United States v. Betty Sylvester

300 F. App'x 669
Court of Appeals for the Eleventh Circuit·Decided November 14, 2008·No. 07-12164·Unpublished

Opinion

PER CURIAM:

Dashane Laurel appeals his convictions for conspiracy to possess with intent to distribute five kilograms or more of a mixture containing cocaine, in violation of 21 U.S.C. § 846, and possession with intent to distribute 500 grams or more of a mixture containing cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(l)(B)(ii) and 18 U.S.C. § 2, and aggregate sentence of 292 months’ imprisonment. 1 Laurel asserts several issues on appeal, which we address in turn. After review, we affirm Laurel’s convictions and aggregate sentence.

I.

Laurel asserts the evidence at trial was insufficient to support his convictions. Normally, we review the sufficiency of the evidence de novo, drawing all reasonable inferences in favor of the government. United States v. Hernandez, 433 F.3d 1328, 1332 (11th Cir.2005). “It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt.” United States v. Harris, 20 F.3d 445, 452 (11th Cir.1994) (quotations omitted). Additionally, when a defendant chooses to testify, the jury is free to reject his testimony as false and to conclude that the opposite of his testimony is true. United States v. Vazquez, 53 F.3d 1216,1226 (11th Cir.1995).

In this Circuit, a presentation of a defense case after the denial of a motion for judgment of acquittal, made at the close of the government’s case-in-chief, operates as a waiver of any objection to the decision on the motion. United States v. Jones, 32 F.3d 1512, 1516 (11th Cir.1994). Further, when the defendant fails to move for a judgment of acquittal at the close of the evidence, he shoulders a heavier burden, *671 and his conviction will only be reversed “where doing so is necessary to prevent a manifest miscarriage of justice.” United States v. Greer, 440 F.3d 1267, 1271 (11th Cir.2006). This standard requires the conviction to be shocking in light of the evidence. Id. In this case, because Laurel failed to move for judgment of acquittal on the conspiracy chai’ge at any point, or as to the possession count at the close of the evidence, the latter showing is required.

Section 841 of Title 21 of the United States Code makes it a crime to knowingly possess cocaine with the intent to distribute it. In order to obtain a conviction under § 841, the government must “prove three elements: (1) knowledge; (2) possession; and (3) intent to distribute.” United States v. Poole, 878 F.2d 1389, 1391 (11th Cir.1989). These elements may be proved by either direct or circumstantial evidence. Id. at 1391-92.

Section 846 of Title 21 of the United States Code punishes a person who conspires to do something which if carried out would violate § 841. In order to obtain a conspiracy conviction under § 846, the government must prove: “1) the existence of an agreement among two or more persons; 2) that the defendant knew of the general purpose of the agreement; and 3) that the defendant knowingly and voluntarily participated in the agreement.” United States v. Simpson, 228 F.3d 1294, 1298 (11th Cir.2000). Participation in a conspiracy may be inferred from a collocation and development of circumstances with presence at the scene of the crime being of probative value. United States v. McDowell, 250 F.3d 1354, 1365 (11th Cir. 2001).

The evidence supports the jury’s guilty verdict on each count. First, Laurel chose to testify that he did not conspire to distribute cocaine, did not actually possess the cocaine, and did not know that Sylvester possessed cocaine or that it was in the vehicle. Therefore, the jury was entitled to conclude that the opposite was true and convict him of both conspiracy and possession. See Vazquez, 53 F.3d at 1226. Even without his testimony, the evidence showed Laurel was arrested during a controlled purchase and Byron Washington purchased at least 100 kilograms of cocaine from Sylvester, with Laurel present during their transactions, from September through November. Further, Laurel played an active role in the transactions because he explained to Washington the purpose of the rod in the cocaine blocks, connected Washington with another within the conspiracy to negotiate the price, and personally exchanged drugs for money with Washington.

Viewing the evidence in the light most favorable to the Government and drawing all reasonable inferences in favor of the verdict, the evidence supported the jury’s conclusion that Laurel entered into an agreement to distribute at least 5 kilograms of a mixture containing cocaine and actually possessed at least 500 grams of a mixture containing cocaine with intent to distribute it. See McDowell, 250 F.3d at 1365; Poole, 878 F.2d at 1391. Therefore, sufficient evidence supported adjudication of guilt, and we affirm Laurel’s convictions for conspiracy to possess with intent to distribute five kilograms or more of a mixture containing cocaine, in violation of 21 U.S.C. § 846, and possession with intent to distribute 500 grams or more of a mixture containing cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(l)(B)(ii) and 18 U.S.C. § 2.

II.

Laurel also raises two sentencing issues. He contends the district court erroneously determined the drug quantity for which he was accountable under U.S.S.G. § 2D1.1. He further asserts the *672 district court erred in enhancing his offense level for obstruction of justice under U.S.S.G. § 3C1.1.

We review the district court’s interpretation and application of the Guidelines to the facts de novo and its factual determinations for clear error. United States v. Zapata, 139 F.3d 1355, 1357 (11th Cir. 1998).

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