[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS

________________________
ELEVENTH CIRCUIT
MAR 3, 2010
JOHN LEY
CLERK

No. 09-10358
Non-Argument Calendar
________________________
D. C. Docket No. 08-20550-CR-FAM
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus
BARBARO FUENTES,
JULIANNY REYES,
EMILIO FLORES,

Defendants-Appellants.

________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(March 3, 2010)
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:

Barbaro Fuentes, Julianny Reyes, and Emilio Flores appeal their respective
convictions for conspiring to possess with intent to distribute, and possession with
intent to distribute, 500 grams or more of cocaine, in violation of 21 U.S.C.
841(a)(1), 841(b)(1)(B), 846, and 18 U.S.C. 2, and the sentences imposed by
the district court. For the reasons set forth below, we affirm the convictions and
sentences as to each Appellant.
The case arises from a controlled drug transaction, set up with the
cooperation of the Drug Enforcement Agency (DEA) and the Miami-Dade Police
Department. The DEA utilized a cooperating source (Heriberto Ruiz), who
recorded cell phone calls with codefendant Juan Martinez, negotiating the purchase
of 7 kilograms of cocaine.1 Using aerial surveillance, agents observed Martinez,
driven by Appellant Reyes, meet with Ruiz in a shopping center parking lot in
South Miami. Ruiz was wearing an audio-video recording device during this
meeting.
Martinez informed Ruiz that his suppliers for the drugs, to whom he referred
as Brujeros or Santeros, because they purportedly practiced Santeria, were
located in a residence nearby. When Ruiz refused to accompany Martinez and
Reyes to the residence, Martinez made a phone call, and informed Ruiz that the

Martinez pled guilty to the two charges against him, but Fuentes, Reyes, and Flores
proceeded to trial.
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transaction could be made at the shopping center, but that the deal would only
involve 4 kilograms.
Following this meeting, Martinez and Reyes were observed returning to
Appellant Floress nearby apartment. When they left the apartment, Martinez was
carrying a green box, and they were followed by Flores and Appellant Fuentes,
who got into a van. When the four codefendants arrived at the shopping center
parking lot, Martinez and Reyes parked near Ruiz, and Flores and Fuentes parked a
short distance away, apparently to conduct counter-surveillance. Ruiz approached
Martinez, who was in the passenger seat of Reyess car, confirmed that the
substance in the green box was cocaine, and gave law enforcement the prearranged take-down signal.
Martinez and Reyes were arrested in the car, and Flores and Fuentes were
arrested in the van. Cell phones were seized from all four codefendants, and Flores
and Reyes were found to have small amounts of cocaine in their possession.
Officers conducted a protective sweep of Floress apartment, and thereafter
searched the apartment pursuant to a warrant. Nearly a kilogram of cocaine and
various drug paraphernalia was found in the apartment in plain view.
We now address the several legal arguments raised by the Appellants in turn.

I. Fuentess Suppression Motion

Fuentes argues that the district court erred in denying his motion to suppress
evidence relating to his cell phone, which was discovered in the search incident to
his arrest. Specifically, he argues that there was no probable cause to arrest him,
and the subsequent search was thus unlawful.
Because rulings on motions to suppress involve mixed questions of fact and
law, we review the district courts factual findings for clear error, and its
application of the law to the facts de novo. Further, when considering a ruling on a
motion to suppress, all facts are construed in the light most favorable to the
prevailing party below. United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir.
2000) (citation omitted).
Probable cause to arrest exists when law enforcement officials have facts
and circumstances within their knowledge sufficient to warrant a reasonable belief
that the suspect had committed or was committing a crime. United States v.
Floyd, 281 F.3d 1346, 1348 (11th Cir. 2002) (citation and quotation omitted); see
also Skop v. City of Atlanta, 485 F.3d 1130, 1137 (11th Cir. 2007) (This probable
cause standard is practical and non-technical, applied in a specific factual context
and evaluated using the totality of the circumstances.) (citation omitted). Where
probable cause exists for an arrest, evidence obtained during a search incident to

