                    Case: 11-14389         Date Filed: 01/15/2013   Page: 1 of 8

                                                                       [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-14389
                                        Non-Argument Calendar
                                      ________________________

                          D.C. Docket No. 4:10-cr-00046-SPM-WCS-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                    Plaintiff-Appellee,

                                               versus

FRANCO NICHOLAS PADGETT,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

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

                                           (January 15, 2013)

Before CARNES, WILSON and BLACK, Circuit Judges.

PER CURIAM:
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       Franco Padgett appeals his conviction and 110-month sentence, imposed

after being convicted of conspiracy to burglarize a pharmacy of controlled

substances in violation of 18 U.S.C. § 2118(d).1 Padgett presents four arguments

on appeal: (1) whether the introduction of hearsay statements by an unidentified

informant violated his Confrontation Clause rights, (2) whether the district court

committed plain error when it allowed evidence of prior drug dealing, (3) whether

the evidence was sufficient to sustain a conviction for conspiracy to commit

burglary, and (4) whether his sentence was procedurally unreasonable. We

address each argument in turn, and affirm Padgett’s conviction and sentence.

                                                I.

       Padgett challenges as hearsay testimony by a police officer that an

unidentified source told him Padgett was involved in selling prescription

medication, and was known in the community for doing so. Padgett claims, for

the first time on appeal, that the introduction of this testimony violated Crawford

v. Washington, 124 S. Ct. 1354 (2004) and the Confrontation Clause of the Sixth

Amendment.




       1
          Padgett was also convicted of possession with intent to distribute controlled substances
in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). He does not specifically challenge this
conviction on appeal.

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      When a party raises a claim of evidentiary error for the first time on appeal,

we review it for plain error only. United States v. Turner, 474 F.3d 1265, 1275

(11th Cir. 2007). Under this standard, Padgett must show (1) an error occurred,

(2) the error was plain, (3) the error affected his substantial rights, and (4) the error

seriously affected the fairness of the judicial proceedings. See id. at 1276.

      The Supreme Court has explained that the Confrontation Clause “does not

bar the use of testimonial statements for purposes other than establishing the truth

of the matter asserted.” Crawford, 124 S. Ct. at 1369 n.9. Out-of-court witness

statements made to law enforcement officials are admissible as non-hearsay if the

statements are relevant to explain the course of subsequent investigative actions,

“and the probative value of the evidence’s non-hearsay purpose is not substantially

outweighed by the danger of unfair prejudice caused by the impermissible hearsay

use of the statement.” United States v. Jiminez, 564 F.3d 1280, 1288 (11th Cir.

2009). However, testimony from a police officer describing what a confidential

source told him, that is relied on by the prosecutor for the truth of the matter

asserted, violates the Confrontation Clause. Mason v. Allen, 605 F.3d 1114, 1123

(11th Cir. 2010).

      In this case, the Government did not use the controverted testimony to

establish the truth of the matter asserted. Consequently, the Confrontation Clause

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not implicated. See Crawford, 124 S. Ct. at 1369 n.9. The Government used the

tips from the source to “explain the course of the officials’ subsequent

investigative actions,” and described why the investigation was expanded to

include Padgett. See Jiminez, 564 F.3d at 1288. Additionally, the danger of unfair

prejudice resulting from the testimony was minimal because the Government

presented other testimonial evidence that Padgett had previously distributed illegal

drugs. See Fed. R. Evid. 403. For this same reason, Padgett’s substantial rights

were not affected even if we assumed plain error.

                                         II.

      Padgett next argues the introduction of evidence of prior bad acts through

the officer’s testimony without the pre-trial notice required under Federal Rule of

Evidence 404 mandates reversal. He claims he would have objected to the

testimony if the Government had provided notice. When a party fails to object to a

Rule 404(b) issue in the district court, we review for plain error. United States v.

Church, 955 F.2d 688, 700 (11th Cir. 1992).

      Federal Rule of Evidence 404(b) “prohibits evidence of offenses or illegal

acts extrinsic to a defendant’s indictment to show the defendant’s bad character.”

