Case: 18-13102 Date Filed: 03/27/2020 Page: 1 of 19
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-13102 Non-Argument Calendar ________________________
D.C. Docket No. 1:17-cr-00346-TCB-CMS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICARDO SILVA, a.k.a. Pops,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(March 27, 2020)
Before WILSON, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM: Case: 18-13102 Date Filed: 03/27/2020 Page: 2 of 19
Ricardo Silva appeals his convictions and 420-month total sentence for
drug-trafficking offenses and possession of a firearm during a drug-trafficking
crime. On appeal, Silva argues that (1) the district court erroneously denied his
motion for a judgment of acquittal; (2) the district court erroneously applied an
importation sentencing enhancement, pursuant to U.S.S.G. § 2D1.1(b)(5); and
(3) his 420-month total sentence was procedurally and substantively unreasonable.
After careful consideration, we affirm.
I. BACKGROUND
A. Factual Background 1
As part of an investigation of a methamphetamine trafficking ring, agents
with the Drug Enforcement Administration (“DEA”) wiretapped a cell phone that
Silva was using while he was an inmate at Smith State Prison under the custody of
the Georgia Department of Corrections. DEA agents intercepted numerous texts
and phone calls in which Silva coordinated deals to sell large quantities of
methamphetamine. Acting undercover, Agent Chase Hallman contacted the
wiretapped phone to set up a drug deal. Hallman sent a text message saying that he
was “[l]ooking for some work.” Doc. 242 at 28.2 Silva responded, “[T]hat’s cool.
1 The facts come from the evidence adduced at trial and the unobjected-to facts contained in the presentence investigation report. 2 “Doc. #” refers to the numbered entry on the district court’s docket. 2 Case: 18-13102 Date Filed: 03/27/2020 Page: 3 of 19
I’ll be ready but I come out after 6 P.M.” Id. at 29. Hallman texted the cell phone
again later that evening. He wrote, “So you are good with twelve five for a whole
[kilogram]?” Id. at 30. Silva responded “Yes. If you get consistent I will drop the
number some.” Id.
Hallman and Silva then talked on the phone to arrange the deal. Silva told
Hallman to meet with someone named Flacko to complete the transaction. On the
day of the arranged deal, an undercover agent met with Flacko. When Flacko gave
the agent only half a kilogram of methamphetamine—not the whole kilogram
agreed upon—Hallman contacted Silva about the discrepancy. Silva promised that
he would give Hallman extra methamphetamine to compensate for the mix-up.
When Hallman contacted Flacko about getting the extra methamphetamine, Flacko
said that he had not gotten permission from Silva to “turn over the dope.” Id. at
44. Silva told Hallman to contact another one of his associates, Lydia Beck, about
making up the shortage. When Hallman called Beck, she said that she “usually
winds up fixing” Silva’s mistakes. Id. at 56. He met Beck, and she gave him the
methamphetamine.
After the transaction, law enforcement continued to investigate Silva.
During the investigation, the wiretap picked up a phone call between Silva and
Beck, in which Silva asked Beck to hold drugs for another associate, Scrappy.
From the wiretap, investigators learned the address of the house where the drugs
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would be delivered, set up surveillance at the house, and obtained a search warrant.
When the officers executed the search warrant the next day, they found 13-gallon
jugs containing methamphetamine in solution.
From the wiretap, investigators picked up another phone call in which Silva
organized a drug deal with an associate, Leslie Nelson. Law enforcement set up
surveillance, watched the deal take place, and intercepted texts between Silva and
Nelson confirming that the deal was done. Nelson drove away and, shortly
thereafter, was apprehended by a Georgia patrolman. A search of her truck
revealed three kilograms of methamphetamine and a loaded gun. The gun was not
registered under Silva’s name. The wiretap picked up no conversations between
Silva and Nelson in which they discussed the gun.