arrest is admissible. Floyd, 281 F.3d at 1348. Moreover, when a policeman has
made a lawful custodial arrest of the occupant of an automobile, he may, as a
contemporaneous incident of that arrest, search the passenger compartment of that
automobile. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69
L.Ed.2d 768 (1981). Accord Arizona v. Gant, 129 S.Ct. 1710, 1719, 173 L.Ed.2d
485 (2009) (reaffirming Belton as applied to facts such as these).
The district court did not err in denying Fuentess motion to suppress,
because probable cause existed for his arrest, and his cell phone was seized in a
proper search incident to his arrest. Before Fuentes was arrested, officers had
obtained significant information about the drug conspiracy and his role in it. For
example, Martinez had informed Ruiz (the cooperating source) that his cocaine
suppliers the Brujeros, or Santeros were located in Miami, on 13th Street,
near 82nd Avenue (later established as codefendant Floress apartment). When
Ruiz refused to consummate the drug transaction at the residence, Martinez called
his suppliers, and a nearby shopping center was established as the alternative
location. Just prior to scheduled transaction, Martinez was observed going to
Floress apartment at 8020 Southwest 13th Street, and departing with a green box,
accompanied by Fuentes, Flores, and Reyes. Fuentes and Flores followed Reyes
and Martinez to the agreed transaction point in a van, and parked nearby to conduct

counter-surveillance of the transaction.

Incident to his arrest, a cell phone was taken from Fuentess hand. Under
these facts, we find that the district court correctly ruled that probable cause existed
to arrest Fuentes, and that his cell phone was admissible as having been discovered
in a proper search incident to his arrest.
II. Admission of Evidence Relating to Fuentess Cell Phone
In an argument related to his suppression motion, Fuentes claims that the
district court erred in admitting into evidence testimony that his first name,
(Barbaro), and the number of the cell phone seized from him upon his arrest,
appeared in the contacts list of the cell phone seized from codefendant Martinez.
Fuentes argues that this testimony, permitted over his objection at trial, was
inadmissible hearsay.
We review a district courts evidentiary rulings for an abuse of discretion,
and may overturn findings of fact only if clearly erroneous. United States v.
Flores, 572 F.3d 1254, 1263 (11th Cir.), cert. denied, Nos. 09-6730, 09-6821, and
09-6912 (S.Ct. Nov. 9, 2009). Finally, we apply a harmless error standard to
erroneous evidentiary rulings. United States v. Henderson, 409 F.3d 1293, 1300
(11th Cir. 2005) (When a trial judge has erroneously admitted evidence in a
criminal prosecution, we ask whether the error had a substantial influence on the

outcome of a case or left grave doubt as to whether [it] affected the outcome of a
case.) (citations and quotation omitted).
We have previously held that evidence offered for the limited purpose of
linking coconspirators is not hearsay. United States v. Mazyak, 650 F.2d 788, 792
(5th Cir. Unit B 1981) (The government offered the letter for the limited purpose
of linking the appellants with the vessel and with one another. The use of the letter
for this limited purpose was not hearsay. The letter was not introduced to prove
the truth of the matter asserted; rather it was introduced as circumstantial proof that
the appellants were associated with each other and the boat.).
Fuentes fails to demonstrate clear error in the district courts admission of
testimony regarding Martinezs cell phone and the contact list therein containing
Fuentess first name and the number to the cell phone that he was using. The
evidence was admitted for the same reasons as the in Mayzak: to show the
relationship between the co-conspirators. Even if the district court erred in
admitting this evidence under either Mazyak or Rule 801(d)(2)(E), any error was
harmless. In light of the other evidence introduced to establish Fuentess
participation in the drug conspiracy, including the surveillance evidence, the cell
phone call records which were admitted without objection and Fuentess
presence in Floress apartment immediately prior to the drug transaction, where