United States v. Costa, 691 F.2d 1358, 1361 (11th Cir. 1982). If the defendant in

a criminal prosecution requests it, the prosecution must provide reasonable notice

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in advance of trial or during trial if the court excuses pretrial notice on good cause

shown, “of the general nature of any such [prior bad acts] evidence that the

prosecutor intends to offer at trial.” Fed. R. Evid. 404(b)(2).

      Assuming Padgett requested notice and triggered the duty of the prosecution

to give notice, Padgett cannot establish plain error. Even if Padgett had objected

or moved to suppress the statement, it would not have precluded evidence of his

drug dealing, as several other witnesses testified that they had previously bought

or received drugs from Padgett. Thus, Padgett has not shown an error that affected

his substantial rights.

                                         III.

      Padgett claims the evidence was insufficient to sustain a conviction for

conspiracy to commit burglary. Padgett was convicted under 18 U.S.C. § 2118(d),

which a defendant violates “[i]f two or more persons conspire to violate subsection

(a) or (b) of this section and one or more of such persons do any overt act to effect

the object of the conspiracy.” 18 U.S.C. § 2118(d). Subsection (b) provides that

“[w]hoever, without authority, enters or attempts to enter, or remains in, the

business premises . . . with the intent to steal any material or compound containing

any quantity of a controlled substance shall” be fined or imprisoned, or both. 18

U.S.C. § 2118(b).

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      We review de novo a sufficiency-of-the-evidence challenge, “viewing the

evidence in the light most favorable to the government, and drawing all reasonable

factual inferences in favor of the jury’s verdict.” Jiminez, 564 F.3d at 1284. “A

conviction must be upheld unless the jury could not have found the defendant

guilty under any reasonable construction of the evidence.” United States v.

Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999).

      “An agreement may be proved by either direct or circumstantial evidence

and a common scheme or plan may be inferred from the conduct of the

participants or from other circumstances. United States v. Diaz, 190 F.3d 1247,

1254 (11th Cir. 1999). The Government does not have to prove the defendant

“knew every detail” or “participated in every stage” of a conspiracy. Id.

      After viewing the evidence in the light most favorable to the Government

and drawing all reasonable inferences in favor of the jury’s verdict, we conclude

the jury could have found Padgett guilty under a reasonable construction of the

evidence. Chastain, 198 F.3d at 1351. The jury may have properly relied on

circumstantial evidence to conclude Padgett was involved in the conspiracy to

commit burglary. See Diaz, 190 F.3d at 1254. The evidence showed Padgett was

present at the planning meeting, brought bleach to help destroy the blood

evidence, and received a share of the stolen pills for his efforts. The Government

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did not have to show Padgett actually participated in the breaking and entering of

the pharmacy to prove his role in the conspiracy. Id. Accordingly, the evidence

was sufficient to support Padgett’s conviction for conspiracy to commit burglary.

                                          IV.

      Finally, Padgett argues his sentence is procedurally unreasonable because

the court did not rule on his motion for a downward departure. Review of

procedural sentencing claims may be reviewed for plain error when the defendant

failed to object below. See, e.g., United States v. Rodriguez, 627 F.3d 1372, 1380

(11th Cir. 2010). Under this standard, Padgett must show the plain error affected

his substantial rights. Id. Showing that an error affects substantial rights will

usually require the defendant to show the error “affected the outcome of the

district court proceedings.” Id. at 1382 (quotation omitted). If the effect of an

error on the result in the district court is uncertain or indeterminate, forcing us to

speculate, the defendant does not meet his burden. Id.

      Assuming the district court committed plain error by not considering

Padgett’s argument for downward departure, Padgett has not met his burden of

showing the result would have been different but for the error. Id. It is within the

district court’s discretion whether to grant a downward departure, see U.S.S.G.

4A1.3(b)(1), and the record does not indicate that the district court was inclined to

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apply that discretion. Because we would be forced to speculate as to whether the

district court would grant Padgett’s request for a downward departure based on his

criminal history, Padgett has not shown that his substantial rights have been

affected. Id.

      AFFIRMED.




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