United States v. Audain

254 F.3d 1286, 2001 WL 708707
Court of Appeals for the Eleventh Circuit·Decided June 25, 2001·No. 99-4281·Published·Cited by 50 cases

Opinion

*1288 PER CURIAM:

I.

Defendants/Appellants (the “Defendants”) Joel G. Audain (“Audain”), Fernando Burgos-Martinez (“Burgos”), Reginald Molin (“Molin”), Luckner Guillaume (“Guillaume”), and Marc Valme (“Valme”) appeal their convictions and sentences for conspiracy to import cocaine and conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 846, 952, and 963. Molin, Guillaume, Audain, and Burgos appeal their convictions and sentences for conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h). Molin and Guillaume appeal their convictions and sentences for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). Audain appeals his conviction and sentence for substantive money laundering, in violation of 18 U.S.C. § 1957.

After a lengthy trial, the Defendants were convicted on all charges filed against them, and the district court sentenced the Defendants as follows: Audain, life imprisonment; Burgos, life imprisonment; Valme, life imprisonment; Guillaume, 235-month prison term; and Molin, 240-month prison term. The Defendants then perfected their appeals.

II.

The Defendants present the following issues for appellate review:

1. Whether the conspiracy evidence proven at trial materially varied from the indictment and, if so, whether the Defendants have established prejudice.

2. Whether the evidence was sufficient to support the Defendants’ convictions.

3. Whether the district court committed reversible error in admitting wiretapped conversations involving Molin.

4. Whether the district court committed reversible error in denying Guillaume’s mistrial motion based upon one witness’s non-responsive answer.

5. Whether the district court committed reversible error in allowing questions on redirect examination concerning information about Burgos from a witness’s manuscript.

6. Whether the prosecutor’s closing remarks about Audain and Guillaume constituted misconduct and, if so, whether either Defendant should receive a new trial.

7. Whether the district court erred in sentencing the Defendants.

III.

After reviewing the record, reading the parties’ briefs, and having the benefit of oral argument, we affirm all of the Defendants’ convictions and sentences, except for the life sentences imposed upon Audain and Burgos for their convictions under 18 U.S.C. § 1956(h). Title 18 U.S.C. § 1956 carries a maximum sentence of 20 years imprisonment, and, therefore, as the government concedes, 1 the district court erred in sentencing Audain and Bur-gos to life imprisonment for violation of this statute. Accordingly, we must vacate that portion of their sentences and remand the case for the district court to resentence Audain and Burgos for their convictions under 18 U.S.C. § 1956(h).

In all other respects, we summarily affirm the Defendants’ judgments of conviction and sentences. 2 We feel compelled, however, to briefly address Audain’s argument concerning the firearm enhancement *1289 that the district court imposed on him pursuant to U.S.S.G. § 2Dl.l(b)(l).

IV.

Audain worked as an immigration inspector for the Immigration and Naturalization Service (“INS”) at the Miami International Airport. Evens Gourgue (“Gourgue”), a terminal operations specialist at Miami International Airport, testified that he observed Audain assisting drug traffickers smuggle drugs into the country. Gourgue stated that when he decided to act as a drug courier himself, he asked Audain to assist him, and Audain agreed. After two separate drug runs from Haiti to Miami, Gourgue testified that Audain met him at the jetway and escorted him through the Miami airport in order to avoid Customs agents and agents of the INS. Gourgue testified that Audain was in his INS uniform on both occasions, and that he carried a firearm. Based on Gourge’s testimony, the district court imposed a two level firearm enhancement on Audain’s offense level, pursuant to U.S.S.G. § 2Dl.l(b)(l).

Audain challenges the firearm enhancement by arguing that it was clearly improbable that the firearm he carried was connected with Gourgue’s drug offense because Gourgue’s testimony demonstrated that Audain’s possession of the firearm was immaterial to Gourgue. We disagree.

This court reviews the district court’s factual findings for clear error and its application of the Sentencing Guidelines to those facts de novo. United States v. Trujillo, 146 F.3d 838, 847 (11th Cir.1998). Pursuant to U.S.S.G. § 2D1.1(b)(1), if a defendant possessed a dangerous weapon during a drug-trafficking offense, his offense level should be increased by two levels. The commentary to § 2D1.1 explains that this firearm enhancement “should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S.G. § 2D1.1, comment, (n.3) (1991). The government has the burden under § 2D1.1 to demonstrate the proximity of the firearm to the site of the charged offense by a preponderance of the evidence. United States v. Hall, 46 F.3d 62, 63 (11th Cir.1995). If the government is successful, the evidentiary burden shifts to the defendant to demonstrate that a connection between the weapon and the offense was “clearly improbable.” Id.

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United States v. Audain, 254 F.3d 1286, 2001 WL 708707 (11th Cir. 2001).

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