nearly a kilogram of cocaine and drug paraphernalia were in plain view, the
admission of the phone contact information was harmless error, if error. See
Henderson, 409 F.3d at 1300-01.
III. Floress Suppression Motion
Flores argues on appeal that the district court erred in denying his motion to
suppress evidence seized from his apartment following his arrest, claiming that a
protective sweep search of his apartment was unlawful, and that there was no valid
independent source of probable cause to support the subsequent warrant.
Because rulings on motions to suppress involve mixed questions of fact and
law, we review the district courts factual findings for clear error, and its
application of the law to the facts de novo. Further, when considering a ruling on a
motion to suppress, all facts are construed in the light most favorable to the
prevailing party below. United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir.
2000) (citation omitted).
Searches and seizures inside a home without a search warrant are
presumptively unreasonable. Id. at 1262-63 (citing Payton v. New York, 445 U.S.
573, 603, 100 S.Ct. 1371, 1388, 63 L.Ed.2d 639 (1980)). Under the independent
source doctrine, however, the evidence seized is admissible if it was obtained from
a lawful source, independent of the unreasonable or unlawful search. United States

v. Davis, 313 F.3d 1300, 1303-04 (11th Cir. 2002) (holding subsequent warrant
was supported by probable cause, and not based on any information learned during
prior unlawful search); cf. United States v. Chaves, 169 F.3d 687, 692-93 (11th
Cir. 1999) (holding sufficient probable cause established for warrant, discounting
information learned during prior unlawful search).
Probable cause to search a residence exists when there is a fair probability
that contraband of evidence of a crime will be found in a particular place. The
nexus between the objects to be seized and the premises searched can be
established from the particular circumstances involved and need not rest on direct
observation. United States v. Jenkins, 901 F.2d 1075, 1080 (11th Cir. 1990)
(citations and quotations omitted).
Viewing the facts in the light most favorable to the government, the district
courts denial of Floress motion to suppress was not erroneous. Having found that
the sweep search of Floress apartment was unlawful, the district court resolved the
suppression dispute under the independent source doctrine. As noted by the
district court, no material information learned during the prior search was used to
support the subsequent search warrant, because the warrant application was
supported largely by information known to the officers prior to the warrantless
entry.

Prior to Floress arrest, officers knew that their confidential source had set
up a cocaine purchase with persons located at this apartment. They also knew that
the transaction was originally to involve 7 kilograms of cocaine, but only 4
kilograms were offered for sale when the transaction location was changed to a
public shopping center. Officers observed Floress codefendants arrive at this
apartment, and all four depart (Martinez carrying a green box) to consummate the
drug transaction as agreed with the informant. When officers arrested Flores and
his codefendants at the shopping center, cocaine was discovered in the green box,
and two small baggies containing cocaine were found on Flores. While Paragraph
8 of the affidavit used to obtain the warrant could be read as revealing certain
information that was learned during the sweep search, e.g., that Flores leased the
apartment, this information was de minimus, and probable cause was present
absent this evidence. See Chaves, 169 F.3d at 692-93 (sufficient probable cause
established for warrant, discounting information learned during prior unlawful
search). Based on the above, Flores has failed to demonstrate that the district court
erred in denying his motion to suppress.

IV. Sufficiency of the Evidence Against Fuentes and Flores

Appellants Fuentes and Flores argue that the evidence was insufficient to

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support their respective convictions for conspiracy to possess with intent to

distribute cocaine, and possession with intent to distribute cocaine.
We review sufficiency of the evidence de novo, viewing the evidence in the
light most favorable to the government, with all reasonable inferences and
credibility choices made in the governments favor. United States v. Wright, 392
F.3d 1269, 1273 (11th Cir. 2004) (We will not overturn a conviction on the
grounds of insufficient evidence unless no rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. Finally, our Court
must accept a jurys inferences and determinations of witness credibility.)
(citations and quotations omitted). Reasonable inferences, and not mere
speculation, must support the jurys verdict. United States v. Perez-Tosta, 36
F.3d 1552, 1557 (11th Cir. 1994).
To convict a defendant of conspiracy to possess with intent to distribute
cocaine, the government must demonstrate that the defendant knowingly and
voluntarily participated in an agreement between himself and at least one other
individual to commit the crime. United States v. Obregon, 893 F.2d 1307, 1311
(11th Cir. 1990) (The government need not prove that each alleged conspirator
knew all the details of the conspiracy. The government provides sufficient proof
of knowledge by demonstrating the conspirator knew of the essential purpose of