B. Procedural Background
Silva was charged with (1) conspiracy to distribute methamphetamine, in
violation of 21 U.S.C. § 841(a)(1) (Count 1); (2) four counts of possession with
intent to distribute, in violation of § 841(a)(1) (Counts 2–5); and (3) possession of
a firearm during a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A)(i) (Count 6). He pled not guilty.
1. The Criminal Trial
At trial, the government presented evidence to the jury about its
investigation, including testimony about how the cell phone was used to organize
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the drug transactions discussed above. The government also presented evidence
linking the cell phone to Silva. DEA Officer Robert Keim testified that he
searched Silva’s prison cell and discovered the cell phone that was the subject of
the wiretap. By listening to the intercepted phone calls and talking to Silva in
person, Keim determined that Silva was the prisoner who possessed the cell phone
and used it to coordinate drug deals. Keim was “confident” that Silva was the
primary user of the cell phone because he had spoken with Silva once “for
approximately five minutes,” and Silva had “an extremely distinct voice.” Doc.
241 at 113–14.
On cross-examination, when asked whether he thought the voice in the calls
was Silva’s, Keim testified, “I am pretty confident—I am confident that that was
his voice that we captured.” Id. at 123. He later confirmed, “It’s Silva.” Id. at
124. He did not consult with an expert or request a voice exemplar to confirm that
the voice on the phone was Silva’s. There was no security video footage showing
Silva using the phone or cell site data showing that the phone was located in the
prison on the days the drug deals took place. Other than Silva’s roommate, Keim
interviewed no other prisoners to see whether they had access to the phone.
Jonathan Santiago, an officer at Smith State Prison, testified that he
interacted with Silva once or twice a week and was familiar with Silva’s voice,
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which was distinctive. When the government played an audio recording from an
intercepted phone call on Silva’s cell phone, Santiago recognized Silva’s voice.
Hallman testified that he was present for the search of Silva’s prison cell.
The identification number of the cell phone that was wiretapped matched that of
the cell phone found in Silva’s prison cell. After the search, Hallman spoke with
Silva and recognized Silva’s voice from the phone calls. Hallman testified that one
of Silva’s associates, Pollo, “was in Mexico” during the entire investigation. Doc.
242 at 131. Hallman also testified that, in his experience, it was common for guns
to be associated with drug deals and drug stashes.
The government rested. Silva then moved for a judgment of acquittal on all
counts, pursuant to Federal Rule of Criminal Procedure 29(a), arguing that the
evidence was insufficient to prove that he participated in the charged crimes. The
district court denied the motion, and Silva rested without presenting any evidence.
The jury found Silva guilty on all counts.
2. Sentencing
Before sentencing, the probation office prepared a presentence investigation
report (“PSR”). According to the unobjected-to facts in the PSR, Silva coordinated
with co-conspirators and trafficked large quantities of methamphetamine while he
was incarcerated. The PSR determined that Silva could be held accountable for
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4,761.5772 grams of “methamphetamine actual” and 65.504 kilograms of
methamphetamine mixture.
The PSR calculated that Silva’s total offense level was 44, which included a
two-level enhancement for importation of methamphetamine under the United
States Sentencing Guidelines, U.S.S.G. § 2D1.1(b)(5). The PSR explained that
Silva “knew that the methamphetamine involved in the offense was imported by
Pollo, [Silva’s] source of supply in Mexico.” PSR ¶ 86a. Regarding Silva’s
criminal history, the PSR noted that he was serving a sentence for a past drug
conviction and had been incarcerated since 2010. The PSR determined that Silva’s
criminal history category was III. Based on an adjusted offense level of 44 and a
criminal history category of III, the PSR determined that Silva’s Guidelines range
was life plus 60 months’ imprisonment.
