sentences available, the applicable guideline range, any pertinent policy statements of
the Sentencing Commission, and the need to avoid unwarranted sentence disparities. 18 U.S.C.
§ 3553(a)(1), (3)–(6).

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unreasonable sentence when it (1) fails to consider relevant 18 U.S.C. § 3553

factors that were due significant weight, (2) gives an improper or irrelevant factor

significant weight, or (3) commits a clear error in judgment by balancing proper

factors unreasonably. United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010)

(en banc). We ordinarily expect a sentence imposed within the guideline range to

be reasonable. United States v. Alvarado, 808 F.3d 474, 496 (11th Cir. 2015).

Additionally, an indicator of reasonableness is a sentence imposed well below the

statutory maximum penalty. United States v. Croteau, 819 F.3d 1293, 1310 (11th

Cir. 2016).

      Williams fails to demonstrate that his total sentence is substantively

unreasonable. See Alvarado, 808 F.3d at 496 (explaining that the party challenging

the reasonableness of the sentence has the burden to show that it is unreasonable).

The 360-month total sentence met the goals encompassed within § 3553(a). In

particular, the district court expressed concern over Williams’s criminal history.

The district court noted that in contrast to Williams’s argument that he had no

criminal history for approximately 15 years before the instant offense, his criminal

history demonstrated that Williams was incarcerated in federal prison for much of

that time and committed another drug offense shortly after he was released. The

district court’s concern over Williams’s criminal history was supported by the

record, which includes multiple offenses involving intent to sell drugs. It was well


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within the district court’s discretion to conclude that Williams’s criminal history

and his status as a career offender weighed in favor of a guideline sentence. See

United States v. Mateos, 623 F.3d 1350, 1368 (11th Cir. 2010).

      Further, Williams’s sentence was at the very low end of his guideline range,

which is 360 months to life, which suggests that the sentence was reasonable.

Alvarado, 808 F.3d at 496. In determining his 360-month sentence, the district

court explicitly considered Williams’s mitigating history and characteristics,

including his military service, and was well within its discretion to conclude that,

while these mitigating factors warranted a sentence at the low end of the guideline

range, they did not warrant a variance below it. The total 360-month sentence was

sufficient, but not greater than necessary, to account for the purposes of the §

3553(a) factors. See 18 U.S.C. § 3553(a). Therefore, the district court did not

abuse its discretion in balancing the § 3553 factors, and the sentence accordingly

was substantively reasonable in light of the totality of the circumstances.

                                         VI.

      Williams’s multiple arguments fail. The district court did not err in denying

Williams’s motion for a judgment of acquittal because there was sufficient

evidence to prove beyond a reasonable doubt that Williams attempted to purchase

a kilogram of heroin with the intent to distribute. The district court did not abuse

its discretion in admitting testimony about the slang Williams used and the DEA’s


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evidentiary shipping and handling procedures because this testimony was relevant

to the charges and clarified questions Williams asked on cross-examination.

Because the district court did not err in admitting this testimony, there was no

cumulative error. The district court did not err in relying on the jury’s

determination of the drug quantity, because the government introduced sufficient

evidence to prove beyond a reasonable doubt that Williams attempted to purchase

a kilogram of heroin with the intent to distribute. The district court did not plainly

err in applying the career offender enhancement because Williams’s prior

convictions both qualified as controlled substance offenses and the government did

not need to prove Williams’s prior convictions to the jury beyond a reasonable

doubt in order for the district court to consider the convictions at sentencing.

Finally, Williams’s total sentence of 360 months, at the low end of his guideline

range, was substantively reasonable because the district court took into account the

totality of the circumstances and the purposes of 18 U.S.C. § 3553(a) in

determining Williams’s sentence.

      AFFIRMED.




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