USA v. Alejandro Carmona

Filing

Opinion issued by court as to Appellant Alejandro Carmona. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 04/18/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10409
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-00196-TWT-LTW-9

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALEJANDRO CARMONA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 18, 2017)
Before HULL, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
A jury convicted Alejandro Carmona of conspiracy to possess with intent to
distribute methamphetamine, heroin, and cocaine in violation of 21 U.S.C. §§ 846,

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841(a)(1), (b)(1)(A)(i), (b)(1)(A)(ii), and (b)(1)(A)(viii). He was subsequently
sentenced to 240 months of incarceration, which was well below the applicable
guidelines range. On appeal, Carmona raises three challenges to his conviction and
sentence: (1) that the district court erred by instructing the jury on deliberate
ignorance; (2) that his Sixth Amendment rights were violated when the court relied
on drug quantities not reflected in the verdict to calculate his guideline range; and
(3) that the district court erred by failing to make preliminary findings concerning
the scope of his agreement or the reasonable foreseeability of his co-conspirators’
conduct. We address each issue in turn and, for the reasons discussed below, affirm
the conviction and sentence.
I.
Carmona first argues that the district court erred when, at the government’s
request, it instructed the jury on deliberate ignorance. He contends that giving the
instruction was in error because it permitted the government to argue inconsistent
theories, because the government had not presented evidence of deliberate
ignorance, and because the instruction created a significant risk that the jury would
substitute a lesser standard in place of the actual knowledge required for a
conviction. We review the decision to give a deliberate ignorance instruction de
novo. United States v. Stone, 9 F.3d 934, 937 (11th Cir. 1993). We will not reverse
a conviction on the basis of the jury charge, however, unless “the issues of law
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were presented inaccurately . . . or the charge improperly guided the jury in such a
substantial way as to violate due process.” United States v. Turner, 871 F.2d 1574,
1578 (11th Cir. 1989).
A deliberate ignorance instruction is “appropriate when the facts support the
inference that the defendant was aware of a high probability of the existence of the
fact in question and purposely contrived to avoid learning all of the facts in order
to have a defense in the event of a subsequent prosecution.” United States v.
Garcia-Bercovich, 582 F.3d 1234, 1237 (11th Cir. 2009) (quoting United States v.
Perez-Tosta, 36 F.3d 1552, 1564 (11th Cir. 1994)). This Court has held that “where
‘the evidence supports both actual knowledge and deliberate ignorance, the
instruction is properly given.’ ” United States v. Arias, 984 F.2d 1139, 1143 (11th
Cir. 1993) (quoting United States v. Ochoa–Fabian, 935 F.2d 1139, 1142 (10th Cir.
1991)). District courts should not, however, instruct the jury on deliberate
ignorance when the evidence points only to actual knowledge. United States v.
Steed, 548 F.3d 961, 977 (11th Cir. 2008).
Nevertheless, an erroneously given deliberate ignorance instruction is
harmless if the jury was properly instructed that finding such deliberate ignorance
required proof beyond a reasonable doubt, if the jury was also instructed on the
theory of actual knowledge, and if there was sufficient evidence of actual
knowledge to support that theory. See Stone, 9 F.3d at 937–41. Such an erroneous
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instruction is harmless because, if it is unsupported by the evidence, we can
assume that jurors rejected that theory and convicted on the alternative ground—
actual knowledge—for which there was an appropriate charge and sufficient
evidence. Id. As such, we need not determine whether the instruction was
appropriately given if we can readily determine that the verdict is supported by
sufficient evidence of actual knowledge. Id.
As an initial matter, Carmona’s argument that the instruction was improperly
given because actual knowledge and deliberate ignorance are “contradictory” or
“logically inconsistent” theories is without merit. This Court has routinely
recognized that the instruction is proper when the evidence supports both charges.
See Arias, 984 F.2d at 1143. Secondly, and more importantly, the jury here was
instructed that to find Carmona guilty based on deliberate ignorance they must do
so beyond a reasonable doubt. Thus, if—as Carmona urges this Court—the
government only presented evidence of actual knowledge to the jury, we can
presume that the jury followed the court’s instruction and declined to convict based
on deliberate ignorance. Stone, 9 F.3d at 938 (“Few tenets are more fundamental to
our jury trial system than the presumption that juries obey the court’s
instructions.”). Therefore, even assuming that the instruction was in error, such
error was harmless so long as the government presented sufficient evidence of
actual knowledge. See id. at 937–40.
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We have no trouble concluding that the evidence of Carmona’s actual
knowledge of the drug trafficking conspiracy was more than sufficient to support
the jury’s verdict. As just a brief overview, testimony showed that Carmona:
controlled and directed the travel of buses used to transport the drugs; founded the
companies that owned those buses; maintained—at his home—the business records
for those companies; received $4000 per month in expenses and $500 per week in
salary to run the companies; instructed members of the conspiracy not to touch the
buses’ batteries shortly before heroin was seized from the batteries of one of those
buses; had repeated telephone conversations with members of the conspiracy as
they rode from Mexico to Atlanta on buses carrying substantial quantities of drugs
and no paying customers; repeatedly met with leaders of the drug trafficking
conspiracy in Atlanta and received payments from the organization before his
buses began traveling to Atlanta; and carried large amounts of cash out of the bus
warehouse in suitcases. Accordingly, even if we assume that the government
presented no evidence of deliberate ignorance, there were still adequate grounds on
which the jury, having been properly instructed, could have convicted based on
actual knowledge. Thus, any error in providing the instruction was harmless and
this assignment of error is due to be rejected.