In a sentencing memorandum, Silva objected to the two-level importation
enhancement under § 2D1.1(b)(5), arguing that there was no evidence showing that
he participated in the importation of the methamphetamine from Mexico or knew it
was imported from Mexico. He stated that “almost all methamphetamine available
in [the United States] is now imported from Mexico.” Doc. 169 at 1. Additionally,
Silva argued that the recommended Guidelines sentence was disproportionately
harsh in his case, which involved no violence, large sums of money, or major
distribution network. The government responded that the importation
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enhancement was appropriate because Silva’s crimes “simply involved the
importation” of methamphetamine, which was all the enhancement required. Doc.
171 at 1-2.
At sentencing, the district court adopted the unobjected-to facts and legal
conclusions in the PSR. The court noted that it had read the parties’ sentencing
memoranda and heard argument from Silva regarding the importation
enhancement. Silva argued at sentencing that the importation enhancement was
inapplicable because there was no evidence that he knew the methamphetamine
came from Mexico. Silva asserted that the government’s reading of the
enhancement was “way too expansive because virtually all of the
meth[amphetamine] comes from Mexico now, [and] it would apply to everybody.”
Doc. 244 at 3. In response, the government submitted written summaries of phone
calls between Silva and his associates that were prepared as part of the DEA
investigation. Silva did not object, and the court admitted the evidence, which
showed that: (1) Silva told one associate that he got his product from Pollo, who
was in Tamuaulipas, Mexico; (2) Silva asked another associate if he could call
Mexico on his phone, and then told the associate to call Pollo; (3) Silva told yet
another associate that he was talking to “the guy . . . in Mex”; and (4) Pollo sent
Silva a text message telling him that Pollo was in a cartel. Doc. 206-2 at 1–4. The
court overruled Silva’s objection, stating that there was not “any way around”
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applying the enhancement and noting that, as Silva had stated, “there is not much
meth, at least significant amounts of it, in Georgia that is not imported from
Mexico.” Doc. 244 at 3–4.
The court asked the parties for their sentencing recommendations. The
government argued that a total sentence of life plus 60 months was appropriate
considering Silva’s leadership role in the conspiracy and history of trafficking
drugs. Silva requested a total sentence of 25 years (300 months), the statutory
minimum, arguing that there were no “sufficient aggravators” to justify a total life
sentence. Id. at 13-14. Stating that it had “carefully considered all of the
sentencing factors set forth” in 18 U.S.C. § 3553(a), the court sentenced Silva to a
below-guidelines total sentence of 420 months, which included 360 months as to
Counts 1–5, to run concurrently, and 60 months as to Count 6, to run consecutively
to the 360-month term for Counts 1–5. Id. at 18. Silva objected, without success.
This is Silva’s appeal.
II. STANDARDS OF REVIEW
We review de novo the denial of a Rule 29 motion for a judgment of
acquittal, viewing the evidence in the light most favorable to the government and
making all reasonable inferences and credibility determinations in the
government’s favor. United States v. Cooper, 926 F.3d 718, 734 (11th Cir. 2019).
We review the district court’s factual findings at sentencing for clear error, but we
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review the district court’s application of the Sentencing Guidelines de novo.
United States v. Matos-Rodriguez, 188 F.3d 1300, 1309 (11th Cir. 1999). We
review the reasonableness of a sentence under a deferential abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 41 (2007); see also United States v.
Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc) (“A district court abuses its
discretion when it (1) fails to afford consideration to relevant factors that were due
significant weight, (2) gives significant weight to an improper or irrelevant factor,
or (3) commits a clear error of judgment in considering the proper factors.”
(internal quotation marks omitted)).
III. DISCUSSION
A. Motion for a Judgment of Acquittal
Silva first argues that the district court erred in denying his motion for a
judgment of acquittal. We will uphold the denial of a Rule 29 motion if “a
reasonable trier of fact could conclude that the evidence establishes the defendant’s
guilt beyond a reasonable doubt.” United States v. Rodriguez, 218 F.3d 1243,
1244 (11th Cir. 2000). Because “the jury is free to choose between or among the
reasonable conclusions to be drawn from the evidence presented at trial, our
sufficiency review requires only that a guilty verdict be reasonable, not inevitable,
based on the evidence.” United States v. Browne, 505 F.3d 1229, 1253 (11th Cir.