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the conspiracy.). A person may also be found guilty of a conspiracy even if he

plays only a minor role in the total scheme. Id. (citation and quotation omitted).
To convict a defendant of possession with intent to distribute cocaine, the
government must prove knowledge, possession, and intent to distribute. United
States v. Mercer, 541 F.3d 1070, 1076 (11th Cir. 2008), cert. denied, 129 S.Ct. 954
(2009).
Fuentes
The jury was presented with trial testimony and other evidence tending to
show that Fuentes was one of the suppliers of the 4 kilograms of cocaine used in
the transaction with the cooperating source and that he performed countersurveillance at the transaction. For example, the jury heard on several occasions
that the cocaine Martinez was selling was supplied by two individuals, referred to
as the Brujeros or Santeros. Testimony was also introduced showing that
Martinez had Fuentess name and phone number in the contacts section of his
cell phone, and that there were multiple calls between Martinez and Fuentes on the
date of the drug transaction most of which were immediately before or after calls
between Martinez and Ruiz, the cooperating source.
Testimony and surveillance video were also introduced showing that Fuentes
(with Flores) followed Martinez and Reyes to the drug transaction, parking nearby

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to conduct counter-surveillance. Further, the post-arrest search of Floress

apartment, which Fuentes had been in immediately prior to the drug transaction,
yielded a significant quantity of cocaine and various drug paraphernalia in plain
view.
When all inferences and credibility determinations are viewed in the light
most favorable to the government, and the jurys findings similarly credited, there
was sufficient evidence to conclude beyond a reasonable doubt that Fuentes was
guilty on both the conspiracy count and the substantive drug count. Wright, 392
F.3d at 1273.
Flores
The jury was likewise presented with trial testimony and other evidence
showing that Flores was one of the suppliers of the cocaine used in the transaction
with the cooperating source, and that he performed counter-surveillance at the
transaction. For example, Floress apartment was identified by Martinez as the
location of the Brujeros or Santeros, who were supplying the cocaine to be
bought by the cooperating source, and items associated with Santeria were found
inside and outside of Floress apartment. Also, the jury heard evidence that
Martinez went to Floress apartment to get the 4 kilograms that were to be sold to
the cooperating source.

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Testimony and surveillance video was introduced showing that Flores and
Fuentes followed Martinez and Reyes to the drug transaction, parking nearby to
conduct counter-surveillance, and the post-arrest search of Floress apartment
yielded a significant quantity of cocaine and various drug paraphernalia.
When all inferences and credibility determinations are viewed in the light
most favorable to the government, and the jurys findings similarly credited, there
was sufficient evidence to conclude beyond a reasonable doubt that Flores was
guilty on both the conspiracy count and the substantive drug count. Wright, 392
F.3d at 1273.
V. Conduct of the Trial Judge
In an argument adopted by Fuentes, Reyes asserts that the trial was not fair
because the trial judge repeatedly interfered in the conduct of the trial, purportedly
to speed up the proceedings. Neither Reyes nor Fuentes raised any objection
regarding the trial judges conduct below, and Reyess argument encompasses
interruptions of the prosecution as well as other defense counsel.
A defendant seeking reversal based on comments or questions by the trial
judge must demonstrate an abuse of discretion and prejudice. United States v.
DeLaughter, 453 F.2d 908, 911 (5th Cir. 1972) (no reversible error where trial
judge asked questions pertinent and generally related to a valid inquiry into

