United States v. Feliciano

300 F. App'x 795
CourtCourt of Appeals for the Eleventh Circuit
DecidedNovember 25, 2008
DocketNo. 07-12082
StatusPublished
Cited by15 cases

This text of 300 F. App'x 795 (United States v. Feliciano) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Feliciano, 300 F. App'x 795 (11th Cir. 2008).

Opinion

PER CURIAM:

Jimmy Feliciano appeals from his conviction and 188-month sentence for conspiracy to possess with intent to distribute cocaine, 21 U.S.C. §§ 841 and 846; attempt to possess with intent to distribute cocaine, 21 U.S.C. §§ 841 and 846, and 18 U.S.C. § 2; and conspiracy to interfere with commerce by robbery, 18 U.S.C. § 1951 (the “Hobbs Act”). Feliciano argues on appeal that: (1) there was insufficient evidence to support his Hobbs Act conspiracy conviction; (2) the district court abused its discretion in barring the impeachment of a co-conspirator; (3) the district court abused its discretion in allowing a detective to testify as an expert; (4) the district court abused its discretion in failing to give a multiple-conspiracy jury instruction; (5) the prosecutor made improper and prejudicial comments in closing argument; and finally, (6) the district court erred in applying a firearm enhancement to his sentence. After oral argument and careful review, we affirm.

I.

We review the sufficiency of evidence to support a conviction de novo, viewing the evidence in the light most favorable to the government and drawing all reasonable inferences and credibility choices in favor of the jury’s verdict. United States v. Taylor, 480 F.3d 1025, 1026 (11th Cir.), cert. denied, — U.S.-, 128 S.Ct. 130, 169 [798]*798L.Ed.2d 89 (2007). We review a district court’s evidentiary rulings for abuse of discretion. United States v. Perez-Oliveros, 479 F.3d 779, 783 (11th Cir.), cert. denied,-U.S.-, 127 S.Ct. 2964, 168 L.Ed.2d 284 (2007). We evaluate a prosecutor’s comments by asking: (1) whether the comments were improper, and (2) whether they prejudicially affected the defendant’s substantive rights. United States v. Garate-Vergara, 942 F.2d 1543, 1551 (11th Cir.1991). We review a district court’s refusal to give a requested instruction in its charge to the jury for abuse of discretion. United States v. Maduno, 40 F.3d 1212, 1215 (11th Cir.1994). Finally, we review “the district court’s findings of fact under U.S.S.G. § 2D1.1(b)(1) for clear error, and the application of the Sentencing Guidelines to those facts de novo.” United States v. Pham, 463 F.3d 1239, 1245 (11th Cir.2006) (quotations omitted).

II.

The relevant facts drawn from the defendant’s trial and the procedural history are as follows. In July 2005, a confidential source (“CS”) provided the Bureau of Alcohol Tobacco Firearms and Explosives (“ATF”) with information regarding an individual named Omar Ortega, who purportedly was involved in multiple narcotics-related home invasion robberies. At the direction of law enforcement officers, the CS proposed committing an armed robbery to Ortega, and introduced Ortega to an undercover detective, Juan Sanchez, who was posing as a disgruntled drug courier employed by a large-scale narcotics organization. Detective Sanchez told Ortega that he wanted to steal about 40 kilograms of cocaine that he was going to be delivering to a stash house in Miami for the organization. Ortega said he was willing to do the robbery and had the necessary people and equipment, including police uniforms, badges, and a car that looked like a police car.

Ortega originally asked Joel Goenaga and three others to participate in the robbery — planned for December 2005 — but that robbery did not take place because not everyone was available. Ortega and Detective Sanchez rescheduled the robbery for February 2006, and Ortega asked the defendant, Jimmy Feliciano, to be a lookout, telling him that the plan was to steal cocaine and that Feliciano would receive one kilogram of cocaine for his participation. Feliciano, Goenaga, and three others (some of whom were new to the plan) agreed to participate.

On the morning of February 23, 2006, the planned date for the robbery, Ortega picked up his guns, and then attempted to buy police t-shirts for his men to wear, but could not find any. The same morning, seven calls were made between Ortega’s and Feliciano’s phones, two were made between Ortega’s and Goenaga’s phones, and two were made between Feliciano’s and Goenaga’s phones. Later that morning, Goenaga and Feliciano rode together to a pre-arranged meeting place. On the way there, Ortega called Goenaga and asked him if he had brought a gun. Goenaga responded, “no,” and “Listen, I didn’t bring it.” When the phone call ended, Feliciano asked Goenaga, “What do you mean, you didn’t bring the gun?”

Ortega and the five men he had enlisted arrived at the meeting place in three cars. After a discussion between Ortega and the CS, the three cars followed the OS’s car into a predetermined location, at which time all six men were arrested. A search of one of the cars — not Feliciano’s — revealed a loaded Smith & Wesson Model 66 .357 magnum revolver and a Kel-Tec 9mm semi-automatic pistol.

Feliciano was charged with one count of conspiracy to possess with intent to dis[799]*799tribute five kilograms or more of cocaine in violation of 21 U.S.C. §§ 841 and 846; one count of attempt to possess with intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 841 and 846, and 18 U.S.C. § 2; one count of conspiracy to commit a Hobbs Act robbery in violation of 18 U.S.C. § 1951; one count of attempt to commit a Hobbs Act robbery in violation of 18 U.S.C. §§ 1951 and 2; and one count of conspiracy to carry a firearm during a drug trafficking crime or crime of violence in violation of 18 U.S.C. § 924. At Feliciano’s first trial, the jury was hung and the district court granted a judgment of acquittal as to the firearms count. At his retrial, Feliciano was found guilty by a jury of all counts except for the attempted robbery count, and the district court sentenced him to 188 months’ imprisonment, followed by five years’ supervised release and a $300 assessment. This timely appeal followed.

III.

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300 F. App'x 795, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-feliciano-ca11-2008.