2007) (internal quotation marks omitted).
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Silva argues that the district court erroneously denied his motion for a
judgment of acquittal on Counts 1–5 because the evidence failed to establish that
he was the person coordinating the drug deals on the cell phone. We disagree: that
argument is belied by the record. At trial, witnesses testified that (1) officers found
the wire tapped cell phone in Silva’s prison cell, (2) Silva had a distinctive voice,
and (3) the voice on the wiretapped cell phone matched Silva’s voice. Further,
undercover officers mentioned Silva to Silva’s associates, and the associates
appeared to acknowledge that Silva was involved in the drug deals. In light of that
evidence, the jury reasonably concluded that Silva used the phone to coordinate
drug deals and traffic methamphetamine. See Rodriguez, 218 F.3d at 1244.
Silva points out that the government failed to present any voice exemplar
evidence to confirm that it was his voice on the cell phone. Even assuming that the
lack of exemplar evidence meant that a guilty verdict was not “inevitable,” that in
and of itself does not render the jury’s guilty verdict unreasonable. See Browne,
505 F.3d at 1253. In light of the substantial evidence, discussed above, indicating
that Silva was the inmate using the wiretapped cell phone, a reasonable trier of fact
could conclude that the evidence established Silva’s guilt beyond a reasonable
doubt. See Rodriguez, 218 F.3d at 1244. Thus, the district court did not err in
denying Silva’s motion for a judgment of acquittal on Counts 1–5.
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Silva further argues that the evidence was insufficient to convict him under
§ 924(c) because it was not reasonably foreseeable that Nelson would carry a gun
to her drug deal. Appellant’s Br. at 22. To prove a violation of § 924(c), the
government was required to show that, during and in relation to a drug-trafficking
conspiracy, the defendant used, carried, or possessed a firearm in furtherance of
that conspiracy. United States v. Gunn, 369 F.3d 1229, 1234 (11th Cir. 2004). A
conspirator may be found guilty of violating § 924(c) even if he was not present
when the offense was committed “if the carrying or using of a firearm by a
coconspirator is a reasonably foreseeable action of the conspiracy.” United States
v. Diaz, 248 F.3d 1065, 1100 (11th Cir. 2001).
Based on the evidence at trial, a reasonable jury could conclude that it was
reasonably foreseeable that Nelson would carry a gun to a drug deal, so Silva was
not entitled to a judgment of acquittal on Count 6. See id.; see also Rodriguez, 218
F.3d at 1244. The jury heard evidence that Silva communicated with Nelson to set
up the drug deal. Although the jury heard no evidence that Silva and Nelson
discussed a gun, the jury did hear Hallman testify that drugs and guns were
typically associated with one another. In addition, the jury heard that (1) Silva
coordinated multiple drug deals for the sale of methamphetamine and worked with
numerous associates, and (2) the drug deals involved large quantities of
methamphetamine. Under our precedent, this evidence was sufficient for a jury to
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have found that it was “reasonably foreseeable” that Silva’s co-conspirator would
carry a firearm. See United States v. Hromada, 49 F.3d 685, 689 (11th Cir. 1995)
(explaining that in general “[g]uns and violence go hand-in-hand with illegal drug
operations.”). Accordingly, we affirm on this ground.
B. Importation Guideline Enhancement
Silva also argues that the district court erred at sentencing when it applied an
enhancement because the offense involved the importation of methamphetamine.
“The burden of establishing evidence of the facts necessary to support a sentencing
enhancement falls on the government, and it must do so by a preponderance of the
evidence.” United States v. Perez-Oilveros, 479 F.3d 779, 783 (11th Cir. 2007).
The district court must ensure that the government carries this burden by finding a
sufficient basis for the requested enhancement. Id.