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material facts, which did not solely benefit the prosecution); see also United
States v. Bertram, 805 F.2d 1524, 1529 (11th Cir. 1986) (Only when the judges
conduct strays from neutrality is the defendant thereby denied a constitutionally
fair trial.) (citations and footnote omitted). Where the claim was not preserved,
however, we review only for plain error. United States v. De La Garza, 516 F.3d
1266, 1269 (11th Cir. 2008), cert. denied, 129 S.Ct. 1668 (2009).
Under plain error review, there must be (1) an error, (2)
that is plain, (3) that affects the defendants substantial
rights, and (4) that seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Id. For an
error to affect substantial rights, in most cases it means
that the error must have been prejudicial: It must have
affected the outcome of the district court proceedings.
United States v. Olano, 507 U.S. 725, 734, 113 S.Ct.
1770, 1778, 123 L.Ed.2d 508 (1993). The defendant has
the burden of persuasion as to prejudice. United States v.
Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005).
Id. at 1269.
The record does not support the claim that Reyes and Fuentes were denied a
fair trial as a result of the trial judges conduct, or that the trial judge lacked
neutrality. By their own admission, the trial judge interrupted virtually every
direct and cross examination, not just those conducted by defense counsel. The
record also reflects that the trial judge corrected the questioning methods of the
governments counsel as well as defense counsel, and interposed his own

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objections during each sides presentations. The questioning and other

interruptions cited by Reyes and Fuentes were generally intended to maintain the
pace of the trial.
Reyes specifically highlights the trial judges colloquy with her counsel
regarding some apparent confusion over whether certain trial exhibits had been
disclosed in advance of trial. The trial record simply does not support Reyess
assertion that her counsel was subjected to ridicule by the judge in this regard.
Finally, the trial judge specifically instructed the jury not to draw any assumptions
about the evidence from his questions or actions. Based on this record, Reyes and
Fuentes have not demonstrated that they were denied a fair trial conducted by a
neutral judge, and have not demonstrated plain error.
VI. Sentencing Issues
Each Appellant raises a sentencing challenge on appeal. Reyes argues that
the district court erred in denying her a minor role reduction, and Fuentes and
Flores argue that their respective within-guideline sentences were substantively
unreasonable.
We review a sentence for procedural or substantive reasonableness. See Gall
v. United States, 552 U.S. ___, ___, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007);
see also United States v. Hunt, 459 F.3d 1180, 1182 n.3 (11th Cir. 2006). In

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considering the substantive reasonableness of a sentence, we employ an abuse of

discretion standard [r]egardless of whether the sentence imposed is inside or
outside the Guidelines range. Gall, 128 S.Ct. at 597. The party challenging the
sentence bears the burden of establishing that the sentence is unreasonable in the
light of [the] record and the factors in section 3553(a). United States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005).
[A]fter giving both parties an opportunity to argue for whatever sentence
they deem appropriate, the district judge should then consider all of the 3553(a)
factors to determine whether they support the sentence requested by a party. Gall,
128 S.Ct. at 596. The factors in 3553(a) that the court must consider are:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need to reflect the seriousness
of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of
sentences available; (7) the Sentencing Guidelines range; (8) pertinent
policy statements of the Sentencing Commission; (9) the need to
avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims.
Talley, 431 F.3d at 786 (citing 18 U.S.C. 3553(a)).
The district court shall impose a sentence that is sufficient, but not greater
than necessary, to comply with the purposes of factors two through five listed
above. See 18 U.S.C. 3553(a). We have recognized that there is a range of
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reasonable sentences from which the district court may choose, and observed that
it would ordinarily expect a sentence within the guideline range to be reasonable,
though not presumptively so. Talley, 431 F.3d at 787-788. Finally, [t]he fact
that the appellate court might reasonably have concluded that a different sentence
was appropriate is insufficient to justify reversal of the district court. Gall, 128
S.Ct. at 597.
In sentencing, the district court must avoid unwarranted sentencing
disparities among defendants with similar records who are convicted of similar
conduct. U.S.S.G. 3553(a)(6). This consideration only arises where the
defendants are similarly situated, however. United States v. Spoerke, 568 F.3d
1236, 1252 (11th Cir. 2009).
We review a district courts decision not to grant a minor role reduction for
clear error. United States v. Rodriguez de Varon, 175 F.3d 930, 937 (11th Cir.
1999) (en banc). The proponent of a downward adjustment bears the burden to
prove a mitigating role in the offense by a preponderance of the evidence. Id. at
939. Merely being the least culpable member of a criminal conspiracy is not,
standing alone, a sufficient basis for granting a minor role reduction, because it is
possible for conspiracies to exist in which none are minor participants. Id. at 944.
Pursuant to U.S.S.G. 3B1.2, a defendant is entitled to a four-point decrease