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II.
Carmona next argues that his Sixth Amendment rights were violated when
the district court considered drug quantities not reflected in the jury’s special
verdict form to calculate his guideline range. 1 He maintains that the court erred by
calculating his guideline range on the basis of drugs attributed to his coconspirators, instead of sentencing him solely on the basis of drugs for which the
jury found him culpable. Carmona contends that any fact that exposes a defendant
to a longer sentence must be found by a jury and not a judge.
These arguments were not raised in the district court 2 and, as such, are
subject only to plain error review on appeal. United States v. Duncan, 400 F.3d
1297, 1301 (11th Cir. 2005) (applying plain error review to a Sixth Amendment
challenge and collecting cases). We have discretion to correct an error under the
plain error standard where there was (1) error, (2) that was plain, (3) that affected
substantial rights, and (4) that seriously affected the fairness, integrity, or public
reputation of judicial proceedings. Id. Moreover, this Court may disregard the
holding of a prior opinion only where that “holding is overruled by the Court
1

Carmona titles his argument “the district court’s sentence based on drug amounts rejected
by the jury is substantively unreasonable and violates the Sixth Amendment and Due Process
Clause of the Fifth Amendment.” He does not develop any argument that the court violated his
rights under the Fifth Amendment, however, and the topic will not be addressed. See United
States v. Carter, 776 F.3d 1309, 1327 (11th Cir. 2015).
2