The Sentencing Guidelines provide for a two-level enhancement to a
defendant’s offense level when “the offense involved the importation of
amphetamine or methamphetamine or the manufacture of amphetamine or
methamphetamine from listed chemicals that the defendant knew were imported
unlawfully.” U.S.S.G. § 2D1.1(b)(5). We previously addressed the scope of this
enhancement in Perez-Oliveros. In Perez-Oliveros, the defendant was
apprehended while driving a truck loaded with methamphetamine that recently had
crossed the Mexican border. 479 F.3d at 781. On appeal, the defendant argued
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that because he personally did not drive the truck over the border, he could not be
subject to the importation enhancement. 3 Id. at 784. We rejected the argument
that the importation enhancement applied “to only those defendants who
themselves transport methamphetamine across the border.” Id. at 784. We
reasoned that the enhancement was not limited to individuals who personally
transported methamphetamine because the Sentencing Commission used the “more
inclusive language ‘involved the importation,’” even though it could have used the
more restrictive language it used in a different subsection. Id.; compare U.S.S.G.
§ 2D1.1(b)(5) (applying a two-level enhancement if the offense “involve[s] the
importation of . . . methamphetamine”), with U.S.S.G. § 2D1.1(b)(3) (applying an
enhancement “[i]f the defendant unlawfully imported or exported a controlled
substance”).
Silva acknowledges that the importation enhancement applies if the
methamphetamine was imported from Mexico, even if he did not personally
transport it across the border. But he argues that the district court erroneously
imposed the enhancement because the evidence did not establish that the
methamphetamine was imported from Mexico. He also asserts that his case is
factually distinguishable from Perez-Oliveros because he was incarcerated during
3 At the time that we decided Perez-Oliveros, this enhancement appeared at U.S.S.G. § 2D1.1(b)(4). 14 Case: 18-13102 Date Filed: 03/27/2020 Page: 15 of 19
the drug deals involved in the instant case, whereas Perez-Oliveros had personally
driven the drug-laden truck. We disagree and conclude that the district court’s
application of § 2D1.1(b)(5) was appropriate. Although Silva was in prison during
the drug deals, the record contains significant evidence linking him to ongoing
methamphetamine operations in Mexico. Specifically, the evidence showed that
Silva discussed drug deals—which took place in the United States—with Pollo,
who was located in Mexico and in a cartel. Additionally, Silva told one associate
that Pollo was his drug supplier. In light of that evidence, it was not clear error for
the district court to conclude that the methamphetamine that was the subject of the
drug deals came from Mexico. See Matos-Rodriguez, 188 F.3d at 1309.
Alternatively, Silva argues that “it cannot be determined whether the district
court made a factual finding beyond that the offense involved meth imported from
Mexico.” Appellant’s Br. at 25. But under Perez-Oliveros, all the court was
required to determine was that the offense “involved” the importation of
methamphetamine. See Perez-Oliveros, 479 F.3d at 784. Regarding the
importation enhancement, the district court noted that it had read the sentencing
memoranda, heard argument from the parties, and admitted evidence showing that
Silva communicated with Pollo, who was in Mexico, about the drug deals. Thus,
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there was a sufficient factual basis for the court to conclude that the enhancement
was appropriate. See Askew, 193 F.3d at 1183. We affirm on this ground.4
C. Procedural and Substantive Reasonableness of Total Sentence
Finally, Silva challenges his sentence as procedurally and substantively
unreasonable. In reviewing the reasonableness of a sentence, we first consider
whether the district court committed any significant procedural error. Gall, 552
U.S. at 51. A sentence is procedurally unreasonable if a district court commits an
error “such as failing to calculate (or improperly calculating) the Guidelines range,
. . . failing to consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence . . . .” Id. 5
Procedural reasonableness does not require that a court recite or discuss each of the
4 In Perez-Oliveros, we “decline[d] to define the exact contours of what it means for an offense” to involve the importation of methamphetamine. Perez-Oliveros, 479 F.3d at 784. Although the outer boundaries of the enhancement’s applicability are unclear, we conclude that Silva had the “requisite level of involvement” in the drug deals to support the enhancement because the evidence showed that he worked directly with a cartel member in Mexico to bring into the United States methamphetamine that he then distributed. Id. 5 Under § 3553(a), the district court is required to impose a sentence “sufficient, but not greater than necessary, to comply with the purposes” of the statute. 18 U.S.C. § 3553(a). These purposes include the need to: reflect the seriousness of the offense; promote respect for the law; provide just punishment; deter criminal conduct; protect the public from the defendant’s future criminal conduct; and effectively provide the defendant with educational or vocational training, medical care, or other correctional treatment. 18 U.S.C. § 3553(a)(2). The court must also consider the nature and circumstances of the offense, the history and characteristics of the defendant, the kinds of sentences available, the applicable guidelines range, the pertinent policy statements of the Sentencing Commission, the need to avoid unwarranted sentencing disparities, and the need to provide restitution to victims. Id. § 3553(a)(1), (3)–(7).