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in her offense level if she was a minimal participant, and a two-point decrease if
she was a minor participant. Whether a defendant qualifies for a decrease is
heavily dependent upon the facts of the particular case. U.S.S.G. 3B1.2 cmt.
n.3(c). A minor participant is a person who is less culpable than most other
participants, but whose role could not be described as minimal. Id. at cmt. n.5.
Reyes
The district court did not err in finding that Reyes failed to meet her burden
regarding her request for a minor role reduction. Reyes contributed an important
service in furtherance of the drug conspiracy, because she was willing to drive
codefendant Martinez to and from the drug sale, when Martinez was unable or
unwilling to drive himself due to an expired license tag. The jury found that based
on the evidence including that Martinez opened the box holding the cocaine in
her presence, and handed her the lid she was a knowing participant rather than
merely present during the sale. The district court set forth the conduct it believed
precluded a finding of a minor role in her sentencing hearing, including Reyess
presence with Martinez during phone calls negotiating the drug sale, her
willingness to drive him to the deal, and the fact that the cocaine was in plain view
in her car. On this record, Reyes has failed to demonstrate clear error.
Fuentes

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The district court did not abuse its discretion in sentencing Fuentes within
the guideline range. The district court adopted the facts set forth in the PSI, which
Fuentes did not object to, reviewed the advisory guideline range, and considered
the remaining 3553(a) factors in arriving at its sentencing decision. Among the
considerations the district court focused on in reaching Fuentess sentence was the
seriousness of the crime, which involved almost 5 kilograms of cocaine, and
Fuentess role as a supplier of the drugs. There is no basis on which to conclude
that the district court made a clear error in judgment in weighing the 3553(a)
factors, and therefore, the courts decision is entitled to due deference. See Shaw,
560 F.3d at 1237-1238; see also Gall, 128 S.Ct. at 597. Because there is a range
of reasonable sentences from which the district court may choose, and the
3553(a) factors supported the courts determination of an appropriate sentence in
this case, the district court did not abuse its discretion and imposed a reasonable
sentence. See Talley, 431 F.3d at 788.
Flores
The district court likewise did not abuse its discretion in sentencing Flores
within the guideline range. The district court adopted the facts set forth in the PSI,
which Flores did not object to, reviewed the advisory guideline range, and
considered the remaining 3553(a) factors in arriving at its sentencing decision.

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Among the considerations the district court specifically identified in imposing a

sentence at the top end of the guideline was the fact that Floress apartment was
used to store the cocaine supplied to Martinez for the subject drug transaction, and
that almost 800 grams of cocaine and various drug paraphernalia were found in the
apartment after his arrest, further indicating that he himself was dealing in drugs.
Floress argument that there was insufficient explanation for the length of his
sentence is belied by the record.
The district court also did not fail to consider possible sentencing disparities
among codefendants, as alleged by Flores, because it specifically discussed relative
culpability at the sentencing hearing. Regardless, Floress sentence was equal to
that of Fuentes, the other supplier, and Reyess role in the conspiracy was limited
to driving Martinez from Floress apartment to the site of the transaction, making
her less culpable than Flores.
Though the district court expressly found that Floress mental health issues
did not affect his guilt or culpability, it nonetheless considered those issues as a
factor in sentencing, ordering psychiatric treatment as a part of his imprisonment
and supervised release. Floress argument to the contrary is not supported by the
record.
Upon review of the record and consideration of the parties briefs, we affirm

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the convictions and sentences as to each Appellant.

AFFIRMED.

Appellants request for oral argument is denied.

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