United States v. Javier Gonzalez

501 F. App'x 851
CourtCourt of Appeals for the Eleventh Circuit
DecidedNovember 27, 2012
Docket11-10966
StatusUnpublished

This text of 501 F. App'x 851 (United States v. Javier Gonzalez) 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. Javier Gonzalez, 501 F. App'x 851 (11th Cir. 2012).

Opinion

PER CURIAM:

Javier Gonzalez appeals his convictions for conspiracy to possess with intent to distribute cocaine, 21 U.S.C. § 841(a)(1) and 846, and possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1), (b)(l)(B)(ii), for which he was sentenced to 80 months’ imprisonment. No reversible error has been shown; we affirm.

Gonzalez first argues that insufficient evidence exists to support his convictions. We review de novo the sufficiency of the evidence to sustain a conviction, viewing the evidence “in the light most favorable to the government” and “resolving all reasonable inferences in favor of the verdict.” United States v. Farley, 607 F.3d 1294, 1333 (11th Cir.), cert. denied, — U.S. -, 131 S.Ct. 369, 178 L.Ed.2d 238 (2010). “We will not reverse unless no reasonable trier of fact could find guilt beyond a reasonable doubt.” Id.

To convict Gonzalez of conspiracy to possess with intent to distribute cocaine, “the government need not demonstrate the existence of a ‘formal agreement,’ but may instead demonstrate by circumstantial evidence ‘a meeting of the minds to commit an unlawful act.’” See United States v. Toler, 144 F.3d 1423, 1426 (11th Cir.1998) (citation omitted). Sufficient evidence exists to support Gonzalez’s conspiracy conviction. Testimony at trial—when viewed in the light most favorable to the government—demonstrated that Gonzalez introduced the drug seller to the buyers, acted as an intermediary between the seller and the buyers, allowed the seller and the buyers to use his home to negotiate and to conduct drug sales, and received $500 as compensation for setting up the drug deal. Based on this evidence, a reasonable trier of fact could conclude that a meeting of the minds existed between Gonzalez and his codefendants to possess with intent to distribute cocaine.

To sustain a conviction for possession with intent to distribute cocaine under an aiding and abetting theory—as pursued in Gonzalez’s case—“the prosecution must show that ‘the defendant associated himself with a criminal venture, participated in it as something he wished to bring about, and sought by his actions to make it succeed.’ ” United States v. Pantoja-Soto, 739 F.2d 1520, 1525 (11th Cir.1984). The government may satisfy its burden through circumstantial evidence. Id.

Based on Gonzalez’s conduct and presence at “critical junctures” during the negotiation and execution of the drug sales, we can infer his intent to possess and distribute drugs and, thus, his association with the criminal venture. See United States v. Sellers, 871 F.2d 1019, 1022 (11th Cir.1989). And because the government established that Gonzalez helped facilitate successful drug sales between the seller and the buyers, it satisfied its burden of proof such that we cannot say that “no reasonable trier of fact could find guilt beyond a reasonable doubt.”

We next address Gonzalez’s argument that the district court erred in refusing to instruct the jury on misdemeanor cocaine possession, 21 U.S.C. § 844(a), which he contends is a lesser included offense of possession with intent to distribute cocaine, 21 U.S.C. § 841(a). We review a district court’s refusal to give a requested jury instruction for abuse of discretion. United States v. Lee, 68 F.3d 1267, 1273 (11th Cir.1995). And “we may affirm on any ground that finds support in the record.” United States v. Mejia, 82 *854 F.3d 1032, 1035 (11th Cir.1996), abrogated on other grounds by Bloate v. United States, 559 U.S. 196, 130 S.Ct. 1345, 176 L.Ed.2d 54 (2010).

Because the factual issues to be resolved by the jury were the same for the lesser offense of possession as for the greater offense of possession with intent to distribute, an instruction on possession was not required. See United States v. Catchings, 922 F.2d 777, 780-81 (11th Cir.1991). Moreover, because Gonzalez’s defense— that he was a mere observer, was uninvolved in the conspiracy, and did nothing to help facilitate the drug sale—“if believed, would lead to acquittals on both the greater and lesser charges, it is no abuse of discretion to refuse to instruct the jury on a lesser included offense.” United States v. Brown, 26 F.3d 119, 120 (11th Cir.1994).

We also reject Gonzalez’s argument that the district court erred in failing to answer adequately the jury’s question about whether sampling a small amount of cocaine made Gonzalez culpable for possessing a larger quantity. “We review a district court’s response to a jury question for an abuse of discretion.” United States v. Lopez, 590 F.3d 1238, 1247 (11th Cir.2009). After considering the parties’ arguments about how it should respond to the jury’s question, the court instructed the jurors to “rely upon [their] interpretation of the facts and [their] application of the jury instructions to those facts.” Because answering the jury’s question would have required a fact intensive analysis—which would have invaded the province of the jury—we see no abuse of discretion in the district court’s refusal to provide a more precise answer to the jury’s question.

Gonzalez also argues that the prosecution discredited defense counsel improperly by characterizing two of defense counsel’s arguments—about the government’s desire to win the case and the government’s ability to argue twice during closing—as “defense lawyer tricks.” Because Gonzalez failed to raise this objection at trial, we review only for plain error. See United States v. Merrill, 513 F.3d 1293, 1306-07 (11th Cir.2008).

To succeed on this claim, Gonzalez must demonstrate both that the prosecutor’s remark was improper and that the remark affected prejudicially his substantial rights. See id. at 1307. In the light of the evidence of Gonzalez’s guilt, Gonzalez cannot show that, but for the prosecutor’s remark, the outcome of his trial would have been different. Thus, he has failed to demonstrate prejudice. See id. 1

We now address Gonzalez’s challenges to his sentence.

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Related

Bloate v. United States
559 U.S. 196 (Supreme Court, 2010)
United States v. Toler
144 F.3d 1423 (Eleventh Circuit, 1998)
United States v. Marvin Baker
432 F.3d 1189 (Eleventh Circuit, 2005)
United States v. Lesmarge Valnor
451 F.3d 744 (Eleventh Circuit, 2006)
United States v. Merrill
513 F.3d 1293 (Eleventh Circuit, 2008)
United States v. Lopez
590 F.3d 1238 (Eleventh Circuit, 2009)
United States v. Bernal-Benitez
594 F.3d 1303 (Eleventh Circuit, 2010)
United States v. Brenton-Farley
607 F.3d 1294 (Eleventh Circuit, 2010)
United States v. Theresa M. Sellers
871 F.2d 1019 (Eleventh Circuit, 1989)
United States v. Gregory A. Catchings, A/K/A Jelly Roll
922 F.2d 777 (Eleventh Circuit, 1991)
United States v. Maurice Eugene Brown
26 F.3d 119 (Eleventh Circuit, 1994)
United States v. Jermaine Ford
854 F.3d 1030 (Eighth Circuit, 2017)

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Bluebook (online)
501 F. App'x 851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-javier-gonzalez-ca11-2012.