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§ 3553(a) factors. See United States v. Bonilla, 463 F.3d 1176, 1182 (11th Cir.
2006).
When reviewing a sentence for substantive reasonableness, we examine the
totality of the circumstances, including “whether the statutory factors in § 3553(a)
support the sentence in question.” United States v. Gonzalez, 550 F.3d 1319, 1324
(11th Cir. 2008). “We will not second guess the weight (or lack thereof) that the
judge accorded to a given factor under § 3553(a), as long as the sentence ultimately
imposed is reasonable in light of all the circumstances presented.” United States v.
Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (alterations adopted) (internal quotation
marks omitted). We may vacate a sentence only if we firmly believe that the
district court “committed a clear error of judgment in weighing the § 3553(a)
factors by arriving at a sentence that lies outside the range of reasonable sentences
dictated by the facts of the case.” Irey, 612 F.3d at 1190 (internal quotation marks
omitted). We may not set aside a sentence “merely because we would have
decided that another one is more appropriate.” Id. at 1191. We apply no
presumption of reasonableness to sentences within the Guidelines range, but we
ordinarily expect such sentences to be reasonable. United States v. Stanley, 739
F.3d 633, 656 (11th Cir. 2014). The party challenging the sentence bears the
burden of showing it is unreasonable. United States v. Tome, 611 F.3d. 1371, 1378
(11th Cir. 2010).
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The district court imposed no procedurally or substantively unreasonable
sentence. Gall, 552 U.S. at 41. Beyond arguing that the importation enhancement
was improper, Silva has not asserted that the court miscalculated the Guidelines
range. Nor has he argued that the court neglected to consider the § 3553(a) factors,
based the total sentence on clearly erroneous facts, or failed to explain its
sentencing decision. Rather, Silva argues that his total sentence was not
“proportionate to the crime for which [he was] convicted,” as his case did not
involve a “major drug conspiracy.” Appellant’s Br. at 27–28. That argument is
refuted by the record, which shows that Silva (1) committed the offenses while he
was incarcerated for another drug trafficking crime and (2) coordinated with
multiple associates to organize the distribution of over 65 kilograms of
methamphetamine. Notably, the court imposed a total sentence below the
Guidelines range of life plus 60 months. See Stanley, 739 F.3d at 656. Thus,
Silva’s total sentence was within the range of reasonable sentences dictated by the
facts of the case, especially considering the scope of the drug conspiracy, the
quantity of methamphetamine involved, and his criminal history. See Irey, 612
F.3d at 1190. We therefore conclude that Silva has not met his burden of showing
that his total sentence was unreasonable. See Tome, 611 F.3d. at 1378.
Accordingly, we affirm his 420-month total sentence.
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IV. CONCLUSION
For the foregoing reasons, we affirm Silva’s convictions and sentences.
AFFIRMED.