Carmona asked the court not to hold him responsible for drug quantities beyond those
indicated in the special verdict, but he did not assert, as he does now, that to do so would run
afoul of the Sixth Amendment.
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sitting en banc or by the Supreme Court.” United States v. Kaley, 579 F.3d 1246,
1255 (11th Cir. 2009).
As this Court’s “precedent uniformly states, ‘[r]elevant conduct of which a
defendant was acquitted nonetheless may be taken into account in sentencing for
the offense of conviction, as long as the government proves the acquitted conduct
relied upon by a preponderance of the evidence’ ” and the sentence does not
exceed that authorized by the jury verdict. Duncan, 400 F.3d at 1304 (quoting
United States v. Barakat, 130 F.3d 1448, 1452 (11th Cir. 1997) (alteration in
original)); see also United States v. Watts, 519 U.S. 148, 152–53, 117 S. Ct. 633,
635–36 (1997); United States v. Faust, 456 F.3d 1342, 1348 (11th Cir. 2006). Even
if we were inclined to overrule this extensive precedent, we are not at liberty to do
so here. Accordingly, the assignment of error is due to be rejected if the drug
quantities on which the district court relied during sentencing were proven by a
preponderance of the evidence and if the sentence does not exceed that authorized
by the convicted conduct.
First, we discussed above, supra Issue I, some of the many grounds on which
the district court could have readily connected Carmona to the quantities of drugs
seized from his co-conspirators. Accordingly, we have no difficulty concluding
that his participation in the activities leading to these seizures was proven by a
preponderance of the evidence and that the court did not violate his Sixth
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Amendment rights by calculating the guideline range using drug quantities from
those seizures. Secondly, the maximum sentence authorized by the jury for
Carmona’s conviction was life imprisonment. 21 U.S.C. § 841(b). Carmona was
sentenced to 240 months of imprisonment and five years of supervised release,
which clearly is within the maximum sentence authorized by the jury. Accordingly,
because Carmona’s participation in the drug trafficking organization at the time of
the seizures was proven by a preponderance of the evidence and because his
sentence did not exceed the maximum sentence authorized by the jury this
assignment of error is due to be rejected.
III.
Finally, Carmona argues that the court erred by failing to make preliminary
findings concerning the scope of his agreement or the reasonable foreseeability of
his co-conspirators’ conduct. He contends that, during sentencing, the district court
did not point to any evidence connecting him with his co-conspirators’ plans to
possess with intent to distribute the drugs for which he was held accountable.
Because Carmona did not raise this argument before the district court, plain error
review applies. See Duncan, 400 F.3d at 1301.
A member of a drug conspiracy is liable not only for his own acts, but also
for the acts of others committed in furtherance of the conspiracy that are
reasonably foreseeable in connection with the activity that the defendant agreed to
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undertake. United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993). In drug
conspiracy cases, the court must make individualized findings as to each
defendant’s scope of involvement and then determine the drug quantities
reasonably foreseeable to that defendant given his level of participation. Id. If the
court fails to make individualized findings, “the sentence may nevertheless be
upheld if the record supports the amount of drugs attributed to the defendant.” Id.
It is clear to us that the district court did not commit plain error in
determining the quantities of drugs to attribute to Carmona at sentencing. The PSI
held Carmona responsible for three specific seizures: (1) the January 4, 2014
seizure of 50.99 kilograms of methamphetamine; (2) the January 24, 2014 seizure
of 19.34 kilograms of heroin; and (3) the May 29, 2014 seizure of 22.86 kilograms
of cocaine. Carmona objects to the consideration of the drug quantities seized on
January 4 and January 24, 2014.3
During sentencing, the court credited testimony about Carmona’s connection
to and direction of the buses used to transport drugs and money, noting that it was
corroborated by evidence at trial. The court found that the drug quantity calculation
in the PSI was also supported by the trial testimony and actually grossly

3

On this issue, Carmona’s primary argument is that “none of the Government’s witnesses
testified that [he] had any knowledge of the quantities of drugs for which he was not convicted.”
The drug quantity seized on May 29 was supported by the jury’s special verdict form. As such, it
is presumed that he does not object to the court’s consideration of the 22.86 kilograms of cocaine
seized on that date.
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understated the drug quantities that Carmona was responsible for bringing into the
United States. The court noted the number of trips the buses completed, with no
passengers and no apparent purpose except to deliver narcotics into the United
States and to deliver drug proceeds back to Mexico. Based upon testimony and the
corroborating evidence, the court found “way beyond a preponderance of the
evidence” that Carmona was responsible for the drug quantities as set forth in the
PSI. The district court’s factual findings were supported by the evidence presented
at trial and undisputed facts within the PSI.
Even if the district court had not made these findings at sentencing, the
record amply supports the connection between Carmona and all three seizures.
Although surveillance did not directly link Carmona to the January 4 or January 24
seizures, the evidence discussed above, supra Issue I, clearly indicates that the
quantities attributed to him were reasonably foreseeable given his role in the
conspiracy at this time. Accordingly, the district court did not commit error, much
less plain error, in determining the quantity of drugs attributable to Carmona. His
final challenge is, therefore, due to be rejected.
Upon review of the record and consideration of the parties’ briefs, and
having rejected each of the challenges properly presented on appeal, the judgment
of the district court is
AFFIRMED.
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